Tuesday, 29 December 2015

Writer's Contracts: How to Get What You Want and Not Lose your House.

Negotiation is an undervalued art. And, contrary to popular belief, it doesn't become easier with practice. It just gets less hard.

On average, I negotiate two to three contracts per week, for all sorts of things - uniforms, food, software. Hospitals, rest home beds - even christmas hampers! I've negotiated agreements from $5000 to $50 million. Each negotiation is different; each has its own challenges. 

But by far the hardest contract to negotiate was the one of least value. Value on paper, that is. To me, it represented an enormous amount of work. The reason it was the hardest contract was because this time I was not buying anything - instead, I was selling. I was selling my own work to a publisher. I felt as if I was selling my own soul.

AZ Quotes

Publishing Contracts

Publishing contracts have lots of fishhooks. These can (and have) included: 
  • No expiry
  • Payment delays or discounts
  • Unlimited liability (that is, in the event of a law suit you will fully reimburse your publisher all their costs)
  • Restriction on what you may and may not write next

Writer's contracts are discussed in detail on line - see this Savvy Writers  blog post, or this legal advice courtesy of the Authors Guild

Many Authors' Associations - such as the New Zealand Society of Authors or the Science Fiction Writers of America  - offer a contract review service to their members.

But NONE of these posts ever tell you how to negotiate a better agreement. And this is where I return to the first sentence of this post. Negotiation is an art and it's hard.

 - Dilbert by Scott Adams

Disclaimer: This isn't legal advice; it's guidelines only. If you need legal advice, please see a legal professional.

How I Negotiated my Own Book Contract (and Didn't Lose My House)

My publisher was HarperCollins New Zealand.  I have to say that all the horror stories I read about in Writer Beware certainly did not apply with HC. HC were friendly, approachable and although they seemed surprised that a writer might even want to discuss some of the terms in their offered contract (I got the feeling that writers don't often negotiate very often), they were happy to take my comments on board. 

HC had a two contract model - a summary of offer (I forget the actual name of this agreement). This summary set out key payment dates, amounts and deadlines. They followed this up a few months later with their more detailed full contract. 

I signed the summary and started working with my editor. Once I received the full contract I scanned it for the commonest fishhooks (discovered courtesy of the internet and including unlimited liability) and asked a solicitor colleague at work to review it. She also had some concerns, and suggested alternative wording.

I phoned the number attached to the agreement - HC NZ draw up their agreements in Australia - and talked through my questions and concerns with them. 'Well, what would you like?' they asked.

I suggested Mary's wording and emailed it to her. She sent that to her legal team, and they came back with something slightly different. I ran this past Mary, she thought it was okay, and I signed the agreement.

My first book didn't sell as well as expected, and so eventually I began another negotiation. Please, can I have my rights back? Again, this was a phone call to the editor (after a series of emails).  Again, HC were understanding, and after some to and froing we came to an agreement and my rights were returned.

I would definitely work with HC again.

In hindsight: although I avoided the worst risks, I didn't obtain as much as an advantage as I could have (and an agent would have done). That's because at the time I didn't really understand the industry. If there's ever a next time I'd be more aware of things like international and national markets, expiry dates, digital, print, movie, TV rights and so forth. 

My Four Tips for Negotiation

Tip One: Plan. 
- What does the other negotiating party want?
- What do I want?
- What must I have?
- What are my risks?
- Where is our common ground?
I've set out more details in a downloadable cheat sheet.

Tip Two: Talk. (Face to face is best. Phone is second. Online chat is third)
- AVOID negotiation via email.

Tip Three: Build a relationship first.
- Emails are fine, but a couple of phone calls generally work better.
- This helps to break the ice.

Tip Four: Negotiation is not a challenge. It's a dialogue. 
- If you don't understand something, ask. 
- Be polite.
- Don't talk about money first.

Want More Information? - Downloadable Cheat Sheet

You can check out this online resource - the Ministry of Business, Innovation and Employment's checklist for negotiations. (This sheet is quite detailed and really is more suitable for large-scale business to business negotiations, although some of the pointers are helpful).

Or you can sign up here for a free cheat sheet.

In this cheat sheet I've set out some of the main points to consider in your planning. 

Like I say, I do this all the time...and I've pretty much made every mistake by now. You may as well learn from them!

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