15 August 2016 ~ 2 Comments

Negotiating Short Story Contracts

written by David Steffen

The purpose of this article is to talk in more detail about short story contracts.  This is a topic that seems to be rarely covered in most writer’s forums that I’ve seen, where most of the focus is on the writing side and rarely on the business side.  Yet, there are tons of bad contracts out there and it’s very important to avoid the bad ones or at least understand exactly what you’re agreeing to and understand what you can do.

What’s the point of a short story contract?

The point of a contract in many situations is to provide grounds for either side to use in the case of a legal dispute. The amount of money involved in a short story purchase is generally not a huge sum. Even at professional rates for a longish short story, you’re probably talking a few hundred dollars for the transaction unless you’re getting up into novella wordcounts or the publisher has an extraordinary pay rate. The sum is generally low enough that, if there were a dispute between author and publisher, disputing it through the legal system would make the dispute a money-loser for both sides.

But a contract is still worthwhile, because it should clearly spell out what both parties can reasonably expect from the other over the course of this transaction. It can be used as a reference to point to if you feel the publisher is not living up to their side of the deal, and which the publisher/editor can point to if they feel likewise about your behavior. And you don’t just want to consider what will happen in this transaction but what may happen with future transactions with other publishing involving this story or other stories.

I have from time to time had stories accepted by editors who insist on having no contract, and they tend to tout this as a huge benefit, paraphrased to: “We’re all friends here! We don’t need contracts! We won’t sue you, we promise!” While protection from lawsuit is handy, that’s not really the main point. I want to know what to expect and I want to know what is expected of me, and if I don’t have a contract, I don’t have that–you can exchange expectations in an email but the formal language of a contract is meant to remove ambiguity. You can be friends with editors, but when it comes to dealing with the actual transaction, it’s best treated in a professional and businesslike manner by both sides. Just as you don’t need formal training to be a writer, you don’t need formal training to be an editor–a lot of editors are running their publications in their spare time and treat it more as a hobby than a profession–which isn’t to say they don’t publish great work, but some of them want to avoid anything that feels like a real business. I have sold stories to places like this before, and generally things have turned out well, but a lack of contract still makes me wary because I have been bitten by lack of contract or badly worded contracts more than once.

 

What should I expect in a contract?

Okay, so contracts are important and all that–but what do you do when you get a contract? The goods news is that that short story contracts are straightforward compared to most other contracts–there are a few clauses you should expect, and some types of wording that you should avoid. Most magazines publish their payment terms and some other details in their guidelines–so you usually don’t have to negotiate unless the contract includes an unexpected questionable clause.

1. Don’t sell copyright.

Just don’t. Run away. You won’t be able to ever resell it. It’s not your story anymore if you sign. Most markets won’t ask for this, but some will.  The exception to this is if you take work-for-hire writing stories within an established world–for instance, if you are hired to write Halo tie-ins or Star Wars tie-ins.  In those cases, you are writing in a world that someone else owns, so selling the copyright for the story can make sense (but the pay should also be better).

2. The basics.

Language describing the parties and the story in the transaction by name.

3.Payment Details.

The dollar value, the medium (PayPal or cheque etc), and expectation of when you will be paid (i.e. as soon as you sign the contract, at the time of publication, 30 days after publication, etc) Obviously the payment value should match what you’ve been told in the guidelines ahead of time. The expected timing is important because it gives you a reasonable idea of when you can pester the publisher if you haven’t been paid yet. And some publishers, even ones that you respect, may occasionally miss a step. If they publish your story, they owe you that money. Do not feel bashful about following up if you haven’t been paid when you should’ve been–that’s one of those cases where the contract is very helpful to point at when you’re asking for what’s due to you.

4. Editing Permissions.

Explanation of what the editor is allowed to change about your story. Many say something along the lines of that the editor can make minor formatting changes to fit the style of the publication–I don’t have a problem with that. Others may say that the editor can make small punctuation type changes, I usually don’t worry about those too much. But I have had a few that say that the editor can change whatever they want. I am very wary of this, because I’ve been bitten by that clause before–where the final three paragraphs were left off the story with no consideration given to how that changed the effect of the story. I don’t intend to sign another contract with such a clause.

