The New World of Publishing: Respect

I did a New World of Publishing post a few posts back talking about how I could find the balance between short fiction indie publishing and short fiction traditional publishing. And then I did another post about how I could NOT find the balance between traditional novel publishing and indie publishing. And from some of the comments that came in, I think I didn’t talk clearly enough about the main point I was trying to make.

So let me try once again from a slightly different angle, and, I hope, a little more directly on my point.

First off, I need to clear up one thing. I still have two books under contract with traditional New York publishers and I plan on writing both to the best of my ability. So I haven’t jumped completely to indie publishing just yet. And unless a few things change, as I said in the last post, I find it hard to imagine ever doing another book for traditional publishers except for rare exceptions.

Unless things change.

That’s the key.

Unless things change. And the changes I am asking for are in the contracts and are fantastically simple.

Do I Want More Money?

Well, duh. Who doesn’t?  But I am not asking for more money from traditional publishers. I know how the math works, I know how they calculate a profit and loss statement, I know what a range for an advance means in sales. If an offer is fair for the product on the money side, I would not turn down an offer. And I have written books over the last ten years from $5,000 advance and on up.

I have always felt that my advances were fair for what I have been writing. In fact, for about ten years, I felt as if I were the most overpaid writer working, because I did rescue jobs at times in which I was offered far more of an advance than the book could handle in sales. I took it. Because the publisher needed me to help them with a larger problem.

But if I wrote a nifty little midlist romance right now, I’d be happy at the advance for a midlist romance right now. And those advances range from $4,000 to $20,000 depending on a ton of factors. And more than likely I could make more money than that indie publishing the same book over a period of years. That’s a factor in a decision, but honestly not my main factor. When you can write a novel as fast as I can, (meaning I am willing to spend the hours at the computer in a short overall span of time) then I can often make choices that have nothing to do with money.

So in the decision of more money, if the offer is fair from a traditional publisher, it’s usually fine with me.

So Bluntly, Why Did I Say There Was No Balance?

Simply put, I want traditional publishers to respect me as a writer and supplier of their product. Nothing more.

And nothing less.

One more time. Here are the respect contract terms I would demand and are far more important to me than money in this new world.

So to TRADITIONAL PUBLISHERS, here are the respectful terms I are asking for.

And I hope many other writers ask for as well until these terms start to happen.

(Notice, no extra money. Just asking for respect.)

One… 

The contract has a firm termination date.

If you (traditional publisher) are offering me a small midlist contract of say $5,000.00, the contract terminates completely in five years from the day of publication or six years from the day of signing on the contract. Period. If the publisher feels they can continue to make money on the book, they must come and negotiate a new contract with me.

If the contract advance amount is larger, I will go up to ten years max. Again, the term in negotiable, up to a point. No more “forever” contracts in publishing. They are disrespectful to the owner of the copyright. (Ummm, that’s me.)

Two…

Not one breath in the contract of trying to control my other work.

And if you (traditional publisher) try, then we add into the contract how you must give me rights to walk into your business and tell you what you can and cannot buy from other authors. It’s only fair. And respectful.

Keep your hands and control out of my business except for one book under the one contract. Nothing more, nothing less. Those kind of restrictions do not belong in a single book contract. No amount of money gives you the right to control my business beyond the contract. And no amount of money gives you (traditional publisher) the right to tell me what I can and cannot write.

Three…

You (traditional publisher) must allow contract terms that allow me to cancel the contract at any moment if you (traditional publisher) do not perform up to the contract terms.

It’s a form of consideration (if you want the legal term.) You (traditional publisher) demand that I turn in a book at a certain time and there are repercussions in the contract if I do not. I should be able to have cover approval and demand that you publish my book within a certain time frame as well. The repercussions of failure on both sides need to be the same: termination and complete reversion of the right and/or return of money.

That’s it.

Three simple things.

Of course, there are many other clauses that do not belong in a publishing contract, not the least of which is the agency clause. But I don’t much care about that because I haven’t had an agent in seven years now. (If you are still silly enough to give a perfect stranger all your money and the paperwork with your money and allow that agency clause to be in your contract with a publisher, you need some major business classes and should watch a bunch of fairly recent news programs about a guy called Bernie.)

