WOULD YOU RISK YOUR LIFE FOR TWENTY DOLLARS?

Most law enforcement officials generally advise people to cooperate if they are ever accosted by a robber in a dark alley (or premium outlet mall). If the bad guy demands your wallet, just give it to him rather than risk getting beat up ... or, worse yet, getting shot in the face ... over the contents of your wallet. This is especially true if you are a freelance indy writer and your wallet is accordingly pretty light in the buckaroos in the first place. If you think about it at all, giving the thief twenty bucks is a pretty sensible choice compared to, well, getting shot in the face.

If you don't agree with this simple statement, you should (1) consider the fact that you could simply LOSE your wallet foraging for firewood while camping and it would NEVER occur to you to whine that you would have preferred getting shot in the face to having lost your wallet, and (2) go back and look at the choices your protagonist makes in your latest book, because not even the characters in a teen slasher movie would actually prefer to be shot in the face to losing twenty bucks.

In spite of this straightforward logic, however, people sign contracts all the time without ever bothering to read them or even scan them to see what outrageous things they contain. (Yes, as always, I wrote a story about fifteen years ago that touches on this issue. You can find "Hell to Pay" in my Tales of Humorous Horror collection.)

This is one thing if you are more or less forced to sign what is known as an adhesion contract to get a vital or, at least, compelling service like medical care or incomprehensible computer software, and there is no meaningful opportunity to negotiate the terms before you bleed to death or remove the shrinkwrap encasing the product. Such boilerplate documents are in some small way kept from being too outrageous by regulators, market overseers, and the forces of public opinion. But, it's another thing when it is a contract for something not quite so vital and which could be properly negotiated. Like, say a contract to include a short story you wrote in an anthology.

And, now, let us pause for a moment, for the necessary disclaimers: While I used to be a licensed attorney, I'm not anymore (I'm retired), and I'm definitely not your attorney. By writing this blog, I'm not giving you or anyone else legal advice of any kind. Nothing you say to me is protected by attorney/client privilege. You should hire an actual attorney if you want or need legal advice on the subject or your writing contracts. What appears here is writerly advice from a fellow writer. If you don't accept this, stop reading now. If you continue reading, you agree I am not your attorney and you are not relying on me or this blog for any legal advice under the laws of any jurisdiction.

Wasn't that a fun paragraph? I used to get to write stuff like that instead of thrillers, horror stories, and scifi.

Let me put it to you in a simple, writerly fashion. READ THE CONTRACT! READ THE CONTRACT! READ THE CONTRACT! Add whatever expletives you need to the foregoing to get the point across. If you don't understand something in the document, find out what it means. You can ask a fellow writer or even a lawyer. You can also look at sample contracts, like the ones the SFWA (Science Fiction and Fantasy Writers of America) have up on their website here. My guess is that if you do understand the contracts you are being asked to sign, you will from time to time freak out.

In my writerly experience, the most likely part of the contract (besides the abysmal pay) to cause heart-stopping concern is the indemnification provision (which, in turn, generally references the author warranties). Presumably, it's easy for you to say you are the sole author of the work you are selling and have full power to enter into the contract and grant the rights the agreement grants to the publisher. Those are things under your control; you should KNOW whether those things are true. The publisher will also often ask you to say your story does not infringe upon any copyright or upon any other proprietary or personal right of any person or entity, but you don't really know everything that has ever happened in the world, so best for that part to be qualified by a phrase like "to the best of author's knowledge."

In any event, here's the kicker to warranties: the indemnification provision. Publishers want you to indemnify them for all damages and costs from any breach of your warranty, but they often put this very expansively, by asking author to indemnify, defend, and hold the publisher (and sometimes a bunch of others)  harmless from any losses, expenses, or damages arising out of or for the purpose of resolving or avoiding any claims, demands, suits, actions, proceedings, or prosecutions brought against the publisher which, if sustained, would constitute a breach of any of the above representations and warranties concerning the story and any liabilities, losses, expenses (including attorneys' fee) or damages in consequence thereof. Then they sometime ask for the right to settle such matters without the consent of the author, even though it is on your dime.

There's a bunch wrong with that, but the "if sustained" provision is the one that makes my hand stand on end. Let's say you sell a story to a token payment market for $20.00 and somebody whose story got rejected gets upset and claims that you or even all of the writers and the publisher conspired against him to steal his story idea and he wants to be compensated for the mental anguish of rejection and millions in punitive damages for acting in such a bad manner. You may not know this complainer or have ever corresponded with him or read his story or literally have done anything at all, but the publisher could settle this and ask you to cough up the money because the allegations if sustained (i.e., assuming they were found to be true even if they are patently ridiculous) would mean you breached a warranty.

Yes, I know that publishers deserve protection from plagiarists and that the chances of a suit are small, but with all of the outrageous things that occur in the writing world (from award brouhahas to the current tempest at the Romance Writers organization and the creation by trollers of fake accounts on Goodreads and such), it is not impossible for a claim to be made. If one is, your house, your income, and your life could be on the line for a twenty dollar sale to a token market.

Look, there's a lot wrong with the marketplace for writers and with the judicial system in this country, but if someone wants indemnity from me, they should only get actual damages (not punitives) and have to get a final judgment of breach from a court of competent jurisdiction (not some North Korean court pissed off because the bad guys in my thriller were North Koreans) for that.

Think I'm paranoid or being silly? I once an opposing attorney make the following argument: "Suppose our employee Joe here suddenly opens up his briefcase, pulls out a machine gun, and sprays the room with gunfire--an action clearly outside of the scope of his employment. We don't think we, his employer, should be responsible for the damages from the deaths of either you or our personnel."

Think about that for a minute. He seriously wanted the company that didn't employ the psycho to pay damages to the company who did employ the psycho for a murder spree. (He was probably really worried about who would be liable for fraudulent trading on inside information, but he wouldn't admit that.) Truth is stranger than fiction. Be careful who you indemnify for what.

I recently withdrew a story from a market that had accepted it because they had a writer-unfriendly contract, including a ridiculous indemnification provision. I'm not going to identify them because they seem like nice people who just don't understand the language their lawyer gave them and purported  to be open to hearing suggested changes, but life is simply too short to be significantly re-writing contracts for someone for a token short story payment.

In short. Not legal advice, but my suggestion as an experienced writer is that it is best to read and understand your contract and not risk everything for a trivial payment. 

Aloha!

Don