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Copyright 2000 Tara K. Harper.  All rights reserved.

Negotiating Contracts

My Advice for Negotiating Contracts
Who Is Involved and for What?

Really Big No-Nos:
Work with, Not Around Your Agent
Don't Let Your Emotions Run Away with Your Words

Don't Promise What You Can't Deliver
Things You Should Do

General Issues in Negotiations

Freelancing vs. Being an Author

My Advice for Negotiating Contracts

Don't.  It's not your job.  You're a writer, not a lawyer. Unless you are a trained negotiator, have a thorough understanding of general contract law, have a thorough understanding of all clauses and terms in your potential contract, are knowlegeable of the publishing industry, and can control your emotions completely during negotiations, it's not for you.  That's what agents are for. I know of only one author whom I automatically think of as qualified to negotiate his own contracts--aside from being a rather well-known author, he is also a retired lawyer.

I don't want a lawyer to tell me what I cannot do;
I hire him to tell me how to do what I want to do.

                 - J. Pierpont Morgan

It's not as if I haven't negotiated contracts before, either. In high-tech, I found it a straight-forward and fairly simple task.  I knew what I wanted; my vendor or consultant knew what he wanted; we both knew how to build the safeguards in.  But I also had an experienced legal department to fall back on when I had questions.  And, there were basically no ethical issues  to decide in the vendor contracts I negotiated.

However, when it comes to my fiction work, I'm the first to recognize that my personal stake in the process and my unwillingness to compromise on ethical issues can make me difficult to work with.  In fiction publishing, I see many issues that are either "writer-unfriendly" or are unpredictable as a result of the current electronic publication, reprint, and version opportunities.  The result of which is, I end up being too opinionated and too blunt to negotiate my own contracts.  Even after almost a decade in the field, I am still amazed at how my agent can soften my stance on issues to my publisher so that negotiations can continue and even be completed without one of us throttling the other (er, that would be, without, most likely, the publisher throttling me...)

So, my advice?  If you're not a lawyer, get an agent.  There are oddities in any industry-standard contracts, and the publishing industry definitely has its quirks.  You don't want to jeopardize your future by misunderstanding the terms you negotiate today.

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Who Is Involved and for What?

In any writer-publisher negotiation, there are at least three parties: writer, agent, publisher.  The best position for you to be in is one in which you understand all sides of the equation.  If you understand all sides, you might be able to give your agent more bargaining chips to use in representing you to the publisher.

Begin any negotiation process by first asking your agent to explain in detail the publisher's position.  What does the publisher usually do for authors in your position?  Why would they treat you differently?  What can you offer that some other author can't?  Yes, your agent should be asking these questions anyway, but in my opinion, you should also know what you're worth, what you can offer, and what you might have to agree to.

Once you understand the publisher's position, ask this question:  Between you and your agent, what are your bargaining chips?  For example, are you writing about a particularly timely idea?  Do you have an established readership from published short stories?  Are you bringing in name-recognition from some other field?  And so on.

Some agents have additional clout that really has nothing to do with you.  For example, an agent who handles a big-name author may try to require that a publisher buy manuscripts from one or more unknown authors in order to be able to buy the bigger-name author's manuscript.  Also, some agents are taken more seriously by a publisher because they tend to present, in general, higher-quality work to the publisher than other agencies present.

The thing to remember is this: in any negotiation, whether for a publishing contract or anything else, there is more than one side to the equation.  What you are offered will depend on many factors that all boil down to one thing:  Does the publisher believe they can make a good/profitable product with your work?

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Really Big No-Nos

Biggest mistakes I see writers make in negotiations?  There are three, and I don't think they're exclusive to the publishing industry.  However, in the publishing industry, they boil down to this:

  1. Writers agreeing to things behind their agents' backs.
  2. Writers bad-mouthing their agents, editors, publishers, and distributors.
  3. Writers promising what they can't deliver.

