The genesis for today’s column was a discussion on Facebook a couple weeks ago, initiated by Lisa Gus. It involved a para-fantasy fiction author, L. J. Smith, who’d been “fired” by her publisher, HarperCollins.
To add insult to injury, the publisher was replacing her for the remainder of her multi-book deal with a ghostwriter.
On the face of it, the situation seems unthinkable and a full-fledged injustice. But feelings aside, a deeper examination of the circumstances bore out that no foul play had occurred.
(By the way, I haven’t read the contract involved in this publishing deal, so my comments are based only on what was reported by Smith herself and the writer in the above blog link.)
First, L. J. Smith did not have a contract with HarperCollins. The publisher’s deal was with a book packager (with whom Smith had previously signed a contract). A book packager contracts with the various parties needed to create a book—author, designer, editor, proofreader, etc.—then sells or licenses the “package” to a publisher. At this point, the author’s involvement may be anything or nothing. In this case, the author obviously agreed to terms, knowingly or not, that allowed her to be replaced if the publisher chose to do so.
Second, Smith’s contract with the book packager was a “work for hire” agreement. These are often the most troublesome and misunderstood publishing arrangements. Simply put, a work-for-hire agreement means the creator relinquishes ownership of the produced work. (The creator can be an author, artist, software programmer, musician, inventor, comedian, or anyone who produces some form of intellectual property.) Once this author agreed with the book packager to these terms, she only had as much say in what she’d created as the contract allowed. Most likely, this was merely performance compensation—she wrote what was required; they paid what they were required.
So, you’re probably asking, why would any author agree to this? Because sometimes it actually makes sense. Yes, a work-for-hire agreement is a caution flag because this is a tactic used by predatory publishers for control purposes, but there are situations where it’s worth considering. My first trade publishing deal was on work-for-hire terms. Now, I admit, being only 21 years old at the time with no agent, I didn’t know better—but even if I had, I would’ve taken the deal. Why? Because the publisher was Warner Bros. and the book was a collaboration with one of the biggest heavy-metal bands of the time, Iron Maiden, of whom I was a big fan. So, hell yeah, I would’ve taken that deal no matter what. I got to go to Germany to hang out with the band during the rehearsals for their world tour that year and had backstage passes to many of their concerts. I’m still in touch with their drummer. So, you have to weigh the pros and cons of such a deal. Will it lead to something bigger? Will it be a plus on your resumé? (Think of it like a paid internship.) Will it give you useful publishing connections? Can it be a good learning experience? Will it be fun? Will you at least make some money?
It’s also worth keeping in mind that everything in life is a negotiation and agreement. Not that you get all you want, just that it’s up for give and take. So, if you decide to accept a work-for-hire deal, try to sweeten the terms as much as possible. You’re giving up your creation, so get as much as you can in return. In my deal, I did do one thing smartly—I asked for and got a clause whereby I could buy copies of the book at a big discount to resell. I couldn’t get an increase in my meager royalties (Warner Bros. had to dole out a percentage to the band and their music publisher, so there wasn’t a lot to go around), so I felt this was the next best thing. Sure enough, I set up a mail-order business and sold the book to Iron Maiden fans in over 20 countries through much of the 1990s. I made far more money on this than if I had been successful squeezing out a higher royalty.
Aside from “work for hire” being a caution flag that requires closer examination before accepting, here are a few more lessons from L. J. Smith‘s experience and that of many other authors when it comes to publishing deals:
Lesson One: A Contract Is Fair Game
As long as nothing in the contract violates civil or criminal laws, or conflicts with another contract, pretty much anything is possible. Authors need to realize this. After the contract has been signed by all involved parties, it doesn’t matter whether something seems fair or not in hindsight; it’s nearly a done deal. I say “nearly” because legal matters are debatable, and attorneys make a lot of money in contract disputes. But in reality, do you think a publisher that has expert legal advice and has engaged in dozens, hundreds, or thousands of contracts is going to use an agreement or legal language that’s not 99% airtight? Your best and almost only defense is to read all publishing agreements and contracts carefully before you sign anything; better yet, have them reviewed by an expert, whether that be an agent or an attorney.
