Reading and Understanding Contract Documents

MONTHLY BLOGPOST

Thank you all for the support as my author-website-writing-craft-blog turned two on July 15. I took the occasion to highlight 3 Reasons Why Author Websites get You EYEBALLS AND WORK — a video essay, mailed to subscribers already. As you may have guessed, this month’s blogpost is about publishing contracts. Specifically, literary magazine or/and anthology contracts. We will see what to expect, how to read them, and what are the red flags to look out for before signing such contracts.

A publishing contract is a legal contract between a publisher and a writer or author (or more than one), to publish original content by the writer(s) or author(s). This may involve a single written work, or a series of works. A typical writing contract for a piece of work will look like this for online magazine and (below) for an anthology publication:

Note the parts of the contract: 1) Rights (Copyright, Exclusivity duration, Territories, Subsidiary Rights, Any rights expressly not granted) 2. Payment/Royalties (Amount and Schedule) 3. Publication details, Editing, Advertising & promotion 4. Assignment & Indemnities, Warranties & Liabilities, Arbitration. Now, none of us — neither publishers nor writers — are legal people (unless you’re a big publishing house who can hire attorneys), so it is okay to use common sense. Again, none of us are really out trying to trap one another, let’s accept that. Of course, bitter experiences still do happen. Let’s see what might go wrong:

Regarding (1) above: Know what rights you are giving up and for what duration. Who holds exclusivity of copyright for the ‘work’? Electronic and/or print rights? Worldwide or specific territories are covered? Whether you’re holding reprint/resale rights? Usually, publishing rights will revert to the author if the publisher fails to meet certain thresholds in the agreement – usually with respect to publishing timelines or keeping the work in print. However, some publishing contracts do not have a reversion rights clause. Therefore, before you sign a publishing deal, make sure you know what circumstances will get you your right to publish back. Writers may be able to terminate the publishing contract if the publisher does not publish the work for a minimum amount of time or if it decides to stop publishing the work. Knowing your termination rights is vital.

Further: What about inclusion in future anthologies/collections and what permissions are to be sought in the future and from whom? Whether the contract stipulates that yours is a work “made for hire,” which would legally make the publisher the owner of your work. What about licensing the said ‘work’ for other ‘derivative’ use, like audio/translations/podcast/screen?

Most of these questions are answered with clarity in a written contract. If not, then reach out to the Editor/publisher. As a writer who has signed scores of contracts, reading and understanding clauses has now become routine for me, and you’d expect to be ‘trained’ to spot wording/clauses that seem amiss as you go along the way. For example, notice that in the contract (below), the Publisher requires ‘exclusive online worldwide English rights’ with no duration mentioned, so you can’t reprint it in online mode, not even on your personal website, although the consideration (amount) is $0 !!!

This also brings us to Point (2): Payments and Royalities. Notice that contracts can often be for ZERO consideration. When an amount greater than $0 is specified, check for the duration within which it has to be paid. Check whether it is counted from date of acceptance or date of contract or date of publication? All three options are in vogue. Be aware of the mode of payment specified too (PayPal/Venmo/Cheque/Bank Transfer etc.) and that you are comfortable with it. Reach out if not.

Regarding Point (3) Publication Details like Editing, Formatting, Promotion etc. , I’d say publishers are a lot more flexible in their contracts. A typical one may read like this (marked with red lines below).

It is a given that both the writer and publisher have one objective in mind: to reach as many readers as possible. So, it is very much a shared responsibility. Now again, publishers differ on whether or not to allow (some even prefer, and actively request) that the published piece is screenshot and posted on Social Media. I do not think it is great to post pieces in their entirety ( a tiny teaser is okay!), unless explicitly requested by the publisher, given the effort and time to put together an issue and I feel it amounts to a reprint. Magazines like Capsule Stories don’t mind sharing the FULL piece while Stanchion would rather not. It is suggested to check with your publisher beforehand.

Regarding Point (4): Assignment & Indemnities, Warranties & Liabilities, Arbitration. Here are two useful sites to peruse: Authors Guild and U.S. Copyright Office.

Now, outside of contracts what all can and do happen? Firstly, not all publications bother with contracts. Some will just say that submission to their magazine is in itself an ‘acceptance of the terms of publication’. Raise a hand and ask when in doubt. Editors are usually happy to provide clarity. Others will not even go that distance, in which case the acceptance letter will serve as formal ‘agreement to publish.’ They are, in my opinion, the most easygoing ones. Why make it clumsy for a piece appearing on the web, which takes just about 2-3 minutes to read? That does not in any way mean everyone should do it. Longer work which are in-the-making over several years — certainly not! On the other hand, publishers too put in so much effort, time and money, often for zero remuneration. It is only fair that everone’s rights are secured for now and the future.

Stories behind stories are fascinating, as in both the process of creating them, and the path to publication. Hearing about others’ experiences goes a long way in the circumstance that none of us are getting the full picture. About one of Aneeta Sundararaj (Twitter @httags)’s stories, Aneeta says: Let’s call it ‘Great Story’. It was accepted for publication in ‘The Magazine’. There was no contract offered, but a promise was made that it would be published within a month. A few days before publication, I received an email rescinding this acceptance. What perplexed me was the reason given: the piece was too long even though it was within the stipulated wordcount. I didn’t say a word and looked, instead, for other places to submit ‘Great Story’. Within six months, ‘Great Story’ won an award and I was joyous. Out of the blue, a week later, I received an email from ‘The Magazine’ asking if ‘Great Story’ was still available. I explained that it was now published elsewhere. However, the editor could still have it, if there was a sentence added at the bottom stating something along the lines of ‘This story won the XXX award’. This was accepted and ‘Great Story’ was republished. Similar things have happened with other stories and this is what I’ve learnt: When editors genuinely want your story, they will work around the rules. Nothing, from it being a simultaneous submission, the story being previously published and my age, to sexual orientation, word count and typos, will be an issue. When that happens, the magic created spreads everywhere: I have more people reading my work (which is my primary intention in submitting my stories) and the publication has a great story that entertains their niche readers.

Secondly, sometimes publishers may add or subtract a clause, for example: something appearing only online may be renegotiated for a print anthology. In one case, the publication promised me a print copy of the anthology in consideration of which I signed a second contract. However, that second contract also put in an additional clause that stipulated rights in perpetuity in favor of the Publisher. When, at the end of one year, nothing moved, I politely queried with the publisher. They apologized that the project had been shelved and I was free to use my work elsewhere. So reaching out definitely helped. In another case, I managed to successfully renegotiate the term of exclusivity for a piece with a magazine, because I meant to include it in a collection and assessed that such surrender of rights would be detrimental to the future publisher should my collection find favor.

Thirdly, promised payment may be delayed. These are not at all uncommon. A reputed publication spoke about it here. Reasons why most journals are not in a position to pay? This article posts why. Alas, I’ve no words of comfort to offer, except to say, keep persuing it, often endlessly as this Twitter user says.

Finally, remember, in an industry as disorganized and subjective as this, you’ll not find precision and professionalism at all times. There’ll be several hurdles and hiccups. Be as cautious as you’d driving on a busy street; eyes and ears open! Be risk-averse, follow rules, but accidents can, and will, still happen.