For now, I would be happy with the three major changes I outlined above. They are very simple, they don’t cost the publisher extra money. Nothing. Not one dime.

And all short fiction publishers have no trouble with any of those three. They are standard in short fiction.

Yet traditional NOVEL publishers across the board are turning down those terms and demanding even more control over a writer’s work.

And sadly, some writers are signing. And their agents are too afraid to stand up for their clients to even ask for any of this. (Shame on you, agents. When did you lose your courage to fight for your clients?)

That’s how really, really screwed up traditional publishing on the novel side has become.

And that’s why I say there is no longer a balance for any smart writer between indie novel publishing and traditional novel publishing.

Indie publishing, where we writers (copyright holders) are in control of our own work, wins every time over giving away our copyrights, our control, and our art.

I am not asking for more money from traditional publishers.

I am simply asking for respect.

But traditional publishers think so little of writers, they are not willing to even give that in return.

And so many writers have so little respect in themselves, they are willing to let traditional publishers take all this from them.

Not me. After I finish these two novels that are under a very old contract, unless those three simple terms are in a contract, I’m not signing.

I respect myself just a little too much to do that.

 

 

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35 Responses to The New World of Publishing: Respect

  1. TK Kenyon says:

    Great post, Dean.

    Thanks for this. If I ever go back to trad publishing, I will reference this post, and then get Passive Voice Guy to make sure they’re in there.

    Thanks again,
    TK Kenyon

  2. J G Sauls says:

    As a lawyer, author, and publisher I commend you and your wife for trying to yank the business of writing from some bizarre, otherworldly place to reality. The publishing industry so often tries to cloak its actions, and its secrecy almost always appears to be a tool for concealing the unfairness of its actions toward writers. Few would buy a lottery ticket if the drawings for the winning numbers were not public. Writers daily heave their work, worth far more than the dollar or two the lottery ticket costs, into a opaque system that usually doesn’t even specify the date of the drawing. When history notes the champions of emancipation for writers, yours should be right up there with Jeff Bezos and Amazon (and your motives are likely much more pure). Thanks for your efforts on all our behalf.

  3. It all seems so simple, doesn’t it? And yet establishment publishing seems to believe that it depends for its livelihood on writers not asking for that basic amount of respect. I’d ask “How did things go so far wrong,” but Kris and you pretty much lay out the history of the decline of traditional publishing in a few of your blog posts.

    I hope writers are listening, Dean. Establishment publishing has pretty much nothing to offer the midlist novelist.

  4. This is what I don’t get. Many smaller publishers and pretty much all short fiction publishers *get* the respect and leave the author alone. Basic things like end termination dates, rules of payment, first refusal rights, etc etc are just not that big of a deal if the freaking publishers didn’t make them such crippling issues!

    Look, do a good job and you won’t need to threaten me to send my 2nd book of a series to you. Focus on the work I have with you and you won’t need to fret that I’m writing and selling other stories elsewhere because they all cross-sell each other.

    In fact, big publishing could do with a nice big ol’ case of CHILL PILL. They need to stop acting like the control-freak boyfriend and start acting like the pot-smoking hippy rebound boyfriend.

    …not that I have experience on that last one or anything…

  5. J. A. Self says:

    Thanks for the post, Dean. I thought the talk of Stockholm Syndrome among writers was exaggerated at first, but the more I think about what solid, published writers suffer and yet defend, I believe it.

  6. Cyn Bagley says:

    Hi Dean –
    Respect – It is really the song we should all be singing.

    Cyn

  7. SL Clark says:

    Shame on you for misleading everyone on copyright. NY publishers have learned from the best (Hollywood), signing authors for their stories – which they are then free to use any way they wish. And here you are, kicking sand in their face? Shame. Shame.

    Had George Lucas sold his story into this NY paradigm, his “empire” would have been a shoddy suburban house in San Rafael. He was smart enough to NOT do this. Lucasfilms is now in the *billion* dollar Letterman Digital Arts Center he created which includes Industrial Light & Magic and LucasArts. Writers asking for NY respect means anarchy! Code Red, Code Red. Duct tape, check. Plastic sheeting, check.

