Tuesday, October 23, 2012

If You Remember One Thing, It Should Be This: Never Sign An Unnegotiated Boilerplate Contract With Any Publisher

STATUS: I feel like I need to flex my brain muscles to get back into shape for daily blogging. 

What’s playing on the XM or iPod right now?  DANCE HALL DAYS by Wang Chung

I recently talked to a writer who had signed a small publisher's boilerplate contract.

Shudders.

Let me start by saying that the signed contract was with an established and reputable small publisher. Still I shudder.

Let me highlight here that I wouldn't want a writer to sign the boilerplate contract with any publisher -be it a small one or a big six publisher. All boilerplates are terrible. That's why agents negotiate the heck out of them.

Pitfalls of Boilerplate Contracts

1) Every publishing boilerplate I've seen grants the publisher all rights. Oh boy. Honestly folks, you never want to grant rights to a publisher for things they won't exploit effectively such as dramatic rights (film/tv), merchandizing, theme park rights etc. The rights will just sit there. And you can't earn money unless those rights are sold.

2) Boilerplates have no recourse if the publisher fails to publish. Then writers are stuck in limbo forever! They can't contractually demand the rights back for failure to publish. Writer is stuck. Not good.

3) Boilerplates often have no out of print clauses. I recently derailed a deal because I could not get the small publisher to insert one. They would have had the rights into perpetuity with the author having no way to ever get the rights back unless the publisher felt like it. Uh, no.

4) I've seen boilerplates that have a never-ending option clauses. If the publisher doesn't take the writer's next book, they still get to see the one after that and the one after that….. Yep, that author will never successfully be placed at a new home if that is the case as the new publisher would want an option for next work at the very least. That can't be granted if the above is the case.

5) Boilerplate contracts don't allow the author to see copies of sublicense deals. If that is the case, how can an author know what was sold and on what terms to verify the royalty statements? Good point, right?

And I could go on and on.