Why Authors Should Not Negotiate Their Own Contracts
- By: Jessica Faust | Date: Oct 19 2015
Back in my publishing infancy I was negotiating a contract with an author. I was an editor at a major publishing house and the author opted not to get an agent despite my suggestion that she do just that. I was even willing to provide a list of reputable agents I thought would be a good fit.
The initial negotiations went fairly well. We agreed on an advance, rights and a royalty rate. Everything was fairly standard (although she probably could have gotten better terms with an agent). It was during the negotiations with the publisher’s contract department that things went bad.
In contract negotiations it is typical that an agent will first negotiate upfront terms with an editor. These usually include things like the advance, royalty rate and which rights you’re offering the publisher (foreign, audio, etc). Once those terms are finalized, things are turned over to the contracts department. This is when your agent negotiates what I like to call the nitty-gritty of the contract. The details and wording that seem small, but can make a huge difference in your future.
The author of this tale was very upset about some of the wording in the contract. She had decided, after talking with her family lawyer, that it put her at a liability risk and needed to be changed or deleted. Any agent will tell you that this particular wording is standard and no publisher is going to delete it, although there might be small ways it could be changed. The author was calling me and asking me to talk to the contracts department on her behalf. I talked to people in our office to get a better understanding of what was going on, and I tried to make this deal work, but in the end I worked for the publisher, not the author. I was not in a position to negotiate her contract for her.
The author ended up walking away from the contract and, to the best of my knowledge, never received another book deal. To this day the story still makes me a little sad.
What made me think of this so many years later is that I just recently finished a contract negotiation with an editor and publisher I both like and trust, but the emails for this negotiation were terse at times and made me think how hard it would be for an author to deal with this directly, and how badly it would impact the relationship between the editor and the author if I were forwarding emails that essentially said, “sign this or else”.
Negotiation is not for the weak. In a good negotiation everyone with some of what they wanted, but rarely everything. That’s the way compromise (and negotiation) works. An agent’s job in a contract negotiation is to get her client the very best terms possible and allow her to go into the editor/agent relationship feeling excited and good about working with her editor. She shouldn’t go in feeling like her editor pushed her into something she wasn’t comfortable with or didn’t fight for her. Just one of the many reasons why an agent can be good for your career.
I feel, too, that writers view their work in a motherly way. It’s personal; they’re sending their babies out to face reality. Not many moms enjoy cutting the cord, so having an agent, it seems, acts as a necessary buffer, as well as an excellent guide, placing their work in the right hands.
I would rather self-publish than negotiate with an editor and publisher (and I’ve no stomach for all the work that goes into self-pubbing).
I truly want an advocate who believes in my work and wants the best possible deal she can get (which may not be the most money). I can’t imagine submitting to editors before I’ve signed with an agent. If this situation somehow happened to me, you can bet I’d be looking for an agent whether or not an editor suggested it.
I’m guessing this writer thought agents only sell the book, and since the writer had already done that, there was no point in giving up 15% of the advance and royalties. I’m not too surprised that such thinking led to the deal falling through. A sad story all around.
This is one of the many reasons I would prefer to work with an agent.
Being British and aiming at an American market is going to make contracts that much harder.
I’m only working on my second draft (while taking a few classes) but once it’s polished, I’m torn between submitting to Moe or Beth.
I take issue with, “Any agent will tell you that this particular wording is standard and no publisher is going to delete it, although there might be small ways it could be changed.” I, too, was offered a contract that made ME liable for the publisher’s use of my photo – even though I had no control over the publication. The contract even claimed to bind (and make liable) my heirs and assigns in perpetuity! I stood my ground, and the publisher found a way to work with me without their offensive “standard” legalese. If an agent cannot negotiate a reasonable contract, he/she isn’t protecting the writer’s legitimate interests.
Well I think that’s what I was trying to say. This language is standard. It is found in almost every contract, but there are ways an agent knows that it can be modified. That’s an agent’s job. to modify the standard legalese.
This is one of the main reasons I want an agent. I don’t want to be spending long hours wrestling over the business aspects of my career. I’d much rather have an expert handle that for me, keep me informed of what I need to know, and let me get on with writing the books. Some writers are happy doing both. I’m not one of those writers.
I feel sorry for that poor author. One of those “sliding door” moments they will probably regret forever.
I would be hopeless at negotiating. One of the many reasons I want an agent. I don’t want to regret the “what ifs…”.