Wednesday, May 23, 2012

The Revisionist Approach to Contracting

by Matthew Swihart, Esq.

Last time, we talked about what a contract was, and how to get into one. Congratulations, you’ve signed your contract and are on your way to having your paperbacks collect dust in a bookstore while the e-book version makes you millions! Now that you’ve crawled into bed with the agent and/or publisher of your choice, things are wonderful.

Or are they? What if you wake up one day after having drinks with another author who also contracted with your agent and/or publisher, and somewhere inside the cement that has become of your brain, you swear she told you about how she had negotiated better terms out of a critical provision of the contract. This other author told you the terms she was able to negotiate, and swore her current success (as demonstrated by her picking up the rather excessive tab you’re your absinthe and champagne binge at Green Russell) was all due to her expert negotiating skills with that single provision of the contract.

As your head clears over the course of the morning, you decide you want the same terms your fellow author received. The more you think about it, the more unfair it seems that your contract wasn’t as sweet. Why didn’t they offer to you the same thing the other author got? Was your agent and/or publisher trying to screw you? It’s just not fair!

But, alas, you have already signed your contract. And in the contract, near the end of the contract, in letters of the same size and shape as those in the rest of the contract, sits a provision which states the contract may not be amended, revised, altered, modified, rephrased, or tinkered with (most contract attorneys believe the more descriptive words they throw in the better—this harkens back to a time when contract attorneys charged by the word, but still resonates today because we still charge by the hour) unless done so in a writing signed by all parties to the contract.

So, you’re screwed. They’ll never agree to any modifications now that the contract is signed. Right?

For the most part, this is correct. People are loathe to tinker with a product once it’s finished. This is why it is absolutely vital that you make sure you are fully comfortable with any and every contract before you sign it. Further, negotiating a contract after you’ve signed it is typically considered poor form and can be considered underhanded. This can dramatically impact the other party’s willingness to contract with you again in the future.

I say “typically”, because there are exceptions to every rule. If you want to change one provision of a signed contract in your favor, then you will most likely need to find another provision which you can alter in the other party’s favor, to give them an incentive to modify the contract.

However, if there is an aspect of the contract which is void as a matter of law, or your book becomes so successful that rights not previously implicated may be affected, such as e-book, film, and translation rights (there are several lawsuits going on right now about who owns copyrights to e-books when the contract does not specifically refer to them), then you’ll find the other party more receptive to modifying the contract.

Once the parties have decided to modify it, it is in your best interest to revisit, review, and reconsider every single provision in the contract (not just the new or modified provisions), because you may not get the chance ever again.

As I’ve said before, agents and publishers are not interested in taking advantage of you, but they are interested in making money off you and protecting their interests and investments. Though they may be friendly, they are business people and not your friends (though you may be or become friends, I always recommend you treat them as strangers while doing business—believe it or not, it helps your friendship last). A contract attorney will be on your side and protect your interests, and will typically catch most—if not all—of the issues you won’t think of until after the contract is signed, so utilizing one at the outset can save a lot of headaches.

Matthew Swihart is an attorney, mediator, writer, and martial arts instructor in Denver, Colorado. He is currently pitching his debut novel—an epic fantasy trilogy—to agents and publishers, and is also working on an urban fantasy and a literary novel.

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.

*** RMFW Members: E-mail me your contract, 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. ***

1 comment:

Patricia Stoltey said...

More great information on the legal side of the writing life, Matthew. Thanks for the excellent post.