contracts | help! - clauses for agents and authors

I know contracts can be hard - to that end, it may help to read a bit before you negotiate certain rights next week to really understand the author/editor relationship and bargaining lecture and review your notes afterward. More, I will make myself available both by email and telephone for any questions that you may have and you can set up an appointment to come and see me during office hours between five and six p.m. Remember, you can negotiate as much of the contract as you wish. The more you negotiate the better - but some of you may only negotiate subrights. Just be forewarned that although this is important, the rest of the contract is important as well - so don't ignore it and if you have questions, ask me. I will also be available during the class if you have questions.

As to contracts, I realize it may seem difficult or futile, but it is part and parcel of book-editing in that it is something book Editors do, or likely will do at some point in his or her career, unless you have the luxury of working for an extremely large house with a large legal department and even then, as a senior Editor or an Editorial Director, you will likely be expected to negotiate your own books with Agents and/or Authors.

More, every intern i placed last semester was asked if they knew how to negotiate a contract and knew subrights - so this is important and when you are looking for a job, you'll be glad you know this.....

For your next in-class exercise, here is what you should know, and this is important;

The contract is between you and your Author. You and the Author should feel free, MUST feel free, to edit as much of the contract as possible. The contract may be standard boiler plate, but that does NOT mean that you can't totally change it if you want to. Why not? It's your contract, make it work for you... and I say that to both parties here.

Since you have not negotiated contracts before, I would suggest some research, but I'll give you some pointers as well:

• 2.b - anywhere it says "At Author's Expense" if you are the agent, you want to define a limit to this amount or, try to get the publisher to cover the cost over all.
  
• When is the manuscript due? Set a reasonable date - usually a couple of years is fair. (clause 4) - look at all clauses in 4 - every clause in class 4 is important if you are the agent - and if you are the publisher, then you should really pay attention to clause four.
• 5- legal review: who pays for this?
• clause 7 - "style and manner" (clause a). Does the Author have any input? Do they get to see the cover etc before publication? This would be important to me anyway...
• clause 8 - when is the advance due?
• clause 9 - all royalty rates are negotiable within a reasonable fee; don't go crazy trying to get insane deep discounts or more money; be fair.
  
• When changes are made in galleys to the manuscript, the author pays for this generally.
• Who is paying for the illustrations, how much is the budget?
• Clause g in 4 - is only when you don't understand each other; let's assume that won't happen, but you prob. should negotiate on the off-chance. What if? Then who deals with the book? Decide what happens next if the company is bought out.
• (f) Edits - the Editor may make edits.
• Clause 6 - The Author's responsibilty. Is there a penalty if they don't keep up their end? What if you don't keep up your end of any part of the contract, by the way?
• Clause 7 - does your Author agree with everything in clause 7? Really?
• Clause 8 - Advance: you've decided this. Fill this in.
• Clause 9 - Royalties: negotiate.
• Clause 10 - Subrights: negotiate as you see fit. The subrights have a "split" in terms of percentages. Also, the Publisher may want to retain e-book rights in this day and age, etc - who knows - just remember that what you keep, you'll have to negotiate for it...
  
• Clause 11 - This is about Royalty Statements, accounting statements, when they are due and is pretty standard language. Negotiate if you see fit.
• Clause 12 - Author copies: how many copies of the book does the author get? Absolutely negotiable. These are free of charge copies.
• Clause 13 - Read this - you'll sort it out. It's an agree / disagree deal-breaker thing.
• Clause 14 a. - Termination: what if after publishing the book, the publisher decides there isn't really a market after all and wants to dispose of all copies? Do you want to keep this clause in?
• Clause 14 - The rest is technical and standard, but you can look it over and negotiate if you want to. This is harder.
• Clause 15 - Option: option on the author's next work for publication if they have faith in the author. This means the author cannot sell their next book to another publisher.
• Clause 16 - Competing Works: I have explained this to you. If you are still unclear, read the language again and if still unclear, please call me or email me.
• Clause 17 - Name & Likeness: obvious clause.

