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Writing 101: Contract Literacy

None of us here at The Sinister Scoop are lawyers. If we were lawyers, our advice to ourselves would probably be not to advise writers on contracts in any broad terms. You know, like we're about to do.


But seriously.


Contracts are an important part of any creative career and they can be confusing as hell.


Breaking down all the legalese you could potentially encounter would take several articles and we'd still miss a lot of stuff. Likewise, comparing and contrasting contract clauses would be boring and complicated and take a long, long time.


So what are we sharing, if not contract literacy?


This is a 101 class. We're just skimming the absolute basics and providing a starting point. This will cover how you can stay safe if you don't know how the hell to read a contract, what to look for, and some of the most common red flags.


Everyone has different goals and limits so keep in mind that this is general advice. A lot of determining if a contract is good for you is asking yourself whether or not it makes you comfortable, and if it aligns with your own goals.


Number #1 Rule: Ask Questions


We are putting this right at the top because it is the single most important thing you can do as a dummy writer with no legal experience (such as myself.)


If you don't understand a clause in a contract that a publisher has sent you, ask them. This is great for two reasons:


  • You'll have a better understanding of the contract once it's explained to you.

  • If the publisher is weird about this or refuses to explain, you've just found the absolute biggest red flag possible, so maybe don't sign that contract.


A contract is a legal agreement to protect both parties. It's the mark of a collaboration. A partnership. The press should be protecting your interests as well as theirs, especially if what you're selling them is a full book and not an anthology/magazine entry.


So.


If they seem reluctant to explain or tell you not to worry about a clause for whatever reason, it's a good idea to get a friend or partner or real lawyer to make sure you're not being swindled out of something.


Number #2 Rule: Get a Second Opinion


This is optional, of course, but it's never a bad idea. Even if you feel like you understand the entire contract, having a second (or third or fourth) pair of eyes on it never hurts. Collectively a handful of experienced writers are more likely to have the power of a single lawyer than a single writer is at literally any time. (Unless that writer has a law degree in which case, we may have a position open for you here at The Sinister Scoop. We pay in exposure for you to tell us to quit giving legal advice.)


Cat's Wild Generalizations Corner:


Every venue is different, so take all of this with a grain of salt. But here are some of the most common questions we've received on this topic, and some broad stroke style answers I'm giving to just keep in mind.


  • It's normal to get a flat rate for an anthology.

  • It's not normal to get a flat rate for a single author project (novel/novella/collection/etc.) Those should almost definitely have royalties.

  • It's fairly common for an indie press not to offer an advance. (This is usually compensated for with a higher percentage of royalties.)

  • Indie rates can sometimes be lower than industry standard rates. (This doesn't always mean they're trying to scam you.)

  • Indie rates are still rates. There should typically be money coming to you in this transaction.

  • There should not be money, leaving your pocket in a publishing transaction. If you're a writer and a publisher is publishing you, they should always be the one sending you money. You should not have to pay for art or edits or anything, really.

  • A single exception to this rule is if you're buying additional author copies.

  • There should always be, at a minimum, at least one digital author copy.



Some Things to Look For and Consider


  • Advance

  • Royalty Rates

  • Creative Control

  • Exclusivity Clauses

  • Competence

Let me start by saying I don't care about advances. I have now signed five book contracts in the indie horror space, and I have received exactly $0 in advances. When I have been given the option, I have turned down the advance every time for favor of a larger royalty. (The optimist in me says this is more money in the long term, which is true if I sell enough books. The pessimist in me is afraid that I won't earn out the advance, which is scary and messes with my anxiety.) I'm not against advances in practice, but in the indie space, I've found they are largely symbolic, and they're not anything I'm overly worried about trying to obtain.


However.


Looking for the size of the offered advance can help you determine how much confidence a press has in their sales ability and hope for your book. (I'd say even an indie advance should be above $100.) If an advance would work better for your personal goals, that's something you might want to put more stock in. Remember, it's about finding a contract that works for the individual.


I've also always been pleasantly surprised to find clauses that offer a higher royalty split in lieu of an advance. That's probably a publisher that's going to be on the same page as me about my goals. This is a clause you might want to look for too, because a flexible press that offers options either in the contract proper or in your initial contract discussions is more likely to work with you on other important things.


Royalties are also great to look for. It's exciting when you get a contract offer, and tempting to just sign any deal, but make sure that you feel you're being paid enough. I would have a minimum percent that you approach contracts with, that you can use as a guideline. Royalties are where most of your money is going to come from, and you want to make sure that you're comfortable with the percentage that you're getting.


Another thing to look out for is how much creative control you'll have. A lot of writers are happy to make sales and trust the editors of the presses they submit to will only improve their work. But many (I'd wager most) writers feel the need to be heavily involved in all creative decisions.


A lot of presses ask for final decision making capabilities over edits, and will want full control over the cover and/or interior illustrations. Depending on the writer, this could be a dealbreaker, so you need to be aware of what your creative limits are, and look to see if the press is going to meet you on them.


Take a look to see what rights the press is asking and for how long they intend to keep them. Exclusivity clauses of some kind are standard, but they can easily be exploitative. For long projects, you want to make sure you're not locked into anything so long that you'll be suffering if the partnership style doesn't work for you. (I'd say maybe no more than three years if you have any doubts? This is a super general rule of thumb that works for me, but set your own limits.) For a short piece (short story, essay, poem, etc.) I would not give exclusivity for more than a year, and want an exception clause for things like marketing, awards, and best-of anthologies. Again, you need to decide how important these things are to you and where your limits are for them.


