In any publishing deal, you’re in charge. That’s because a publishing contract is you giving the publisher permission to use your work. They need permission and you’re the only one they can get it from. 

It can be incredibly hard to remember that you’re the one in the driver’s seat after the long process of query letters, pitches, rejections, and finally (finally!) an offer. You’ve been in the position of wanting and needing someone’s approval for such a long time, that you don’t even realize you’re now the someone with approval to give.

One way to change your perspective is to think of the publisher’s offer to publish your book as “an offer to request your permission.” If you say yes, they’ll send you their publishing contract. And everything in a publishing contract is a request for your permission.

Everything in a Publishing Contract is a Request for Your Permission

The publishing contract you get isn’t special. It’s the publisher’s template agreement. Every contract the publisher signs with an author is based on the the template and the template is designed to give the publisher the very best deal possible.

When a publisher makes you an offer, they’ll adjust the template agreement before sending it to you, but they’re not adjusting it to be nice. They’re adjusting it to make sure the contract represents a good deal for them. The terms they’ll likely adjust include: the advance, the royalty structure or split, and “ancillary rights” — rights to make things based on your book, like merchandise, television shows, and musicals.

Every term in the contract is a request:

• ​May we have the right to make merchandise?
• May we publish your book for a royalty that’s 10% of the cover price?
• May we have the right to publish the next book you write?

Just because they ask doesn’t automatically mean you have to say yes.

​​You get to decide what terms make the best sense for you and your goals for your book.

Many authors worry that saying “no” to a term in the contract will make the publisher mad and risk losing the deal. Very few publishing terms are “make or break.” An agent or attorney can help you differentiate between requests that are essential to the deal, and requests that the publisher hopes you’ll agree to, but aren’t necessary. (Don’t have an agent? Agents love authors who already have an offer. Still can’t find an agent you like? Attorneys with publishing expertise can help!)

With every request for permission in the contract, ask yourself:

• ​Do I want to give them this permission?

Only give the publisher permission you feel comfortable giving. That doesn’t mean you love every term in the contract, but it does mean that on the whole, you feel confident about the permissions you’ve given and what you get in return.

• Do I trust the publisher to use these rights effectively?

Not all publishers are created equally. And not all publishers are capable of ​making good use of the rights they’re given. Do your homework, or flat out ask them, to find out: how successful have they been making merch/optioning television shows/using whatever right they’re asking for? do they plan on using all of the rights? When and under what circumstances?

• If I give the publisher my permission, and I don’t like the results, what options does the contract give me?

Every good publishing contract has a provision so that if the book doesn’t sell or the publisher runs into tough times, you can get your rights back. Notice: every good publishing contract, not every publishing contract. Make sure your contract has that provision and that you understand exactly how it works. It’s not uncommon for these sections to be worded confusingly or poorly, or both. Make sure it’s right before you sign.  ​

The next topic in the series is “Only give them the permission they need, and can use.” Want to read it? Sign up for the free e-course here.

There’s just one little thing: it can be really hard to collaborate with other people.

Other people live outside of your brain, have different opinions, work in different ways and at different hours, have different priorities, and are influenced by different things.

Other People are not You.

And if you want to be able to work well with Other People, you need to accept that, and figure out how to balance your needs, wants, and desires with theirs.

Good collaborations require good negotiation skills, and not just when it comes to plot points and character designs. You also need to be able to talk about the less fun stuff, like splitting money and intellectual property rights.

Talk Early & Often
When you’re really excited about working with someone, talking about copyrights and contracts is not nearly as fun as diving into the work. And for that reason a lot of creators avoid conversations about legal issues for as long as possible.

The sky won’t fall if you don’t talk about who will own the copyright before you start working, but if you each have different expectations about how the rights will work, and you don’t talk about them, it will be much, much more difficult to negotiate an agreement you both feel good about later on.

Talking with your collaborator early on about the legal side of things will avoid misunderstandings and frustrations down the road. So force yourselves to sit down and talk about what you both (or all) want to be able to get out of the project.

Focus first on each other’s whys:

Why do each of you want to work on the project?

Why do you each think this will be a good project for you creatively and for your career?

Why do you want to work with one another?

As you negotiate over rights and money, remember these whys and come back to them if you are finding it difficult to agree on certain terms.

