The Authors Guild on the Option Clause

Excellent statement from The Author’s Guild analyzing the odious “option clause” in the book contract. Most book contracts are “asymmetrical” in favor of the publisher. I.e. an agreement whereby the publisher gets the right to exploit the work of the author for the term of the copyright, life plus 70 years. In exchange they give the author a very small advance (usually)  against rather small royalties. One of the most asymmetrical conditions is the option clause, which requires the author to submit the next book exclusively to the contracted publisher for a given period of time, but doesn’t require any additional responsibility on the publisher to accept it. Sometimes a very limited option clause is ok. But there are some truly horrible ones out there.  Here is the complete text.

A few authors are lucky enough to sign multi-book deals worth six or seven figures. But many more writers, without really thinking about it, tie themselves to unprofitable multi-book deals in the form of one-sided options or “next book” clauses—and they do it for free.

Option clauses in publishing agreements vary, but generally they give the publisher first dibs on the author’s next book. Some options are relatively benign, granting the publisher rights of first look or first negotiation (i.e., the right to see the next book first and negotiate for a limited period of time after reviewing it). Others are never fair, in our view, such as clauses that grant the publisher a right of last refusal (i.e., even if the publisher turns it down at first, it can come back and match any other publisher’s offer) or the ability to wait until after the first book is published, or the second book completed, to make up its mind. Clauses that do so unfairly impede an author’s ability to write and publish.

We get that publishers want their investments in authors to pay off. When a book does well, it may be a credit to the publisher’s marketing efforts, as well as the author’s. In cases where the publisher actively builds the author’s brand, it may be fair to give it the right to further recoup its investment on the next book. But the terms have to reasonable. We have seen too many option clauses that overreach, binding the hands of an unwitting author for longer than she can afford when it comes time to sell the next book.

Option clauses can wreak havoc on authors’ careers. First, and most obviously, they prevent an author from selling her book on the open market and getting the best deal possible. In cases where the first book sold particularly well, unless and until the publisher passes on the next book, an option certainly precludes an auction from developing. And what if the publisher failed to market the first book effectively, or the author was dissatisfied with the edit? The author is left without recourse.

An option can also hold up the author’s ability to get a new advance—a necessity for full-time authors. Particularly egregious clauses require the author to submit a completed manuscript (as opposed to a proposal) of the next book for the publisher’s consideration. To make things worse, they give the publisher way too long to decide whether to publish the manuscript. The author is not permitted to submit a proposal to other publishers until after delivering an entire new book to the original publisher, which is given ample time to review it and, of course, to reject it. This means that the author is writing the entire book without an advance—defeating the very purpose of an advance, which is to provide an author with money to write the book in the first place.

Even worse are options that give the publisher the right to the author’s next book-length work “on the same terms” as the first. That is, if the publisher elects to exercise the option, the author must sign a contract with the publisher with the same provisions and payment structure as the current contract. This completely eliminates the author’s right to negotiate before the next book’s subject matter, length, and market potential are known. No writer should ever agree to such terms.

For absolute intolerability, option clauses including “last refusal” rights take the cake. These, as discussed above, actually allow a publisher to match a second publisher’s offer, even if the publisher who holds the option declines the author’s work initially. We don’t think a publisher should receive even one bite of this apple. But several? That’s crazy. Once a publisher passes on a book, no author should be obligated to disclose any offers received from others to the original publisher.

One Authors Guild member whose option required submission of an entire manuscript spent ten years without any financial compensation while working on a research-intensive non-fiction manuscript (an early advance for the “next book” is almost never part of the deal). His contract prohibited him from approaching any other publisher until the entire manuscript was done—a decade later. It’s preposterous to ask authors to bear that kind of risk.