  8. Vera Soroka says:

    I certainly hear a lot of scary stories about these contracts. But I still feel a bit discouraged when I went to Amazon.ca and all I could see was the traditional published books. Where are the self published ones? How do you find them and how do you get yourself even noticed?
    The romance section and teen section was all traditional pub books.

    • dwsmith says:

      Really, Vera. My question to you is how can you tell??? As a reader, without a map of the thousands of imprints in traditional publishing and the thousands and thousands of indie publishers who have publishing names that look like a regular publisher name, how can you tell what is indie published and what isn’t??????????? Almost no authors except the most basic starting off put their real name on their business name, and that’s a way to really halt sales. WMG Publishing looks like a major publisher imprint, doesn’t it? So how can you tell what is indie published and traditional published. There are no lines. And no way to tell, yet you sounded so confident you could tell.

  9. JR Tomlin says:

    Great post, Dean, but as someone mentioned above, I think you left an important point out, that of royalty rate. Advances are one thing but the royalty rate that traditional publishers are offering on eBook sales is unconscionable. To me, a decent royalty rate is non-negotiable.

  10. JR Tomlin says:

    In response to Vera’s statement that you can’t find indie books, I don’t find them very hard to find. On page 1 of the Amazon Best seller list, I see “The Marriage Bargain” by Jennifer Probst at #13 on Amazon and “On the Island” by Tracey Garvis-Graves at #7 on Amazon. And that is on Amazon not in Romances. In Romances, Jamie’ McGuire’s “Beautiful Disasters” which is #11 in that genre is self-published. So is Sylvia Day’s “Bared to You” at #12 in Romance and “The Trunk Key” by Carolyn Nash at #13. Etc, etc, etc. About 1/4 of everything in the Top 100 Amazon Best Seller list is identifiably self-published and as you pointed out, Dean, there are others that are not as easily identified.

    • dwsmith says:

      I don’t agree with you on the royalty aspects being important, JR. I wouldn’t care if they gave me 50% of gross again, (which is where we were when writers and agents gave away the farm) if they try to hold my book forever and try to control my other work. 50% of gross is worth nothing if they let your book go out of print and hold it forever. And 50% is a really bad deal for you if you let a publisher control your writing and your schedule and stop your career, which these contracts do.

      Sorry, the money is a minor point far behind the three things I laid out in this post. And that’s exactly where my first post got sidetracked because I focused too much on the money issues. Money is minor when compared to these three things. Period. Get the respect first, keep the control first, the money will follow.

  11. Yep, that’s exactly what has made me so very uncomfortable with traditional publishing for so long. I just do NOT like the idea of signing anything that doesn’t have a firm and enforceable termination date.

    I think a part of the psychological effect here, though, is not just Stockholm syndrome. It’s a pecking order thing.

    For people who don’t have a strong sense of themselves, disrespect is a sign that someone is more important than they are — and therefore someone to please. And the disrespectful authority figure claims to _really_ disrespect people who walk away, and that means they must be even less important!

    There is no actual logic involved. And I see it that behavior in middle management, and college adminstrators all the tiem.

  12. Ramon Terrell says:

    This reminds me of the breakout writers contest that amazon has every year. I think the Traditional publisher is Penguin. (not entirely sure) If you win, you get a contract with the publisher. I remember reading the terms and it said that you would sign the contract with no revisions whatsoever. What you see is what you get. I remember reading that and thinking, “who the hell do they think they are?” I thought that was amazing that they would tell you what you get and you pretty much have to keep you mouth shut and take it.

    Quite off-putting.

  13. Vera Soroka says:

    Sorry for the grumpy remark but I was mostly in the YA section where I am familiar with a lot of authors who are self published and tradtional published and I didn’t come across those self published authors and some of them did well. I know some of them have made the best seller list.
    As for romance I was checking out the erotic and I only know a few who are self published and for the other ones I read the excerpts in them and that is where I found all of them to be tradtionally published. I guess it was just what I happend to click on to.
    So I guess I have a lot to learn.

  14. SL Clark says:

    @Ramon, I’d *love* to see a finalist walk away just before signing the NDA (required before seeing the contract) and then go tell Big Media why they are no longer taking part. I’d buy that book on principle alone. ;-)

  15. Ramon Terrell says:

    @SL Clark, I would be right behind you to buy it. lol.

