Explaining terms

Contracts adviser Catherine Fuller explains what the SoA helps you look out for

The SoA advisory team reviews thousands of contracts sent in by members each year for confidential, clause-byclause contract vetting. But what does this mean in practice? And how can you get the maximum benefit?

We look at what’s in it…

The contracts we see are for anything from book and TV deals to festival appearances and competition terms. Our priority is to explain the terms they include and their practical implications for you and your work as clearly as possible.

As we read through the contract, we consider the range of rights you are granting and the income you can expect to receive in return. We go through clause-by-clause, assessing for fairness, demystifying the terminology and breaking down complex issues.

Broadly speaking, the terms we look at fall into three categories:

‘Clarifiers’ make the contract more transparent and easier to understand. A bad clause is not just about bad or poor terms. Vagueness and ambiguity can be a problem, too, and often cause difficulties at a later stage. A clause may be enforced in ways that do not reflect intentions, or it may be unenforceable at law, meaning that it cannot be relied upon.

For example, we still see references to ‘volume form’, although it is not at all clear whether this refers only to the print edition or an ebook version too. If it includes an ebook version, does this also include any enhanced version, or indeed any other digital edition? If you are intending to grant only print rights, then you need to ensure the grant is worded appropriately – ie ‘print volume rights’.

‘Sweetener’ terms are generally incentives. They can be used to recognise and reward success and to help ensure that both parties’ interests remain aligned over the life of the contract. For example, a publisher may not be able to agree to offer a royalty on each copy sold, in which case we would expect them to do so after sales exceed a certain level and once the start-up costs of producing the book have been recovered. There can be provision for a higher royalty or an additional advance to be paid out where sales exceed expectations.

If that’s not possible, you might get agreement that additional payment will be negotiated in good faith down the line. That’s a ‘softener’ – the third type of term. Softeners give additional nuance to contracts beyond the options of what both parties can or cannot do. They can also be a useful negotiating tool. Common terms include ‘good faith’, ‘best endeavours’ and ‘reasonable’. For example, warranty provisions are a key part of any publishing agreement. These clauses ask the author to confirm – among other things – that their work is not unlawful. We like to see this type of promise qualified so that it only applies to ‘the best of the author’s knowledge and belief’.

…and we look at what isn’t there

A short contract with a lot left out can be just as problematic as a longer one with a huge amount of detail. Some omissions can be straightforward, such as a lack of detail about how and when you will be paid. More seriously, termination and warranty clauses can be omitted.

We spend as much time dealing with problems in existing contracts as we do looking at new ones. Never assume it will be all right and you can sort it out later. If something is important to you, whatever it is, make sure it is clear and in writing.

Getting the most out of professional advice

We will rarely tell you exactly what to do. We’ll explain, suggest, recommend and point out the implications of doing – or not doing – certain things. We’ll flag the issues that concern us most and we’ll draw on our collective experience to distinguish between amendments that might be realistic and those that are more ideal.

We want to empower you to take control of your work, to understand the rights you’re granting and what you can expect in return. As you read your contract, think about where you can clarify the language, soften the impact or sweeten the deal. What terms are the most important to you and where could you modify the contract? Never be afraid to query a poor term or feel obliged to sign something that you don’t understand.

And if we give you advice, always let us know the outcome. Knowing where you were able to make changes – and where you weren’t – helps us to improve terms for everyone.