Fiction writers aren’t immune. A few years ago, a major publisher used a next-book option (together with a non-compete clause, like the ones we’ve called out here) as an excuse to pull the plug on a novel already scheduled for publication. With her agent’s knowledge and blessing, the author decided to self-publish a previously-written but unpublished short story collection in order to make ends meet before the next installment of the advance for the novel was due. When her publisher—which had already rejected the story collection—found out, the author received a termination letter demanding immediate repayment of the advance, claiming that “by ignoring these essential terms of the Agreement and not informing your editor of your intentions, you have not only breached the Agreement, but also demonstrated your unwillingness to work in good faith with us toward the successful publication of the Work.” The novel clearly didn’t compete with the self-published short story e-book. And earlier, when the author presented the publisher with an outline for her next novel, the publisher had insisted on waiting until after the current novel’s release to see how it was received and whether it was worth picking up the next one.

Or consider the romance novelist who took a break from fiction to write a non-fiction book. Her non-fiction contract required her to submit her next book—a romance novel—to that same publisher, despite the fact that the non-fiction publisher had absolutely no experience with romance novels. The upshot was that the author was required to delay submission of the novel to publishers who would actually know how to handle it.

Fair “next book” clauses do exist and may be appropriate where the publisher invests in marketing, but they must be strictly limited. The clause should grant only a right to negotiate with the author for a next book of similar subject matter for a limited period of time. If the author and publisher can’t reach an agreement in that time frame, it is crucial that the author be free to quickly seek another publisher. Additionally, a fair option agreement generally will:

• require that the publisher base its decision on a proposal or sample chapters of the next book (not on a completed manuscript);
• require the publisher to make a decision within a certain number of days (e.g., 30) of receiving the author’s proposal or sample chapter(s);
• allow the author to go elsewhere if no agreement is made within a limited number of days (e.g., 15) of the publisher’s offer;
• allow the author to submit a proposal or sample from the next book for the publisher’s review when it is ready (the author should never be forced to wait until some period after publication of the first book, which may be way too far out for an author living on book writing alone); and
• provide for new terms to be negotiated for the next book (the second deal should never be based on the terms in the contract for the first book).

If the publisher wants an option in any other circumstances, the publisher should pay an upfront option fee for it. We recognize this is not an industry practice—not yet, at any rate. But it should become one. A publisher should never have the right to prevent or delay an author from selling her next book unless it pays an additional amount to hold up that work for some period of time, as a film studio would when buying film option rights on a book.

Bottom line: option clauses are almost always in the sole interest of the publisher and not the author. In some cases, the option clause can hold the author’s writing career hostage to the publisher’s schedule for years. This amounts to an unacceptable restriction on an author’s freedom to write. If an author is agreeable to providing the publisher an option, it should be subject to the limits described above.

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Occupy Literary Agencies

Ok. Now I have your attention.  If you decide to protest by camping out  on my front lawn, I’m not sure it would make  a compelling political statement. But if you choose to put up your tent there, I am more likely to give you cookies than to lob canisters of tear gas at you.

What I want to say is that I’m really inspired by OWS and its many affinity groups. It reminds me that there are still things to believe in and still some values in public life that just can’t get suffocated by cynicism.  I haven’t felt that way in awhile. I haven’t felt that way in a long time.

I get really angry at those people who criticize OWS by saying that they don’t have a constructive program.  This is usually coming from people who don’t have one either or, more likely, have programs that are in conflict with everything we have learned to believe is good and true and beautiful.

When Rosa Parks got on that bus in Montgomery, Alabama in 1955 and sat right down at the front, she didn’t come armed with a 20 point plan to end segregation in America. She hadn’t studied the footnotes to Supreme Court decisions. She just got on that bus and sat down where she wanted. I don’t know what she said to that bus driver, but she was probably thinking: “this much and no more”. She was probably just thinking: “no”.

One of my intellectual heroes is Albert Camus. In his brilliant book, The Rebel, he said, “What is a rebel? A man who says no.”

I think that’s a good place to begin.