  16. Carradee says:

    @Ramon, I remember seeing that, too. I had some friends who wondered why I didn’t enter. (And some others entered, themselves.) I pointed out the contract detail. They blinked and said, “Oh. I didn’t notice that.”

    …*facepalm*

    Logic. When I have kids, they’re taking logic in school, even if I have to teach it, myself.

  17. Peter Turner says:

    Great post and even better comments, Dean. Thank you. I do have a few questions of my own on your three points, three in fact.

    1. Do you really feel that 10 years is the maximum a publisher should have for exploiting rights regardless of the size of the advance? For best-selling authors, this would likely result in smaller advances.

    2. Almost all contracts I’ve seen only try to “control” an authors work under the “non-compete clause”–that is, the author is prohibited from publishing a work with publisher #2 so similar that it would diminish the value of the book under contract with the first publisher.

    3. I totally agree that breach of contract should be actionable by either party, but shouldn’t there be some mechanism for arbitration?

    Peter

  18. Peter Turner says:

    P.S. On point 2, the option clause to give the publisher the chance to offer on an author’s next work, is almost always removed at the agent or author’s request. More often, if the publisher is interested, they negotiate for a multiple book deal.

    Peter

    • dwsmith says:

      Peter, yes, on question #1, if the book is selling well and working for the publisher and the author, they can work out a new contract at the end of the first contract term. In fact, I think ten years is far, far too long, but it is my outside personal limit if the advance was large. Again, negotiating on a case-by-case basis.

      On question #2, in the contracts lately the publisher has put in forms of non-compete into warranty clauses in the boilerplate as well. And what right does a publisher have to control the author’s other work? They are buying one book or a series of books. And spreading those books out over years and years. The problem is that some of us just write faster than a publisher can publish, or seem to publish. And the assumption, is, of course, from a New York “god” standard that if another book similar came out IT WOULD HURT their book. Yet it has been proven over and over and over that more books find more readers. The non-compete clauses have become too stupid for words. And don’t belong in the warranty clauses either. It is a form of control when no control is needed. Now if we were talking a design of a car or a type of candy bar, maybe, but these are books. No book is the same. Forcing a writer to non-compete with say, a romance book, where all plots are the same anyway, is just damn silly.

      And yeah, yeah, you have a character who readers really love and so you sell a trilogy on that character to New York. Why shouldn’t you be allowed to HELP New York by writing shorter work with that character? And help the sales of the bigger books through New York with smaller books done indie? It would all help. That’s what New York doesn’t yet understand and thus feel they must control all aspects of the author’s life. Nope.

      As for question #3, sure why not arbitration. But that assumes two equal sides on the contract. I’m just trying to get writers to ask for a contract that is only 3/4 balanced to the publisher. Right now it is 99% to the publisher. My three points on this blog are to get writers to start trying to slowly pull that back from giving publisher’s total control for no reason and little money. So sure, arbitration on breaches would be great. Go ahead, try to get a publisher to include that. Let me know how that goes. (grin)

  19. Gwen Hayes says:

    I agree with the Three Things. I’d like to add clauses regarding promotion and distribution, though.

    These are the areas that NY can SHINE. Theses are the things they should be focusing on to woo authors from indie publishing. If they show me how they are going to spend time and money promoting my book and how many they intend to print, I’m instantly more interested. If they moved all their NYC offices to Ohio and invested the money they saved on rent into advertising books, they might save themselves.

  20. Pete Miller says:

    Another good post, Dean.

    I don’t see where to sent this to you, so I’ll post it here. The LA Times had an article about the results of a survey of California registered voters about ereaders. The results are interesting and important.

    LA Times poll conducted by USC Dornsife College of Letters, Arts, and Sciences and the Los Angeles Times on March 19-20. The poll surveyed 1500 CA registered voters (so not a random sample of the population) and this article discussed the results of three questions. (percentages may not add to 100% because of rounding). Margin of error 2.9% for question 1 and 2. Margin of error 6% for question 3.

    Question One:
    How many books have you read in your free time in the last month?

    None – 22%
    One – 22%
    Two – 15%
    Three – 14%
    Four – 8%
    More than 4 – 19%
    Don’t know – 1%

    Question Two:
    Do you own an e-reader specifically for books such as nook or kindle?

