On Tuesday I was shocked to see reports that authors, cover artists and editors who might provide evidence in the Ellora’s Cave litigation felt they were unable to come before the court (via affidavit) to voluntarily testify whether they had been paid for their services under their contracts with EC. (See more more specifics in Courtney Milan’s post here.)
The reason cited: A confidentiality agreement that was part of the contract each party signed when entering into business with EC.
Now something about this stinks to high heaven to me, on a human level, if not on a legal one. Theoretically, under the terms of a confidentiality agreement, I can be told I cannot speak out if I haven’t been paid for services rendered under the contract. That strikes me as oppressive. And it does make me wonder…if I haven’t been paid, is the contract now void? It would take an attorney to answer that one, so I completely understand why it’s a position most of the authors would not want to risk here. They’re stuck in the middle and it’s a terrible spot. I feel awful for all of them.
While this is an unusual circumstance, we can use it as a reminder to those of use who are, or would like to be, published under contract, and those who perform work-for-hire. The most important thing anyone can do before signing your name to a contract is read it and understand it. And if there is something you aren’t comfortable with, negotiate it.
A contract is a special document, signed by parties who are presumed by the courts to have read and understood the language, and consented to the terms. “I didn’t know what I was signing” isn’t a valid legal excuse in a contract dispute, either in court or before an arbitrator. Each party to a contract has the right to try to negotiate terms, to offer amendments and, of course, has the right to refuse to enter into the contract if the terms are not suitable. Only after the terms are mutually agreeable should the parties sign a contract. This is true whether you’re buying a house, entering a layaway plan or a publishing contract.
Now I haven’t had the privilege of being offered a publishing contract, but I know one thing for sure. If I ever am offered one, it will be all I can do not to scribble my name first and read the terms later, and I’m pretty certain I’m not the only one who feels that way.
We writers toil alone, we face rejection after rejection, we pour our hearts out through our fingertips to produce a story. When someone says “I like it. I want to pay you for it!” it’s all we can do not to cling onto the publisher’s leg and hold on for dear life. It is for this very reason that every author must force him- or herself to read and understand any publishing (or agency) contract they are offered.
It’s also part of the reason writers feel they don’t have much leverage, but au contraire, mon frère. You have the ability to try to negotiate a change in language you feel is contrary to your interests. You have the ability to hire counsel if you choose, or to let your cousin Stan the law student take a look. Remember, you have a product for sale, the publisher has expressed an interest in brokering your product. You are not in a powerless position.
One of the benefits of having an agent, of course, is someone acts as your advocate, presumably someone familiar with the ins and outs of publishing contracts. But if you’re going it alone, it falls on you to acquire some rudimentary knowledge. You are a business. It’s your name, your income. your publishing future on the line.
Bearing in mind that the party offering you a contract will often prioritize their own interests, if you ask for an amendment and they balk, you may ultimately find yourself having to choose: sign or walk away. But if you’ve done your homework, considered the pros and cons, weighed your options and the likelihood of good and bad outcomes, you can at least feel informed about your decision, whichever you choose.
There are scads of places for writers to find help with contracts: genre-base organizations like RWA, SFWA and MWA, the Author’s Guild and other similar writer’s advocacy organizations, and various writer’s websites. Do your homework, seek out reputable advice, and above all, at the risk of sounding repetitive, read, know and understand the document you put your name to.
Disclaimer: Curious Puppy is not a lawyer, just someone with some experience dealing with contracts. This post does not constitute legal advice.