Andy Ross Interview Part 2

  This is a continuation of  John Marlow’s  interview with me for his Self Editing blog. John is a novelist and script writer and editor. His blog focuses on people writing for movies.

JRM: A number of agents and agencies are now rebranding themselves as “literary management” companies. Does this, in your opinion, represent a fundamental change in the representation business-a shift, perhaps, toward the Hollywood model where writers often retain both agent and manager?

Andy Ross: In the book trade, so far, distinguishing between “agent” and “literary management” is like distinguishing between “used car” and “preowned car.” Different words for the same thing. The real distinction is between agents who do manage client’s careers and those who just flip contracts. The former are preferable to the latter.

JRM: You’ve just described the difference between managers and agents in Hollywood, though there are of course exceptions. But in the book trade-so far-they’re all still “agents?”

Andy Ross: Yes. I guess my simple answer is that, in the book world, good literary agents manage their clients’ careers as well as get them contracts. Bad agents just flip contracts.

JRM: What’s the industry-wide average or typical advance for a book by a first-time writer, and how is that paid out? Feel free to break that down into categories, or to qualify it any way you like.

Andy Ross: I can’t make any generalization about typical advances. But I can say that advances have dramatically decreased in the last few years. It is not unusual to get an offer of a $50,000 advance from a major publisher, for a book that may very well be a lead title.

Any agent will tell you that today, $50,000 is a very good advance. Five years ago, that same book might have garnered three times that amount. You read about seven-figure advances, but really these are for the big celebrities.

Advances get split into payments. Two, three, and even four. Smaller advances are often paid in two parts, one on signing and one on delivery and acceptance of the manuscript. Larger advances will have an additional payment at the time of publication.

I have a six-figure advance that has yet an additional payment at the time of paperback publication. So the final payment is likely to come over two years after the contract is signed. One questions whether this should even be called an “advance.”

 JRM: Moving more toward the classic Hollywood step deal.

While we’re talking left coast—any thoughts on books with film or other crossover potential, and how that potential affects the likelihood or ultimate price of a sale?

Andy Ross: Most good agents will try to reserve the rights for movie/tv/performance for the author. So a publisher won’t get a piece of that action. But in general, a movie helps the sale of a book. There are a lot of deals for “options” for movies, which give the production company the right to exercise an exclusive option for a given period of time. A lot of these deals aren’t worth much money. There are very few options that end up getting made into movies.

JRM: For readers who may not know the score, I feel compelled to say here that, while this is absolutely true of most options–typically those by lesser-known companies and individuals—it’s also true that many options pay more than a typical book advance, even if the film is never made. In which case, the author gets to keep the money-and option the work again, or sell it.

Also, some options involve the optioning party doing a significant amount of work to develop, improve, or adapt the work being optioned.

Andy Ross: That is certainly true. Options, like advances, come in all shapes and sizes.

JRM: What industry trends do you think writers should be aware of right now—what’s changing, and where is it taking us?

Andy Ross: The big topic of conversation right now is electronic publishing. It is growing exponentially, and will continue to do so as more consumers buy reading devices.

The reading experience with e-books has become pretty good now. I believe that this is the future of book publishing, as far as anyone can really predict the future in this fast-changing world. I think this will have tragic consequences for community-based bookstores and for the communities they serve.

I don’t think online bookselling is ever going to be able to recreate the ineffable joy and excitement of shopping at a real bookstore. I don’t think that e-books will necessarily change the way people write or the content of what they write. It is a neutral medium, just as a blank piece of paper is a neutral medium.

Of course the more substantial and, to my mind, more troubling trend is the reduction of reader attention span due to the Internet. Reading requires patience and time, and a kind of commitment from the reader that is missing when one is simply surfing the net.

And, of course, the culture of celebrity is driving bigger and bigger sales to fewer and fewer titles. These are very troubling trends, indeed.

JRM: Going back to your comment about the pleasures of shopping at brick-and-mortar stores, I have to agree. But there’s another issue in play here.

