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Last May the Authors Guild announced the “Fair Contract Initiative,” a call for publishers to stop forcing authors to accept unfair contract terms.

This month, the Guild sent an open letter directly to members of the American Association of Publishers reiterating the request.

You can read more about this open letter on the Authors Guild web site.

Here is the key paragraph:  “What we demand is simple: Publishers need to revise many of their standard contract terms to make them more equitable. Authors should get at least 50% of net e-book income, not a mere 25%. They should not have their hands tied with non-compete and option clauses that can make it impossible for them to write new books without delay. They should not be forced to accept royalties that can decline by 50% when the publisher cuts its wholesale price by a single cent. They should be able to get the rights back when the publisher stops supporting a book.”

Randy sez: Hear, hear! I agree with the Authors Guild 100% on this. (I’m not always in agreement with the Authors Guild. Their call to the Department of Justice last summer to investigate Amazon looked to me to be misguided. My view is that Amazon has succeeded by doing right by readers AND by authors, and so long as they continue doing so, I’m good with them. I support Amazon. I support Apple. I support B&N. I support Kobo. May they all compete for the attention of readers and authors by treating both groups well.)

But back to the Fair Contract Initiative. A few comments: 

The standard 25% royalty on net e-book income is far too low, in my opinion. The agents I’ve talked to tell me privately that they think these royalties should be at least 50%.  

Non-compete clauses can be written in a way that’s fair to both the author and the publisher, but in many cases, they’re tilted very heavily to the publisher’s interests, making it impossible (for example) for the author to do any indie work on the side. I’ve discussed this with various publisher representatives, and the usual line they take is that “it’s not in your interest to compete with your own books.” I don’t buy this. It’s certainly not in the PUBLISHER’S interest for you to “compete with your own books,” but every indie author knows that your books don’t actually compete with each other, they promote each other. 

Option clauses can be written to be fair to both the author and the publisher, but once again, very often they’re not. An option clause requires you to submit your next book to the publisher. That’s not onerous in itself, but it becomes onerous when the publisher has an unreasonably long time to make a decision, or when the publisher can force you to accept the next contract with bad terms. 

A number of my multi-published author friends have had no end of grief trying to get rights back on books that the publisher stopped promoting years ago. Books that don’t sell. Books sitting in warehouses. Books that the authors could do something with if only the publisher would revert rights to them. 

I have little confidence that the Authors Guild is going to make much headway with their Fair Contract Initiative or with this new open letter to publishers. I don’t see that they have much leverage over publishers, and without leverage, they’re not going to change the way multi-billion dollar corporations work.

So what’s the alternative?

Do authors have to accept terrible contracts?

No, of course not. 

Many indie authors became indies because they got tired of working with publishers. 

You can walk away from a bad deal, and sometimes you have to.

But it’s also possible to negotiate a better deal.

Publishers are not the Great Satan. They are corporations in business to make a profit. If you want a better deal with them, then you need to bring leverage to the table. 

You need to negotiate from a position of strength.  

You may be thinking that you’re an author earning a few thousand dollars a year. How could you possibly negotiate from a position of strength with a billion-dollar publisher?

You can only do that if you know what your positions of strength are. Please note the plural here. Positions of strength. You may have several points at which you can apply leverage, and it may be that any one of them can get you key concessions. 

Here are some potential positions of strength that I have seen in authors over the years. Some of these are my own. Some are strengths I see in other authors. I’m going to phrase them all in the first person, for your convenience. If these are your own personal positions of strength, then cut and paste them into a new file. You may need them someday:

• I am one of the world’s leading experts in my non-fiction topic. 
• I am a best-selling author in my category. 
• I never miss a deadline. 
• I write fast and can produce more content than my publisher can publish.
• I write excellent work that doesn’t need much editing. 
• I write books that always earn out their advances. 
• I have an exceptional platform with a proven ability to sell books. 
• I have an entrepreneurial spirit and I am perfectly willing to walk away from traditional publishing and make a success as an indie author.
• I have a marketing plan for producing a set of indie novellas that would help market this series of novels I am proposing to write for you. 
• I have several other publishers who are interested in working with me. 
• I am willing to write my next book for an advance of $X (where X is a reasonable number, which may be lower than I’ve worked for in the past). 