Finally, keep in mind how competently the contract is written. If it's professional, clean, and easy to understand, that seems to be the best balance. It means the press values communication over, well, legal jargon. (Whereas a press entirely devoid of legal jargon might not know what the hell they're doing. It's a fine line.)


Some Potential Red Flags


We talked about the biggest red flag to look for, which is an unwillingness to communicate contract expectations. But here are a few other ones:


  • "In perpetuity"

  • No termination clauses

  • Putting too many responsibilities on the author

  • Non-compete clauses

  • Not including a publication date


Okay, so a big thing to look for in contracts is the phrase "in perpetuity." Some things it's normal for a press to ask for in that regard. Non-exclusive publication rights are fine to ask for in digital perpetuity if you're submitting to a digital magazine with an online archive, for instance. Other things, like exclusive publication rights in perpetuity, are a scam.


Another way to read this phrase is as "forever" which is not as legally binding and is more amateur, but it's a good reminder as you go through. Are you comfortable with a press asking to hold certain rights forever? Which rights? Really think about that because contractually, that is what you're agreeing to when that phrase pops up.


I'd also be wary of any press that does not outline termination conditions for a single author project. While it might read as confidence in the partnership, it's important that there be an exit strategy for you if the press does something you no longer want to be associated with, and vice versa. It is not a bad thing to be selective.


Finally, a press should tell you when they mean to publish your book by. Even if they don't have an exact date ready, they should have a deadline. Ideally it will say in your contract that the book will be published by x date, or within x amount of months after final edits have been returned.



Some Yellow Flags


  • Not including an auditing clause

  • Not having a transparency plan for profits

  • Vague Terminology

  • Not letting an author have say over final edits/art

  • Asking for rights they don't intend to use.


Let's start with that last one, because it's very circumstantial.


If a press is asking for audio, film, international translation rights, etc. and you have never seen them make an audiobook, film, or international translation, talk to them about it. If they're a newer press, they might just want to be covering their bases. If they're a more established press, it could be something they want to expand into. In either case, they should be open about those intentions if they're asking to hold those rights. This is one of those things that could be innocent, but it could be them trying to box you into limiting your options and you'll want to know how they react to questions before you sign.


As for creative control, this is another one we just have to remind you to think about. Even if you're not super worried about edits or cover art or whatever, it's still important you know how much power the press will hold over your words before you sign the contract. As the writer, it's never a bad idea to request that AI not be used in association with your words if that's something you're passionate about (and you should be.)


Now. I'm about to leave you with a hot, and potentially dangerous take, that I want you to consider, but at your own risk. I don't believe most presses in the indie horror space mean any harm.


When it comes to the other yellow flags; vague terminology, not having a transparency plan, or an auditing the press clause, these statistically aren't going to be malicious. I think a lot of the smaller presses and micro presses are just like us in that they don't have a lawyer on staff. There might not be someone on board who knows how to write these things, or is thinking about them, and that's why you need to ask questions.


Ask how often you'll be seeing profit reports from a press with no auditing clause. Ask what their transparency policy is about the financials. Clarify any vague language before signing. You are going to learn more from that interaction than you are from the contract in most cases. How the press answers your questions in these areas will probably tip you off on how malicious they are (or most likely, aren't.)


It's also not a bad idea to be more suspicious about contracts than I am in my day to day life about presses. That is probably the most reliable advice in this entire article.



External Factors to Consider


  • Social Media

  • Distribution Channels

  • Visibility

  • Controversies


We will at some point cover press behavior in this series, but we're bringing it up here a little bit as well, because there are things to consider when signing your work to a press. Namely, have they been in any controversies? Do they act professionally online? What sorts of writers follow that press? What demographics are they reaching? Has the owner of the press blocked you online for liking a post that politely questions one of their editing policies?


(That last one is based off of a real example, yes. I had already worked with that press and am still, to this day, blocked by the owner.)


Researching a press and looking into their history can be very informative, and easier to understand in a lot of cases than just straight contracts. If you can't find a no AI clause in a contract for a press that wants art control, and you find out on Twitter that they have a history of using AI on their covers, that's probably all the answer you need.


Distribution channels and visibility are also important to consider when you're thinking about what sort of royalty you want to accept. A press with an established presence and good sales history might do more for you than a press with a bad reputation offering a higher royalty rate. A more prestigious press with a lower royalty rate could do more good for you than a higher paying market with a history of controversies -- especially if what you want is a publication credit or the opportunity to cross-promote.


The short version of this very, very long rant, is that you can start with the things you do understand. If you don't know how to read your contract, and you can't find help, get as much context as you can for the people you'll be signing with. Consider your own goals. Go over it as thoroughly as you're able.


And remember, Google is your friend.


We'll be coming back around to this topic for some terminology basics, some information on standard rates, and of course the long promised "Exposure Vs Exploitation" installment. In the meantime, try not to sign anything shady. Feel free to reach out to us for a second pair of eyes if you feel you need one. And if there are more burning contract questions, you can leave those down below so we know to address them in our 102 series.


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