thinking aloud, the contract

Two major agency efforts that reached fruition last week. The first I discussed here, was getting on line with our first e-book publication. The second was hammering out new boilerplate with Macmillan, the German-owned publishing conglomerate that owns Farrar Straus, Tor, St. Martin's, Holt and various other US publishing operations.

Historically, Macmillan had kept separate publishing contracts for each of its many imprints, though certain corporate paragraphs were over time implanted into the separate agreements. In Fall 2009, they announced to the world that they had decided to have one contract form for everyone, which was politely attached to the e-mail. I gave thanks that all of our Macmillan authors (Tobias Buckell and Brandon Sanderson at Tor, Jeri Westerson at St. Martin's Minotaur) were under contracts that had a book or two or four to go, said "tomorrow is another day," filed away the attachment, and was content to let others be the guinea pig.

Because there are few things I dread quite as much as having to contend with new boilerplate. You can reasonably expect to find at least two dozen things you want to talk about. Things will never resolve in one round, because publishers tend to have things they'll give only if you've asked twice and made clear that you weren't joking in asking for them the first time around. And if I hate the words "new boilerplate," I feel even more for the author who has that first contract which needs to be negotiated with the new boilerplate, because they'll be in for a wait. The third or fourth author, it's like you get the new piece of paper, check it has the proper deal terms, and often as not you're good to go. The new boilerplate author has to sit around and chill while you go back and forth on multiple rounds of negotiation.

So tomorrow arrived in April, when Eddie had multiple publishers interested in a YA called Skipped, a first novel by Janci Patterson. Christy Ottaviano, who has an imprint at Henry Holt, decided she wanted the book very very badly, and started e-mailing from a vacation in Disney World to make a preemptive offer to lock the book up, and Eddie was contacting me with the exciting news while I was in Dallas for the DFW Writers Conference. Even worse than being the guinea pig is having to be the guinea pig on your first novel, because there are always extra added butterflies not quite believing you've sold a first novel until you've actually signed the contract and gotten the on-signing check.

And here, well, let's just say Macmillan had done quite the job on their new boilerplate. We couldn't exactly understand why the contracts department was so backed up that we were waiting a few months just to get the first cut on the contract from Macmillan until we had actually gotten it, and sat down, and read the whole thing through. The overall impression it gave was that the drafting process included a session where everyone around the table got to talk about their every bad experience when Macmillan had been left to dry on account of some aspect of the contract, and then they went to work coming up with wording to address that concern, often very very tortured wording. We all sat down with this contract -- Eddie, Jessie, myself -- and when we were done instead of the expected 25 or 35 points to go back on, we have a list of over 70 things in the contract that we weren't entirely happy about.

As an example, and with fond recollection of the "It depends on what the meaning of the word 'is' is" day of Bill Clinton's impeachment, the contract has a long tortured paragraph with a long tortured sentence that ends up referencing "those copies", only it depends on what the meaning of the word 'those' is because it isn't really very clear whether it means a lot of copies or only a small subset of copies depending on what you interpret the pronoun antecedent as being.

There are all kinds of "if" clauses. This is a single-book contract, but Macmillan is taking very seriously the idea that there should be only one contract, so they like "if this contract is for more than one book" clauses even when the contract at hand is just for a single book.

There are places where we can reasonably expect that Macmillan doesn't expect to keep the wording they've suggested if we ask for it to be changed, but where they are going to make sure people ask. There are things we know publishers hate to give in contracts, some of which we find utterly baffling like whether or not the author gets a copy of their e-book the same way they get a copy of their paperback, but we figure we'll try really really hard with the new boilerplate to see if Macmillan will maybe pleasantly surprise us. The answer was almost invariably no, that we would not have any pleasant surprises.

We never consider it to be a problem when a publisher says "no" to something the first time because we know there are things they'll only agree to when you ask twice. We were surprised, however, by the number of things that were still not where we wanted them to be after the second round. We were starting to understand why the contracts department was so backed up, because if they were fighting out some of these things into a third round with scores, maybe even hundreds of agents, over the past year, that gets to be a lot of back-and-forth. So then we have to talk with the author about some of the lingering sticky issues, and with new boilerplate some of those sticky things will be things that have absolutely nothing to do with this book or author but which are important in the big picture of the relationship between the agency and the publisher.

Slowly things get whittled down. There are things the publisher finally consents to. There are things we decide we'll have to give up on. Since the contract is trying to cover so many different contingencies, sometimes multiple in one extremely long and convoluted thicket of language, there are places where we try to see if there's a way to separate out which of the three things the paragraph might deal with the publisher is really concerned about, or try to explain to them which of the five things we're really concerned about, so we can try and make the language even wordier and more convoluted to carve out the one kind of thing from the other kind of thing. Sometimes it looks like the publisher is finally deciding after we've asked for something four times to give us language that they've probably reluctantly agreed to give after the sixth round with another agent 4 months ago. Sometimes there's language that maybe we're getting from them for the first time in our sixth round that maybe they'll now agree to give to somebody else in the third round. In one instance, the contracts person reaches back to his experience with another publishing company he worked for a few years ago and suggests language from that publisher's boilerplate, which more ignores than addresses the particular problem we have in this contract but which we will have to agree to because (a) kind of like an annoying relative at Thanksgiving whom you don't want to think about but at least goes off to the den to watch the Thanksgiving football games so you can chat away in the dining room and pretend the annoying relative isn't around we can ignore what isn't specifically stated and (b) there's no way to not accept the language when the contracts person knows full well we have accepted it.

So finally, a round or two after we figured out what the word "those" is, we figured out what the word "series" is, and we didn't need to deal here with what the meaning of the word "is" is, and we were able to declare victory. Happily Eddie looked at the contract closely with all the many rounds of negotiation to find the three things buried in the second part of the third round that had been overlooked in the final redraft, and over eight months after Janci Patterson has a deal for her first novel, she finally has a contract for it as well.

This was one of those things that I couldn't entirely escape responsibility for and delegate, because the boilerplate is something you need to look at really carefully. Nonetheless the biggest burden fell on Eddie, whose deal it was and who had to draft multiple long response e-mails, going back and forth to the contract files to look for good comparisons, occasionally with dictation from his boss, sometimes with his boss doing that "you know what I mean" hand wave sort of thing where neither he nor anyone else could actually expect to know what the hand wave meant, and coming up with the final compromise language for the final paragraph under discussion. I was very glad not to have to do the whole thing by myself.

And you know, for all the 70+ points we started out with, it wouldn't surprise me if Macmillan's dealt with at least that many points from other authors, agents and attorneys that didn't cross our minds to think of. And as good a job as we think we did, if the boilerplate's in use for long enough we'll find over the years where we fell short somewhere or another along the way. And even though we have boilerplate, there will still be situations where a particular author is concerned deeply about something that doesn't concern us or our other clients so much, and we'll have to hammer out some special something here or there to deal with that.

I'm told HarperCollins may have done new boilerplate at some point in the past year or so.

And as to SKIPPED, it will probably be out sometime in 2012, it's already sold in Germany in a very nice deal, and I hope you'll keep your eyes open for it.