Sunday, 11 December 2016

Writing Ramble: Why It's Okay to Question Contracts

You know, I could give you a dozen reasons why it's okay, as a writer, to question contract clauses you're unsure of.  And then I could give you a dozen more why it's not only okay but something you're being remiss if you're not doing.  While 'contract lawyer' may not be there in your job description, it should absolutely be in your personal list of auxiliary jobs that you've picked up at least a passing knowledge of.  Because if you're even a little bit serious about being a writer - or, for that matter, a professional creative of any sort - then you're going to find yourself signing contracts.  And if you don't read them, and in reading understand them, then there's a fair old chance that somewhere along the line you're going to get screwed.  Because that's what bad contracts are designed to do: to rip off one party in favour of another.

But I don't want to talk about bad contracts, at least not the kind of bad contracts that are written by the kind of publishers that deliberately concoct bad contacts, because in my experience they're by far the minority and that's a whole different discussion.  What are far more common, and sadly perhaps a little more insidious, are largely decent contracts written by genuinely well meaning publishers, which nevertheless contain some wholly crappy clauses because writers don't ask enough questions.  And by bad I mean here needlessly prejudicial - usually because they ask the writer to make unrealistic guarantees for unlikely worst case scenarios or because they tie up rights in ways that make reselling them in the future all but impossible.

Bad contract clauses, I've come to think, are basically viral.  They get repeated either because a publisher has cribbed them from another publisher or because they've splashed out on lawyers, and a part of the job of lawyers is to protect their clients while stripping as much as possible from those they're dealing with - which they generally do by regurgitating old contracts that did those things.  In my experience, it tends to be the case that the publishers in question generally don't even realise they're asking anything unreasonable because no one's ever stopped to point that out.

I mention all this because earlier in the year I found myself having to ask for changes on contracts from two different publishers.  And the reason I thought the subject worth posting about was that they both in wholly reasonable fashion, and really couldn't have been much nicer.  In the first instance, the contract had lawyerly fingerprints all over it and all in all was a bit of a monster; when the publisher realised just what they were asking they came back with something four pages shorter and about a thousand times more reasonable.  The second instance came down to worries over one specific clause, and we got round that with a bit of tweaking.  But the crucial point here is that both experiences were entirely pleasant.  Most publishers are decent folks who have no desire to rip off or even inconvenience you.  Raise polite concerns and you'll get polite responses in return.  And if that's not the answer you get then you may have stumbled across one of those rare publishers who genuinely are trying to exploit you, in which case, far better to learn before there's ink on paper.

As a closing note, and for anyone who doesn't feel they have the knowledge or confidence to go negotiating contract terms, here's a link to a model contract from the SFWA, who are fantastic for this sort of thing.  There are tons of similar resources out there, both from the SFWA and elsewhere, and if you have worries then it's not hard to confirm whether they're justified and to find something you can point a publisher to that explains your position.  It might take a little time and effort, but that's sure to be worthwhile for a contract you won't regret in a few years' time.

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