House slave or indentured servant?

by veilwar

Some more thoughts on publishing:

IndieGogo is the Canadian version of Kickstarter, apparently, and one author is using it to crowdfund his novel. Well, part of his novel. He’s hoping to raise money to pay for cover art and for editing costs. He’s actually already written the novel, it seems. So far he’s raised $334 of his $1380 goal. I’m guessing those are Canadian dollars. I’ve seen a couple of these sorts of campaigns. It would be really interesting to see someone try to crowdfund a living wage for a period of time to actually write the novel – but I imagine that you’d have to have proven your self first. You would in that case essentially be trying to recreate the old renaissance patronage system, replacing decadent but wealthy popes and whatnot with decadent but numerous members of the public.

There’s a lot of flux in the publishing world, obviously. I ran across this article – well worth reading – by author Michael Stackpole. (Avoid the comments, though. It’s a needless and interminable discussion of the validity and appropriateness of equating authors with house slaves.) Stackpole’s essential argument is that authors are typically paid for their future labor, and that most of the guns and leverage are on the side of the publishers. This suggests a rough equivalence with indentured servitude, especially once you factor in hidden clauses and traps for the unwary young author.

Here’s how that system works. A person wants to come to the colonies for a chance at  economic bounty. They can’t afford the passage. So, they sign a contract with someone who will pay for their passage, and they promise to work the debt off. The redemptioneer might cut his deal with his future employer, or might have his contract sold from the shipper to someone in the colonies. The redemptioneer has sold his future to fund his present, commonly for a period of three to seven years.

This is what authors do when they accept a contract and advances which are accounted against his future output. An author is selling his labor to move him into a position of future bounty. (It’s also what professional athletes do, but they have strong unions which specify how labor can be treated by ownership.) While this seems like a straight-forward contractual agreement, let’s examine the finer points of what we get:

1) The publisher does all the accounting. Tales abound of errors which are uncovered by all-too-infrequent audits. Because an author can never be sure of the accounting, he never really knows when his term of servitude is up. This problem is typified by the “reserves against returns” practice where the publisher may withhold as much of earned royalties as they wish, for as long as they wish, from the author—even if the book is being reprinted and selling well.

2) Publishers demand that authors sign non-compete clauses in their contracts that prevent them from taking any other work during the period of the contract, despite the fact that the contract might last for multiple years, but the payout schedule and advance level are insufficient to provide a living wage for that same period of time. Even if an author goes ahead, writes the books fast, delivers and they are accepted, the non-compete would prevent them from doing any other work which might be published during that same period.

3) All contracts have a “right of first refusal” clause in them, which means the publisher has the right to first look at your next new work, and the right to match any offer from any other publisher for that work. Most of those clauses, however, have a timing aspect, where they don’t have to consider your next work until the final book has been delivered, or within a time period around that delivery. The author, therefore, can be blocked from making any money with anyone else as the publisher takes his time deciding if he wants to continue to work with the author.

4) Some contracts have clauses that prohibit an author from writing any other work in a particular universe except for work to be published by that publisher. This looks great in a contract if you have a long and ongoing relationship with that publisher; but once you’ve been dropped, suddenly your best-loved work may be forbidden to you unless you, with no leverage, can get the publisher to strike that provision. (I found one of those lurking in a contract I signed a long time ago. It stings badly.)

5) Contracts regularly buy up rights the publishers know they are not going to exploit—like gaming rights, audio rights, stage play rights, movie rights. Those are lottery tickets for the publisher. If the author or his agent works hard, puts together a movie deal, the publisher wins, even if their publishing the book had nothing to do with the movie deal. (Face it, who in Hollywood actually reads books?) If an author does a treatment of his own book, sells it to a filmmaker on his own, he still owes money to the publisher and, in fact, under some contracts, may be prohibited from actually doing that side deal since those rights reside with the publisher.

6) Contracts allow a publisher to hold on to the rights to a work for a period of three to seven or more years, from the point that the work goes out of print. When that period is over, the author can ask for the rights back. In today’s world, however, with print on demand making short runs feasible, and digital meaning something is always available, books never go out of print. Publishers hold the rights to those works for a minimum of 35 years, at which point United States Copyright law allows authors to petition to get those rights back. That means, for many authors, that their grandchildren will be the ones doing that petitioning.

Publishing practices likewise use authors rather roughly:

1) Publishers can, and have, worked in lock-step to determine “dealbreaker” aspects of contracts. Is it any surprise that prior to 2009 publishers would give authors 50% of income from electronic publishing (IEP) but that after Random House sent a note to agents in early 2009 that they were cutting that to 25% of IEP, other publishers fell into line? While critics might point out that an author is free to sign a contract with an onerous provision or not, their needs and lifestyle may not permit them to walk away from an offering. If an author has a mortgage, or kids, or has to pay for his own health insurance, he’s handcuffed. Sure, in the eyes of many those handcuffs may be of gold, but they’re still handcuffs.

2) More importantly, publishers have asserted, over and over again, that they own the electronic rights to books for which they have no contract for electronic rights. Short of suing to get those rights back, what can an author do? If he does sue, there goes any chance of future deals with that publisher.

3) Publishers, as often as not, will be late in paying authors, without any interest or penalties paid to the authors. Conventional wisdom has it that payments are always late, and a welcome surprise when they arrive early.

4) Conflicts of interest abound in the industry. A publisher who owns translation rights to a book will let a foreign branch of that company purchase the rights without negotiating. That’s good for the corporate entity, but sucks for the authors. (I’ve had repeated cases where a publisher undersold my work into foreign markets and could do nothing about it.)

5) Publishers, when soliciting titles, will mention, as a matter of course, that “author appearances” are part of the marketing for the title. More than once I’ve had booksellers tell me that they’ve asked publishers if I’d go to their stores. The response is, “the author isn’t touring”—making it sound like I’m the one who refuses to honor the promise the publisher made.

There are many more things which lurk in contracts and practices (and you can mention them in comments if you wish) which put authors in difficult and even onerous positions. The bottom line, however, is clear: authors are indentured servants whose futures are purchased. Their ability to make a living at their craft is restricted by someone who has complete control over their output and the accounting for its success. While authors can refuse these contracts, in theory, it boils down to a question of can you afford to be unemployed?

(The house slave bit comes from his accusation that some authors are exhibiting a sort of Stockholm syndrome and defending their oppressors – the publishers.)

There are a number of reasons why I chose the path that I’m following. Not least are considerations like those above. I am pleased with the reception that I’ve gotten so far. I am reasonably confident that in the fullness of time works that I put up for sale will actually, you know, sell. I have a straight job, too, and so I am not dependent on income from fiction writing. Clearly I want to make money, but I have the freedom to wait for the right offer, or search for a better one.

I think I’ll be saving that article – it’s one of the better lists of things to be afraid of in contracts.

Advertisements