This is the second in a series of columns about contracts.

Caveat, disclaimer, listen to this: I am NOT a lawyer! I am not giving you legal advice; you can only get that from a qualified contract attorney! The only thing I am doing is sharing the questions I’ve learned to ask myself — and editors and publishers — when I’m negotiating the kinds of contracts that have let me stay in business. If you want legal representation, hie thee hence to a legal representative and hire him or her to represent you. I am NOT that legal representative! If you’re good with that, read on. If not, reread this paragraph until you are.

Now that that’s out of the way . . .

While many publishers and/or editors have similar contracts, it’s been my experience that there’s no such thing as a “standard” contract for erotica. Each contract is unique just like each story is unique. Even if what your eyes initially “see” as boilerplate for an editor or publisher looks like what you’ve seen before, there will be at least one difference — that being either the title showing the story you’ve submitted or the book into which it’s going, or both. The best advice I can give anyone regarding a contract is this:

READ IT!

Read every single word!

Read every word until you understand exactly what’s being said. If you don’t understand, ask questions of reputable sources and do research until you do. DO NOT SIGN ANYTHING UNTIL YOU UNDERSTAND EVERY SINGLE WORD BECAUSE THIS IS A LEGAL, BINDING CONTRACT! While there’s always the possibility of something quirky and unexpected happening that a high-priced lawyer can get you out of, the most cost effective and efficient way to deal with a contract is to assume that once you’ve signed it and sent it back, you are bound to it. Period, paragraph, end of discussion.

Which doesn’t mean, of course, that as writers, we won’t continue to discuss. We’re writers — our work is about communicating! Giving writers a place to communicate (about things like contract details) is one of the reasons our support groups like the ERWA’s Writers email list exist. However, the time to do this research is before you sign the contract.

Don’t wait until the contract comes to start asking questions. Start before you submit — with the guidelines. What is the editor/publisher asking for? If they say that by submitting, you give them all rights to the story permanently, regardless of how they do (or don’t) use it, that’s exactly what they mean. They’re stating their intention that whether or not they acknowledge receipt of your story or send more paperwork or ever answer your correspondence, or publish the story in a way you love or on a website you hate, or throw the piece in a drawer and forget it, once they have your story in hand, it’s no longer yours to do anything else with, it’s theirs.

Can a lawyer break that contract if you don’t like what the publisher or editor is doing with your story or if they don’t ever publish it? Maybe. Don’t count on it. (Ask your own personal legal representative if you want to be sure in a particular case.) Bottom line is that when rights are demanded on submission, be certain you feel the compensation (if any) guaranteed for submission are what you consider to be a fair trade for the rights the guidelines say you’re being required to give up your work. Personally, when a publisher says they gain all (or any, actually) rights upon submission and they guarantee nothing in return, I do not consider that a fair trade for my work — even if there’s a potential for a large prize or whatever. But that’s just my opinion. Your mileage may vary. Do your research, then do what’s right for you.

If you’re not comfortable with the rights being asked for (on submission or otherwise), query the publisher. The same is true if the guidelines are vague or don’t say what rights are being requested. Most guidelines include an E-mail address for correspondence. Send a short, to the point E-mail with the word “query” in the subject line. When you receive a response, send a quick “thank you” in reply. Very often, editors and publishers (especially new ones) don’t realize a request isn’t clear. (Consider the number of times publishers have revised and clarified their calls for stories when Adrienne has queried for details!) If you want to help your fellow writers, when you get clarification, send it to Adrienne so she can pass it on to the list.

Have the guidelines handy for when the contract comes. (No contracts yet? Keep writing and submitting and working on your craft. Writers write — and you’re a writer!) Then put the guidelines and contract side by side and see if the details in the guidelines match what actually showed up in the contract. Usually, they will — with the contract being much more detailed than the guidelines.

If the two have contradictions, however, let that throw up a warning flag for you. It could mean nothing more than a communication misunderstanding that’s easily cleared up. It could mean someone’s trying to do something shady. It could mean something beyond the control or intent of those doing the original guidelines — like the publisher’s been bought out by a company with a different vision. Get out a pad of Post-It notes (or whatever system works for you) and mark the differences.

Then go back to the beginning of the contract and read the entire flipping thing — every single word and then all the words together as a whole! This is not the time to rush or skim. Keep your eyes open and note every question you have. Look up the words you don’t understand. (It’s okay to start with your desktop Webster’s, but you’ll learn more if you then progress to a legal dictionary.) Mark any and all places you don’t understand something. Then get ready to ask questions.

See you next month for Part 3: Who Am I?
(Please note: Part 3 is temporarily delayed)

Kate
August 2006

“The Business End” © 2006 Kate Dominic. All rights reserved.