SWEAT THE SMALL STUFF (Part 1)

Skip the fine print at your peril

Some people collect stamps as a hobby. Others cook, paint, or make pottery. Me? I read contracts. These formal assemblies of words represent human genius in its most civilized and sophisticated state. From the birth of covenants in ancient times, the relationships of person to person and entity to entity have been defined in specific sequences of words. Over time and countless negotiations those words have been scrutinized, debated, negotiated and refined until they are as sharp as needles and inescapable as chains.

I’m not an attorney and I don’t believe too many members of our profession have legal degrees, but all of us routinely immerse ourselves in publishing contracts until we know them by heart, and most experienced agents can give lawyers a good run for the money in a contract dispute. Agents not only know what’s in a contract’s boilerplate but, like Sherlock Holmes’s dog that didn’t bark, what’s not in there. If something has been removed or omitted, an alarm bell goes off in our heads.

No Such Thing as Boilerplate

A large percentage of publishing contracts is described as boilerplate, a term that derives from the metal plates that publishing syndicates used to provide to newspapers with stories embedded in them so that the printers didn’t have to set type for routine stories. “Printers apparently dubbed those syndicated plates ‘boiler plates’ because of their resemblance to the plating used in making steam boilers,” explains Merriam Webster.

Boilerplate is contractual language that, over countless years, buyers and sellers have concurred is mutually acceptable and seldom has to be negotiated. Here’s a typical example in a publishing contract:

Publisher shall have the right to publish the Work in such manner, format and style and at such price or prices as Publisher deems appropriate in its discretion. Advertising, number and destination of free copies and all details of manufacture, distribution, marketing and promotion shall be at the discretion of Publisher.

Boilerplate is boring. Flaws in it are usually considered too trivial to disturb one’s cordial relations with the publisher’s contracts managers or make them take the matter upstairs to legal counsel. So, if you’ve got a problem with boilerplate language it had better be extraordinary. You don’t want to poke a hornet’s nest of clerks and managers pissed off at this pushy author who insists on changing “shall” to “will”.

But that doesn’t mean you shouldn’t be on your guard, for some boilerplate provisions are deceptively elementary. Take this one:

The Publisher agrees to give to the Author, on publication, __X__ copies of the printed Work.

Nothing to do but fill in the blank, right? Not so fast! As cut and dried as that clause may sound, it raises a host of questions.

• “The printed Work”. This phrase refers to the first iteration of the published work – say, a hardcover. But what about paperback reprints? Book club editions? E-book versions? Audio editions? Foreign editions? Isn’t the publisher obligated to provide you with those too?

• And what about X, the number of free copies? Publishers fill that blank in with a standard number – say, five - and it may be fine for most authors. But some authors need more copies, not for aunts and uncles and cousins and friends but for reviewers and promotional contacts. The agent may need a large bunch to service movie submissions or give out to other publishers to showcase the author. The quantity can amount to a carton or more.

Ninety-nine times out of one hundred we zip through boilerplate verbiage because it is completely settled. And that’s when some seemingly innocuous phrase grabs us by the ankle like a troll under the bridge.

Three little words

Take these three words: “Or any other”. What could be more banal? Yet, that simple trio has caused untold misery for unwary authors and agents. It is buried in the verbiage of royalty provisions in many contracts.

Any sums due or owing from Publisher to Author, under this or any other contract, may be deducted from any sums which are or may become due from Publisher to Author under this or any other agreement between Publisher and Author.

The addition of those three words “or any other” to this provision means that the publisher may not only recoup the advance for your current book but for any other book of yours that they publish in the future. If your first book is a hit but the next one flops, your publisher doesn’t pay you royalties for the first one until it has recovered the advances for the second one. And the third. And the fourth etc. This form of calculation is known as joint (or collateral) accounting and is seldom appropriate except in major deals by blockbuster authors.

In all likelihood quarrels about most boilerplate provisions can be handily worked out. But some others may be more vexatious, and some can even conceal landmines. In my next post we’ll look at some commonplace-sounding contract clauses that precipitated profound changes and even legal war.

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Richard Curtis's books on publishing are available at Open Road https://openroadmedia.com/search-results/books/Richard%20Curtis