book in the woods

A History of Contracts

I am proud to present a guest post by an old friend and very intelligent man. I hope you all enjoy this foray into the long history of the publishing contract and glimpses of the evolution of the industry.

Quilly Mammoth
Quilly Mammoth

Quilly Mammoth: Owner and Despot of Just Barking Mad. A former enlisted man of Mr. Carter’s Army that the Army saw fit to entice into becoming an officer. After fourteen years of active and reserve duty he felt that with the end of the Evil Empire his chores were done. Currently a production manager he has also conned someone into publishing his science fiction.

Some History.
In 1873 the first edition of Jules Verne’s “Twenty Thousand Leagues Under the Sea” was first published in America. As the first edition was set to ship the print shop caught fire and all but 100 copies were destroyed. Naturally a second run was scheduled, and here’s the rub, author royalties often shifted based upon the number of the run. And in this case the printing had to shift from Osgood to the George Smith Company. Verne and Hetzel came to an agreement wherein the first Smith edition would still be called the first edition.

Now this occurred because at the time Hetzel and Verne were not only Publisher/author but truly Teacher/Student and nearly father/son. Hetzel always reminded me of Campbell and to a degree the GE. But this is a rarity in the realm of contracts where a setback is amicably settled without lawyers.

Verne realized that publishers have a significant outlay in cash for marketing,, shipping distribution and advances. Hetzel knew his protégé needed cash. The exact details are lost to time as Verne burned all his personal papers before his death and all that are left are some of Hetzel’s. But this is unusual.

And with advent of the Linotype machine in the 1880’s contracts became tighter giving publishers a tighter control over the works they published, because printing became a quantum leap cheaper. Technology rears its head and people panic, because it affects their business model.

Flash forward nearly 100 years. Sitting in the front row of Grateful Dead concerts are people with recording tape cassette machines. With the Dead’s permission and that of Bill Graham, their promoter and producer. Some of Graham’s other acts started floating the idea of selling their own tapes at concerts. And the music industry flipped out. This new recording technology and the fact that bands could sell their own music, after all they still owned the copyright, scared the crap out of them. To them they had shelled out a lot of money up front that might be simply negated by a simple and relatively cheap mass cassette reproducer.

So they went all barbarian and stuff and made the most restrictive contracts ever produced. Bands joked that they had to tour or die as their payments were now so delayed and ambiguous. Established acts like Willie Nelson _retired_ because they felt they could no longer perform or record profitably. Over time sections were struck down by courts and the industry relented to a great deal. (but not all the way, see Tim McGraw).

Then the interwebs happened and the music industry freaked out again and DMCA and so forth happened. Artists were made to make addendums to their contracts to restrict on line distribution of _any_ material they create, even if it wasn’t on a CD. Interestingly some of the biggest blow back to this is in rap and country. Cats and dogs, you know.

So now writers can publish their own writings to Amazon and skip publishers all together and do so successfully. See Ric Locke. But some publishers, who actually deal with the future, can’t handle it. Which is why you see such an emphasis on electronic rights.

And this is the crux of an important debate that all writers must enter into in good faith. How do you protect your creative rights AND insure to a publisher that he might not be taken advantage of down the line?

Remember, like in the music business, publishing is now corporate. The days when there was a publisher/editor like Hetzel are long gone. 150 years ago publishers were essentially a middleman. A fellow like Hetzel would find a writer like Verne and with financial backing, usually but not always silent investors, find a printer and sell to his network of book shops. The invention of the type writer made this even more lucrative for publishers in the Hetzel model because one didn’t have to decipher hand written manuscripts. Co-incidentally the typewriter became commercially available in 1873.

This sort of relationship between publisher and editors began to change over one hundred years ago, most of Mark Twain’s books were published by publishers like Harper Brothers. In their early days Harpers printed books under contract from publishers like Hetzel. However, Harpers adapted from being primarily magazine publisher to publishing magazines and books. Printing presses were becoming more automated and paper cheaper.  Type written documents made it easier to handle a larger number of works which meant more production and more money. They also contracted writers with a contract similar to a magazine author, that is they were essentially works for hire.

This created a new field called “publishing attorney”. If you were a writer of the stature of Twain you had one and they negotiated separate contracts then what a publishing house offered as their standard. And if you had a really good publishing attorney he would include the following clause in your contract giving the purchasing publisher not only the printing rights but the right to publish:

“in whatever modes should then be prevalent, that is by printing as at present or by use of phonographic cylinders, or by electrical methods, or by any other method which may be in use.”

This was the contract Twain had written for his autobiography to be published 100 years after his death. He wanted the book published and didn’t want any possible conflict with any of his heirs over it due to the rights to any publishing method that might exist in the future. But he also had all of his contracts hand written as he believed that prevented them from being too long and complex.

But why do publishers of music and books demand such restrictive contracts that only a select few creators can control their destiny?

Corporations do this because the ability to go beyond their scope due to technological advances is off the charts different from a 100 years ago. That’s why I included the Linotype, because it sets the stage for the fear of picking up your creation and going elsewhere. And this is where the accusations-of socialism come up. You are the owner of your labor. That was what original Socialists and Anarchists like Bakunin agitated for…ownership of labor. The flip side is that Socialist and communists believe that ownership reverts to the state and corporatism thinks it reverts to them.

So other than being a libertarian and solely going it alone, self-publishing both in print and electronically, what can a writer do?

Offer your own contract from reliable sources. Wayne Borean offered on my own blog several sources.

“The Writer’s Guild of America West has an excellent page of sample contracts. ONECLE has a huge page of sample contracts,/a> covering a wide range of things. SFWA has a lot of information on contracts.” 

And some advice on some of the new contract software:

“On a final note, if you need a lawyer to explain the contract to you, it’s a bad contract. I’ve seen far too many of those. Most Software EULAs are nearly impenetrable. That’s one reason I recommend that people avoid proprietary software. If you can’t understand a it, how do you know if you are within the legal bounds (and yes, I don’t consider an EULA a contract, since the user doesn’t sign it, but if you are in a state which has adopted the Uniform Computer Information Transactions Act, an EULA is considered to be a contract, enforceable the second you purchase the software).”

Some good advice from both Mark Twain and Wayne Borean: complex contracts you can’t understand are bad contracts. It is possible to have a contract that both protects you and the interests of the publisher. After all, Mark twain was able to cover the publishing rights in a medium that wouldn’t be invented until nearly 70 years after his death and do so in a two page, hand written contract!