Welcome back to the #PubLaw negotiation mini-series here at Writers in the Storm!
My last guest post took a look at the difference between Zero-Sum and Mutual Benefit negotiation strategies, and explained why it’s better to approach contract negotiations from a mutual-benefit point of view.
Today we move on to the nuts and bolts—specifically, how to prepare for a successful negotiation.
SUCCESSFUL NEGOTIATIONS REQUIRE PLANNING
Negotiation requires more than simply preparing a random (or even numerical) list of the contract provisions you want (or want to change). Approaching the negotiation with a plan increases the likelihood of a successful outcome.
STEP 1: Read the contract and make a list the points you want to negotiate or change.
This might sound simple, but reading the contract (or, if appropriate, the offer) is vital. It’s not enough to read a summary of terms or skim the document for the royalty rates and advance amount (if any). You need to read—and understand—the document as a whole in order to decide which parts you can live with and which will require negotiation.
STEP 2: Prioritize your list of requested changes.
All contract terms are not created equal. Some deal points are more important than others—for authors as well as for publishers. Review the contract terms you’d like to change, and rank them in one of three categories: “Deal Breaker,” “Important (but not mission critical),” and “Things to Ask For.” Here’s how you rank them:
For example: copyright ownership. If the contract attempts to transfer copyright ownership to the publisher, or doesn’t contain a clear, unambiguous statement that copyright in the work belongs to the author alone, the author should walk away from the contract.
Examples include: ownership of Film and TV rights (typically, the author should retain them), escalating royalties (increases in the percentages when book sales hit stated thresholds), and the number of royalty-bearing sales required to trigger the “out of print” termination rights.
STEP 3: Try to determine how the publisher will view your action items (and why).
Some contract terms are more important to publishers than others. Attempting to rank the list of changes from the publisher’s point of view will help you determine which items have the best (and worst) chances of getting changed. This, in turn, can help you prepare a strategy for the negotiation.
Items that require a change to the publisher’s business practices—for example, changes to royalty dates and sales statement contents—have a very low (read: nonexistent) chance of getting changed. Also, publishers rarely change the standard grant of rights—so be prepared for pushback if the rights are on the negotiation list.
STEP 4: Adjust your list, and your strategy, to accommodate the publisher’s potential concerns.
Whenever possible smart authors tailor the negotiation list in a way that makes the items as easy as possible for the publisher to accept.
As an example, let’s look at narration of audiobooks.
Sometimes, authors want the right to narrate the audio version of their books. However, publishers want high-quality, professional narration. The publisher may not know if the author has the skills to do the job, or if the licensee creating the audiobook will allow the author to narrate. Because of this, the publisher may hesitate to guarantee narration rights in the contract.
Instead, the author should ask for the right to audition to narrate the audiobook. This gives the author at least an opportunity to narrate the work, but lets the publisher “off the hook” if someone else does a better job at auditions (and getting the best possible narrator serves the author’s professional interests anyway).
Not all deal points are this easy to alter, but it’s worth the time to try and find a “meet in the middle solution,” either to offer at the outset or to use as a fallback position if the publisher refuses your initial request.
After you’ve read the contract, prepared your list, and considered the publisher’s perspective, it’s time for negotiations! I hope you’ll join me in August as we take a look at tactics for carrying out the negotiation itself, including helpful strategies for responding to acceptance—or denial—of your requests.
Did you prepare for your last negotiation (contract or otherwise)? How do you think preparation (or different preparation) would impact the result?
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. BLADE OF THE SAMURAI released in 2014, and her third novel, FLASK OF THE DRUNKEN MASTER, releases on July 14, 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 http://www.SusanSpann.com, on Twitter (@SusanSpann), and on Facebook (SusanSpannAuthor).
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Love this series, Susan. It makes you think about negotiation from a different perspective - and you're much more likely to get what you want if you go in knowing what the OTHER party wants! Brilliant.
Thanks Laura! It's definitely been a successful strategy for me over the years. I'm glad to have the chance to share it here.
While this is advice that we should all aspire to, I have to play devil's advocate here and say that I've been a freelance writer/editor for over 25 years and I think I can count on one hand the number of times I've been successful at getting changes made to a contract. I've worked for magazines, newsletters, newspapers, publishers, book packagers, etc. Maybe I haven't been assertive enough, maybe my services have not been valued enough to be in a strong position to negotiate, but the response I typically get is, "Sorry. That's our standard contract." Just don't want writers to get the impression that it's a matter of "ask and ye shall receive." On the other hand, if you don't ask, the answer is always no. 🙂
Densie, I probably shouldn't say anything, because I've never been a freelancer - but i know my agent got my NY publisher to give on several key points I wouldnt even have thought to ask about, and that allowed me to sell a series to a second publisher. IMHO, an agent is worth every penny you pay them!
It's true that the answer is usually different in magazine freelance work, though many publishers do make changes, if requested in the right areas. You're absolutely right that the major provisions rarely see changes--but even that is starting to change as the publishing climate shifts. You probably still won't see changes in magazine and Internet/web work, though--I represent a number of those types of publishers and you're right that for article-based work, the contract is usually fairly static. (Mainly due to the business models--they can't look up individual contracts before licensing rights, etc.) You do make an important point about relative negotiating strength, though--the author is definitely on the low end of the totem pole, which is why the preparation and knowing what industry-standards are is so important.
Thank you for this excellent series, Susan. I was successful in negotiating a few contract changes with a small children's publisher recently for a short story in an anthology. I changed the Non-Compete clause because the language was very broad, and also asked for minor changes to the Indemnification Clause and Term of Agreement. Disclaimer - I'm married to an Intellectual Property attorney. He is not a publishing lawyer, but at least knows the contract terminology. So it's definitely worth asking. The worst they can do is say no. 🙂
Thank you for sharing your experience, Ally. I'm glad you got the non-competition clause narrowed. That's often an overly-broad provision in standard contracts, and many publishers will narrow it if asked. You're absolutely right that "the worst they can say is no" - and at least if you ask you learn which areas are and are not negotiable. Many people find that there's more wiggle room than they think!
Thanks for these steps, Susan. It's comforting to know that, when the time comes, I've got your tips to help me make informed decisions.
[…] The last post took a look at how to create a pre-negotiation plan. […]