No one wants a copyright because they want a copyright. People want copyrights because of the control it gives them over their work, the security it provides if the project is monetarily successful, and the freedom it gives them to create other things.

People want things because of their whys. Understanding the reason why your collaborator wants to work on this project with you, and articulating your reasons to them, will make discussions over money and rights easier and more productive.

Talk About The Tough Stuff
Once you’ve shared your reasons for wanting to work on the project and with one another, it’s time to talk about things like rights, money, and work responsibilities.

Avoid the temptation to discuss this entirely over email; face-to-face conversation, in person or online, will help avoid misunderstandings and speed things along. If that’s not an option, agree to ground rules for the email discussion, like, “If I’m confused about something you wrote, I’ll check in with you before I assume you’re trying to take advantage of me and steal my first-born child.”

If you discuss nothing else, make sure you hit the following high points. Chances are as you work your way through these questions you’ll discover other things that are important and will help make the collaboration go more smoothly.

• What is your greatest hope for the project? If it happened, describe the things you’d want to be able to do with it and what you’d expect regarding compensation.
• What’s the worst case scenario? If that happened, describe the things you’d want to be able to do with the work and what you’d expect regarding compensation.
• If there are expenses along the way (fees for other artists, advertising), how do you want to split those costs?
• Will one of you manage the business of the work (publishing agreements, royalty payments, etc.), will you both take responsibility, or will you hire someone to do it for you? If you’ll both take responsibility, who will be in charge of what?
• What can you do with the work without the other person’s permission?
• What activities will require sign off from both of you? What will you do if you can’t agree?
• What happens if one of you leaves the project before it’s over? Can the other person continue with it? If so, will the person who left still be entitled to the same compensation?

Collaboration Agreements, contracts that spell out each party’s rights and responsibilities, can be a good way of capturing how you want to deal with all of these issues. That way, if there’s a disagreement later on you can go back to the agreement and figure out what you were both thinking when you were bright-eyed and bushy tailed.

Copyright & Collaborations
It’s important to know that copyright works a bit differently when it comes to joint projects. Unless you decide otherwise (and capture it in writing!), the law will assume you both (or all) own the copyright to the finished product. That means that you don’t own your contribution and they own theirs, but that you both own the result of having your contributions combined into a single piece. If that’s not what you want, a collaboration agreement is necessary to spell out what you each own.

Joint projects also have these defaults when it comes to copyright:

• You can each use the work however you want and sign all the non-exclusive licenses for it that you want without having to ask your collaborator’s permission.
• You both (or all) need to agree to license the work exclusively–like in a publishing or option agreement.
• You’ll split all funds you make from the project equally. This can be an issue if one of you is fronting the money for the project to get made; keep clear records!
• The copyright will last the life of the longest living creator plus an additional 70 years, at which point your heirs will be responsible for managing the copyright. It’s important that everyone’s rights and responsibilities are clear so when you aren’t around your creation will be used and managed the way you want it to.

Of course if you don’t want these defaults, or if you want them but want to flesh them out a bit, a collaboration agreement will help. You can detail how you’ll each own and manage the copyright, which can be a huge help if (when) conflicts arise later on.

Talking about these things can feel intimidating, so give yourself a break. You don’t have to figure everything out in one go. You just have to respect yourself, your collaborators, and the work enough to be willing to talk about these things. And once you’ve talked about them, it will be much, much easier to put together a collaboration agreement that protects your rights, your relationship, and your work.

What are your experiences with collaborative projects? Where there conflicts you think a collaboration agreement may have helped you sort out?

A version of this post originally appeared in Island, Issue #3, from Image Comics.  

It’s a great question, but (surprise!) it doesn’t have a simple or straightforward answer. 

That’s because “creator owned” isn’t a legal term. There isn’t a legal definition of what the phrase means, and because there isn’t a legal definition, its definition can differ from contract to contract.

I find it helpful to think of “creator owned” as a marketing term (à la “graphic novel”) that publishers can use to tell fans how much control the creator has over his or her work. It’s also a way for publishers to tell creators what to expect if they work together.

That doesn’t mean I think “creator owned” is a bad term. As long as you and the publisher are on the same page about what it means, it can be helpful shorthand for explaining your relationship.

