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.