Columns > Published on November 18th, 2013

Analyzing a Short Fiction Publishing Contract

When everyone thinks of the writing process, they think of two scenarios:

  1. The arty, literary writer – writing at an oak desk with a nice pen, hunched over a mole-skin, painstakingly and lovingly creating a masterpiece. Examples: Is it bad that none come to mind? Does Shakespeare count?
  2. The rockstar, writer  – drinking gin and chainsmoking, furiously banging away at a keyboard and producing some piece of contemporary genius. Examples: Faulkner, Hunter S. Thompson

What people outside of the writing and publishing industries don't know about is the rather tedious submission, rejection and/or acceptance process. And after the acceptance, comes the even more tedious contractual and rights process.

If you have a story accepted by a magazine or journal and will receive payment and/or a contributor copy of the issue you will appear in, you can expect to receive a contract that you will need to read, execute, and return to the publisher.

This column aims to explain what sort of clauses you can expect to see in a short fiction contract, some examples of these clauses, and what they mean in plain English

1. Rights

Make sure any editing clause has the reasonableness requirement attached to it and/or allows the author to have final say over any edits.

Example clause:

Where the Story has not been previously published, the Author grants the Publisher:

(a) first English language print and electronic rights worldwide for a period of 12 months from the date of publication.  After this 12 month period, the rights revert back to the Author; and

(b) non-exclusive English language rights to retain the Story on the Website in perpetuity after expiration of the rights in clause (a).

What this means:

The publisher can use your story on its website and in electronic publications such as pdfs or eBooks for one year. For this year, only the publisher can use this story, so you can’t submit it as a reprint to any other markets. But after this time, feel free to submit this again to markets that accept reprints. After the year's expired, the original publisher can keep the story in its archives forever.

Should you ask for any changes? If you are getting little compensation for your story, you may want to negotiate a shorter time frame for first-rights. However, if you are not Stephen King or James Ellroy, the publisher may tell you to bugger off for the sake of less than 5,000 words.

2. Payment

The exciting part!  And also a part that you need to read very carefully.

Below is an example of a simple monetary payment for publication clause:

In consideration of the permissions and rights granted, the Publisher will pay the Author $[XX.XX] via PayPal, within thirty days of publication of the Story, subject to the following conditions:

(a)  The Author having a valid PayPal account; and

(b) The Author agreeing to any reasonably requested edits; and

(c) The Author executing this Contract.

The author receives the stated payment into their PayPal account within 30 days of the publisher using their story, on the conditions that they execute the contract and make any required edits to their story. 

Many authors are disappointed by royalties clauses. Publishers don’t use them to be sneaky, but I get the impression many people expect payment of royalties in all circumstances, not realizing that many royalties clauses specify targets that need to be met before the author sees any payment. Royalties clauses may specify, say, that a $100 target is met, or 100 copies of an issue are sold before the author receives a percentage of the revenue or profit from that issue. Smaller magazines may never meet these targets or sell this many issues, and in these circumstances you are not contractually entitled to any compensation.

3. Warranties and Indemnities

Example clause:

The Author warrants that:

(a)  they have full power to enter into this Contract; and

(b) that all rights conveyed to the Publisher are free of encumbrances; and

(c)  that the Story does not violate any copyright or any other right and contains nothing libelous or otherwise unlawful; and

(d)  the Author will indemnify the Publisher and defend the Publisher against all claims, loss, injury, damages, fees, penalties, demands, or suits related to these warrants. The Author will compensate the Publisher for any loss or damage, and for any sums payable in settlement of any claim or judgment, including counsel fees, resulting from a breach or alleged breach of such warranties.

This is the part in any publishing contract that can seem really scary to a non-lawyer. These warranty and indemnity clauses are mainly inserted as protection for the publisher against any potential claims by a third party, and on a lesser scale, as a detractor.

I recommend looking through warranty and indemnities clauses thoroughly.

What is a warranty? In this instance, a warranty is a promise or guarantee that you aren't lying about your identity, that you haven't sold your story before or that you can sell your story as a reprint, and that the story doesn't breach any laws. If you breach this clause, part (d) means that you indemnify the publisher against any loss related to this breach.  

What is an indemnity? I was once asked this question as a test by a man I worked with in a publicly listed company in Australia. “It’s like compensation…” I started off. “IT’S NOT COMPENSATION!” he screamed at me, beet-red. Needless to say, the guy was a sociopath. of the best analogies for non-lawyers is actually compensation. You are saying to someone that you will reimburse them or compensate them for their loss. In this case, you would be reimbursing the publisher for all costs it incurs as a result of you breaching your warranty (your promise or guarantee to the publisher). 

I recommend looking through warranty and indemnities clauses thoroughly. If you are warranting and indemnifying issues that are within your control (like breach of copyright or defamatory content), you’re probably not going to have much success arguing that it should be removed. However, if this sort of thing makes you extremely nervous, you can always try and negotiate to limit your liability so that costs are direct costs and defense costs are split between the author and the publisher. Also, if it looks like a publisher is asking you to warrant something that is outside of your control, it's worth negotiating. If I can’t control something, I refuse to warrant it.

4. Editorial changes

A normal clause says something like:

The Author agrees to any reasonably requested edits.

A good publisher will tell you about the changes they make and work with you on your story, they’ll take into account your comments and anything you feel strongly about. It will be a collaborative process.

A nasty clause says something like: The Author agrees to all edits by the Publisher.

Believe it or not, this happens. There was a predatory editor in the horror community who took authors stories and edited them beyond recognition. One poor young woman had her horror story almost entirely rewritten, with a violent rape scene included that had no significance to the story. Under her contract, she had no recourse and her name was attached to the published story with the unsavory ending.

So make sure any editing clause has the reasonableness requirement attached to it and/or allows the author to have final say over any edits.

And finally, a quick checklist of things to carefully read in your contract. Make sure:

  • your correct name is in the contract,
  • you are happy with the rights you are parting with,
  • the payment amount and terms are as they stood when you submitted your story,
  • and you understand and are happy with the editing process.

What are some interesting clauses you’ve seen in fiction contracts? Are there any particularly onerous clauses you’ve been asked to sign up to?

NB: Where examples of clauses have been given in this document, I have used contracts that I own the intellectual property in and can assert moral rights over.

Disclaimer: This column does not create a client-attorney relationship and is not intended as legal advice. Should you need any legal advice, speak to an attorney who is skilled in the area and jurisdiction you require. 

About the author

In a previous life, Jessica worked for 12 years in the legal industry, with her last purely legal role being the corporate counsel for a property management company in Australia. Since then, she’s been the editor for an online literary journal and currently manages a music/tech start-up. She also freelancers as a contract lawyer and content producer, and writes regular columns for Litreactor and Gypsy Girl.

Jessica’s fiction and poetry has appeared in or is upcoming in Andromeda Spaceways Inflight Magazine (Aus), Beware the Dark (UK), Kaleidotrope, Plasma Frequency Magazine, and Pantheon Magazine.

She loves swimming, and like Peter Singer, considers herself a flexible vegan and focuses on the welfarist approach to animal rights.

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