Once upon a time, the big chains drove the little independents out of business. Now the online behemoths are putting the hurt on the chains. Amazon has driven Barnes & Noble to the auction block, Borders has already gone under in Britain and was teetering on the brink last year in the U.S. The same thing is happening with dvd rentals: Netflix has driven Blockbuster into bankruptcy.

This would seem to bode well for indies, particularly small or niche stores with lower overhead—where the people working there actually know and care about the books they’re selling. But will customers be willing to pay more for that superior service and personal connection, when they can in most cases order the same thing online, for less?

Andy Ross: That is a very good point. My wife works at an independent store, Book Passage in Marin County, north of San Francisco. I used to be an independent bookseller, and I have a lot of friends who own independent stores. People in publishing and book lovers everywhere think of indies as the heart and soul of the book business.

Barnes & Noble is still a very robust company. It sells about the same number of books as Amazon. But they are closing a lot of stores and using more space for non-book items. In other words, they are having to make very significant adjustments to accommodate the brave new world of publishing.

Borders is a corporate basket case. They seem to be trying to shrink their way into profitability. Not a good sign.

And yes, you are right that smaller independents have some important advantages. They have low overhead and provide the kind of bookstore experience that is matchless. But unless they can find a way to adapt to the e-book revolution, their future will be in doubt.

JRM: What does your experience at Cody’s tell you?

Andy Ross: Cody’s was a large independent store and was probably a victim of history. The heyday of independent stores was in the 1980’s, before the chains started opening up superstores everywhere. Business began declining in the ’90s. And at the end of that decade we began facing extremely robust competition from Amazon.com. Cody’s had a very high overhead and faced eroding sales.

JRM: What do you like most about working with writers?

Andy Ross: I have enormous admiration for the vocation as well as the profession of writing. I think a lot about what Anne Lamott said in Bird by Bird. She advised the writer to stop worrying about getting published. Writing opens you to the world and makes you a better and wiser person. Getting published does none of this. And seldom brings wealth or fame.

I have said elsewhere in my blog [link]  that the work of the writer reminds me of the final magnificent sentences of Albert Camus’ Myth of Sisyphus. Something to the effect that: “the journey itself is enough to fill a man’s heart.” Nothing to my mind is a more eloquent expression about the courage it takes to be a writer.

 

Literary Beginnings: An Interview with Wendy Nelson Tokunaga

Today we are going to have a conversation with Wendy Nelson Tokunaga    on literary beginnings. Wendy is a novelist living in the San Francisco Bay Area. Her debut novel, Midori by Moonlight is available in paperback from St. Martins Press.  Her new novel, Love in Translation   was released last November and is also in paperback from St. Martin’s.

Wendy is giving a class at Book Passage called: Strong Beginnings: A Workshop for Novelists on Saturday, May 8 from 10 AM -4 PM.

Andy: Wendy, last week I did a blog entry having some snarky fun with literary first lines. But all the writers I know take the first lines very seriously. Why so?

Wendy: I enjoyed your fun take on literary first lines, but I have to say that I don’t obsess about them. If you can write a grab-worthy first line that everyone will quote from years to come, that’s great, but I don’t think it’s mandatory. What is mandatory is writing a compelling opening to your novel. As I’m sure you can attest, agents and editors will find any reason to toss a manuscript into the rejection pile as quickly as possible. So it’s crucial to make a good impression in a novel’s first five pages.

Andy: Is there any general advice you can give about how to manage the opening? Is there a single objective that needs to be met? Do you want to set the scene? Is it all about foreshadowing? Do you just want to grab the reader’s attention with something unexpected? Or is it more je ne sais quoi ?

