Author and blogger Kristine Kathryn Rusch has written what is the most comprehensive blog I’ve read to date on what happens to writers who fail to read agency and publisher contracts; and in particular how our traditional advocates — our agents — are often electing to serve themselves and their agencies at the expense of their clients. It’s a harrowing read and one that confirms my decision to self-publish.
Rusch’s blog reminded me of another contract-related issue that bears adding to the conversation: different clauses in a contract can contradict each other and each clause in a contract operates independently of the others unless it specifically references another clause. Therefore you can’t rely on the clause that contains a reasonable exchange of rights if another clause contradicts this. And it is this knowledge that the lawyers who write up the agency and publisher contracts have and that you likely do not that will screw you in the end.
For example, I was asked to sign a contract with a producer for a screenplay they commissioned me to write. The contract had the standard compensation clause in it whereby, in exchange for getting paid for the work, I assigned the producer a licence to produce; if the producer failed to pay, the licence ceased to be granted, and since I, the author, owned the copyright that would mean I would be free to sell the work elsewhere. But a few pages later there contained a clause that stated that upon payment of my fees I assigned to the producer all rights whatsoever including copyright in perpetuity.
I had an entertainment lawyer look over the contract and she didn’t have any concerns about the clause. But luckily for me, I was married at the time to a corporate litigator who, upon reading the contract, advised me I couldn’t sign it. Why? I asked. Because, he replied, the minute I sign the contract I lose all copyright to my work, even if the producer never pays me a dime! But, I asked, what about the first clause whereby I only assign the licence? Irrelevant, was the reply: clauses operate independently. But what about the first line of the offending clause, whereby he only gets the rights if I’m paid? Not helpful, was the response: all I could then do would be to sue for the unpaid fees, to sue for that breach of the contract, but the copyright would still be gone! FOREVER.
Needless to say, I never signed. The producer and I parted ways. I had already written the screenplay, and I was only ever paid a fifth of my fees, but at least I didn’t entirely fall prey to the slimy bastard.