To make sure you and your publisher are on the same page, read your contract carefully and think through the following questions.

“Owned” What, Exactly?
My assumption when I see the term “creator owned” is that the publisher has a license to the work and the creator keeps her copyright in the work.

As long as the work you’re creating isn’t a work made for hire, you own the copyright in the work you create as soon as you create it. You can give other people the right to use your work with a license, or you can sell your copyright to someone else by transferring or assigning it.

If you transfer or assign your copyright to someone else, you no longer own it. If you license the work, you still own the copyright, but depending on what the license says, you may be agreeing not to do certain things with the work for a period of time or in a particular place.

If what you want to own is your copyright, you do not want to assign your copyright to someone else.

If you do assign your copyright to someone else, they’ll own it. If they own it, they get to decide how the work is used, where it’s published, and who gets to create things works based on it. The US Copyright Act does give you the right to cancel an assignment 35 years after you make it, but that’s 35 years of you not owning the copyright.

Pro Tip Regardless of whether you license your work or assign the copyright to the publisher, your contract should have explicit instructions detailing how the rights can revert to you if the publisher is no longer using them.

So if the contract you’re looking at has you assign your copyright to the publisher, can the work still be “creator owned”? That depends on what it is you’re interested in owning.

Money? If the contract grants you royalties (and it should), you have the right to be paid those royalties. I hesitate to say you’re “own the right to be paid” because that kind of right isn’t separate from the contract. It’s an important right, don’t get me wrong, but it’s not what I usually think of as “ownership.”

Things? Some publishers will give you a certain number of copies of whatever it is they publish using your work and may allow you to buy additional copies at a reduced price. If your contract promises you copies of your work, you will own those physical objects, but pay attention to what the contract says you can do with them. Some contracts won’t let you sell those copies. If you want the right to sell the copies at cons or on your website, you’ll need to adjust the contract. Again, this isn’t my idea of what “creator owned” means.

Other parts of the copyright? If a contract has you assign a portion of your copyright, you only forfeit ownership of that specific portion of the copyright.

How can you assign part of a copyright? Copyright is actually a whole bunch of rights. Lawyers often use the analogy of a bundle of sticks: the bundle is “the” copyright and the individual sticks are the rights that make up a copyright. You can give someone one of those sticks and keep the rest.

Let’s say that the contract says you “transfer and assign” the exclusive right to publish your work as a comic book in English, throughout the world. You no longer own the right to create and sell an English language version of the comic, the publisher does.

But you still own the rights to make a movie; make a comic book in any other language; and even create and sell merchandise based on your story. You still own the rights to do a lot of different things with your work, but you’ve sold certain rights to someone else. You and the publisher both own parts of the copyright in the work.

Pro Tip If you sell part of the copyright be extra special clear about what that means. If they have the right to create a comic book in English, do they also have the right to create merch based on the comic? Do they get to create derivate works based on the comic? What kinds of derivative works?

Doing a creator owned book with a publisher can be a rewarding and satisfying arrangement. But in order for you to make sure you’re getting the most out of the relationship, you have to make sure that what you think “creator owned” means and what the publisher thinks “creator owned” means are the same.

What are your experiences with “creator owned” agreements? Have you run into “creator owned” contracts that handle the rights differently than what I mention here?

What’s the difference between a “work made for hire” and when I assign my copyright to someone else? In both cases I no longer own the copyright, so what’s the difference?

I’m so glad you asked! Because if you’re a creator who wants to encourage your clients to do the right thing (like pay you), the differences are pretty important.

A work made for hire is when you create something for someone else, the thing fits into one of these nine categories, and you have a written contract that explicitly says the work is a “work made for hire.”

If all of those things are true (or if you’re an employee making something in the “course and scope” of your job), then you never own the copyright to what you create. From the very moment the thing is created, it’s owned by the client or your employer. You can’t use the thing unless your client or employer gives you permission and they can do whatever they want with it even if they fire you in the middle of the project.

When you assign a copyright you are selling it to someone else. And in order to sell the copyright, you have to own it. You own the copyright to something you create so long as it’s not a work made for hire.

