The world (of rights) is a complicated place

[madelf]

greyorm,

I believe I've done you a bit of a disservice.  I think my interpretation of your statements may have been colored by previous discussions I've had. And when I get in rant mode... look out.

I did not mean to put words in your mouth in pursuit of my broader points. While responding to you, I was also addressing issues beyond the scope of your comments.
I'm sorry about that. I hope you'll accept my apology, and I'll try to keep that sort of thing to a minimum.

This issue that the contract only serves the publisher bothers me.
It's not true (well, it can be, maybe even often is, but shouldn't be) and more to my point doesn't need to be true. A contract does one thing, it outlines the terms of the agreement. That's all. It's not good, it's not bad... it just is. The idea that "current contracts" are bad, or broken, in some way is flawed, because not all contracts are the same. Some are bad certainly. I'm sure others are good. Generally (in my experience - which admittedly is not as a writer) they are some sort of compromise between the best interests each party, sometimes tilted one way and sometimes the other.

I think (I hope) we agree that any contract should reflect the best possible compromise between what the writer wants & needs and what the publisher wants & needs.

But I believe the writer needs to take as much responsibility for what is in that final, signed contract as the publisher does. If the writer and publisher aren't both completely comfortable with the terms of that contract, and all the possible outcomes of those terms down the road... then they have no business signing the contract. Does that make sense?

Now given that, I also feel the publisher should be willing to work with the writer and compromise as much as they can, and be forthcoming about their reasons in situations where they cannot (or will not) compromise. As you say, close the holes. Unless there's a good reason for the hole to be there. If everything is up front, then (regardless of the final terms) there is fairplay. I don't think anything more is really reasonable to expect.

At a guess, I'd say the best solution is for established writers to take a stand against unfair contracts and educate up & coming writers about the perils of signing away too much (an endeavor which seems to be well under way). But I think that needs to be tempered (a lot more than I have seen) with the understanding that publishers may need to, or want to, gain something out of a contract beyond just the right to publish.

This "first rights good, everything else bad" attitude that seems so prevalent, really needs to go. That's also not doing either side any favors, it just makes both sides dig in and become less willing to negotiate. (And there I'm probably addressing the greater world of writers again, rather than your comments specifically- sorry, but it's a point I think is important)  

The only further thoughts I have on the Troy Denning / WotC issue is that apparently WotC has some reason for holding onto the rights to Dark Sun in the face of cash. Perhaps they're not revealing what that reason is, but I firmly believe there must be one. I suspect they're probably holding it in reserve to potentially resurrect sometime down the road, and feel that potential value is greater than whatever Denning is offering. And even that's just a gut feeling. (I also have the gut feeling that the company - which might have been TSR at the time-  probably bought the rights they did in the first place for a reason, not a whim, and WotC is now exercising rights they, or the previous company, always intended to, not ones they just stumbled across in a boiler plate contract - but again, just a gut feeling). As I said, I know nothing about Dark Sun or its status. As for Ravenloft and Dragonlance, I was under the impression that they licensed those settings to other companies, not sold them outright. I could be mistaken of course.

But I agree, the specifics of that one situation is not really important to what we're discussing (except insofar as it emphasizes my point that the writer needs to be aware of what they are signing away - if they are aware, and do it willingly, then they cannot  later decide that they got "screwed").

That's where we are most in agreement I think. We can't be careful enough. Not you the writer, not me the theoretical publisher. Strangely this is also where we seem to disagree most. In my opinion, the reason we can't be careful enough has nothing to do with assuming that all publishers are bad publishers, or that all writers want to take advantage of the publisher. That attitude is counter productive. It's not about protection so much as it's about awareness. That's what it all comes down to. We have to know what we're signing. At that point it doesn't matter who thinks they're screwing who, as long as everyone is comfortable with the terms it can be one big old orgy of screwing and no one needs to be bitter about anything. Because they knew what they were getting into.

You own your own company, as do I, so I am surprised that are you are not aware that a one-person company is still a company, and (more to the point) regardless of number of employees such an entity has different legal recourse and protections in any trial than does a private citizen. Owning my own (one person) company, I am aware of these things. You should be, too.

I'm nearly certain that I don't have any protection of the sort. I'm not a corporation, or an LLC. I'm a sole proprietor, also known as a DBA. I am Calvin W. Camp Doing Business As Mad Elf Enterprises. I'm an individual. It's all me. I'm no different in the eyes of the law (or even the tax man) than the freelancer who works for me.

And even the largest corporation is still responsible for following the law and the letter of its contracts. Granted, it's harder for the little guy to sue a large company with more money. But (under the law) the company still can't just play games with its contracts. Perhaps the individuals within the company could weather the consequences better, but it certainly doesn't give the company itself any particular rights to screw people.

As far as your friendly challenge on how to work out a fair contract, I'll give it a shot. I'm not going to write out a full contract obviously, but I'll try and hit some key points. I'll need some feedback on it though, so I'll give you the friendly challenge of negotiating this pseudo-contract to see where it ends up. Fair enough?

Okay....
Hypothetically speaking, I can visualize two publishing options that I might, at some point, consider.

