Unconscionability

This post, by JA Konrath, originally appeared on his A Newbie’s Guide to Publishing blog on 5/23/12.

Unconscionability (also known as unconscientious dealings) is a term used in contract law to describe a defense against the enforcement of a contract based on the presence of terms that are excessively unfair to one party. Typically, such a contract is held to be unenforceable because the consideration offered is lacking or is so obviously inadequate that to enforce the contract would be unfair to the party seeking to escape the contract.

If you read this blog, you know where I’m going with this. I’m going to point out some of the more one-sided, onerous terms in a standard publishing contract. And make no mistake–these are practically universal, and for the most part, non-negotiable.

For decades, the only way to get widespread distribution was to sign with a publisher. Writers had no choice. You either accepted the terms, or your book stayed in a file cabinet.

Now, I’m not a lawyer, and nothing in this blog post can or should be taken as legal advice. I’m just someone who has signed publishing contracts and gotten taken advantage of. If any of my interpretations are wrong, I welcome thoughts from those who know better.

Let’s start with one of the most obvious, and despicable, clauses, the Grant of Rights.

Author grants and assigns to Publisher the sole and exclusive rights to the Material throughout the Territory during the entire term of the copyright and any renewals and extensions thereof.

In other words, this contract is for the life of the author, plus 70 years after her death, plus renewals and extensions.

Off the top of my head I can’t think of any contract that extends beyond the life of the person who signed it. I would guess that my heirs would be bound to this contract, and potentially their heirs as well.

Does that seem a bit one-sided? Perhaps a smidgen unfair to the author?

"Territory" refers to where in the world the publisher is allowed to exploit these rights. In several of my contracts, Territory encompasses the entire world.

I don’t consider that unfair, especially if a publisher pays extra for these territories. But none of my contracts have clauses that say I get those rights back if the publisher doesn’t exploit them after a certain length of time.

So the publisher can have French or Japanese or Urdu rights for my lifetime plus 70 years, and might never do anything with them. But I can’t do anything with them, either.

Subsidiary rights follow a similar pattern. According to this contract I’m citing, the Publisher has the exclusive rights to:

    * Periodical or newspaper before and following publication
    * Publication of condensations, abridgments, and in anthologies
    * Book club publication
    * Direct sale and mail order
    * Braille

How many of these rights have they exploited?

    * ZERO

Why does this seem to me like a selfish child who has too many toys, but refuses to let you play with any of them, even though he won’t ever use them himself?

Joint accounting, or basketing, is another clause many authors (me included) got saddled with.

 

Read the rest of the post on A Newbie’s Guide to Publishing.

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