Let’s give a great big M & M welcome to Jeff Mehalic, my friend and go-to guy for anything legal in my stories (and personal life!!) Jeff is a practicing attorney with his own law firm in West Virginia and is well-versed in the intricate details of contract law. I’ve posed some very specific questions for him because I know there are a lot of you out there who will be getting contracts in the very near future and don’t yet have an agent to guide you through the confusing language of a literary contract.
So, let’s get right to it.
Me: Welcome, Jeff. Anything you want the people to know about you before we even get started?
Jeff: Liz, thank you for having me on Mysteries & Margaritas. Right now, I have a law practice in Charleston, West Virginia, and by the end of the year, I’ll be opening an office in New York.
In my practice, I negotiate on behalf of writers and authors, and also represent them in disputes and litigation arising from their contracts.
I also write a blog called West Virginia Business Litigation and have just started another one called The Write Lawyer, which may be of particular interest to your readers.
Let me add a disclaimer here. My answers are general in nature and should not be interpreted as legal advice for any particular situation. Any recommendations or advice necessarily depends on the specific facts.
Me: Does an author really need someone to negotiate his or her contract in this day and age?
Jeff: There are two answers to your question. Can an author negotiate a contract without an agent or an attorney? Yes. Should an author negotiate a contract without an agent or an attorney? In most situations, no. I highly recommend that an author obtain an agent or an attorney. Most publishing contracts provide for a book to be published in a variety of formats, each of which comes with its own rights, and are simply too complicated for an unrepresented author to navigate. Add to that that the contract is drafted by the publisher and therefore is weighted in its favor, and an author really needs some professional assistance in his or her negotiations.
Me: What does it mean when the contract says the publisher holds all rights to foreign sales and TV and audio rights? Is this negotiable? Do we even want it to be negotiable?
Jeff: First of all, understand that publishers want to retain as many rights as possible because that provides them with the greatest number of opportunities to make money from their authors. Authors, on the other hand, want to retain their own rights where possible, so that they can negotiate with other entities, such as foreign publishers, movie studios, and production companies, and generate multiple revenue streams from the same work.
All of the rights that you mentioned are negotiable. That doesn’t mean that a publisher will agree to let an author keep them, but an author – or his or her representative – should absolutely try to retain as many rights as possible.
Me: Can you explain the option clause so even I can understand it?
Jeff: For anyone who doesn’t know, an option clause gives an author’s publisher the right to publish the author’s next work, subject to the negotiation of mutually-agreeable terms. Under the option, the publisher usually has a period of time within which it can exclusively review the work and make an offer – basically a right of first refusal. If the parties don’t reach an agreement or the publisher passes, the author is free to take the work elsewhere.
Me: What happens when an author delivers a book (sold on proposal) that the editor finds unacceptable?
Jeff: First of all, it depends on the language in the contract. But typically, the editor will ask the author for changes in order to make the book acceptable. If the author can’t or won’t make the changes, he or she can refund the advance or risk being sued.
Me: What about if there is a really big conflict between the publisher and the author and the publisher threatens to pull out of the deal?
Jeff: This is more complicated than it sounds. Even though the parties likely have a contract, it may contain language that restricts the author’s right to sue the publisher in such a situation. But in the absence of such language restricting the author’s rights, if the publisher reneges, the author can sue for damages resulting from the breach of contract.
Me: Does a normal contract give away all rights to the characters in a series? In other words, if I decide to take my series someplace else when my contract is up, can I do it?
Jeff: Once again, it depends on the language in the contract (do you see a theme here?). Ordinarily, an author would not convey the rights to the character(s) beyond what was negotiated, whether for one book or ten books. This is where the option comes in. If the author and publisher cannot agree on a contract for the author’s next work involving the character(s), the author is free to shop the work elsewhere.
Me: I know every contract is different, but what is the medium advance for a debut author nowadays? How is this paid out – say in a three book deal?
Jeff: The size of the advance depends on a lot of factors, such as the genre, whether there is an auction – two or more publishers bidding against each other, whether the author has a platform, i.e., is a celebrity, politician, athlete, and whether the publisher sees potential for the story.
How the advance is paid for a hypothetical three-book deal is the product of negotiations, which to me really highlights the need for an author to have representation. But here are three examples, which are unrelated to the amount of the advance: a 50-50 split, where half of the advance is paid when the contract is signed, and the second half is paid on acceptance of the manuscript (in most cases, this is the author’s best choice); 40-40-20, where the publisher pays 40% of the advance when the contract is signed, the next 40% when the manuscript is accepted, and the remaining 20% when the book is published; and thirds, where the publisher pays one-third of the advance when the contract is signed, the next third when the manuscript is accepted, and the final third when the book is published.
Me: What if anything can a debut author expect to negotiate on his/her contract? What if anything is non-negotiable?
Jeff: There’s no such thing as non-negotiable in the sense that the author has no options. The author can always choose to walk away from the deal if the terms being offered are not acceptable to the author.
The chances are that a debut author trying to negotiate his or her own contract won’t know what is negotiable because the publisher will say “here’s your contract, take it or leave it.” An agent or attorney who deals with publishing contracts should know what is negotiable. By the way, if an author is going to hire an attorney, make sure it’s someone who is familiar with publishing contracts. You wouldn’t go to a tax lawyer for a medical malpractice case.
Me: Any important piece of advice for negotiating a contract without an agent?
Jeff: Don’t do it.
Thanks again for having me, and I will answer questions throughout the weekend as my time allows.
Okay, y’all. Here’s the perfect chance to pick Jeff’s brain without the hefty hourly fee. A lucky commenter will receive a copy of Janet Evanovich’s How I Write. Secrets of a Bestselling Author.
Somehow I ended up with two copies. So ask away.