Whenever an author asks me if he should show a publishing contract to his attorney, I emit a noise not unlike that of a rutting moose whose girlfriend has just trotted into the woods with his rival. “Please,” I beg, “anything but that. Take my firstborn. Take my condo, even. But don’t show your contract to a lawyer. He won’t understand.”
My attitude is by no means unique. Many publishing people consider lawyers to be humorless spoilsports placed on our planet to raise hypothetical questions about events that have only the remotest possibility of coming to pass. In response to our reassurances that “it will never happen” or “it doesn’t work that way,” they smugly cite Gumbo v. Dittersdorf et al. and send groaning agents back to the negotiating table to haggle over the nuances of such words as “book,” “pay,” and “publish.” And whenever a breach of contract is imagined, these learned jurists are right there with their lawyer-letters, writs, petitions, and injunctions to hold the offending party to the explicit meaning of the contractual provision.
Most of the lawyers I know don’t fit this caricature. They make serious efforts to understand the unique nature of publishing law; they are reasonable, thoughtful, realistic, and no more venal than anyone else; and they regard litigation as an extremely distasteful last resort. Nevertheless, by the very nature of their profession, lawyers tend to be extremely literal-minded about the language of contracts. And, sad to say, the literal language of publishing contracts is enough to induce cardiac infarction in even the most liberal of attorneys.
Lawyers ofttimes use legal precedents and forensic experiences that may be germane to coal mining, automobile manufacture, and real estate transactions, but are hardly applicable to publishing situations. Once attorneys are engaged, however, they an obligation to produce results for their fees. It is hard for me to believe that an attorney being paid $300 or $400 an hour or more will read a contract and hand it back to his client saying, “Looks okay to me,” or, “I’d say your agent did everything that I would have done.” It is far more likely that he will raise those hypothetical questions and will not be satisfied with an agent’s breezy assurances that if This or That happens, it’ll be taken care of. After all, most agents don’t have law degrees, and while their experience must be respected, how can they predict with any certainty that This or That, or, even worse, The Other Thing, will not happen? Thus do agents frequently find themselves pushed by lawyers into composing contractual language applicable only to the red end of the probability spectrum.
The involvement of lawyers in publishing contract negotiations often polarizes situations that might otherwise be settled through negotiation. Publishers hate lawsuits and with a few exceptions (described below) will do almost anything to avoid them. While litigation is certainly the ultimate weapon in a dispute, agents are adept at working out compromises that are scarcely different from settlements forged by lawyers after protracted litigation. The difference is that the agent performs gratis the same function for which a lawyer might charge thousands of dollars.
Most authors hold the legal profession in the same awe in which they hold the medical one. I would recommend a healthy dose of skepticism and common sense when it comes to dealing with the former, however. Practitioners of the law are of women born like the rest of us. Their actions are often dictated by their emotions, their convictions guided by who pays them and how much, and they make as many mistakes and misjudgments as surgeons, engineers, or stockbrokers (or literary agents for that matter).
You should regard contracts the same way. Contracts are solemn undertakings, yes, but they are not sacred covenants written in heavenly fire. Too many authors regard contracts as rigid structures of legal language constructed to thwart and constrain them. Actually they are flexible tools when used skillfully, and can liberate as well as restrict.
In the relations between publishers and authors or publishers and agents, a great many factors balance the literal language of contracts. Custom and tradition, market conditions, practicalities, and, above all, the power of the players affect the way any given contractual provision gets implemented, ignored, or defied. Let’s look at some examples.
Not all contracts provide for a grace period in case an author delivers a manuscript late. Yet I have seldom heard of a publisher canceling a contract at the stroke of midnight on the day a manuscript is due. For practical purposes, a manuscript that is days, weeks, even a month or two late, can still be published on time without undue strain on the editorial or production staffs of a publisher. Now, an attorney may insist on specifying a grace period in a client’s contract. Publishers don’t like grace periods because they give authors another reason to be late, and authors have too many such reasons already. A zealous attorney might feel that that’s a deal-breaker. In practice, if your publisher says, “Try to meet your deadline, but don’t sweat it if you’re a few weeks late,” you can rely on that assurance ninety-nine times out of a hundred.
