Monday, June 30, 2008

Before Posting Your Work

In my next few posts, I‘d like discuss the different kinds of trouble writers can get into by not totally understanding the language in a publishing contract or being afraid to ask questions about one before signing it. It behooves every writer to be very careful of what she/he signs, as it can come back to haunt him/her later in ways not even conceived of at the initial offer stage. If something in a publishing contract is not understood, it’s best to find someone who understands literary contracts to help you. If you don’t fully understand the document you are about to sign, then maybe you shouldn’t sign on the dotted line until you do. An agent will cost 15% of your advance and future royalties, but if you don’t understand the complex language in a publishing contract, the potential cost can be much, much greater.

A fairly recent phenomenon I’m seeing more and more of is that many writers want me to go to their Web sites to see their book or books. If you don’t understand publishing very well, it might seem like a good idea to post your work somewhere online. After all, editors and agents search the Internet all the time looking for writers, don’t they? No, most don’t. So you’re wasting not only effort but time and money also. And what many writers don’t know is that when you place books on the Internet, they are actually published. Therefore, when you sign that publishing contract, you might read the part that has to do with indemnifying the publisher against losses, which is usually under Warranties, Representations, and Indemnities. In most contracts, there is a statement that reads, in part, something like this: “the Work has not heretofore been published, in whole or in part, in any form.” Given that posting a book on the Internet for view is actually a form of publishing, an author can get into big trouble if the publisher is not made aware that his/her book has been posted on an Internet site, a public place where anyone can read or copy the book in whole or part.

Because it’s so easy to publish via the Internet, many publishers are now adding to the language mentioned above. This could mean that if a book is published in any way, shape or form, and the author doesn’t reveal this fact, then the publisher can sue the author for damages if the author doesn’t understand this clause and signs the contract with it intact.

That’s not all of it, either. If the publisher to whom you sell the publishing rights has published the book before this fact is revealed and it has been distributed and is available in bookstores, these folks (distributors and bookstore owners) can also sue you. The lawsuits can also extend to any subrights sold by the publisher. These subrights might be movies and television, foreign translation rights or any of the many subrights that are included in the rights package.

So the best free advice I can give is if you’re planning on ever selling rights to your book to a publisher, it would be wise not to post it or any part of it on a Web site or to allow others to post it. If you have unwittingly done this, then you must reveal this fact to any publisher as soon as it shows interest in your project so that the editor can make a decision based on those facts. As for me, I immediately reject those who tell me they’ve posted their work on their Web site. I feel like it adds too many complications to an already complicated process. If you want to post free stories, make sure they are those you never intend to try to sell the rights to unless you want to go through this hassle.

10 comments:

Scott Jensen said...

A friend who is very Net savvy cautions me about using Google Documents. He says the language for its use might imply they have a right to whatever documents you post to or create on it. What are your thoughts about it?

Vivien V. said...

I posted dialogue from my current WIP on my blog, to use in an example, but there's no narrative there, so technically only the spoken lines have been posted.

Would that be considered published?

Anonymous said...

Thank you for this information. I have been considering joining an internet based critque group but I had wondered if posting chapters on the web for review would cause problems down the road if the final draft was publishable. (Never hurts to dream.)

Most sites I've seen who have you post on their website seem to minimize questions about this issue which made me hesitate. I'm glad I did. Better safe than sorry.

If they restrict who has access to the works (no lurkers possible), would that still count as published from the industry's viewpoint?

Wylie Merrick Literary said...

Scott--
Ummm. We did a quick read through, so we may be a little off here. However, here is our take on this:

There’s a section 11.1 under Additional Terms in which we don’t like the language. Yes, the writer always retains copyright. Even when an author signs a publishing contract, he/she still retains the copyright in the work, but Google is saying in 11.1 that they have a non-exclusive license to your work which gives them the same right that a publisher would have in the work. Publishers are, after all, only contracting the right to print, publish and distribute and the authority to grant license to others to print, publish and distribute your work. By agreeing to section 11.1, it seems to us that you are granting Google some of these same rights and not getting any royalties for doing so, although you do get to use Google Docs services. The language is a bit misleading, and, in addition, the fact that this is listed not under Terms of Service, but under a separate link few people will click on called Additional Terms (Why not put a link to this in the original?) is troubling. One good point this brings up is that it is important when working with an online provider of “services,” to make sure who has what rights to the Content. This is also important in industries like software and publishing in general. You should always ask, “If I’m working for you and create something, who do you think it belongs to?” Some companies insist on proprietary rights, and that can mean a lot of work for someone else’s benefit.

Wylie Merrick Literary said...

Vivien--
It is published, but the main concern is whether this would impact a publisher's sales, and with something this small, that is doubtful. It also depends on how cranky the publisher is.

However, in the future, I would suggest, if you want to give dialogue examples, it would be best to make them up and not use something excerpted from your work. You need to market your work after the contract, and not before.

This is where many writers get into trouble. They want to post examples to help other writers or hope that their work will catch the eye of an agent or editor. If this is the case, write something specifically for that purpose. It's time-consuming, but worth it. I know writers who post free stories, but they know that these will not be published anywhere else. We face the same issues. For example, we've had to come up with several different query examples. It takes time, but it really is worth it. You're a writer...write! (said with an empathetic grin)

Vivien V. said...

Thank you for the response. I went through and deleted anything that had specific lines from my work. When I get to the point of ever signing a contract, however, I will make sure to mention that some lines were made public on the internet. I'm assuming it's okay to mention the work, as long as it's not lines from it.

I also wanted to ask about private critiquing sites. The one I'm currently a member of is password protected, so it's not a public site, but if I post chapters of my novel there, could that also run me into trouble? Other people will have seen it, but they're all members of the site.

There's very conflicting information about what is considered published and not on the internet.

Miss Snark's blog says that anything published on a blog is not considered published. But overall, I think it's better to keep your work a private matter.

Wylie Merrick Literary said...

Vivien and Anonymous:

Just wanted to let you know these questions will be addressed in a post on critique groups soon.

Thanks for your questions!

Anonymous said...

Mostly publishers only care that the work be not covered by any other publishing contracts at the time you sign with them. If you posted some chapters (not the complete work) on Query Tracker or something like that for feedback, they're not going to consider that "published."

Wylie Merrick Literary said...

Mostly publishers only care that the work be not covered by any other publishing contracts at the time you sign with them.

Our post was built around the contractual language which states:
"...the Work has not heretofore been published, in whole or in part, in any form."

You can interpret this language any way you want to, but legally, if this language is in your contract and is to be understood literally, then it means exactly what it says, "...in whole or in part, in any form." "In whole or in part" covers chapters, right, and "in any form" would cover the internet, if the publisher in question considers the internet a part of the E-publishing industry. What we are saying is that if this appears in your publishing contract, you should (1) have it removed or (2) if the publisher refuses to remove it, consider getting legal advice or just don't sign the contract with that language in it.
If you do sign a contract with this language present and if you have posted your work "...in whole or in part, in any form." it's up to the publisher if he or she wants to take you to court and sue you for damages. In our opinion, that's hanging it way out there.

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