    No – 78%
    Yes – 21%
    Don’t know – 1%

    Question Three (Asked of those who own an e-reader):
    Which of the following best describes how you read books?

    Always on e-reader – 10%
    Mostly e-reader, sometimes in print – 32%
    Mostly print, sometimes e-reader – 40%
    Always in print – 14%
    Other/Don’t know – 5%

    I find it fascinating that more of the people that own an e-reader read no ebooks, than read no print books.

    I also find that way more people read way more than me. I’m lucky to get though two a month.

    Thanks for all your work on keeping writers aware of what is going on.

    • dwsmith says:

      Pete Miller, thanks for posting that survey. Great stuff and nothing looks out of line from other surveys I have seen as well. Even people with e-readers still read print, but the e-reader is just an added way to read when the time is right. And the 78% that don’t even own an e-reader is about right as far as national statistics go. Which is again why I harp all the time about indie writers learning how to do POD books. Sure, we can make some nice money off the 21% but why not have our work have a chance at 100% of the readers.

      Note, folks, before you go yipping at me, that I understand that 78% does not include tablets of all sorts. And yes, I do understand that 21% will increase over the next few years. But even if it does, look at question #3. Percentage of people having e-readers or tablets does not mean they will not read print. In fact, over half read more print than on their e-reader. And all but 10% read some print. The idea that once a person has an e-reader they will not read print is a silly idea that somehow the black-and-white thinkers have spread. And thankfully, now, survey after survey is showing that even with e-readers, people still read paper. Often more than they use their reader.

      Thanks Pete.

  21. Hi Peter,

    In genre fiction, the option clause is, in my experience, non-negotiable. I don’t know of any authors who have been able to get that one dropped. Re-worded, yes, but not taken out altogether.

    Also, current non-compete clauses are veering toward language that looks like this: “Author will not publish or authorize publication of another work that would directly compete with or impair sales of the Work by Publisher, without obtaining Publisher’s prior written consent.”

    That’s pretty broad, over-reaching, and WAY in the publisher’s favor.

    • dwsmith says:

      What Anthea said. After your post this morning I contacted a few people to see if they had ever heard of the option clause being completely deleted in a recent contract and all of them said what Anthea said, “Not a chance.” It can be modified but never deleted in this climate. And non-compete clauses are expanding in contracts lately. And it’s hell trying to get them out of boilerplate.

  22. Thomas E says:

    Are writers stupid? Why would you sign a contract that prevents you selling more than one book a year for an small advance you couldn’t live on?

    • dwsmith says:

      Thomas, when you find the answer to that question, please tell the rest of us who don’t flat understand. I know I have heard mumbled rationalizations like “I really want the stamp-of-approval” a traditional publisher gives.” Or some mumbling along the lines of a post about the difference between an author and a writer. The writers who do that don’t want to be writers, they want to be authors. But when you get anything but mumbling on that question, please let the rest of us know because honestly, I don’t understand either.

  23. Peter Turner says:

    Dean, on question #1, I don’t think you replied to my point: if you limit the term of publishers rights you are most likely to lower advances for the most successful authors. For authors who are paid relatively modest advances and whose books do not tend to back-list, then the point is moot of course.

    On point #2, sorry, but as a publisher I negotiated and signed hundreds of author contracts. The option clause is always the first to go, at least when an agent is involved. If you’ve had other experiences, it may be that there wasn’t enough leverage to justify the publisher yielding on this point. In any case, the publisher doesn’t get to control future books only the option to consider offering on them, which the author can refuse.

    On point #3, the whole point of arbitration is for it to be independent of either party’s specific interests and to diminish the likelihood of court action.

    I’ve have to confess that I find the discourse on these sorts of topics need to be informed with facts and experience, and less with emotion: more light than heat.

    If one, alternatively, prefers to move away from traditional publishers and go the self-pub route, that’s great. But let’s have that discussion in the light not with an attitude of “don’t confuse me with the facts.”

    I doubt that last comment will engender much sympathy with my “legacy” publisher views, but healthy dialogue requires a commitment to facts, history, etc.