Friendships between agents and publishers mitigate the stringent language of publishing contracts. Despite a strict option clause requiring an author to deliver his next book to his publisher, on the strength of a tight friendship and an appeal to the goodness of an editor’s heart an agent can often arrange for a one-time waiver of the option clause in order for the author to take on a project for another publisher – as long as that project doesn’t compete with the work the author is doing for his regular publisher. “Thanks, I owe you one” is a common phrase heard in our business, and when the time comes for the publisher to lean on an agent for the return of favors, the agent may have to twist his client’s arm a little to tidy up the debits and credits in the ledgers of obligation. Try to explain this system to a lawyer!
The most important factor by far in tempering the rigidity of publishing contracts is power. Don’t let anyone tell you that might does not make right. While the language of any contractual provision may be plain as day, enforcing it is quite another matter if you don’t have the money, status, influence, or leverage to do so. A first novelist has very little influence over a rich, powerful publisher, and no matter what his contract may say, it’s going to be hard to compel his publisher to live up to every letter of his contract. If the author is a big name, however, the publisher’s eager compliance may certainly be counted on. Indeed, a powerful author or agent can compel a publisher to do things that are not in the contract. For instance, few contracts grant approval of or even consultation on cover art or jacket and advertising copy to garden variety authors. Yet big-namers are routinely consulted about such matters, and if they don’t like them they may well be able to get them changed or thrown out.
When contractual disputes arise, the interpretation that prevails usually belongs to the party with the most clout. Nine times out of ten that’s the publisher. An individual author of no particular influence may be able to enhance his legal leverage if he is represented by a strong agent, however. The agent who has a large and important clientele in, say, romance fiction may be able to gain advantages for an author who otherwise would have little standing against a publisher and who cannot afford to hire a lawyer.
One of the most important things that experienced agents know is precisely which issues publishers are prepared to take get tough about and which they will back down on. Authors who owe refunds of advances to publishers because of undelivered or rejected manuscripts are often harassed but seldom sued because it’s too expensive for the publisher, as well as bad public relations. If there is a lot of money involved, however, a publisher may well go to the mat to recover its advance, or to resist having to pay the balance due on acceptance. The publisher’s motive isn’t entirely financial. Such disputes focus on an important issue: is an advance a loan recoverable by a publisher if the author fails to meet his obligation? Or is it instead a nonrecoverable investment? Publishers take the former position, but a powerful agent may well be able to mitigate it and work out a compromise or less than Draconian repayment schedule.
Another issue that publishers are not afraid to go to court over is breaches of the author’s contractual warranties, especially those for libel. With damages, settlements, legal and court costs, and insurance premiums reaching Olympian heights, most publishers are, I would say, prepared to sue authors they perceive to have dealt with them in bad faith.
Finally, publishers tend to get rather cranky about authors who play fast and loose with their option clauses, particularly big-money authors. The trend over the last decade or so has been for publishers to write more elaborate and tighter option clauses so that star authors cannot capriciously duck out of their obligations when another publisher waves a big check at them. I must say that option clauses are for agents what elaborate locks are for safecrackers. But even if you, your agent, or your lawyer discover a tiny loophole through which to escape from the necessity of submitting your next book to your publisher, there is nothing to guarantee that your publisher won’t rattle the saber at you anyway.
Other than breaching the acceptance, warranty, and option provisions of your contract, there aren’t too many offenses you can commit that will land you in court, and even these may be worked out through negotiation most of the time. The same is true, perhaps even more so, for breaches or perceived breaches of contract by publishers. I can think of few so flagrant as to be worth an author’s while to prosecute to the bitter end. The threat of a lawsuit, and its attendant bad publicity, may force a negotiated settlement that nets you as much as you would win in a full-blown lawsuit after you have paid legal costs. It you win, that is.
I say all this as a counterpoise to any boasts your lawyer may make that you have an open-and-shut case. Lawyers do their clients a disservice by encouraging them to think there is such a thing as an easy and inexpensive victory. Don’t forget that it was an unagented writer, William Shakespeare, who wrote, “The first thing we do, let’s kill all the lawyers.”
This article was originally written for Locus, The Newspaper of the Science Fiction Field. It’s reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.