Bargains

A good bargain of course is where both parties feel they got the best possible deal. If one or other side feels they're being screwed, well, to go back to Adam Smith, it is not in not in the enlightened self-interest of either party. Unfortunately, we dwell in stygian darkness... or so it would seem because it seems that those doing the screwing think it's a great idea and their skills in terms of either common sense or empathy are not very well honed. You see this, of course, in every class of humanity and in every sector of life, but there is a neat linear relationship between the disparity in relative power of the two parties and the inclination to screw the other party. If you live in a country where for example there is monopoly (or a cosy oligopoly as in South Africa) of banks, you can be fairly sure that the bank's little-man-in-the-street client is being screwed 16 ways to breakfast. All he'll ever get out of his bank is flat feet from standing in the queue, and he'll be lucky if they only charge him an extra 20% of the medical bills he gets as a result of their generosity. If competition between many little banks is real and vicious you can be sure that clients are getting a better deal. Of course power remains disproportionately with the bank, so getting a good bargain is unlikely. Anyhow, I'm here to talk about writing and books, not economic philosophy, so let's move on to that subject, with just one relevant addendum: a good bargain is actually to the long term benefit (and in the self-interest) of both parties.

So what got me onto this track? Well, the Wiley saga Amanda posted, and a little letter I got on Friday from the publisher that I sold the African print rights to a teens/YA sf novel I wrote. Contracts are of course something authors have to deal with. There is a sort of inverse square law here: simply - the closer to a good bargain it is, the shorter the document is. So for example the short story contracts I have had from Baen and Tekno are less than a page. They're good, fair contracts, sign them and both parties get a good bargain.

The next rule is: the more legalese the more certain you can be that this is no bargain. When the breakteeth lawyer words arrive, get the vaseline and bend over. The truth is a publishing contract is really quite simple (or at least potentially so). Intrinsically, it contains an agreement for the publisher to use the material for a specific purpose for a specific period, for which they will pay you xyz. You probably need to gaurantee that the material is yours to rent to them (this is what it this is: renting a property) and they probably need to provide some mutually agreed accounting mechanism (if the sum is likely to be large enough to warrant either party giving a damn - with a short it's usually money up front, and that's it. I've had one short pay me a royalty - out of 25. I suspect if I trawled through the rest I would come up with a few more dollars owing to me. Shrug.)

This can very easily fit in half a page of clear text: you have that, you have probably got a good bargain.

The other clear indicator is that the language in any covering letter is neutral. Do you believe and can you trust the that glib bloke on the Telly saying ‘The Best deal! Order now at the low, low price of $230 000 and get one FREE'? Well if you do, you deserve to fall for "Good news" or "I don't think it would be fair to keep you hanging on any longer" (to quote the little letter I got from the South African house I sold the African print rights to YA book I wrote to). Now in the case of the South African house I'm mildly amused because to be frank it's actually a win for me of sorts, because their own legalese and evasions have tripped them up. My hackles went up when I got the ‘let's be considerate and fair part' and I went and had a long look at the very dense legalese contract: They're legally obliged to publish and market the book at their expense ‘within a fair and reasonable time' -- there is no ‘kill'clause (and thus no punitive kill fee) - they baulked at that, so by stating that it isn't fair to keep me hanging on and I am free to look elsewhere, they've stated that they're in breach of contract. If I had money to waste or this was a first-and-only book, well, so long as I don't try and resell the book... I could take them to court and make them print and market it. What this boils down to is that the book was bought by a previous editor, has been handed down to one who doesn't know/like/believe in the value of speculative fiction (ergo she calls the story ‘fantasy'... it's science fiction) and if she can get me to huff off, the company is off the hook. Lesson: do not react in a hurry (or without a lot of thought and circumspection) to any contractual matter. If it sounds like normal business language, consider it carefully. If there is even a hint of ‘we're being nice to you'... back off and get professional advice. Your mum, partner, friends or kids are nice to you. You can be friendly with publishers, but it is a business relationship.

For your delectation I provide you with another snippet of the same letter
"In the light of this, I revisited your contract that was drawn up when [edited out] was in charge of this project. I see that the royalty agreed upon was 17½ %. We are not offering anything like this on current contracts and in the light of the recent recession, I am not sure that if we did publish it we would be able to sell enough copies of your book to make it viable."

Now, dear readers, 17.5% is of NET not of cover price. To run that through the calculators... that's probably somewhere around 8% (which yes, I had to argue them up to). That's about a standard paperback rate, and allows no escalation. There was a slim chance that the book would come out in paperback, so actual fact the net rate should be something like 25% to equal hardcover rates. In other words -- anywhere but in that very small exceptionally asymetric pond -- that's already a very good deal for the publisher.

It's also mildly amusing in that Ms Neweditor assumed the contract was the same as most would-be South African authors gets stiffed with and didn't bother to read the whole thing... or she'd have noticed something that would have given her conniptions. I went into this as an author published in the US with I think 15 contracts at that time. And when we got to a certain part of the negotiations they said ‘we don't' and I simply copied the relevant page of my most recent contract and sent it to them and said ‘with me you do and this is actually normal and how business is done.' Lesson: experience counts. Sometimes you have to get shafted getting it.

You see: According to a friend of mine who is professional illustrator and who knows just about every poor sap-author in this little arena... I am the only South African author she's ever heard of EVER getting an advance - and the advance they paid me - while small by US standards, means that actually the company is going to be substantially worse off not publishing, than publishing. Lesson: always try to get some form of advance (as big as possible), or something enormous in leiu which they stand to lose. It keeps them working on the book, and the more they've spent or risked, the more effort they'll put into getting at least that back. If you can't get an advance (and this may be be true in e-pub), get a clear, short timeline on publication and payment, preferably with a kill-fee. And the rates then go up, up a long, long way.

So long as they're in breach of their contract, I get to keep the advance. Actually, maybe Ms Neweditor may have been smarter than I thought. All she had to do was get me to breach contract and they could ask for it back. But I don't think so.

Now seriously, a book published in my old country would have been vaguely satisfying, especially while I was there. I could have sold quite a lot of copies (almost certainly enough just to my fans to pay the advance), aside from any effort they might have made. It was of course a neat subtle stab in the PC-back of South African political correctness, so it would have had a good social purpose too... On the other hand I've probably earned as much as I was ever likely to from the company. I'll be honest, I got a free coffee cup at their imprint launch and a month or so ago it came to light (the imprint launch BTW had maybe 40 or so staffers, and bunch of guests and the MD left in a brand new merc - someone makes money out of publishing in South Africa, just not the authors) and vaguely wondered if it would ever happen, but I never bothered to fuss about it. They might have made a good thing out of it if they'd tried, but forcing them probably isn't worth it. I've kept the E-rights, and rest of the world print rights bar Africa. I'm hoping to have it out as an e-book before Christmas (this has been on the cards for the last month or so, long before this). So: while I'll let it fester for a few more days I'll probably play the game right back... saying that it is terribly considerate but I'd need a letter revoking all their rights before I could even think about it. And then do nothing of the kind. Trying to resell the Africa print rights is near worthless. World rights are different matter. So are POD rights (which are mine).

Or what do you guys think?
How do you feel about ‘big 6' publishers working in what appears to be a ‘cosy'fashion?
What do you think a contract needs to say?
What are things we need to make a good bargain?
What do both both sides stand to gain?