Friday, August 29, 2008

Contracts and Covenants--veinglory

Put simplistically:
* A covenant is an agreement made with a feeling of trust, which specifies what you will unreservedly provide to another person.
* A contract is an agreement made out of suspicion, which specifies what another party must do for you.
Problems occur when a person enters an agreement seeing it as a covenant, things go wrong, and they find themselves exiting via an agreement being treated as a contract.

For example, when people getting married are asked what the likelihood is that they will divorce, the median answer is 0%. This, in the full awareness that the answer in relation to other people is about 50%. Most people sign a marriage contract with little or no awareness of what they are agreeing to in event of the divorce they don’t expect to have.

Writers with a covenant outlook tend to equate suspicion of a publisher’s abilities (will they sell many books?) with moral suspicion of the publisher’s nature (No they are not a scam!). They willingly shoulder the greater part of the responsibilities (all authors these days have to promote their books to make any sales, even best sellers!) and tend not to doubt the capacity of the publisher (do they have distribution? Marketing staff? Expertise? Capital?). And if you look at it from the other end, if a lot of authors are covenant thinkers, publishers find it makes life easier not to rain on their parade.

For example, the agreement between a patient and doctor is often seen as a covenant where both aim to make the patient well. But 50% of us will eventual die while under treatment for an injury or disease, and doctors are left making crucial end of life decisions often with very little prior notice and no way to consult directly with the patient. Would they want extreme measures taken to preserve their life? What types of outcome would be worse than death for this person, and what would not? But what would happen if the doctor talked about end of life issues with new patients who are there to get over the flu, not pick out a casket?

It is not surprising that very few e-publishers talk about the realities of the current market, the typical sales figures and the prejudices an e-book writer might face as they try and move into richer commercial markets. People, especially people at the beginning of a new enterprise, actively do not want to look at the downside, or contemplate what will happen if it all goes pear shaped. That is a fact of life and a psychological blind spot that is to some extent necessary if we want people to undertake large projects with uncertain benefits: books, boyfriends and children come to mind.

But you don’t have to live in gloomy land in order to protect yourself from misfortune. You just have to visit. I would suggest that author put aside a little time to think some negative thoughts and put in place some basic protections, have a nice bottle of wine and a comedy romance DVD to get back to the sunny side afterwards…. Here are a few suggestions. If I have missed any please let me know.

* Make sure your will covers disposition of books and their royalties.
* Make sure you have copies of contracts and royalty statements. If there are any missing, request replacements. You probably won’t need them, but if you do it may be too late to ask for those replacement copies if the publisher has already folded or become hostile. Also it is simply a good idea to have complete records in case something happens to the publisher’s copies.
* Read through your contracts and make sure you have a basic understanding of them. Look specifically at how renewal occurs, which rights you have sold and any options clauses that might limit where you can submit future work. If you do not understand any sections do a little research online or ask for clarification. You signed it, you need to know what it means.
* Consider joining an authors’ association that offers expert advice and legal support, or identify a lawyer near to you that has experience with publishing contracts. You may never need them, but if you do you won’t be in a good state of mind to do careful research. And professional groups may not be all that sympathetic if you join only after you have a problem.
* Google your publisher and be aware of what other people are saying about them. But always consider the source, every major companies has a few problems that may be due to freak events, unstable people, or old history.

Finally, there is nothing that says you cannot take a covenant approach to life, being positive, generous and trusting. But if you do so you need to know for sure that any parties you enter into a binding agreement with are taking the same approach, and always will. My advice, even to the most sunbeam-and-pixie-dust inclined, is to trade an hour or two of suspicion for the security of a fair contract with a reputable publisher who is not only inclined, but obliged, to live up to your expectations.


  1. An excellent post, Emily - will point people here!

  2. I was rather pleased with it as an idea. But I notice my 'holding forth' posts are generally more of interest to me than the blog readers. Or perhaps it is just that they propose an idea rather than begging a question....