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Work With, Not Around Your Agent

Of all things not to do, the most important is this:  Do not negotiate around your agent.  Don't agree to things behind his back; don't talk contracts with your prospective publisher unless your agent has specifically said to do so; don't sabotage your agent's representation of you to your publisher.

If, during your agent's negotiations, you are asked to think about something or agree to something (no matter how innocuous it sounds) by your publisher, my advice is to say, "That sounds really interesting.  Let me talk to my agent about that and get back to you."  You are being tested when you are asked to agree to things outside of the ongoing negotiation process.

Bait the hook well: this fish will bite.

                           -Much Ado About Nothing, Shakespeare

No matter how exciting or wonderful what you were offered sounds, it will not hurt you to say, "Let me think about that."  If you don't understand something or think you should get something different out of the negotiations, talk to your agent first, not your publisher.  Remember, it is your agent's job, not yours, to negotiate contracts.  There really is skill and process to good negotiating,  and knowing how to do those things is partly what your agent gets paid for.  If your agent is negotiating your contracts (your career, etc.), you could easily hurt that process--and thus yourself--by agreeing to things behind his back.

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Don't Let Your Emotions Run away with Your Words

No matter what the provocation or encouragement from one or the other, do not bad-mouth your agent to your editor, or your editor to your agent.  Especially if you're keeping some kind of mental tallybook of imagined slights, lousy covers, vicious editing jobs, or what-have-you, I'd suggest you keep a tight rein on your statements.

Everyone needs to vent frustration, humiliation, anger, etc. at some point in time.  The thing is, it's important to vent your emotions appropriately.  For example, you don't yell at your boss at work; instead, you go vent your anger on the heavy bag, by playing that recording of Aida really, really loudly; or by complaining to your friends.  This is more appropriate for both you and your boss. Ditto in publishing.

Bad-mouthing your peers and cohorts is, simply put, a bad idea.  Giving your agent a negative impression of your editor or vice versa does neither one good, and certainly doesn't help you work with either party also.  I find it interesting that, often, people who act completely professionally in other fields, seem to think it is alright to be arrogant, vindictive or offensive in the publishing industry. .

All you ever really have is your reputation.  If you sabotage yourself by acting nastily or vindictively, you have only yourself to blame.  Your reputation is based as much on what you say and how you present yourself as it is on what you do.  I'd hate to be in the shoes of someone who is negotiating with an editor he bad-mouthed last month--especially when the editor knows what was said so indiscreetly.  There are better bridges to burn.

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Don't Promise What You Can't Deliver

Know yourself.  Know what you can do.  Figure out when you can deliver your manuscript, then give yourself some extra time in your schedule: three months, six months, a year.  Things happen in life.  When your house burns down, your father suddenly needs hourly care for degenerative cancer, your child ends up in the hospital, your property disappears into a sinkhole (yes, this happens in Oregon), or you lose the use of your hands for three months, you don't want your back against the wall.

It is only common sense to build time into a schedule to deal with the unforeseen.  No one faults a writer for turning in a book early--you might even impress your publisher by doing that.  But miss a deadline, and your reputation will suffer.  Better to be conservative in making promises than to make promises that can be broken by a single unforeseen event.

(If it turns out later that you think you will be late with a manuscript, tell your publisher immediately.  They can adjust schedules if they have some notice, and they might even be able to help you with whatever is holding you up.  Leaving such news to the last minute will not make you popular with anyone involved in producing your book.)

Bottom line:  Don't promise what you can't deliver, or you won't often get the chance to make promises again.

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Things You Should Do

(I was tempted to title this, "Really Big Do-Dos," but it just doesn't look quite right...)

Get an agent.
Get a lawyer.
Get an understanding of the processes and industry.
Make liberal use of common sense and courtesy.
Stand up for yourself -- no one else will do it for you.
Oh, and one more thing:  Write!

Copyright 2000 Tara K. Harper

All rights reserved.  It is illegal to reproduce or transmit in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, any part of this copyrighted file without permission in writing from Tara K. Harper.  Permission to download this file for personal use only is hereby granted by Tara K. Harper.

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