Wednesday, April 18, 2012

Contract (Very) Basics

Matthew Swihart, Esq.

So you’re an author. This means you’ve written something, and now you want someone to sell it for you, and you also want someone to publish it for you. You probably also want someone to help you carry all the money you’re going to make, but I can’t help you with that last bit—that’s what I use interns for.

Now, before any of the foregoing people will help you, they will first want you to sign a contract. So, you’ll need to know what that is. In legal terms, a contract is explained thusly:

O + A + C – D = K

Got it? Great! My work here is done. But, for those who didn’t attend law school, I suppose some further explanation is warranted. After all, that’s what RMFW doesn’t pay me to explain to you. As simply as possible, the formula above simply represents the idea that a valid Contract (it’s not a misspelling: in the legal world we abbreviate “Contract” as “K”) requires a bona fide Offer (the agent offering to represent you), plus Acceptance (you agreeing to the terms of the offered representation), plus valuable Consideration (the agent doing work for you, and you in turn giving money to the agent in the form of commission), and without any Defenses to the formation of the contract (such as unconscionability, no meeting of the minds, an illegal purpose, and many others).

Because agents routinely represent authors, and publishers routinely purchase the rights to works of art, they both have developed what are called “boilerplate” contracts. This simply means their contracts are predominantly the same for everyone, with only minor terms being negotiable (of course, when attorneys are involved, more terms become negotiable). It also means their contracts were most likely drafted by their attorneys.

What do you do when presented with a contract? The first thing to do is ask yourself if you have an attorney.

If the answer is, “Why yes, yes I do!”, then hand the contract to your attorney and let him or her take care of the rest.

If the answer is, “What’s an attorney?”, then you need to carefully read each and every provision of the contract, and make sure you understand each one—not just the plain language meaning of the contract, but also the legal meanings of specialized terms. Ask questions. A lot of questions. Just a few questions you’ll want to ask:

• What do I have to do?
• What does the agent/publisher have to do?
• When do these need to be done by (any deadlines)?
• What happens if I miss a deadline?
• What happens if the agent/publisher misses a deadline?
• Are there any reporting requirements on any party? Am I okay with these requirements?
• What remedies do I have available if the agent/publisher breaches (violates) the contract?
• What remedies does the agent/publisher have against me if I breach the contract?
• Is there an arbitration clause, choice of forum clause, and/or choice of venue clause? If so, am I okay with these?
• When does the contract terminate?
• How does the contract terminate?
• What happens if I want to end the contract early?
• What happens if the agent/publisher wants to end the contract early?
• Is there anything I’m uncomfortable with in the contract?
• Is there anything I would like added to the contract?

Make sure all your answers come from specific provisions within the contract. As Mark Twain is attributed with saying, “An oral contract is only as good as the paper it’s written on.” In other words, except in very specific circumstances, statements made about a contract are not binding on the person who made the statements.

And don’t sign the contract until you’re comfortable with the rights and privileges you are getting and giving away, and all your questions are answered to your satisfaction, because you will be bound by the terms of any contract you sign, whether you understood them or not.

Scared? Don’t be. Industry professionals are not interested in screwing authors. They want you to be successful, and they want you to use them for your next successful project. That won’t happen if they take advantage of people in their contracts. The contracts agents and publishers utilize are primarily intended to set out the terms of your relationship, make sure you don’t use anyone else for your project, and ensure they get paid for all the hard work and expense they will incur promoting and publishing you and your work.

However, there are unscrupulous people out there, some of whom are masquerading as agents or start-up publishers, and careful review of the contract by you (or, better yet, your attorney) will help save you a lot of grief.

Because contract litigation attorneys (like myself) charge by the hour.

*** RMFW Members: E-mail your contract to me at, and I will provide a one-hour initial consultation for free. Be sure you include your full name and a good phone number, so I can call you to discuss your contract. This is open to RMFW members only. The free one-hour initial consultation will not constitute an attorney-client relationship or representation, unless I am later retained to represent the individual in relation to that contract. ***

If you have any questions related to this or other topics, or if you have a topic you’d like me to address in this forum, please leave them in the comments, or e-mail me at You can also find me on Facebook at One caveat: unless you sign a representation agreement with me, nothing on here or in any e-mail response constitutes an attorney-client relationship.


Dean K Miller said...

Even with all that tricky math and legalize, I still want one!

This will be kept in my "future success" files for reference.


Patricia Stoltey said...

I stumbled through my first contracts on my own. Thanks goodness they were relatively simple and straightforward. I recently read a contract another publisher offered a writer and was amazed at its length and complexity. I would have hired an attorney instantly for that one. Thanks for the good information, Matthew.