I talk a lot about contracts, here and in other #PubLaw posts. Most authors know that a contract is needed, and many even know what terms to request.
However, we don’t talk nearly enough about how to request those terms.
Negotiation isn’t a topic most of us learn in school, and many authors feel adrift when it comes to the negotiation process. In light of that, my summer posts here at WITS will take a closer look at negotiation—and offer some tips and strategies to help you negotiate with skill and style.
Good negotiation doesn’t happen “just by chance.” Successful negotiation requires proper planning, preparation, and execution.
This week, we’ll look at a successful negotiation strategy. Next month’s post (2 weeks from now) will follow up with detailed strategies to prepare for your negotiation, and in August…you guessed it…we’ll look at how to execute a successful negotiation.
Although these posts are designed for use in the publishing context, the strategies I’m discussing here apply to all forms of negotiation, from “can I have a cookie” to “avoiding a land war in Asia” (though, in the case of that last one, my best advice is “don’t get involved in the first place”).
Ready? Let’s get rolling.
NEGOTIATION STEP #1: Understand Your Objective.
I could talk at length about the terms an author should try to obtain in a publishing contract. However, in the context of negotiation, the objective is not only the contract, but also what the author wants to achieve from the negotiation process.
The twin objectives of publishing contract negotiations are:
Both of these goals are equally important. However, it’s hard to establish a positive relationship in a negotiation that feels like a street fight—even if you ultimately get the terms you wanted in the end.
It’s critical to negotiate in a manner that achieves acceptable contract terms without alienating the editor or publisher on the other side of the bargaining table. Fortunately, it’s usually possible to obtain the terms you want without creating a hostile environment if you take the right attitude—and the right strategy—into the negotiation.
NEGOTIATION STEP #2: Selecting the Proper Strategy
Two of the most common negotiating strategies are “Zero-Sum” (or “Zero-Sum Game”) and “Mutual Benefit.” Let’s take a look at each strategy, and use translation rights (aka “foreign language rights”) as an example to show how each one might play out in a publishing contract negotiation.
Zero-Sum Negotiation / Zero-Sum Game
In economic and negotiating theory, a “Zero-Sum Game” is a mathematical representation of business actions in which each “point” in one party’s favor represents a loss for the other side. Negotiating by Zero-Sum tactics means approaching the negotiation, and the resulting contract, with an “I win-you lose” attitude.
People who negotiate this way are often aggressive and alienate the other side because they consider it imperative to “win” as many points (in this case, acceptable terms) as possible.
In a Zero-Sum negotiation, the issue of foreign language rights comes down to “one of us gets them, the other one does not.” Publishers often want to acquire as many rights as possible, and standard contract language almost always includes translation rights.
In a zero-sum negotiation, the author’s position would be, “You can’t have my translation rights (and that’s the end of the discussion).” Whoever ends up with the rights is the “winner” and the party without them “loses” on that particular point.
Unfortunately, zero-sum negotiation in the publishing contract often leads to loss of a publishing deal, because when the publisher won’t give in the author must chose between “losing” on the points at issue and walking away from the contract altogether. Even when the author “wins” on certain points, the negotiation becomes a tug-of-war between absolute positions. When the dust settles after a difficult zero-sum negotiation, the parties often feel stressed and unhappy about the points they “lost” rather than pleased to have closed a deal.
Mutual Benefit Negotiation
The “Mutual Benefit” strategy represents a better choice for publishing negotiations. Mutual Benefit negotiation starts from the theory that it’s possible to reach a contract situation where each of the parties ends up in a better overall position as a result of the negotiations.
The objective of Mutual Benefit negotiation is reaching a set of contract terms which, in the aggregate, benefit both sides and lay the foundation for a positive business relationship.
Foreign rights negotiation might proceed quite differently with a mutual benefit perspective. If the publisher wants the rights, and refuses to allow the author to keep them, the author can propose an alternative option that benefits both sides. For example, asking the publisher to allow reversion of the translation rights if the publisher hasn’t sold them within a stated time (usually 24-36 months) after initial publication of the work.
By offering a third solution—something beyond “one wins/one loses”—mutual benefit negotiation permits creative problem-solving that satisfies both parties’ needs. Even if the creative suggestion isn’t accepted, offers made from a mutual benefit perspective can defuse tension in the negotiation process and make the other side feel respected. (Many publishers negotiate in this manner too, when authors and agents ask for concessions in a respectful way.)
Approaching negotiations from a mutual-benefit perspective sometimes requires an attitude adjustment, and can be difficult when the other side doesn’t seem to return the favor. However, the results are worth it—even if the publisher uses a different tactic.
It’s worth the time to cultivate a calm, professional attitude and creative problem-solving skills. The benefits you gain will help your career in many ways, including (but not limited to) your contract negotiations.
I hope you’ll join me in July as we take a look at how to prepare for a mutual-benefit contract negotiation, and discuss some helpful strategies for getting the most from your publishing contract.
Have you ever negotiated a contract? What strategy and attitude did you take into the process?
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Susan Spann writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014, and her third novel, FLASK OF THE DRUNKEN MASTER, releases in July 2015.
Susan is also a transactional attorney whose practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).
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Susan, in my CFO career, I took a couple of seminars on negotiating, and the most enlightening by far was what you call out in this post - that one of your most important jobs in negotiating is seeing that the other party feels good about the outcome.
But honestly, the one who drafts the contract has the majority of the power - because it's written from their point of view, and they know you're not going to negotiate everything - just the top 3-4 points that mean the most to you. They can even put in an obvious objectionable term that they know is not going to fly - because it'll use up one of your points.
I'm not saying that publishers are disreputable. Just that they've been doing this a long time, and are master negotiators.
Publishers definitely have the power in the negotiation. No question at all. The best chance writers have of negotiating better deal points is approaching the negotiation from the right perspective (mutual benefit), and knowing where and how the publisher is (or might be) willing to move. That's my main focus in these next few posts - sharing the strategy that has at least the best chance of success--even when the cards are stacked heavily against a completely successful negotiation.
Right on, Laura.
I'll tell you that author contracts make me nervous. I know they are changing, but traditionally they were downright scary. That's where YOU come in. You will be looking over any contracts that come my way, because that will calm my nerves. 🙂
And I'll be glad to do it, Jenny!
Contracts have traditionally been stacked heavily against the author, and in many cases that's still true. The good news is that some publishers are starting to move to more reasonable terms, at least in certain areas, and I'm writing this series in part to share the tricks I've learned through my experiences negotiating and talking with editors who have shared the inside scoop on how an author can negotiate to best effect.
Thanks for defining two different negotiations strategies for us, Susan.
Yes, years ago I negotiated three labor contracts for the same group over the span of five years. The "other side" used the bludgeon and threaten strategy. They had the power, like the publishers, and they weren't going to give a millimeter. The bad feelings after the first settlement led to a strike (never done before in that area) before the second settlement. By the third contract, different management was in place. They understood that we had some power and the negotiations process became a zero-sum/mutual benefit blend. We "gave" then they had to give, back and forth, until we settled.
And, yes, I'm with Jenny on the you'll-be-hired to review at my contracts when they (finally) roll in!
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