Tuesday, August 14, 2012

Blame the Writer

Among the writing/publishing industry blogs I read are several by agents, including "Between the Lines," the blog by the agents of the Books and Such Literary Agency. Yesterday, August 13, a blog post by agency founder and head honcho Janet Grant was eye-opening for me.

The title of the post was "Publisher's Contracts and How they Got That Way". The main premise of the post is this:
Every paragraph has an author’s initials beside it. (Which is a quote from an editor, by the way.) Oh, those initials are written with invisible ink, but the truth is authors are responsible for much of each publisher’s contract.
As of right now the post has 31 comments, most of which are positive to Janet's post.

I'm not a lawyer, and I've never played one on television—or on stage. But I've worked with contracts for 35 years. Construction contracts, consisting of multiple documents tied together by an "Agreement," with forty pages of "General Conditions" and "Supplementary Conditions" of about eight to twelve pages. When I administer a construction contract, I'm responsible to interpret these documents as an engineer. I need to understand what the contractor's responsibilities are, what the owner's responsibilities are, and see that both of them are fulfilling those responsibilities. If one party isn't, I get to nudge them in the right direction. When either one has a claim that the other party hasn't fulfilled those responsibilities, I'm the initial arbiter of the claim, and hopefully can bring the parties to a resolution and keep them out of court.

For these construction contracts, those forty pages of General Conditions are the result of a century of construction contract law, with specialty lawyers for the all parties coming together and hammering out language that protects the interests of the parties and facilitates getting something constructed. That doesn't keep construction projects from resulting in lawsuits, but it keeps a whole lot of disputes from getting to the court stage, and prevents disputes from happening in the first place.

One of the most important legal doctrines (if that's the right words and I'm using the concept directly) that has been tested in court is that the parties to the contract must come from essentially equal bargaining positions for the contract clauses to all be valid. I'm sure that's an over simplification, based on a perspective from my years in construction. If one party has a position of superior strength that they can dictate clauses without considering the other side's position, enforcing that clause through a court of law will be more difficult for the strong party.

So when the author of that post says it's the fault of a long line of writers that current publishing contracts are so unfavorable to writers, I have to laugh. The publishers have all the strength in this "negotiation," not the authors. This is because of just how much of a buyer's market it is. If the author doesn't like the contract, there are a dozen would-be authors with books just as good, having equal marketing potential, who will sign that contract. So when the author tries to negotiate, through their agent, it's an unequal negotiation. It's not a case of the author bringing a knife to a gun fight; the author brings a pea-shooter to a gun fight.

A late commenter added this to the discussion.
Listen up, writers: I’m sorry to burst your blame bubble, but the only clauses that bear your initials are the ones you initialed. You are NOT to blame for the changes in publishing contracts that have made them less and less favorable to you, the creator.
I agree. She went on to say:
The writer is the person with the least power in the relationship being defined by the contract, the one without whom there wouldn’t be a book to publish, and the one whose career could be wrecked by signing off on most if not all of the current noncompetition clauses offered by corporate publishers.
I agree. Publishing contracts have become the way they are because publishers can afford a team of corporate lawyers who look after the publisher's interests, not the writers. The writer typically doesn't bring an intellectual property rights lawyer to the table, but an agent. An agent who isn't trained in the law, though who knows something about contracts. An agent who represents fifty different writers all trying to sell a book to the same six publishers, or to subsidiaries of these publishers. And yet you want to blame those writers for draconian clauses.

Just one more indication of how the entire publishing industry is broken.


Gary said...

Not broken, contrived. Seems to work pretty well for the publishers.

David A. Todd said...

Yeah, it does work well for the publishers. For the midlist writers, not so much. For the wannabe published writers, not at all.