 Wendy: Well, there’s a lot of je ne sais quoi that goes into writing a novel, that’s for sure. But I think that the one thing the opening must have is “profluence.” This is a term used by John Gardner in “The Art of Fiction,” which basically means to move forward. There has to be a forward momentum, an emotional energy and feeling of  “getting somewhere” that will compel a reader to want to continue reading. Another important factor is a strong “voice.” This includes the words the writer chooses (diction), how she arranges and groups the words (syntax), the order in how she presents events (structure) and the attitude toward the characters, subject and events of the book (tone).

Andy: What are the big mistakes with literary beginnings that you see repeatedly by other writers, both experienced and newbies?

Wendy: Common mistakes I’ve seen include starting the story in the wrong place (e.g starting at the very beginning of the story is not necessarily the best strategy); opening with a scene that is too mundane and thereby lacking tension (e.g. the character wakes up, has a cup of coffee and ponders the start of his day); loading the opening with too much backstory and extraneous details; and using an action scene that serves no purpose other than the mistaken assumption that any “exciting incident” will draw in the reader.

Andy: Your class at  Book Passage looks fascinating. What do you want the participants to get from it?

Wendy: We’ll be doing “close readings” of the openings of some recently published novels by analyzing the craft techniques these authors use to pull it all together and get us to keep reading. By looking at a variety of different styles and genres of novels I hope that students will come to see the value of learning from observing an author’s craft techniques without worrying about whether the book is one they would personally choose to read. In other words, you don’t necessarily have to “like” a book in order to learn things from the way it’s crafted that will help you improve your own writing. And, of course, the techniques we’ll discuss can be applied to the writing of the entire novel.

We’ll also analyze the first five pages of students’ novels to see what works and what needs improvement. Students whose work is not discussed in class will receive feedback from me via email if they wish.

The class is designed especially for students who have finished their novels and are considering querying agents or those who are searching for answers as to why their manuscripts have been rejected. Writers who have yet to finish their novels are also most welcome.

Andy: Wendy. One last thing. Can you describe some of your all time favorite literary beginnings?

Wendy: Here are some that I like from an eclectic selection of books:

Notes from the Underground – Fyodor Dostoevsky (1864)

“I am a sick man. . .I am a wicked man. An unattractive man. I think my liver hurts. However, I don’t know a fig about my sickness, and am not sure what it is that hurts me.”

The Stranger – Albert Camus (1942)

“Maman died today. Or yesterday maybe, I don’t know. I got a telegram from the home: “Mother deceased. Funeral tomorrow. Faithfully yours.” That doesn’t mean anything. Maybe it was yesterday.”

Play It As It Lays – Joan Didion (1970)

“What makes Iago evil? some people ask. I never ask.”

Story of My Life – Jay McInerney (1988)

“I’m like, I don’t believe this shit.”

Ann Lamott (and Albert Camus) on Writing

I just finished reading Anne Lamott’s remarkable book about the process of writing,  Bird By Bird. What a revelation!. I don’t know why I have never read it before. It was written in 1995. I must have sold 5000 copies at Cody’s over the years. I know a lot of writers who have said that this book changed their life.

I suppose the reason I never  read it is that I just didn’t think  very deeply about the process of writing during my 35 years in retail. I read a lot and knew a lot about what was going on in the book business. But  by the time a book arrived  at  the store, the process was over.  

So now I’m at the other end of the publishing food chain. I’m not exactly the midwife to the book;  more like the Lamaze teacher. I see a lot of “shitty first drafts”. That is Anne Lamott’s  luminous term of art. More on that later. Now most of my work  has to do with the process of writing. Well, this is not exactly true, but the other things I do are for another blog and another time.

 Anyway, back to Anne Lamott.  Bird By Bird.  It is at times hysterically funny, wise, tough-minded but encouraging. She is secure  enough as a writer to share with you her own experiences   of her all-too-human insecurities about life in general and writing  in particular.

 Look at her 3^rd chapter entitled: “Shitty First Drafts”. When I see these by writers  in the course of  my work (which is all the time), I want to give up on the author.  Sometimes I want to give up on being an agent. Lamott says that these “shitty first drafts”  are an inherent part of the writing process, even a necessary part, even an admirable part. It allows the writer to get the material, shitty though it may be,  onto the page. And the work of the accomplished  author is finding the one sentence in the two shitty pages sitting in front of her  that she will want to remember and use.

