Reasonable Agreement

On the Crapification of Literary Contracts

I don’t want to pretend that freelance writing contracts were ever great, but in the 34 years since I sold my first short story — at 17 — I’ve observed firsthand how manifestly unfair contractual terms have become standard, and worse, non-negotiable.

I started selling to magazines back in 1980s, which were the the dawn of corporate publishing consolidation. Magazines changed owners frequently as they were snapped up by new owners who, in turn, merged or bought out their competitors (thank Ronald Reagan for neutering antitrust and allowing these mergers to be waved through).

Back then, it was an open secret that each batch of new corporate overlords would attempt to crapify the contracting terms the magazine imposed on its writers, and the editors would push back in subtle, clever ways.

There was the time that a major family of magazines was bought out by a corporate raider whose lawyers demanded that the contracts be amended to grab all kinds of nonstandard rights that writers had either retained and resold themselves, or that represented a fanciful kind of speculative ignorance about where the licensing opportunities were in short fiction.

These new contracts grabbed rights that writers were often able to resell for enough to buy a couple bags of groceries (audio, translation); rights that writers rarely sold, but which represented huge paydays when they did (TV and film adaptation); and rights that no one was buying or selling (theme-park and action-figure adaptations).

Demanding these rights was both outrageous and stupid, and everyone (except the corporate lawyers who insisted on them) knew it. In particular, the editors who acquired fiction for these magazines knew it, and they came up with a great solution to this idiocy: all the new contracting terms were relegated to the contract’s final page, and authors were quietly told that if they wanted, they could just tear that page off, sign the bottom of the penultimate page, and return the contract.

But as magazine publishing grew more concentrated, corporate contract lawyers were able to consolidate their control over operations, creating non-negotiable contracting terms that couldn’t be dispensed with by tearing…