    Yours, truly,

    Peter

    • dwsmith says:

      Peter, sorry I missed that. I do believe that some term limits are already in place for the top authors, meaning bestsellers above my rank of bestseller. I have not actually seen a contract of that level (over $250,000 advance), but I do know from talking with friends at that level that their advances are coming down and have been now for a few years. In fact, one friend actually used to get seven figure advances is now happy with a quarter million. If I get a chance, I’ll ask about terms and how they have been trending at that level. But my gut sense is that you may be right. It would be part of the negotiation I’m sure.

      Peter, as a publisher, I also never asked (or will allow WMG Publishing to ask when it expands out) for option clauses. Period. And I also signed over one thousand contracts with authors (although most were short fiction contracts, not all but most.)

      I agree that arbitration would be a wonderful thing to have added into contracts. First there needs to be an author side of a contract. And in most contracts the author side has pretty much vanished except for the amount of money. Otherwise, the author side is restrictions put on by the publisher with no give back on the other side. So arbitration would be a wonderful thing in a balanced contract.

      And I agree also about the lack of heat needed in these discussions. I just get sort of angry, honestly, when so many authors just worry about getting a little extra money and never think about how valuable their copyrights are and getting a little balance in respect.

      So I also look for facts. Not sure what you think I said that I did not base on facts???? As an instructor of hundreds of younger professional writers, I have seen over the last few years upwards of a hundred different book contracts, not counting mine and Kris’s contracts. Trust me, there has been none of my three points I made in this article in any of them, including mine. And that’s what I am talking about from facts. Nothing more.

  24. According to an article on the WSJ web site, Stephen King typically leases rights to his books for 15 years. It also says he gets about 50% of the profits from those books.

    http://online.wsj.com/article/SB10001424052970204644504576651540980143566.html

    • dwsmith says:

      Thanks, Edward, for the link. I had missed that one. And the quote you are talking about is:

      “In another unusual move, Mr. King leases his titles to publishers, typically for a period of 15 years, rather than selling them. Most authors sell copyrights, which typically last until 70 years after the author’s death. Mr. King credits his former agent, Kirby McCauley, for driving that bargain. “He said, ‘There’s no need to sell the rights for these books when you can rent them,’ ” said Mr. King. “It gives you the option to move on if you don’t like the way that particular publisher is selling things, and that motivates them to try to move the books.””

      Yup, that’s respect. And Peter was right, King admits to getting smaller advances now than he used to get, but these kinds of deals, can make a ton more in the long run. And the contracts are two-sided. Now the question is how do midlist writers like me get just the basic respect of them not demanding they own my copyright forever? Having an option now helps, just as King had an option to move. But I sure don’t see this changing much.

  25. Peter Turner says:

    Hello Dean:

    Thank you for your reply.

    All I can add is that there are a lot of factors that are pushing advances down. I guess I also wonder–and would be interested to learn–if you know of authors with major house where the term is not term of copyright, as long as the book is “in print’ (though that’s variously define). Just to be perfectly clear, my comment about “facts” and light and heat” has to do with the sort of outrage I hear from authors about clauses in the contract that are often deleted quite willingly, like the option clause, as well as a general distain for NYC big six publishers as if there isn’t an actually much larger, broader, and more author-friendly world of publishers beyond that.

    In general, I feel very strongly that the traditional publisher-author contract should be thrown out the window. As a former and future publisher, I have often felt uncomfortable sending a prospective author a contract that is largely incomprehensible with royalty statements to come that are equally obscure at best. Asking a “partner,” which your authors certainly are or should be, to sign a contract of this sort is very disrespectful and harmful to what is *fundamentally* a mutually beneficial relationship.

    In terms of coming up with “the contract of the future,” I think a good place to start is simplifying the whole nightmare of royalty rates. I would argue that the contract should involve a flat royalty rate, across all formats, discounts, etc.–a simple % per book sold in any form.

    Another area has to do with world English rights across format. Yielding on this would actually encourage US publishers to invest in ways and means of driving sales of their authors’ books around the world. Translation rights, when granted, should be based on language, not territory. And, if a U.S. publisher wants Spanish-language rights, for example, then they should pay for them and find ways of exploiting them as fully as possible for their benefit and benefit of their authors.

    I’d love to see a lively discussion (here and elsewhere) of the future of the author-publisher contract.

    Peter

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