Lamott  had a wonderful chapter on writing dialogue. I read it at about three o’clock  in the morning and emailed my client  immediately about some changes that needed to be made in her book proposal.  You can’t just write down a conversation between two people. You have to make sure that the voices of the characters are differentiated in the dialogue. You can’t just use dialogue to further the plot. It also has to deepen the character.  Otherwise it becomes flat and confusing. But this makes writing dialogue devilishly hard.

One of the most amusing, but spot-on,  chapters is about thoughts that get in the way of your writing. She calls it tuning into radio station KFKD, or K-Fucked. She says: “station KFKD will play in your head twenty-four hours a day, nonstop, in stereo. Out of the right speaker…will come the endless stream of self-aggrandizement…Out of the left speaker will be the rap songs of self-loathing.”  (God, I’m feeling that right now).

She also has a lot to say about getting published. This was especially poignant for me, since my job is actually to get my clients published. Lamott said something very wise. She said: “Writing can give you what having a baby can give you: it can get you to start paying attention, can help you soften, can wake you up. But publishing won’t do any of those things….”

 I think about this a lot in my own work as an agent. I  go to a lot of writers’ conferences. I talk to a lot  of writers at these. They send me their book proposals and writing samples. Then we have a meeting about it that lasts for 15-30 minutes. I also participate in a lot of agents’ panels. And I have started giving some workshops on writing book proposals. (Don’t tell anyone my dirty little secret. Two years ago, when I was still a bookseller, I didn’t know what a book proposal was).

I  found a couple of clients at these conferences. One of them just got a publishing contract. But mostly I talk to people who are  not going to get published. A lot of them have written personal memoirs,  a genre much out of fashion with publishers right now.  They call them “me-moirs”. ‘Nuff said.

The writers at the conferences have poured their hearts and souls into these projects. And I have no doubt that they have learned so much about themselves and the world in the process. Anne Lamott tells these writers that this is the real value of writing.  Publication is overrated.

 Frequently I get graded by the participants after I give a workshop or presentation. Although I try to  be realistic and emphasize the dismal reality of getting published,  I take a lot of criticism for being unnecessarily discouraging to writers. After reading Anne Lamott, I think I would have to accept this criticism as valid.

When you really think about it, everyone is a hero in their own life story. Every memoir of a life is an epic. Paradoxically every person’s life is larger than life. But this is quite different from  the mundane and commercial considerations that publishers consider in their decision to acquire a book.

What I have started telling writers, what I would like them to hear from me, and what Anne Lamott has said so much better than I ever could,  is that writing is an incredibly courageous undertaking. It is an activity that begins in the dark  without any real knowledge of where the journey is destined to end.  Or to use another metaphor of a race.   Sometimes  you will cross the finish line, receive the silver jug  and go off into the sunset. But more often  you will slip on a banana peel and break your leg 20 yards before  the end of the race. But what an adventure it has been!

 Which brings us to Camus. Albert Camus wrote his masterpiece, The Myth of Sisyphus.  in 1942. A lot of you probably read it in your freshman humanities course. Camus always took on the big themes, in this case, the meaning of life.  Sisyphus is condemned  by the gods for all eternity to roll a boulder up a mountain, whence it will then roll down of its own weight. For Camus this was a metaphor of  human life, a ceaseless striving in a universe without meaning.

It strikes me that this is also a metaphor for the work of the writer. For Camus,  Sisyphus’s effort is heroic and filled with grandeur. In the final, unforgettable lines of his book, Camus says: ” Each atom of that stone, each mineral flake of that night-filled mountain, in itself forms a world. The struggle itself toward the heights is enough to fill a man’s heart. One must imagine Sisyphus happy.”