War Story

[abcgi]

Extract from War Story article;

[regarding legal concerns] The Publisher may terminate this agreement in writing at any time ... the Author shall promptly repay all amounts paid by the Publisher to the Author ...

[paraphrase from serious legalese: the Author can only terminate the agreement IF the Publisher deems the Work unprofitable]

Whoa, there, Tex! Needless to say, I edited this and other parts of the contract extensively before sending it back.

*SNIP*

The lesson: Beware of being seduced into a rotten contract. These guys were hoping I would sign the version they sent. I was lucky. My innate wariness prevented me from signing the original contract without considering its details, but my naivete had led me to be hopeful that the assurances and promises I'd initially received were legitimate.

Alternatively you were unlucky to miss an opportunity. Perhaps the changes made the contract too risky, and the trouble too costly, compared to another more flexible game designer. You wanted the publisher to take all the risks and pay all the costs and still collect $1000 up front and 9% of the profits? Risk = profit and you weren't prepared to take any.

Its hardly like they would go to all the trouble of spending money to try and produce the game, market it, only hoping it would fail so they could collect the outlay off you (unprofitable and difficult). It is simply a favorable contract to the Publisher representing the difference in power between you and the Publisher, much like many other relationships in various business sectors.

That's what the article made me think, though I only have the facts in the article to go by.

[greyorm]

Premise: A rotten contract is a rotten contract.

I was unlucky enough have been seduced into a bad contract by individuals using similar defenses of their wording as necessary to protect themselves from unscrupulous clients.

As it turns out, it was simply a well-dressed dodge on their part, to avoid fulfilling their part of the deal, while legally retaining the funds they had procured from me. Signing the given contract left me with no rights, and only their word that I would recieve the promised returns.

As much as you may want to, you can't trust a business's, or a person's, word. Ignore how friendly they are on the phone, how "nice" they seem to be -- when it comes down to it, you don't matter squat to the business. By this, I mean that you will be ruthlessly cut free and abused to the benefit of the business when and if it becomes necessary -- heck, they may even feel bad about doing it, but their primary concern is not you and cannot be, and thus it will not be.

Make no mistake, a contract with a business, written by a business, is not written out of concern of fairness for you: contracts are indisputably written to cover their own ass as much as possible, and leave the business without liability for anything. For the individual, the contract must be solely about protecting yourself from the business. Between these two items, an accord must be reached.

So, don't be suckered. The publisher may state it is "just to protect themselves" but, quite honestly, in the business world, them protecting themselves isn't your concern. You protecting you is. Don't sign things like the contract Ron was offered, because you will get screwed.

"We own your ass until we decide we don't, then you owe us. You, on the other hand, have no rights" is not a fair contract, and while it may represent the power levels of the two signers, it does not represent any sort of partnership, though it is meant to.
Make sure it does before you sign it.

I bring this up just to reinforce the point Ron's essay made. As much as you, potential author, may believe you need to get published, you need debt, court, and bankruptcy a lot less. Sure, the company may never get their money out of you, but your credit will be ruined. It is not a gamble you want to take.

As well, you must consider the stability of the RPG industry specifically...that is, it is not. Do not go into that situation without armor, without written guarantees, and never give control of any of your finances over to a company. If they want to publish your game, then it is their choice to make that gamble, not yours, and if unprofitable, you should not be financially responsible for their failure to judge the market or sell the game.

Consider that the owners of the business in my example thereafter took the money garnered and fled to Mexico, leaving myself (and dozens of others, including the local and state government) with worse than nothing (in all cases, huge debts), I think the case for protecting yourself wisely is pretty strong...and the case for "standard business contracts" pretty weak.

Moral: there are no missed opportunities, no lack of luck, in not signing a bad contract.

[Ron Edwards]

Hello,

First things first: I very much appreciate you taking the time to read the article and post a reply about it. It's a major issue at this website.

My logic is as follows: instead of avoiding risk, I decided to take all the risk upon myself. When I thought about my choices, I realized that the only thing the company was putting on the line was money ... not their passion, not their vision for the game, not their ability to grope and kill for its commercial success the way I knew I would do.

And I had money of my own.

Hey! Why not do it all? (1) Pay for the printing, hiring layout people and artists as freelancers; (2) finish up the design and fine points of the game with the help of the fan base; (3) get the thing into distribution through the help of consultants rather than joint owners ...