There are many other clauses - all clauses - but off the top of my head, these are some of the ones that are most often overlooked by students, so pay special attention to them, but again, the entire contract is important.

You should find the rest of the contract pretty standard and have no problems. I would fill it in as best as you can and read it through, but above are the key points. This is what you should be looking at.

I hope this helps. Again, I am available for all and any questions.

s.r.p.

how books are chosen | editor's books

illustration: Jack Kerouac's manuscript for On The Road
which he set as one long taped together manuscript
which he wrote on his typewriter. He said he taped
the pages together because he did not want to
interupt the flow of his writing and his thoughts.
This is just a small section of the manuscript. An original of Ulysses, 2nd pic.



How books are chosen will be a constant running theme of this course because it is a part and parcel of books that we edit. It is what we choose to edit, and for this reason, we learn how to not only edit and line-edit books, but really select books for publication, turn-down other manuscripts and query letters, read proposals and evaluate them, negotiate contracts as will perhaps likely be one day part of our job and also, I hope, participate in this course in a very active way, no matter how shy you may be (I too am shy, yet have to over-come this every week I speak before you and every time I go to an ed. board meeting). You have to stand up as an Editor or even as a Professor to convince, to at the end of the day, hopefully, inspire others to move into the field that you have chosen. Editing, in this way, is as I and others have said, an almost calling or faith. We do this on a wish and a prayer, but with a solid background. That is our goal here. Moving on... and keeping this in mind...

There are “Editor’s Books” – books that “move us”. What is your instinct and your passion? What tells you that a book is truly unique and you should publish it. Some people are sure that no manuscript that is truly great will go "undiscovered." Maybe the are right is right, maybe they are wrong wrong. Many factors come into play as we discussed. Keep those in mind as you write up your weekly e-mail. For class discussion, what do you think about books that are truly great not being discovered? Do you believe that a truly great book will be discovered eventually?

In your career as an editor, there is no doubt you are going to have to publish a lot of books that the publisher wants you to publish and that do you want to publish yourself. Books that you personally would not publish but have no choice in this case. If this happens, then you just have to suck it up like anyone and do it because this is what keeps the house the running.

Editors Books - Your Intuition & Instinct & How This Comes into Play...
But every now and then, once you have proven yourself a good worker in some way or a good editor, you may come across something truly unique. It may just be a “voice” and by voice I shouldn’t say “just” for discovering a new “voice” is wonderful thing – it’s a new way of telling a story and a new way of writing information that makes it different from any other writing. In a sense, that is an Editor’s Book.

But a true Editor’s Book is a book that does something that has never been done before. Authors who truly revolutionized writing; authors like;

Paul Bowles
John Barth
Jack Kerouac
Marguerite Duras
Georges Perec
Harry Mathews
William Gass
Nicholson Baker
David Foster Wallace
Zadie Smith
John Irving
William Faulkner... to name but a few.

We don’t have to like all of these authors, but they are more contemporary authors and this is why I chose them. We also have chosen Joyce who is also an Editor’s Author to be sure, but these authors’ are more than just contemporary. They give us, have given history, something that no other author has given us, and this is what we look for. If you can think of others authors who fit the bill and who have truly changed the face of writing, great. Again, even I don’t like the work of all of these authors, but their work is exceptional in some way and that is what counts the most. It is not about having a "voice", it is about changing how writing is written. It may even take us a while to get used to the style of writing. These writers first books may not do so well, but in due course, they will succeed, and that is what is the true test here. This is where an Editor succeeds.

Think of the Oulipo school of writers – the French school of writers who play word games (see link or Google the word) – in a sense they revolutionized and revolutionize (though I am not sure how active they are now) writing during their time and today. Harry Mathews is an Oulipo writer, so is Georges Perec who wrote the book A Void, entirely without the letter "e", and even more amazing, the book was translated into English, also without the letter "e". Another writer, a French writer is Jean Echenoz, but he is only available in French for the most part - he too could be considered an Editor's Author because he just won Le Prix Goncourt for his unique style of writing (this is like winning the Pulitzer).

