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Oct. 3rd, 2004 09:35 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
msagaraThe rest of the contract (I have been: allergic, premenstrual and very, very cranky. The usual solution to this is to read Terry Pratchett. So I've reread every single Pratchett I own that isn't a Rincewind novel, and then every single Pratchett I owned that I'd been holding out on for just this kind of mood.)
ETA: The rest, as in, all but the last four clauses, because this was already too long.
Bankruptcy and Liquidation
20. If (a) a petition in bankruptcy is filed by the Publisher, or (b) a petition in bankruptcy is filed against the Publisher and such petition is finally sustained, or (c) a petition for arrangement is filed by the Publisher or a petition for reorganization if filed by or against the Publisher, and an order is entered direction the liquidation of the Publisher as in bankruptcy, or (d) the Publisher makes an assignment for the benefit of creditors, or (e) the Publisher liquidates its business for any cause whatever, the Author may terminate this agreement by written notice and thereupon all rights granted by the Author hereunder shall revert to the Author. Upon such termination, the Author, at the Author's option, may purchase the plates or film as provided in paragraph 17 and the remaining copies at one-half of the manufacturing cost, exclusive of overhead. If the Author fails to exercise such option with sixty (60) days after the happening of any one of the events above referred to, the Trustee, Receiver, or Assignee may destroy the plates or film and sell the copies remaining on hand, subject to the applicable royalty provisions of paragraph 10 hereof.
This is one of the clauses that I didn't really read with great care because the contract was with Random House, which is unlikely to be going bankrupt at any time in the near future (which, given the way publishing works most frequently, is most of the future you have to worry about vis a vis novels). I've been told by someone (and I forget who) that in the event that the publisher did go bankrupt, this clause is meaningless; the assets of the company are frozen in their entirety, and if they have your unpublished manuscript to hand, that's one of the assets. Since the language here seemed to state the opposite, and clearly, I can't see why -- but the general consensus seems to be that this isn't an enforceable clause in any bankruptcy.
Someone with more of a legal clue can feel free to step in here <g>.
Sums Due and Owing
21. Any sums due and owing from the Author to the Publisher, whether or not arising out of this agreement, may be deducted from any sum due or to become due from the Publisher to the Author pursuant to this agreement. For the purposes of this paragraph a non-repayable unearned advance made to the Author pursuant to another agreement shall not be construed as being a sum due and owing, unless Author is in default under such other agreement, or is under a present obligation to repay such advance pursuant to the terms of such other agreement. If legal or other enforcement action is required for the collection of any sum due the Publisher hereunder, the Publisher shall be entitled to recover costs thereof including reasonable attorneys' fees.
This is fairly straightforward. If I owe them money, they can subtract the amount of money I owe them from the amount of money they owe me. This does not include the amount they owe me for a different book or a different contract, unless I also owe them money for that other contract. Oh, and, they can sue me if I don't pay, and they'll try to make me pay their legal fees too. The ways in which I can owe them money are discussed in other parts of the contracts (for permissions for quotations, etc).
If your books are "basket accounted" -- which is very common at some companies, less so at others -- this means that the contract treats each book that it covers as part of one financial entity. In order to earn royalties, you must first pay back the advance on all of the books in the basket, as opposed to a single volume. Etc. For this reason, most agents will -- when at all possible -- get single book contracts issued for multiple-book deals, so that each book in the sale stands on its own; in that way, if you earn out your first book advance, you would start receiving royalties, rather than have those royalties then applied to the unearned portion of the advance of your second book, etc..
Agency
22. Author has designated Donald Maas Literary Agency, (defunct address), as the Author's agent. All sums due the Author under this agreement shall be paid to the Author's agent whose receipt shall be a full and valid discharge of Publisher's obligations in respect of such payments and who acts with the authority of the Author in all matters arising out of this agreement.
This is the standard boilerplate (there's a little space for the agency name (and yes, I know it's typed in wrong, but, umm, I'm typing it as it was typed) and address); it was struck out and replaced with the following:
AGENCY The author hereby appoints Donald Maass Literary Agency, (defunct address), irrevocably as her Agent in all matters pertaining to or arising out of this Agreement or related Agreements. The Author further authorizes that all sums of money due under the terms of this Agreement or related Agreements shall be paid to and in the name of said Agent, whose receipt therefore shall constitute the only valid discharge of any such indebtedness. The author does also hereby assign and transfer to Donald Maass Literary Agency, and Donald Maass Literary Agency shall retain, a sum equal to te3n percent (10%) out of all monies due and payable to and for the account of the Author under this Agreement or related Agreements.
I'm not in love with this clause, but it's pretty standard as far as agency clauses go. In later contracts, I had it altered slightly because I didn't want the only valid method of payment to be the full sum to the Agency; I wanted to be able to have it split in the 90/10 at the publisher end, just in case.
Other then that, I have no problems with it; DMLA and I didn't have a written agreement, and this was therefore his way of stating clearly and legally that he was the agent of record for this set of contracts, and for any sub-licenses that came via this contract; that he was entitled to his 10%, etc.
Law Applicable Assignment
23. This agreement shall be interpreted according to the law of the State of New York.
24. This agreement shall be binding upon the heirs, executors, administrators and assigns of the Author, and upon the successors and assigns of the Publisher, but no assignment except to a parent, affiliate, or subsidiary of Publisher or as apart of a merger or as part of a sale of substantially all the assets of Publisher or the Ballantine division of Random House, Inc. shall be binding on either of the parties without the written consent of the other. All parties constituting the Author shall be jointly and severally liable for the Author's obligations hereunder.