Setting aside situations where you make things as an employee, that means: no written contract? It’s not a work made for hire. If the thing doesn’t fit into one of the work for hire categories? It’s not a work made for hire. The contract is written but doesn’t say that what you’re making is a “work made for hire” or “work for hire”? It’s not a work made for hire.

The other rather important thing about a copyright assignment? After 35 years, you can cancel it.

You can go back to the client and say, “Hey, that thing I assigned to you? Yeah. I want it back.” You can do this even if you’ve signed something that says you super duper promise you won’t cancel the assignment; you can’t legally sign this right away.

To recap: when something is a work for hire, you never own the copyright. When you assign a copyright, you own it originally, but you’re giving it to someone else for at least 35 years.

So why should you care?

Well, let’s say you do work for a client and then, for some reason, they don’t pay you.

If what you’ve made is a work made for hire, you can’t stop them from using what you’ve made. If, on the other hand, you’ve promised to assign the copyright once they’ve paid you in full, you can stop them from using what you made. They don’t own it yet, you do. If they want to own it and use it, they need to pay you.

Or, let’s say you want to use what you’ve created in your portfolio. If your creation is a work made for hire, you can’t unless the client gives you permission. If you assign the copyright, though, you can reserve the right to display the work in your portfolio when you give them the copyright. You hold on to that tiny portion (but valuable!) of the copyright and give them everything else.

You might see contracts where they say if the work is not a work made for hire, then you agree that you’re assigning the copyright to the client by signing the contract. If you don’t think what you’re creating fits into one of the work for hire categories and you want the advantage of assigning the copyright under your terms (upon full payment, reserving certain rights, etc.), negotiate to add those requirements to the contract, or work with a lawyer to help make sure that what you’re signing is what you want to sign.

Do you have questions about how copyrights work? Let me know in the comments and I may answer your question in a future post.

My usual response to this question is, “stall.” Postpone the meeting, call in sick, delay at all costs. Negotiating without enough preparation is not negotiating. It’s throwing yourself on the mercy of Fate and hoping Rhetoric is in your corner today.

The real meat of a negotiation is in the preparation. That’s where fortunes are won or lost, not in the room talking to the other person.

But what if you can’t stall? What if you have to negotiate when you don’t have the time to prepare? What should you do then?

1. Reset Expectations
This is not a negotiation meeting. This is an information gathering meeting.

You are going to that meeting to collect as much information about what the other side wants and why they want it as you possibly can. You are going to share information that will help them better understand your interests.

You will not make an offer or a counter offer or agree to anything. If pushed, you will say, 100 times if necessary, “I don’t know; I’ll have to think about that and get back to you.”

2. Focus & Breathe
If you’re going to gather helpful information you’ll need to know what’s helpful. So grab a pen and a piece of paper and start a timer for 7 minutes. Use that time to write out everything you don’t know about the negotiation. It can be anything from, “Is what they’re offering a good price?” to “What is the timeline?” If you don’t know it, write it down.

When the timer stops, look at what you’ve written and see if there are any themes. Pick either the three biggest themes or the three biggest questions. Your job in the negotiation is to gather info about these three things.

Now breathe. Because you’re probably not. And if you are, it’s shallow breaths from your chest that will keep you alive but won’t actually help you tackle this negotiation. Make yourself breathe from your diaphragm. Nice, deep belly breaths. Those are the breaths that will help you think and calm your nerves.

3. Listen More Than You Talk
When the meeting starts, after the small talk is taken care of, play this game: how long can you go without saying anything? If you’ve never played this game before, shoot for at least three minutes. That will be difficult, but, trust me, you can do it.

When you finally do talk, do so only after there’s been a period of at least 10 seconds of silence.

When you are talking you cannot listen and when you cannot listen you cannot gather information. Also, we’re social animals. Quiet periods make us uncomfortable. If you don’t rush to fill the quiet pauses, chances are the other person will. And when they do, they’ll likely share information that they think will help you better understand their point of view. Listen.

4. When You Talk, Ask Questions
I realize you will eventually have to talk in the meeting. That’s fine. But try to make most of what you say questions instead of statements.

Ask for information. Ask for clarification. Ask for elaboration. Ask for their best guess as to how they’d react to your hypothetical solution.

When you can’t think of what to ask, try repeating the last thing they said with the inflection of a question.

