The Context of Contracts. How Would You Interpret This Clause?

This will be a short post, so I apologize ahead of time. Or for all I know, maybe you’re relieved to hear that! lol

I’m trying to finish a project and have another 8k words to get down before Saturday afternoon, so I can spend the evening double checking things. Broken down to my writing methods it’s not unachievable. I generally write two chapters a day, at 2,500 words average per chapter. If I push things I can do four chapters without falling into too black an emotional hole. I might incur ‘screen blindness’ or suffer temporary loss of my legs due to numbness from lack of circulation from sitting too long, but with a couple chilled cucumber slices and a good session on the treadmill I’m sure to recover.

But I have a question for those who have been offered contracts, particularly e-book contracts. There was a clause I’ve never encountered before in the latest contract I was offered, and I wondered who else had run across it. I’m even wondering if it’s something relatively new due to the jump in e-book popularity, or something standard I just missed seeing. If you have run across it and don’t mind naming which publishers do, or do not, include it, it would help authors decide who to submit their work to. 

I had to sign off on a statement saying my story had never appeared on my website, my blog or any other blog, or in a public contest. If it had, I could no longer sell first rights to the material because it’s already been “published” as soon as it’s posted. The clause went a step further, saying the publisher reserved the right to recover any and all costs incurred on their part if that declaration was discovered to be false.

They were careful to explain posting of excerpts was considered an exception, acceptable because excerpts are commonly used as marketing tools. But it made me wonder how far a publisher could push the parameters of excerpts. Should an author ask them what their interpretation of an excerpt is? A paragraph? A scene? A first chapter? Should the author clear the excerpt they intend to use with the publisher prior to using it? How much of this is common sense, and how much is legal technicality?

If you have any experience with this clause, or can offer some advice on how to stay within the lines of publishing propriety, you have a lot of writers interested in your answer. So help us out, please. I’m curious to see what answers we may get!

Make free with your comments. Information and knowledge make us better business people. And when we’re comfortable with the business end of publishing, lack of worry makes us better writers.

And by the way, Happy Friday the 13th! Steer clear of black cats and no ducking under ladders! Til next week,

~Runere McLain~

Visit Runere at www.RunereMcLain.com or follow her on Twitter @RunereMcLain

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6 Responses

  1. You’ve now made me curious. I don’t recall seeing that in my contracts, but I’ll have to read through them again to be sure. I would think an excerpt is considered anything of the finished project for marketing purposes. Finished product, not the pre-edited version. Of course, I have no clue since I’m not legal savvy.

    Good luck with your project, sha!

    • Thanks for the good wishes, lady!

      They made it clear posting excerpts was definitely okay. They recognized them as one of the main tools used to lure a reader into wanting more.

      I asked a few authors and three of the five said some publishers require it, some don’t. The other two hadn’t heard of it, period. But they all agreed the wording seemed to mean the work posted in its entirety — all at once, OR if it had ever been posted somewhere in installments. Also, a contest where the public decided the winner was considered ‘published’ as well. (That triggered remembering an e-contest that was judged on a closed loop, by members only, so the ‘author could retain first rights’. So the contest loops are aware of it.)

      I’ll admit I went back over previous contracts looking for it. So far the only thing I’m sure of is I’m not sure of anything! But if we don’t know, ye-yaille!, it could be bad! Hope some of our experienced pros give us a hand here.

  2. Wished I knew the answer,Runere. My contract doesn’t have it. When you sign a contract, though, there must be a meeting of the minds. If you have a question, you need to ask for clarification. Tell them what you do and ask it it’s OK. You don’t want to be stuck with a lawsuit
    There was a public contest where you actually posted the whole work to attract followers. That would be a problem. Luck Rita Bay

    • Other than the one ‘members only may vote’ contest, I’ve never heard of it being a problem. But I know a number of people who post their writings to blogs trying to build a reader base. That clause could really hurt someone like that.

      On another issuse, I’m in the middle of getting affadavits for some of my ghost photos, verifying they’re mine and not snitched from a website somewhere. (Good thing I procrastinate doing things. Downloaded the photos to my computer, then switched cards in my camera and stuck the used card in my office cabinet. It’s been there since. Thank heaven I never got around to erasing it. Having the originals on a card removes all room for doubt!)

  3. I haven’t run into that clause yet with six contracts. I do have confidentiality clauses and no running my mouth on public forums clauses (about publisher). I’m not sure how they can enforce the clause if it was in a contest, or even part of a blog post that has been deleted. Unless someone did a screen capture it wouldn’t exist any more.

    My take has always been if you register a copy right then it’s considered published. All you have to do is prove YOU own the rights. But I’m not a lawyer so what do I know.

    • That confidentiality clause protecting the publisher is found every where! lol

      But in this instance we aren’t talking legal points after the fact like deleted blogs, or even screen captures.

      This is about a publisher who point blank wants the author to sign off — up front — that the work about to be published has never been on a website, the author’s blog or any other blog, and not entered in a publicly judged contest. It was cut and dried; either I had or I hadn’t. I hadn’t so there wasn’t a problem with the publisher.

      Other publishers don’t seem to have a stance one way or another. Guess it depends on the publisher and how strict their individual guidelines.

      This clause definitely defines legal ground between publishers’ and authors’ rights.

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