If we're going to sue each other, we do it in New York. If the Publisher gets sold, the rights they've paid for here get sold as part of the sale; if the Publisher dies, the rights pass on to the heirs. If the Publisher is pissed off at you and tries to give your book to a dairy cow, you don't have to automatically accept this.
ETA: The rest, as in, all but the last four clauses, because this was already too long.
Bankruptcy and Liquidation
20. If (a) a petition in bankruptcy is filed by the Publisher, or (b) a petition in bankruptcy is filed against the Publisher and such petition is finally sustained, or (c) a petition for arrangement is filed by the Publisher or a petition for reorganization if filed by or against the Publisher, and an order is entered direction the liquidation of the Publisher as in bankruptcy, or (d) the Publisher makes an assignment for the benefit of creditors, or (e) the Publisher liquidates its business for any cause whatever, the Author may terminate this agreement by written notice and thereupon all rights granted by the Author hereunder shall revert to the Author. Upon such termination, the Author, at the Author's option, may purchase the plates or film as provided in paragraph 17 and the remaining copies at one-half of the manufacturing cost, exclusive of overhead. If the Author fails to exercise such option with sixty (60) days after the happening of any one of the events above referred to, the Trustee, Receiver, or Assignee may destroy the plates or film and sell the copies remaining on hand, subject to the applicable royalty provisions of paragraph 10 hereof.
This is one of the clauses that I didn't really read with great care because the contract was with Random House, which is unlikely to be going bankrupt at any time in the near future (which, given the way publishing works most frequently, is most of the future you have to worry about vis a vis novels). I've been told by someone (and I forget who) that in the event that the publisher did go bankrupt, this clause is meaningless; the assets of the company are frozen in their entirety, and if they have your unpublished manuscript to hand, that's one of the assets. Since the language here seemed to state the opposite, and clearly, I can't see why -- but the general consensus seems to be that this isn't an enforceable clause in any bankruptcy.
Someone with more of a legal clue can feel free to step in here <g>.
Sums Due and Owing
21. Any sums due and owing from the Author to the Publisher, whether or not arising out of this agreement, may be deducted from any sum due or to become due from the Publisher to the Author pursuant to this agreement. For the purposes of this paragraph a non-repayable unearned advance made to the Author pursuant to another agreement shall not be construed as being a sum due and owing, unless Author is in default under such other agreement, or is under a present obligation to repay such advance pursuant to the terms of such other agreement. If legal or other enforcement action is required for the collection of any sum due the Publisher hereunder, the Publisher shall be entitled to recover costs thereof including reasonable attorneys' fees.
This is fairly straightforward. If I owe them money, they can subtract the amount of money I owe them from the amount of money they owe me. This does not include the amount they owe me for a different book or a different contract, unless I also owe them money for that other contract. Oh, and, they can sue me if I don't pay, and they'll try to make me pay their legal fees too. The ways in which I can owe them money are discussed in other parts of the contracts (for permissions for quotations, etc).
If your books are "basket accounted" -- which is very common at some companies, less so at others -- this means that the contract treats each book that it covers as part of one financial entity. In order to earn royalties, you must first pay back the advance on all of the books in the basket, as opposed to a single volume. Etc. For this reason, most agents will -- when at all possible -- get single book contracts issued for multiple-book deals, so that each book in the sale stands on its own; in that way, if you earn out your first book advance, you would start receiving royalties, rather than have those royalties then applied to the unearned portion of the advance of your second book, etc..
Agency
This is the standard boilerplate (there's a little space for the agency name (and yes, I know it's typed in wrong, but, umm, I'm typing it as it was typed) and address); it was struck out and replaced with the following:
AGENCY The author hereby appoints Donald Maass Literary Agency, (defunct address), irrevocably as her Agent in all matters pertaining to or arising out of this Agreement or related Agreements. The Author further authorizes that all sums of money due under the terms of this Agreement or related Agreements shall be paid to and in the name of said Agent, whose receipt therefore shall constitute the only valid discharge of any such indebtedness. The author does also hereby assign and transfer to Donald Maass Literary Agency, and Donald Maass Literary Agency shall retain, a sum equal to te3n percent (10%) out of all monies due and payable to and for the account of the Author under this Agreement or related Agreements.
I'm not in love with this clause, but it's pretty standard as far as agency clauses go. In later contracts, I had it altered slightly because I didn't want the only valid method of payment to be the full sum to the Agency; I wanted to be able to have it split in the 90/10 at the publisher end, just in case.
Other then that, I have no problems with it; DMLA and I didn't have a written agreement, and this was therefore his way of stating clearly and legally that he was the agent of record for this set of contracts, and for any sub-licenses that came via this contract; that he was entitled to his 10%, etc.
Law Applicable Assignment
23. This agreement shall be interpreted according to the law of the State of New York.
24. This agreement shall be binding upon the heirs, executors, administrators and assigns of the Author, and upon the successors and assigns of the Publisher, but no assignment except to a parent, affiliate, or subsidiary of Publisher or as apart of a merger or as part of a sale of substantially all the assets of Publisher or the Ballantine division of Random House, Inc. shall be binding on either of the parties without the written consent of the other. All parties constituting the Author shall be jointly and severally liable for the Author's obligations hereunder.
If we're going to sue each other, we do it in New York. If the Publisher gets sold, the rights they've paid for here get sold as part of the sale; if the Publisher dies, the rights pass on to the heirs. If the Publisher is pissed off at you and tries to give your book to a dairy cow, you don't have to automatically accept this.
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Date: 2004-10-05 03:25 pm (UTC)