“And that’s our final offer.”

“Your final offer?”

Asking questions helps you with the first three items on our list and will serve you far better than trying to explain your point of view or correct statements you think they’ve got wrong (both of which you can do just as effectively with questions, fyi).

5. Make Plans to Follow Up
Don’t stretch this meeting out. Remember: you’re just gathering information.

Once you’ve got what you need, tie things up and make plans for when you’ll meet again. Make the meeting as far in the future as you can reasonably justify.

You need time to plan how you’ll negotiate the next time you meet.

 

Most importantly, DIYing a contract means that you can make sure you never work without a contract.

But a DIY contract does have drawbacks. While much of a contract is (and should be!) about the work and fairly straight forward, there are some “invisible lawyerly bits” in all contracts. They dictate how the contract will be interpreted and understood, and if you don’t write your contract aware of these invisible lawyerly bits, you can unintentionally screw up things up.

If you can’t hire an attorney to draft a contract for you and you’re putting one together yourself, here are a few of those invisible bits to be aware of. I’ve also thrown in a handful of recommendations for ensuring your contract works.

Already put your own contract together? Good job! Read this post anyway, even if you’ve used or read the Contract Killer. It has bits and pieces I’ve not found in other resources.

Write Practically, Read Carefully. Writing a contract is like writing anything else: if you want it to resonate, you must write for your audience. Use short sentences. Avoid trying to make your language “sound lawyerly.” Number paragraphs so they’re easy to find. Write simply to encourage the other side to read the contract carefully.

Definitively Defined Help your reader understand the contract by defining words that are important, and only defining each word once. You can either define words in a separate definition section or identify when language in the contract means a specific thing using a parenthetical. Like so:

 …a 22-page comic about an all-female militia based in the NuePhoenix colony on Zorahorne that goes rogue to avenge the murder of one of their own, which may have been sanctioned by officials at the highest level of the Unity government (the Comic)…

…all work will be performed at Client’s office located at 123 SW Elm Street, Portland, Oregon 97205 (the Office)…

If you have to define a word that could mean Something Specific To What You’re Doing, but could also mean Something More Generically Applicable, use punctuation to signal which usage you intend. For instance, when talking about the specific design, illustration or website I’m making for the client I’ll write “Work.” But when I’m talking about what action I will take on behalf of a client, I’ll write “work.”

Give Everyone a Name. The people (or organizations) entering a contract are called “parties” and each party to a contract should be easy to identify. Why? Because you want to make sure that everyone understands what they need to do. So make sure everyone has a name. Don’t identify the parties with names that are easy to confuse, like my pet peeve “Licensor” and “Licensee,” or refer to the parties using Who’s-On-Firstian “party of the first part” language. Use names that are easy to differentiate and relate to what that party is doing in the relationship.

You and Me and I and You Some people don’t like naming the parties things like “Client” or “Illustrator” or “Supreme Overlord,” so they use personal pronouns instead. While not a best practice, this can be O.K. as long as you’re clear about which pronoun is identifying which party. And, and, and somewhere in the contract you make it clear that both parties wrote the contract. Why? Because in contract disputes, when language is unclear a judge will typically interpret that language in a way that is most favorable to the party who didn’t write the contract. Which reminds me….

Don’t Put Your Logo On The Contract
I know it looks nice and I know most contracts look boring, but if you have your name and logo stamped all over the agreement and there is ever a dispute about what certain language means, you put yourself at a real disadvantage by boldly declaring, “Me! I wrote it! These are my words from my head! Mine!”

Be a Company Man (or Woman)(or Non-Binary Human) If you’ve gone to the trouble of making your business a limited liability company or corporation, don’t squander that effort (and legal protection) when you write your contract. Whenever possible, have your company, rather than you personally, be the party to the contract. When you do, include “LLC” or “Inc.” when writing out your company name. I know it seems like it’s just three little letters, but they mean a lot if the contract is ever in dispute.

I don’t think that all contracts have to be written by a lawyer to be good, and I think a DIY contract is better than no contract at all. If you pick up the pen to protect yourself, take some time to educate yourself about the basics of putting an agreement together. Read a couple of contracts before you start writing.