Self-publishing brought all the risk and all the profits to me. I picked it up, I turned it upside down, I shook it a few times, and some information-gathering I did gave me some very useful answers about the stuff I couldn't do alone. Couldn't find a downside, and today, I still haven't found one.

You wrote,

It is simply a favorable contract to the Publisher representing the difference in power between you and the Publisher, much like many other relationships in various business sectors.

I couldn't agree more. You are absolutely right. What matters, in this case, is that the power you speak of was only present in terms of money ... and money wasn't something I needed from them. So they could offer me nothing I didn't already have. I went, blink-blink. Sort of a Bill-and-Ted moment: Dude! Publish it myself! Why, that would be most excellent!

As I say, it's been a matter of commercial success and ecstatic satisfaction ever since.

Best,
Ron

[abcgi]

In the case that you then went and self published you did do very well, and indeed took 100% of the risk and got much more control too. You made a deal with the only person you can really trust in business, yourself :) It's great the risk paid off, hopefully equivalent profit came with it too!

'greyorm' makes some good points too. First time recording artists are often stuck in the position of having to sign lopsided contracts at least until they get some recognition and therefore negotiating power. Thus the desire to sign new artists up to cheap exclusive multiple album deals etc. The article reminded me very much of that situation.

[Valamir]

First time recording artists are often stuck in the position of having to sign lopsided contracts at least until they get some recognition and therefore negotiating power. Thus the desire to sign new artists up to cheap exclusive multiple album deals etc. The article reminded me very much of that situation.

It's exactly like that.  Advances in printing technology, PDF publishing, and internet based ordering and distribution have eliminated the NEED to use a major publisher to bring product to market.  In days past where self publishing meant ziplock bags and mimeographed pages it was just not possible (without huge personal expense) to put out professional level product as an individual.  You HAD to sign up with a publisher at whatever terms the publisher wanted or the product just didn't get published.

This is exactly the real reason behind the music industries crack down on music sharing.  Talk of protecting intellectual property or keeping artists from getting ripped off is pure smokescreen.  The real issue is that technology advances have enabled small home studios to mix and edit music at near big studio quality, and electronic distribution is heading rapidly towards the day when the physical medium is entirely unnecessary.  The primary reason for the big record labels to exist is because they control the manufacturing of physical product...records, 8 tracks, cassettes, cds; and the distribution chain for that physical product.  Since we are rapidly moving towards a day when the manufacture and distribution of physical product related to music will be entirely unnecessary, the studios very existance is being threatened with obsolescence.  Their attack on internet file shareing is just a desperate attempt to slow the widespread adoption of electronic music distribution to delay their own demise.


This situation is much the same in the RPG industry.  When printing was a huge expensive undertaking requiring large volume and lots of lead time, publishers and distributors were necessary components of the process.  The distributors enabled a certain minimum volume of sales that made it possible for publishers to print in economical batch sizes.  Publishers had the experience and clout to deal with traditional printers at a level that individuals with small jobs didn't have access to.

Today, not the case at all.  From true electronic publishing, to POD enabling unheard of small print runs to be economical, to internet sales circumventing traditional distribution channels entirely, the publisher and distributor are now simply options to be used or not as the case fits rather than necessities that can't be lived without.

I think the process will take longer to hit traditional books, because for so many of the regular readers who support the book industry the tactile experience of the book is a big part of the attraction.  But for text books and technical manuals we're already seeing a trend towards electronic publishing.  Since RPGs have a lot in common with text books and manuals, I suspect that's part of the reason why we're starting to see the same thing.  There are a sizeable number of RPG purchasers who purchase for the reading experience, of course, and this will keep print RPG books around for the forseeable future.

[pete_darby]

Interesting to compare to the music biz... avoiding shitty parts of deals like the one highlighted is another reason why the present music biz model has to die a death, the sooner the better.

But, remember, outside of illegal methods of co-ercion, no-one is "forced" to sign any contract. Many of 'em do a deal with the devil, some of 'em even do okay over it.

[rant]
But the way music companies can get away with even drawing up some of the contracts I've heard about... it sickens and terrifies me. But the main reason they draw up contracts like that is because they can, because the whole music industry is based on spending vast amounts to generate vast amounts through marketing a lifestyle product. The sounds are incidental.

