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Contract clauses 1-3

Okay. I'm offering warning once again: This is very, very boring. It's also an older contract, so it may have changed (although there's often a glacial change for things like this). This is before the days of e-books, and Random House has what many consider a punitive clause for "all rights that might possibly exist in the future" in their contracts these days, and I don't have one of those on hand. I have a DAW contract, but DAW is a bit unusual, and the Random House contract more indicative of what you'll generally see.

And if, at the end of this, you aren't crossing your eyes or skipping over these entries in glassy-eyed, polite boredom, I'll dig up the LUNA contracts for contrast.

ETA: Part of the reason I chose this contract is that it was my first contract, and a fair representation of what FTN is likely to see, although I think more authors these days are starting in hardcover than were when I sold this, fwiw.

AGREEMENT made this date between BALLANTINE BOOKS, a Division of RANDOM HOUSE, INC. (herein "Publisher") with offices at 201 East 50th Street, New York, New York 10022, and author (herein "Author") whose address is c/o Agency and who is a citizen of Country

In consideration of these premises, it is hereby agreed as follows:

1. The Author agrees to write a work of fiction herein the "Work", provisionally entitled INTO THE DARK LANDS.

The Author will deliver two complete copies (original and clean) of the manuscript of the Work in English language, approximately 120,000 words in length, in content and form satisfactory to Publisher, together with any permissions required under the provisions of paragraph 3 hereof, and all photographs, illustrations, drawings, charts, maps and indexes suitable for reproduction and necessary in Publisher's opinion to completion of the manuscript, not later than date. If Author fails to deliver complete copies of the manuscript to Publisher within the time provided above, the Author shall, upon written demand by Publisher, return all sums advanced or paid by Publisher hereunder, without affecting any other rights the Publisher may have. If the manuscript in Publisher's sole opinion is not acceptable, then Publisher may so notify Author, and upon such notice all sums advanced or paid hereunder shall be repayable to Publisher and upon such repayment this agreement will terminate, and Publisher will have no further obligation to the Author.

I did mention boring, right?

The bold parts are what exist as contract. The italics are what were added, either to make the contract valid (as in dates), or to change the contract somewhat. In this clause, there were no changes made; the information was typed in; if the information was changed in some way, I'll asterisk (*) it in future.

First: I have never in my life been required to submit two clean manuscripts to a publisher. I had forgotten that this was a contractual obligation, because they had the book in their hands well before I had the contract in mine <wry g>. My editors never asked, and I didn't rush back to read this first paragraph. These days, many of my submissions are electronic, although not all.

When I signed this contract, my agent of the time -- and everyone else's -- said something funny. Well, in retrospect. He told me that the two least important pieces of information in a contract for a work of fiction were, in fact, the length of the book and the deadline.

This paragraph is funny because, of course, length has become such a big issue that going over-length can get your contract cancelled if you won't rework or revise in such a way as to stay within the contract bounds (I know of at least one case where this happened recently, and an author who signed for 150K words delivered twice that), and the deadline is a way of weaseling out of a contract if, for some reason, the Publisher really needs to drastically cut their list in a big, bleeding, way (HarperCollins did this to dozens of authors some several years back).

In the here-and-now of publishing, I wouldn't sign a contract with any Publisher who wasn't DAW in which both the length and the date were not something completely accurate (because I've been with DAW for so very very long now, I know what to expect, and they know what to expect, and we work really well together, and my editor is my publisher, which means she pretty much makes the decisions, rather than having them forced on her from above).

Now, in most cases, the date isn't that big of a deal for fiction [ETA:I was an idiot and wrote non-fiction the first time; I'm sorry; non-fiction is often very timely and the deadlines -are- important for non-fiction. Arg.]. It's not a deal-breaker unless the publisher has a desperate need to ditch a bunch of its obligations. But if they do, as many HarperCollins authors found out to their dismay, it is a perfectly valid legal reason to shut the author down and ask for their advance money back. Oh, and in that case, you're responsible for the advance and the agent fees, because the agent did their work, and the agent is unlikely to want to give back their commission because you failed to deliver the manuscript. Just so you know.

