Getting published means dealing with contracts. Simon Whaley explores how to succeed with the negotiation process.
I experienced a range of emotions when Hodder & Stoughton sent me the contract for my first book, One Hundred Ways For A Dog To Train Its Human. I was excited, knowing my first book was being published, but also fearful of what to do next. Thankfully, as a member of the Society of Authors, I knew I could make use of their contract vetting service.
The Society offered some fantastic advice, but then it hit me. Negotiating their suggested contractual changes was down to me. More fear kicked in. What if my requests were unreasonable? Would the publishers change their minds?
‘Negotiation requires you to do lots of difficult things at once,’ explains Pia Owens (piaowens.com), a negotiation coach and writer. ‘You have to handle conflict, assert your needs, say no, and make quick decisions on high-stakes topics. It’s scary, especially when the stakes are high.’
This was my first book deal with a traditional publisher. It felt like the stakes couldn’t be any higher.
As Pia explains, it’s this power play that often heightens our emotions. ‘Creatives are often in a position of negotiating with a larger, more experienced organisation. It can feel like the organisation has all the power and knowledge, and you have what little you can scrape together.’
Company Collaboration
We need to change our mindset to stand any chance of securing a contract that works for us.
‘Remember that both sides want something,’ says Pia. ‘If you’re a writer negotiating with a publication, the publication is not doing you a favour to be nice. They need quality content and see value in your work. Approach them as an equal, not as a supplicant.’
Once I understood this was a business transaction and not a personal battle, that sense of hostility dissipated. It helped me appreciate that a contract is a starting point. Every business expects a negotiation, so a request for an amendment should not offend a publisher or magazine.
While a contract sets out the magazine or publisher’s position, it’s also important that we’re clear what our position is. What exactly do we want from this relationship? What opportunities does this contract offer us? Sitting down to clarify what our hopes are from this deal is an important step.
Pia suggests asking ourselves a series of questions. ‘Think ahead about what’s important to you and why. Money is an obvious one, but think about what amount you would be delighted with, and at what point you would feel exploited or discouraged.’
While money may be important, contracts deal with much more, so consider how else the offered contract influences this writing project.
‘Think beyond money,’ Pia continues. ‘What are your needs about timing and deadlines? What about the editing process? Your credits and bio? Does the publication do anything for publicity or submit pieces for awards? Are you hoping to submit more to this publication in the future? Are you hoping it will be a stepping stone to other organisations? During a negotiation, you can either make specific asks on these topics, or you can ask questions to gather useful information. As a bonus, giving serious thought to your wants, needs, priorities, and values will bring you clarity beyond the negotiation.’
Relationship Realities
Any contract we receive for our writing is the start of a business relationship. It could be a brief relationship if it’s for an article or short story appearing in a magazine, or one that lasts decades if it’s for a book. Ultimately, both sides of the agreement have their own goals they hope to achieve from the agreement, but to begin with, we only know our goals from this relationship.
Pia suggests that part of the negotiation process isn’t just about clarifying what we want from the contract, but asking questions about what the other party hopes to gain. ‘Understand that you don’t have the full picture. Whatever assumptions you’re making about the person you’re negotiating with could be wrong. Ask questions to learn about what’s important to them and why.’
This happened during one of my magazine contract negotiations. Initially, the magazine wanted exclusive rights to all of my photographs that I submitted with my articles. This horrified me. A photograph is a moment in time. I cannot recreate it. For me, this was a deal-breaker. I often use a photo several times, so their exclusivity clause was immensely restrictive. I also sell my photos via a photographic agency, so this contract would prevent me from doing that, too.
I asked the magazine’s legal department why the exclusive photographic rights were so important. I explained that when the editor sought commissions on a particular topic, I could often pitch suitable material because I have tens of thousands of photos in my existing personal photo library that I can draw upon. Agreeing to exclusive use of my images would make it extremely difficult for me to continue contributing to that publication, because as a freelance writer and photographer I need to sell my photos time and time again.
That question, and my subsequent explanation, completely changed the negotiation. The magazine’s legal department realised the clause was unclear. They only intended it to apply when the editor commissioned an illustrated feature which required me to go and take photos specifically for that commission. They understood I couldn’t offer exclusivity in existing images in my personal photographic library.
They amended the clause to clarify that they would only take a non-exclusive reproduction right in any images I sent them with my articles that came from my existing image library, but would require a six-month exclusivity on any new photos I took following an editorial commission.
I was much happier with this because it meant I no longer lost the right to use my images elsewhere, but it still offered the magazine some exclusivity if I specifically took new photos for a piece the editor had commissioned from me.
That negotiation changed my original thinking that my relationship with that publication was over to creating a relationship that would suit us both for years to come.
Email Exchanges
These days, a lot of contract negotiation takes place via email. It’s the business way of doing things because everything is in writing. Negotiating via email is a skill, and it’s important to keep a measured response if the other party, such as the publisher or magazine, is sending us their standard contract as a starting point.
‘If you’re responding to their proposal, you can say, “Thanks for sending over the details. I’d like to request three changes. . .” or “Here are my questions and comments. . .” followed by a numbered list. Each item should explain succinctly what you’re asking and why.’
Sometimes, negotiations produce some surprising results. The Society of Authors recommended I ask for an escalator royalty with my Hodder & Stoughton contract. This increased the royalty rate once book sales hit specific levels. I was extremely nervous about asking for this, but Hodder agreed to my request without any pushback. Which just proves the adage is true—if you don’t ask, you don’t get.
Negative Negotiations
Not every negotiation is a positive experience, but it’s always important to remain calm and businesslike. How we act at moments like this can save a negotiation. Pia suggests using the moment to clarify where you agree and seek understanding about what the other party is trying to achieve.
‘Take a step back, summarise, and ask questions.’ she suggests. ‘First, it can be difficult in the moment, but try to regain some perspective. If you still have an open channel of communication with your negotiating partner, it’s not over yet and could get better. Second, summarise the progress you’ve made so far. “We’ve agreed on X and Y. It seems like we’re getting stuck on Z. I understand that you’re concerned about . . . , and I’d like . . . .” Third, learn more about the problem, or propose an alternative. Ask questions like, “Can you tell me more about your concern here?” or “Has this issue ever come up before?” Or you can suggest moving on to a different issue for now, or taking a break from the negotiation.’
Another point to consider is has the negotiation broken down because, ultimately, each party has different goals and ideas? Pia considers this is a positive if this happens.
‘However, sometimes the negotiation is going wrong because your needs and theirs are simply misaligned. This is valuable information, and it’s a sign that you shouldn’t move forward. It’s like if you’re engaged, find out about a deal-breaker, and call off the wedding. It might not feel good in the moment, but in the long run it’s for the best.’
This happened to me with a contract I was offered for a novel. The publisher offered to publish in eBook format first and if sales went well, they would produce a paperback. I queried their definition of “if sales went well”, but they wouldn’t provide a specific figure. Had I signed, I could have handed them the paperback rights, yet not known if they would ever have published in that format. On those grounds, I refused to sign the contract and walked away.
Negotiating contracts needn’t be a nightmare if we take a practical, business-like approach to the process. Handled correctly, it could lead to more of our writing being published by the businesses and magazines that we admire and respect.
And who knows? Handled well, a carefully negotiated contract could create a relationship that lasts longer than many marriages!
Business Directory: Haggling Hints
Pia’s top haggling hints:
- Remember that you and your work have value!
- Talk about money with your writer friends. Information is power.
- If you don’t know how much money to ask for, but would like more, you can say, “Do you have any flexibility on that?”