If you’re ever in doubt about how to handle an issue in a contract, ask questions of your peers. When your draft is complete, consider hiring an attorney for an hour to go over the contract with you. They can help make sure it’s in good shape and has everything you need to be successful.

Despite popular belief, power, bravado and money do not determine who the victor is in a negotiation. How well you do in a negotiation depends on how much information you have about what you’re negotiating over. 

Having access to information is only the first step, though. Once you have the information, you have to understand it if you want to be able to use it to your advantage. This may sound obvious. But everyone, including me, has made this mistake in negotiations. (I made it in a negotiation to purchase literally millions of dollars in software and it nearly tanked the deal; I figured out my mistake and it worked out in the end, thankfully.)

FairPageRates.com came out with the results of their 2015 survey detailing what comic book creators were paid for their work by various publishers. The survey has a ton of great information in it and I thought it would make for a helpful real life example of how to make sure you understand information before you use it in a negotiation.

Not a comic book creator? Never fear. These same ideas will apply in your industry too, you may just have to ask the questions a little bit differently.

Is this apple really an orange?
When professionals share their rates and use shorthand to describe the work they did to get that rate, it’s easy to conflate types of work that are actually very different.

In the Fair Page Rates survey “Work For Hire” and “Page Rate” are listed together. Looking at the survey question, there isn’t a distinction between the page rate a creator has earned on work for hire jobs–where the creator retains no rights to the work–and rates where the creator owns the work. This is important because, typically, rates are lower when the creator retains the rights to the work. The creator will be able to make money from sales so the publisher doesn’t offer as much money up front.

Whenever you gather information about rates in your industry, do your best to determine if the rate is for the work you do, or work that’s similar to what you do. If it’s for work that’s similar, it’s still helpful, but how you use it in negotiations will be different than how you’d use information on rates for work that is exactly like what you’re being asked to do.

What are you buying with your signature?
When you sign an agreement with a publisher or someone licensing your work, you are buying their services. You are paying for those services with your intellectual property. Don’t buy blindly! Make sure you understand what you’re getting for your IP.

There are many different publishers listed in the survey, which is great because it gives a broad view of the industry (you want publishers to compete against one another for talent), but to really know if a $50 page rate at one publisher is the same as $50 at another publisher, you have to know what services come with that rate.

Here are the questions I’d want to ask if I was considering publishing my book with a particular company: How much marketing will they do? What’s the average cost for publishing a book at this publisher? What are the expenses that go into that cost? How often do their creator owned books pay out? What’s the average length of time before a book starts paying royalties? How often will I get paid? Are there ever problems with this publisher paying creators?

Even when you work a run of the mill gig with a client, you’re investing in that person or company. By working with them you can’t work with anyone else during at time. Make sure the job, and the client, are worth investing in.

What’s the math say?
I encourage anyone signing a contract to do the math to make sure they understand exactly what they’re being paid before they sign the agreement.

“But, Katie, it’s right there in the contract, duh. It says I’ll get 50% of the net profits. Easy peasy.”

OK, so you are entitled to 50% of what exactly?

“Net profits” means the amount of money that remains after expenses are deducted from sales (ymmv, all contracts define this term a bit differently). To do the math we’ll need to know the cost of making the book and the price the book will sell for. If we’ve asked questions (see above) we can make educated guesses, otherwise we’ll need to do some research before picking numbers.

I’m going to pick random numbers for our math here; don’t assume these numbers are tied to real life costs or sales.

Let’s say the book is going to sell for $12.95 and let’s assume the cost to make the book is $15K. Your book will have to sell 1159 copies before it breaks even. That’s nearly 1200 sales before you see any money.

Is that good? Without knowing the publisher’s average sales numbers for new books at that price point, it’s hard to say. Maybe? Maybe not.

If you don’t ask questions to figure out what you’re buying with your signature, you won’t be able to do the math to figure out what you’re likely to make from the project. And if you don’t know what you’re going to make from the project, why are you signing the contract?

I’m excited to see sites like FairPageRates.com and Who Pays Writers. I think they’re doing good and valuable work, and I hope more sites like these pop up so that freelancers can share information about rates with one another.

But I don’t want the conversation to stop there. I want us to keep sharing information so rates can be understood in context. Because when they’re understood in context, the information is invaluable.