I have also seen one (and only one that I know of) case of the publisher deciding that a manuscript "in Publisher's sole opinion is not acceptable". For a first book, this is not usually a problem, because for a first fiction book in 99% of the cases, they've already got the whole thing.

(Although I believe that Random House UK and Joan Collins had a tussle in court, which Collins won -- Random House UK alleged breach of contract, and I believe so did she; they used the failure to turn in an acceptable manuscript on time as one of their complaints. She, I believe, alleged that they were trying to weasel out of their obligation to her, and were therefore costing her money, and I believe the courts decided in her favour -- that they were, indeed, attempting to invoke these clauses solely to get out of publishing her miserable garbage. In non-legalese. So, it's likely that if you had a publisher pull this and you had tens of thousands of dollars (or more) to press a case against a publisher, you would have this precedent on your side. Otoh, you're not going to do that for this amount of money).

One thing you'll note that I didn't get here (and didn't think to ask for, fwiw, because the publisher already had the book in their hands) was a clause that would determine how the repayment of the advance was to be made. In some contracts, it's specified that the moneies will be repaid at such a time as the author finds another house (i.e. from the proceeds of a subsequent sale). For a first book, because it's already there, I wouldn't bother to quibble this point.

2. Notice of acceptance or rejection shall be in writing and signed by an authorized signatory on behalf of Publisher. Comments, requests for revisions and other matters in communications to the Author shall not be deemed acceptance or rejection by Publisher. Publisher may request the Author to make revisions, substitutions, and additions to the manuscript, and Publisher reserves the right to *after consultation with the author* edit, alter, or change the manuscript, provided that Publisher may not substantially change the meaning of the text. The Author shall make requested revisions as promptly as possible after Publisher's request.

Err. Okay. Oddly enough, this whole "notice… in writing… signed" by someone? Never happened. It's in all four of my Ballantine contracts. It never happened. It didn't occur to me that it would happen. I imagine, if we were out to kill each other, it would have happened because, well.

The *text between the asterisks* above was added to the boilerplate. Why? Because one of the editors, who is now dead, did, in fact, have a habit of rewriting things if he thought they needed it and the author had refused to do it -- and he added them after the author had seen the page proofs and corrected them. The Agent hated this. Hell, I would have hated it. But that was the extent to which we were able to modify this clause.

Paragraph 3 is about permissions for included text. It's so entirely irrelevant to anything I've, I include it below with no addenda from me, solely for masochists -- or for people who want to use song lyrics or poetry, which I believe do require permissions.

3. If permission is required from others to publish any material contained in the Work or to exercise any right granted herein, the Author shall obtain such permissions at the Author's own expense in form acceptable to Publisher, and shall submit such permissions to Publisher together with the complete manuscript of the Work. If the Author fails to obtain any such permissions deemed necessary by Publisher, then Publisher may obtain such permissions itself and charge the cost thereof to the Author, or at is option terminate its obligations under this agreement. In the event of such termination by Publisher, Author shall be obligated to repay all advances and payments made by Publisher hereunder, and upon such repayment this agreement will terminate.


Sep. 15th, 2004 05:12 pm (UTC)
See I read that part and freaked. That is a very scary addition the contract, as you noted. Not as scary for a first book, admittedly, but damn would I be upset about that clause in a later book. And since I've read this and Laura's article, I would make sure to fight for the wording that I could shop the novel elsewhere and repay when the novel was bought or within X years if no one else nibbled

I'm really going to have to hunt down the rest of the contracts, because to me this passes almost unnoticed at this point <wry g>. I think I'd be vastly more worried if it were WFH, but I don't actually have a WFH contract on hand. No, wait, that might not be true. I might have a short story via Simon & Schuster contract.

This is one of those things that I wouldn't actually spend a lot of time fighting about, if I were going to fight -- but that's partly because of the many things that have become thorns in the sides of authors, this is one that I've seen happen only once.

Otoh, this would probably not be a great comfort if you were that once.
Sep. 15th, 2004 05:16 pm (UTC)

Sep. 15th, 2004 05:20 pm (UTC)

Sorry -- Work For Hire. It's one of the only types of work in the industry in which a writer must stick to their submitted and accepted outline.