Once you’ve identified your positions of strength, you need to figure out your negotiating strategy. Here are the key points you must know in order to define that strategy:

1. What are the non-negotiable things that I MUST HAVE in the contract? (If I don’t get at least these, then I will refuse the deal.)
2. What are the non-negotiable things that I REFUSE TO ACCEPT in a contract? (If the publisher insists on these, then I will refuse the deal.)
3. What things would I like to get in the contract, if possible, and what is their priority? 
4. What things would I like to avoid in the contract, if possible, and what is their priority? 
5. What things can I offer the publisher as an inducement to make some concessions? How can I partner with the publisher to produce better-selling books? (These come from my positions of strength.)

If you have an agent, then you may be thinking right now that it’s your agent’s job to negotiate a contract, not yours.

That’s not exactly correct. It’s your agent’s job to negotiate the best deal he can, GIVEN YOUR CIRCUMSTANCES. But your agent may not know your circumstances completely.

Your agent won’t know what your non-negotiables are unless you tell him. Your agent won’t know what things you want and don’t want in a contract unless you tell him. Your agent may very well not know what all your positions of strength are unless you tell him.

So tell your agent! 

Now, remember that your agent represents other clients and has to negotiate on their behalf with your publisher.

That means your agent has a conflict of interest that is absolutely unavoidable. (Unless your agent has you as his sole client.) Your agent can’t afford to burn his bridges with a publisher. That’s just reality.

It’s an agent’s job to balance the interests of all of his clients. Most agents think long and hard about how to do this balancing act. Let’s assume that your agent does a spectacular job of finding this balance. 

Then you are strengthening your agent’s hand by telling him your non-negotiables, because then he’s not jeopardizing his other clients by presenting your non-negotiables to the publisher. He may be jeopardizing YOU, but that’s OK, because a non-negotiable is not negotiable—it’s grounds to walk away from the deal. Telling your agent your non-negotiables gives him explicit permission to jeopardize you—which is something he could not do if you didn’t tell him.

It may be time for a little reality check here. Are your non-negotiables truly not negotiable? Are you absolutely prepared to walk away if you don’t get them? You need to know that you can walk. Your agent needs to know that you can walk. Your publisher needs to know that you can walk. Being able to walk is power.

You may be thinking that it would be nice if you didn’t have to make hard decisions like this. Yeah, it would be nice. It would be nice if all publishers treated authors fairly. But it should be clear by now that not all publishers treat authors fairly. You can either roll over and play dead or you can make the best of the situation.

In the past, I’ve negotiated from a position of weakness and I’ve done it from a position of strength. Negotiating from a position of strength worked out better. 

Once again, let me say that publishers are not all the Great Satan. I know some publishers that offer their authors an extremely fair contract. If your publisher is a dream to work with, then none of this applies to you, and I’m happy for you. 

But the Authors Guild Fair Contract Initiative makes it very clear that the publishing industry as a whole is offering a very lopsided set of contract terms. 

In the past, most authors had to take these terms, because most authors didn’t think they had a position of strength. 

If you truly don’t have any positions of strength right now, then that’s harsh, and you have to take whatever is offered.

But if you have even one position of strength, then act like it.

Don’t depend solely on the Authors Guild or your agent to make the world a better place. If you have it in your power to make the world a better place, then do so.

Writing Schedule

This month I got back into a steady schedule of writing again. It feels good to be writing a set amount each day.

Teaching Schedule

I recently decided to take a sabbatical from teaching. I’ve taught at many, many conferences over the last fifteen years, but the time has come to focus on my writing. So I’m no longer accepting requests to teach at conferences. I have one more teaching commitment on my calendar, and that’s it.

Here’s what my calendar shows me for 2016:

• March 18-22, 2016: Mount Hermon Christian Writers Conference, near Santa Cruz, California. I’ll be teaching a major track on “How to Be An Insanely Great Indie Author.” Details here.