The least likely of the two would be taking someone else's concept and publishing it (perhaps using my system, perhaps theirs). At that point there would be no creative material of my own involved in the writing (with the possible exception of the game system which could be easily excised, I think). So for something like that I would ask for exclusive worldwide publishing rights (because when selling on the internet, North American rights is about pointless) in the English language, probably with some clause for a predetermined additional payment or royalty for translations. I'd be inclined to offer a modest (modest being typical for this biz) advance with a generous royalty, with no expectation for return of the advance if sales tank. The author would keep the copyright and publishing rights would revert to the author if I let the product go out of print for more than, oh, say 2 years. Subsidiary rights would stay with the author. I'd be willing to give the author complete creative control (though I'll expect him to give suggestions fair consideration), and final say on all changes, but only with the provision that I have full right of refusal if the final manuscript isn't up to my standards of quality (I can tell you to peddle it elsewhere if you become too unreasonable and I think it's going to make a bad product, basically). I'd be happy to get input on the cover & interior design from the author with the same provision for refusal if I think what he wants is going to compromise the quality of the product. Obviously he can tell me whatever name he wants listed as the author. I'm not going to offer any guarantees against electronic piracy though, as I don't believe it's a big enough problem to waste money on.
I think that covers most of the major points in the bill of rights. That's the easy one.

The second is hiring a writer to expand upon my own creative work. That's going to be a lot less generous (though I think I can still be fair). Right off the top, the copyright is mine (anything else sounds too complicated for my poor brain – and I'll need to be able to expand upon the combined work, with or without the writer's permission). So we are talking transfer of copyright at a minimum, and very likely Work for Hire (modified from the normal expectations). So subsidiary rights are also mine. The writer gets an advance (no provision for return) and generous royalties on this book only (not on later books based on it) and the rates would ideally be higher than for the contract above, to offset the lost rights (sadly this is probably where I'd be able to do less than I'd like, but I'd do what I could). I don't see why I couldn't still put in something for additional payment or royalty for translations (again, only for that particular book). I'd allow the author nearly total creative control, within set guidelines and subject to veto (there should probably be a provision for a kill fee too, in case it looks like things are going down the drain over differences of opinion). The author would need to provide an outline and regular updates for review to make sure things stay on track. The rights to any rejected concepts are returned to the author, copyright is transferred to me only for the accepted portions of the author's work (the other stuff you can file the serial numbers off and use as you please). The author would be encouraged to provide input on the cover and interior design, but with no expectation of final say. The author is credited as the author, under whatever name he pleases. He also has the right to refuse to allow his name to be attached to the product if he's not happy with my final decisions.
And that's about all I can think of.

So... tear into it. What else would you want?
:)

[madelf]

It occurs to me that I owe you another example too. It's not likely one I would use, but it's a common situation among some of the bigger companies. It's the situation where a company contracts an author to create them a product line (along the lines of Denning and Dark Sun). Here's how I'd be inclined to handle something like that if I was suddenly the CEO of a sizable company and needed a new product line.

The way I see it, this is still a situation where the publisher will need to hold the copyright, and I still believe that Work for Hire simplifies things for that purpose, so lets go with it. In this situation, I'm buying someone else's vision, so I'd give them full creative control with the right of refusal if I think their vision is crap, when I see it complete. (Something like WotC's setting contest, that spawned Eberron, would work well for something like this I think). Now I'm a big corporate entity, and I'll probably be looking for a movie license, so I'll have to keep the subsidiary rights, but maybe I could figure in some sort of bonus for the original creator of the line if something like that takes off. He should get an advance with a good royalty on his book. Maybe I could could even cut him in for a small royalty on everything spawned from the product line, as it is his vision that started it after all. I could surely give him something for translations of the original book. I might (big might) be willing to let the copyright transfer to the original author if I let the book go out of print for an extended period, but I'd have to put some thought into that. There could be some nostalgia value in a "dead" setting suddenly being re-released after a good stretch of being out of print, so I'm not sure I'd give that away easily. Input on cover & interior design is good, but subject to veto (I'd want the look of the product to match the writer's vision to a point, but that's not the only consideration). The author would be credited as creator, not just on the initial book but on the entire product line. Unless he chooses otherwise. One last cookie (a biggie I think), would be the right of first refusal if I ever decide to sell off the product line (but I set the sales price, I just can't sell it to someone else for less than the original author is willing to offer me).

[greyorm]

Calvin,

That is a whole lot to dig into, so don't expect a full reply from me for a few days (couple reasons, I'm under deadline right now and down to the teeth on it, finals week in school is this upcoming week for me, plus I'm fitting work for my tech. clients in all weekend).

I did want to respond to one thing quickly, though, rather than leave you hanging:

I believe I've done you a bit of a disservice.  I think my interpretation of your statements may have been colored by previous discussions I've had. And when I get in rant mode... look out.

I did not mean to put words in your mouth in pursuit of my broader points. While responding to you, I was also addressing issues beyond the scope of your comments.

I'm sorry about that. I hope you'll accept my apology, and I'll try to keep that sort of thing to a minimum.

NOT a problem, man. I had pretty much figured that is exactly what had happened (the coloration by prior experience), and I'm not offended or upset (and apologies on my part if it "sounded" as though I was: tone is a hard thing to convey via text).

Many thanks for rising to the challenge with the contract: I'll dig into it ASAP and get back to you with my thoughts on it!

[madelf]

Cool.

I look forward to seeing what you come up with.