It’s been a little while since I wrote about Predatory Contracts, but it came up again this week so I thought that I would expand upon it a little. I’m not going to get into book contracts because I have no experience with those and there are others who can give much better information on that topic than I can. I would strongly suggest, if you are looking at a book contract, that you at the very least consult with an attorney, preferably one with experience in publishing contracts.
MAGAZINE CONTRACTS – It has been my experience that most magazines stick to a relatively common contract format with minor variations. Some magazines don’t even offer a contract, even some who pay. If they don’t offer a contract, the terms should be spelled out in their guidelines and you should print and keep a copy for future reference, but don’t write them off simply because they don’t write a contract. Here are some things to look for.
Rights acquired – Virtually all magazines acquire First Worldwide rights for print and on-line versions of your work. This means that you are granting them the right to be the first to publish in both print and on-line versions of their magazine. This should be a one-time right except they may reprint the magazine as needed. They will also ask that they be allowed to advertise back issues on their website and in their magazine and to sell those back issue as demanded. This is entirely reasonable. They will also ask and you should grant non-exclusive electronic rights for as long as the magazine is in publication. Once it’s on the internet, they can’t take it back, so just agree.
Exclusivity – There should be a stated length of time before you can offer the story to a secondary market. Usually this is 3-6 months from date of publication. Some ask for 12 months. I would question and possibly try to negotiate that down. Anything over 12 months is unreasonable.
Reversion of Rights – Most magazine contracts will state clearly that all rights revert to the author upon publication. A few may state that the rights revert after the term of exclusivity. Either way is acceptable, but the former is better for the author.
Payment – Some magazines will pay by the word, some a flat amount per story. Either is acceptable. There should be a clause stating when and how payment will be made. Normally, payment is upon publication. Some pay upon acceptance, which is great if you can get it. Most will pay via PayPal, but some still send checks.
Many will “ask” but rarely demand that if the story is sold to a secondary reprint market that the phrase, “This story first appeared in (insert magazine name and issue).” I see this as a courtesy and no secondary market is going to refuse to include it. They had faith in your story first and, hopefully paid you for it, so why shouldn’t they get a little free advertising?
ANTHOLOGY CONTRACTS: Here’s the area where we run into a wide variety of contracts, many of which are downright predatory. This isn’t surprising. To publish a magazine, you must have a steady supply of stories, advertisers, and generally put in a lot more work to get your publication out on a timely basis. The sad truth is, that virtually anyone with access to CreateSpace and Amazon can publish an anthology. So, here’s what you want to see in your anthology contract and you do want a contract.
Rights – A legitimate anthology will ask for First Anthology Rights or First English Language Rights. Look carefully at the wording in this clause. A publisher who does not have worldwide distribution, does not need world-wide rights. If they distribute only in North America, why give them European or Asian rights. You can only sell these rights one time. If they are publishing on Amazon, then they will need worldwide English language rights. They still will not need any foreign language rights or subsidiary rights such as audio, film, etc. There is often a standard clause that Large Print and Braille editions may be published so long as they are published and sold exclusively to a charity which benefits the visually impaired.
Exclusivity – Unlike magazines, anthologies have a very limited shelf-life and so the Publisher will often ask for exclusivity for 6 months or one year. Both are reasonably standard. Depending on the marketing and promotion that the publisher does, sales will amount to very little after the first six-months, but I wouldn’t argue with a year if I felt the Publisher had a marketing platform and intended to push sales. There are many Anthology publishers who will ask for much longer or even permanent rights. This is, in ALL cases, predatory. These publishers often hope that you will later publish a best-seller and they will own all rights to one of your earlier stories. This is pure foolishness and greed on their part. Should you publish a best-seller and wish to recover your rights, it would take a good attorney less than 20 minutes to prepare a brief and have this contract declared predatory, demanding damages in the process. Still, why set yourself up for that? Simply, say no.
Copyrights – To establish a basis for bringing action should your story be pirated once published, it is not unreasonable for the publisher to apply for a copyright for your story. However, in ALL cases, the copyright should be in the Author’s name, not the publisher’s. Remember that copyright runs for the natural life of the author plus 70 years. If they want to own the copyright, that is a business investment on their part and should be negotiated separately from the publishing contract with an eye to how it might affect your future earnings or that of your children and grandchildren.
Reversion of rights – Here, again, is an area where predators can play havoc. All rights to your story should revert upon publication, or within 6 months of publication at a minimum. If the terms are different, then look for other predatory clauses. In virtually every case, you’ll find them.
Payment – Payment should be on either a per word or per story rate as spelled out in the Writer’s Guidelines prior to submission and payment is normally due upon publication although some legitimate anthologies will pay 3 months after publication to allow them to pay from sales. Some will even pay upon acceptance. Never agree to a longer term. Some anthologies will pay royalties. Here’s where we get into another abusive area. If you agree to a royalty structure, royalties should be a set amount based on the cover price of the anthology. Many anthologies will attempt to word the contract so that royalties will only be paid after the publisher has recouped their expenses or will be paid only on profits. This is usually a warning sign, but might be alright if the publisher agrees to itemize all expenses on quarterly royalty statements. If the anthology is published in print and eBook, audio or large print, then all sales and expenses should be itemized for each format individually. If the eBook alone is profitable, the royalties on it should be paid regardless of the publisher’s loss on other formats. In any event, there should be a clause which allows the author or his designated agent (attorney/accountant) to view the books upon demand. It is also a normal practice for publishers to withhold a portion of royalties to cover returns. This, is an area where even the big publishers get abusive. Reserves of 10 to 20 percent are relatively normal and retaining those holdings for up to 90 days after the book is out of print is also normal. However, some publishers attempt to hold 50% of royalties or more and for indefinite periods of time. There isn’t much the author can do about this except to file that market under Never Submit Again.
Like magazines, anthology publishers will usually ask that you include a statement in later publications that “This story first appeared in XXX Anthology”. As I said above, I see no problem with this.
There are a lot more clauses and issues that you might find in your contract. I can’t cover them all here, and undoubtedly, haven’t seen them all. These are the ones of primary importance that I feel you should pay the most attention to.
It is fair to note, that some anthology publishers will attempt to save a legal fee by adapting their standard book contract to an anthology. This will almost always result in longer terms for rights and may impact some other areas as well. If you find an issue in your contract that is not satisfactory, it is always best to send a polite email to the publisher stating that you cannot sign the contract in its present form and suggesting the changes you would like to see made. They will almost always respond to a polite request and sometimes quite favorably. You never know until you ask. If you are asking for reasonable and standard changes, then they have the opportunity to correct, and if they refuse, then you can be pretty sure that those questionable or predatory clauses were inserted deliberately.
I hope that this will answer some questions and that you will find it a helpful post.