We spoke about the history of Ulysses by Joyce: - first published by Sylvia Beach at Shakespeare and Company after it had been serialized in magazines. She published it in 1822. It was banned in the United States as pornography and if you were caught bringing it out or in then you could be prosecuted for distributing pornography.

Finally, Bennet Serf, one of the co-founders of Random House (he Donald Klopefer formed the house in the 1920s). Serf felt so passionately about the book that he took it before Judge Woolsey and won and Ulysses was granted to be published in the United States on December 6th, 1933. It was published by Random House in 1934. Random House got its name because according to Serf, books were published "at random" - just books they liked or felt moved to published - hence the name of the house.

A Cuban author, Raul Rivero, noted for his political writings (though not connected to Joyce,) said something that was quite notable and humorous, “It’s a very special book because it was edited by the police.”

Hopefully, this will not happen to your Editor’s Books – a book you truly love and is your "baby" as you shepherd it through the editorial process...That said, your ultimate goal is to publish a book thtat has the lasting power of a book like Uylesses and it is possible. Classics are built through the years and you may not even know you have published a classic until many years later - or even after you are dead! A classic is a book that does not have a short half-life, but instead, never dies.

editor as negotiator | contract information as negotiator

The Editor as Negotiator ~ Diplomacy

Editing contracts may or may not be part of your job as an editor at a publishing house. No doubt initially it will not be or in the very least you will be expected to know what a contract is and particularly subrights. That said, it’s good to know what a contact is, what will come of it should you work you way up the ladder at some point because you will be negotiating if you do become an editor or an editorial director.

There were several points of note in the reading that stood out: the first was style, the different ways in which editors will develop their own personal styles for negotiating a contract as they move through their career. Ideally, you do not want to come away from it by being an aggressive bulldog, though this is the approach some people do take. Your goal should be to get the best deal possible for your publishing house (this is your primary obligation as you know by know; whatever your job is, it’s always first and foremost to your publishing house, so we don’t need to say that again.). After this, your ethics are divided, once the contract is negotiated – your obligation is to stand by the promises you have made to your author and the promises made to your house. It’s a balance.

Be forward thinking – don’t just look at the “now”. Think four, ten, or more years into the future, especially with subrights. You never know what’s going to happen with your book. You don’t know if you are going to get offered a film deal four years down the road from the most ‘unexpected book’ or a translation offer, so your job would be to try to hold on to the highest percentage of translation rights as possible – all subrights, in fact. In short, as you go through your contract, you will be negotiating most of it – since this is graded – you will negotiate as much or as little of the contract as you want or see fit depending on how much of the contract you have come to understand. Some may negotiate more than others. It’s entirely up to you, but will be reflected – remember, in a real world situation, which this does mimic – this is not simply a futile exercise – you will be doing exactly what you are doing now with books you know little about based on proposals or worse, query letters – with authors you know very little about. The exercise you had was quite similar to a real-world experience of what you will be dealing with.

Look at Reversion Rights, Reprint Rights, Non-compete rights – works that compete with the existing work as we discussed. A book that the author wants to put out at the same time on the same topic. You must build in or have a clause that says something to the affect that they cannot do this within a reasonable amount of time so that you have time to sell your book. But REMEMBER, the entire contract is important and negotiable.

Treat your author or the agent you are negotiating with respect and take them seriously. This is a serious negotiating matter and you’ll want to factor that in – there can often be big money involved – if not to you what seems like a huge amount, imagine if you are an author living independently and this is your only source of income, ten-thousand dollars for one or two years work on a book is not a great deal of money when you think about it for the amount of work required. You’re not offering a lot for a lot of work. Conglomerates have changed this a great deal, I think, by paying bigger advances to certain authors and smaller houses paying smaller advances to lesser known authors, although don’t romanticize too much; first time authors have never been paid a great deal of money.