If I thought file-sharing could help bring down the behemoth, you could call me KaaZaa's bitch. As it is, it's one more reason not to buy CD's (or MP3's) from anyone but the artist direct. Even iTunes rips off the artist to the same degree as a CD sale.

[/rant]

In any case, compare this kind of contract to practically any other sort of writing you can name. Novel writing, screen writing, whatever. Any writer savvy lawyer or agent that you show a contract like that to will tell you to run a mile. I don't know the last time outside the game business I saw anything remotely resembling a returnable advance.. oh hang on, yes I do, vanity publishing, for the few variants that include a token advance.

Look at it this way... if a publisher is not sufficiently confident about the quality or saleability of a work to risk a non-returnable advance, what in the name of all that is good and holy is he doing publishing it? In fact, if they're using this as their business model, what the heck are they doing in publishing?

On top of this, you add a rights grab, as outlined in the original article... again, you go to screenwriting, or pretty much any sort of publishing. If you want the rights, buddy, you pay me. No, you don't not give me an advance, YOU PAY ME for my rights over my work. Work for hire, right?

And, like the other guys said, for god's sake get it all in writing.

BTW, I'm looking at how to develop some stuff I've written at the moment, so I'm reading up and hanging round the blogs of the usual suspects in these matter (Making Light, Harlan Ellison, etc), as well as my fanboy interest in the Gaiman / McFarlane case, which is a classic example of the moral, creative and legal trainwreck that results when you get into this shit half cocked.

I am, through the grace of laziness and clean living, not a lawyer. For god's sake, get a rights smart lawyer to look over anything before you sign it.

In my little world, any writer, any artist, anyone with a saleable creative talent, is not just sitting on a goldmine, they ARE the fricking gold mine. Maybe there ain't a whole lot of gold in that mine, maybe you don't have the equipment to get it to market, but you want to be damn sure you never let one nugget go for nothing, or end up owing money to the miners because they come to you with sob stories about how hard a miner's life is. Fine. Go get a proper job then.

And at the bottom of my aphorism bucket, I find this: If it ain't worth a good contract, it definitely ain't worth a bad one.

[/edit: horrendous spelling, nodding to Ralph & Ron]

[Ron Edwards]

Some useful links:

No Media Kings
Warren Ellis' website (and I strongly recommend his book Come In Alone)

And pretty much anything on self-publishing in comics.

Best,
Ron

[jdagna]

I haven't read the article, but I thought I'd share my experiences with contracts.

Growing up, I had this impression of legal documents as these sort of holy, unchangable documents.  As if somewhere the Great Lawyer in the Sky had come down and said "This is how you shall do things."  I thought you pretty much had to either take the deal as offered or refuse it entirely.

What I've learned since then is that contracts are often EXTREMELY flexible documents.  In fact, after working in apartment rentals for four years and publishing for three, I realized something: a contract simply represents your opening bid.  So most contracts, as initially written, are not fair at all.  They represent the company saying "This is what I'd like."  They very often expect that clients/contractors will want to change it, but instead of offering lots of concession just in case, they'd rather leave it to the person to bring up what they want.  It's just like an auction.  You never make your first bid at market value... you start as low as you possibly can and work your way up only if you have to.*

Often, artists don't realize just how much bargaining power they have.  (The same i true of tenants... some of our leases almost have more handwritten comments than printed text).  It's all about negotiation and give and take, which is why it's often beneficial to have a lawyer or agent look over the contract.  They feel much less pressure to sign right away and may have more experience in how to force a good deal.  Either way, you're basically just seeing how far someone is willing to increase their bid.

At some point, you'll bump up against things the people aren't willing to change, and that's the point where you have to decide whether the terms of the contract are acceptable to you.  If they aren't, you should just walk away.  Maybe you're dealing with a business that's willing to have 99% of applicants turn them down, just so they can exploit the 1% who don't.  Maybe the business will see you leave and rethink their position.  But most business make offers like street vendors in Mexico.  They don't expect you to take their first offered price.  If you know how to bargain, you can often get them down to half or a third of that price.

*When it comes to apartments, the laws (in the US anyway) generally protect tenants from signing really lousy agreements.  Very few laws protect artists in the same way.