Lesson Two: Money Talks
Upon hearing a perceived wrongdoing such as this author’s story, many people’s first reaction is, “Sue the publisher!” We are one heck of a litigious society, and we have a massive justice system as a result. But keep in mind, it’s a justice *system*; it does not ensure justice as much as it processes it. As much as we love the “Erin Brockavich” stories, they are very few and far between. The deeper pockets usually prevail in legal disputes, and most publishers have deeper pockets than most authors have. Furthermore, the vast majority of publishing deals simply do not involve money that justifies the expense of a lawsuit.
Lesson Three: Contracts Are Intentionally Confusing
At the risk of offending my attorney friends and readers, it’s my belief that contracts and legalese in general are written to obfuscate the issue as much as to provide clarity. The words are code, only able to be cracked by other attorneys. All of this adds up to billable hours for them. Okay, so I’m exaggerating some. And I don’t mean there’s a conspiracy so much as lawyers get caught up in their own bubble of a world, not realizing they’re completely immersed in a language that confounds the outside observer. Again, I haven’t read the contract L. J. Smith entered into, but it’s entirely possible she signed away her rights (or at least some aspect of them) without even realizing it. Such a clause will not explicitly state, like a ghostly voice in a haunted house, “You are giving away all your rights—be afraid, be VERY afraid!” Take the time to understand your contract completely. Whether it’s seven or twenty pages, go through it slowly and research every term, condition, and clause you don’t totally understand. Then, if you feel like it’s a green light, enlist the expertise of an agent or attorney to double-check your understanding of the contract and seek out any suspicious elements.
Lesson Four: An Agent Is Your Ally
Authors often balk about agents taking what is typically a 15% cut of any publishing deal. That’s 15% of the advance, any royalties, any special sales, any foreign rights licensed—everything. It does seem extreme after all the time you put in writing the book and landing said agent. However, aside from getting you a publishing deal you likely would not have otherwise gotten, a good agent is often your best protection when it comes to contracts. She has read and entered into many publishing agreements and understands the terms and nuances. She doesn’t cost you anything out of pocket as an attorney would. And she usually has good relationships with the publishers she is connected to. Instead of seeing an agent as a 15% loss, see one as your publishing bodyguard.
Lesson Five: Don’t Be Desperate
I’ve saved the best for last. I have come to learn that we humans are quite clever at sabotaging ourselves. We blame technical reasons for our shortcomings when in fact it is more often fear and personal issues that hold us back. It’s a sad reality, from my observation, that too many authors and aspiring authors have a poverty mentality. Maybe it’s the “starving artist” archetype that’s gotten drummed into our heads, but I can’t tell you how many authors I meet that, to put it bluntly, seem desperate. Too many raise myriad technical reasons for their lack of progress—agents are hard to get, don’t understand self-publishing, 29 rejection letters, not enough time, not enough money, etc.—when the reality is, nearly every successful author has overcome most or all of these obstacles. The unfortunate result is, then, that too many authors are desperate and thus susceptible to being ripped off. The only solution is to not only educate yourself on the publishing industry, but also educate yourself on… yourself. Understand and own your fears, then have the discipline to push them aside. If you are truly a *creative* person—you create—then nothing is your one-shot chance at success. Just as L. J. Smith will continue to write and create popular books, you do not have only one ticket in the publishing lottery. Be willing to pass up bad deals, let go of book ideas that just aren’t working out, and ignore rejection. Remain committed to your overall publishing success, but remain flexible and detached from the specifics as to how you achieve success.
It’s my belief that every book or other piece of artistry should have every chance to achieve its highest purpose; likewise, I believe the same of its creator. Perhaps that “highest purpose” is to change the world, but maybe it’s just to make someone smile or laugh. Whatever the case, my mission is to help authors and aspiring authors realize their highest purpose in publishing through education and encouragement, information and inspiration. I look forward to carrying out part of my mission via this column each month, and I welcome your thoughts and comments.