Almost all contracts are boilerplate within reason with small variations here and there, but they are standard with the standard clauses. Familiarize yourself with them. Even if you feel you will never have to use or negotiate a contract (you may have a legal department or a subrights department), as Editorial Director, I had to negotiate every contract that came for every book I bought and so far, every book that I have sold, I have negotiated directly, or my agent has, with the Editor him or herself.

Frankfurt Book Fair – You all know about this, but keep it in mind as a big money-maker for your company for the right kind of books. When you sign a book, think about how well it might do in another country in translation. When you prepare for Frankfurt, think about which books you are going to try to sell and to whom. Frankfurt is generally the first week in October and is the entire week long with almost no breaks from early morning until 7 or so at night. If you leave early or pack early on the last day, you are penalized a fee.

Your job will be to handle all of these things with diplomacy and skill and seeming ease. Confidence is key here. Whether or not you are actually feeling confident, as in the beginning you probably will not, you must learn to know your subject fully, but project a certain confidence so that others have confidence in you. At bookfairs you represent the entire house for which you work, so it is entirely up to you to be the public face of said house, whether you are the publicist or the editor or even the author, the onus is on you.

Contracts are important because you will need to negotiate (and remember that everyone should come away from a negotiation feeling good).

ethics | a reason to lie? | class notes

Is there ever a good reason to lie to an author?

No.

A big lie will always come and slap you in the face: you must never lie to an author about his or her work. As I said, they count on you. Your relationship with the Author is a symbiotic one.

BUT, what authors may not need to know:

However, there are a class of things that Authors do not need to know that do not relate to their book, and this is not lying, but these things are just not pertinent to the Author. Such things would be:

The everyday operations of the Publishing House (this information is proprietary information, unless it relates directly to the Author's book.)

How you conduct your business and how you acquire books.

Which other books your house has acquired of late - unless this information is already public - this is not up to you to necessarily share.

What the author DOES need to know is that you are an Ethical Editor and an Ethical publishing house with a good reputation and that information will ‘out’ pretty soon, or is already known. Most houses have established and known reputations and most Authors have agents to guide them as they negotiate the world of publishing as to the 'right' houses and Editors. You want to be one of those 'right' Editors... so build a reputation as an Ethical and fair editor.

ethics | plagiarism & trusting your authors

Plagiarism is almost the least of your worries because the accuser must prove the book is a plagiarized work which is very difficult, but not impossible as history has shown. As noted in Editors on Editing, Plagiarism is THE GREATEST AND LEAST OF YOUR WORRIES; YOUR ONLY DEFENSE AGAINST IT IS THE INTEGRITY OF THE AUTHOR…

Think of recent examples of plagiarism or stories that were simply untrue. As the Editor here, Evander Lomke - a well-known Editor at a trusted house that is international as well as in New York City, noted, Aside from having a broad general knowledge, there's little an editor could or can do but trust his or her instincts. In short, you have to trust your Author. Be cautious, yes, but trust your Author - and try to fact-check and publish reputable authors, but again there are no real guarantees.

One Editor tells me that his first job "...was comparing Haley's Roots to The African by Courlander. Roots was supposed to be a family history, yet Haley plagiarized Courlander's novel. Doubleday eventually paid a lot in an out-of-court-settlement ... Aside from having a broad general knowledge, as I say there's little an editor could do but trust his or her instincts. I doubt Haley's Doubleday editor would have suspected. Haley was already an established authority, having worked with the likes of Malcolm X."

The best thing you can do is double-check outside sources and have your author source and cite every fact or even little factoids for you so that even if they (the sources) do not show up in the finished work, you know what they are... this is important.

ethics | your responsiblity to your author

You should never lie to your author – your author depends on you for the Truth with a capital T. in the Platonic or philosophic sense as I’ve said before – Virtue, Love, Truth, the big emotions and loyalties that come with a capital letter before them not a small letter. Ethics means being ethical. No more, no less. This means that the Author is deserving of the ultimate truth of any issue AS IT RELATES TO his or her book.