5. Publication Media.

An exact description of the publication mediums that the story will be published in. Such as a print magazine only, or online only, or online and a podcast, etc. Be very wary of language that is all-inclusive, like “any and all electronic mediums”. A publisher should know exactly what they are publishing in. If you later want to reprint the story somewhere else, the exact details of what the previous publisher is allowed to do becomes very important. Imagine you sell to a print magazine the right to publish in all mediums, and the next publisher wants first audio rights. You can’t ethically or legally sell to the second publisher without querying the first publisher now… and the first publisher may not be obligated to respond.

6. Language.

I have seen contracts that specified all languages, which would effectively block me from reselling it in translated fashion to a German publication (for instance). There are international translation markets for science fiction. I have not pursued any of them, but they are there and I want to keep that option open.

7. Exclusivity Period.

This is the period of time after publication when you’re expected to not allow the story to be published elsewhere. Some magazines require no exclusivity period–so you could theoretically publish it somewhere else the next day (though I usually give at least 3 months as a courtesy to editors). Six months or a year is pretty common. Be wary if they ask for too long an exclusivity period–I’d look askance at anything above a year for short fiction.

8. Publication Duration.  

Period of time when the publisher is allowed to publish the work.  This will vary a lot depending on the medium.

9. A drop-dead date.

The contract should spell out a time period after which, if the publisher hasn’t exercised their publishing rights, you get all your rights back anyway. This is usually on the scale of a year or so. If the publisher has paid you by this date, you should be able to keep the money with no further obligation. This is one that’s most often omitted from contracts, look for it.

10. Company Closure Provision.

This is similar to a drop-dead date in that it specifies when you can get your rights back–but in this case it’s meant to immediately release your story to you if the magazine officially shuts down. As long as there’s some kind of drop-dead date, this one isn’t necessary, but it’s a nice thing to have.

11. Miscellaneous.

Read every sentence very closely (it helps that most short story contracts are pretty brief). Watch for too-broad language. Watch for anything that would make you nervous if taken exactly as it’s written.  One example of this that I’ve seen is a too-broad demand for the author to participate in promotion–of course an author should want to spread the word about the book but there’s a difference between “something an author ought to do” and “something an author needs to be contractually obligated to do”.  The writer has already done the work by writing, and presumably they want to get back to the business of writing some more, so at some point you have to consider when other demanded obligations become unreasonable.

 

What if I don’t like the contract?

1. Ask other authors.

Considering asking someone with experience with short story contracts about the language.

2. Query the editor about it.

Ask for a change, explain why you think the change is important. If you know other people who got contracts from them around the same time, consider discussing with them your concerns and if more than one person pushes back at the same time that sends a stronger message.

3. Consider the editor’s response.

They might write up a one-off contract just for you. They might consider changing the contract they send to everybody. They might say they’re not going to change. I’ve seen all of these reactions. Most big professional editors will probably already have a reasonable boilerplate. New editors/markets are more likely to be wildcards with unfriendly wording–but these new editors may also not realize that there’s bad wording and may be very willing to change it.

4. If they give you a new contract and you’re satisfied.

Sign it and celebrate!

5. If they don’t want to revise,

I’d at least try to get a layman’s explanation of what they meant by the problematic language (though keep in mind that if that doesn’t match what the contract says the contract with your signatures on it is going to hold more water than an email exchange)

6. If you still don’t like the contract

Consider very carefully what you want to do. You can sign it anyway. You can say no. What feels right? How prestigious is the market? How generous is the pay? If you sign the contract anyway, just be aware of the risk you’re taking, such as the risk of a story being legally tied up indefinitely if there’s no drop-dead date, and make it a calculated risk that you walk into with your eyes open. If an editor takes a hard stance on a clause that you don’t want to budge on (like no-drop-dead-date or selling copyright) then maybe that’s not a person you want to enter a professional relationship with.

 

Can I break contract?

So, you sign a contract with a one-year exclusivity. It gets published, gets rave reviews. Ellen Datlow drops you a line and asks to publish it in a Best of the Year anthology. Now what?

Anything in a contract can be waived if both sides agree to it. So, just consider whether your publisher would benefit from whatever you’re suggesting. If they wouldn’t, then maybe you should forget about it. If they would, then you’ve got a sales pitch to do. Best Of anthologies, especially ones by well known editors like Ellen Datlow, are a common case where contract exceptions are made (and often even are explicitly allowed in the body of the contract). Getting a story in there gets a lot of recognition for the original publication’s editor.

There might be other things that you could convince an editor to agree to as well. Maybe you have an idea to cross-promote a publication by publishing it on a podcast–that can be beneficial too. Just ask.

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