You are the author’s chief and really, only advocate at the publishing house in admist a swirl of other editors and books and employees which can be intimidating for anyone.

Never “sugarcoat” the truth.

• If a book is not selling well, say so and give reasons as to why you think that may be; is there a remedy to this? A different way of pitching the book? It may just be that this is not a 'big book' and you, as the Editor, will have to break the news to the Author that you have done all that you can do.
• If reviews are not as many as you or the author expected, be honest about why you think that may be – again why that may be and what efforts you can take to pump the reviews up. Perhaps you can make another effort.
• If reviews are not as good, be honest and try to suss out why that may be the case. It may just be that the book is a not a good book “a dog with fleas’, or it may well be that your publicist did not send it to the right people. It is up to you to make sure that the book gets into the right hands for the particular type of book that it is and its genre.
• Did your author give you a good, substantive list of who might review the book? (not just friends for free copies…) on their Author Questionnaire
• Did the Author help provide good connections and did you follow through
• Did the author also write a letter informing the of their upcoming book which can help?
• Have you pulled out all he stops and whistles on manuscript and finished book? Is it what you expected it to be, both on your end and what the Author promised to deliver?
• Did you provide your sales team with all of the information they need or needed to hand-sell the book, keeping in mind that they represent hundreds of other titles and have about two or three minutes on average to represent each book for a medium-sized house with a medium-sized distributor?
• Have you pitched the book to the best of your ability to your Distributor and sales group and made every effort to get the book into all bookstores and representatives?
• You must be able to answer Yes to all of these questions. Although not each of these items is directly your responsibility, it is your book and your Author and in this sense, you oversee every aspect of the book as it makes its way through production.
• Have you, finally, followed up or seen that a letter is sent to each reviewer and each editor of the main media, concerning the book and its virtues? A letter from the Editor to the right journal or newspaper can make all of the difference.

There may be many more things; can you think of them? At least, however, the above list is a starting point and gives you some idea of what you, as the Editor, really owe your Author.

ethics | class notes | where to draw the line

As Editors, it is our job and our obligation to be ethical in all of our dealings with our Author and with our Publisher. There is no middle-ground here such as ‘sort-of ethical.’ You must be absolutely ethical in the true Platonic sense. Your loyalty is to your Author, your Publisher, and of course, to yourself. You must always be loyal to your Author – really, to all three as listed above. We have learned never ever to ‘sugar-coat’ or ‘protect’ the Author from obvious truths, such as how their book is selling, which reviews they are getting or not getting and why, and other matters as they relate directly to the Author’s book.

We must be fair and ethical in our contractual dealings and keep our word just as we expect our Author to keep his or her word. This is, after all, a binding, legal contract and more, we want to establish ourselves as editors or agents with integrity in the business with a good reputation. This is also key to your career.

We must be able to objectively support the Author’s work and be professional Editors while at the same time not trespass on the author’s right to freedom of expression (to a certain point, such as yelling “Fire” in a crowded movie house where there is none - one question; what do you do about a book that does essentially shout "fire" or something untrue and you know it to be untrue in this sense? Do you publish the "fire" book?) What types of books are alarmist in this sense that would cause people to action that could be potentially very dangerous and irresponsible? This is a thin line because of freedom of speech, yet there must be a line somewhere.

Remember that you are the Editor, not the Creator of the work. Be careful of your edits - it's not for you to rewrite the work, but instead, to craft the work so that it is, at the end, a better book. That's your job. You are not going to get the glory here and if you want that - then reconsider your career choice and be on the other side of the desk as an author becuse that is only slightly more glamorous. Publishing has been over-glamourized by the media and you need to remember that it is a job like any other. You are not unlike journalists who are members of the Fourth Estate - publishing should not be, in my view, exempt from the Fourth Estate as many of the same issues, rules, situations, will and do apply and we are bound, much like journalists by certain codes of ethics. Know them and put them into practice in your work.