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Friday, May 15, 2015

What Happens When You Can't Fulfill a Publishing Contract?

The short answer to the title question is it depends on what's in your contract. This is a issue that can hit both indie and trad writers. And it's especially true if you have a co-writer(s).

How this issue came about is personal, so if you don't want to read a discussion about lady parts, CLICK AWAY NOW!

As I've said before, Laura Kirwan and I are writing a superhero novel. We'd planned to have it out by May 1, but we both had issues with elderly family members that had to be dealt with right that moment! So we consoled ourselves that we'd buckle down in May and finish the damn thing. (FYI - We're at approximately 62K words with 10 chapters to go.)

After the parental drama, I went in for my annual gynecology exam recently, and they found something. In fact, they did the biopsy right then and there.

I've already been down the cancer road with DH. I've already had my own lumpectomy when GK was still a toddler. I wasn't going to panic until there was something to panic about. But that didn't mean the waiting didn't affect my productivity. (However, I take total productivity responsibility when it came to the Rockets and Cavs NBA play-off games. *grin*)

Thank the Goddess, I got the call from the doctor that the suspicious tissue was benign.

But what if it hadn't been? What would have happened?

A lot of writers don't take into account life crap when they sign contracts.* Let's face it, most of us don't want to think about bad things happening, much less death.

With the BHP contracts I've seen, if a writer doesn't deliver a manuscript on time, then the publisher can demand the advance money is returned. And yes, they can and will do this. They don't care if the writer has already spent it on food and electricity. And in most cases, that's exactly what the writer has done.

Generally speaking, most contracts can be renegotiated if you're going to be slightly delayed. I've known writers who've been able to do this when dealing with sick/injured family members. It's a little harder if the writer is the one laid up.

But you can't ask for an extension if you're dead. In which case, the publisher may become a creditor of the estate, trying to get that advance back.

Again, generally indie writers don't have to worry about publishers, but they should be worried about their editors, cover artists, etc. For example, what if I hired the incredible Dan Dos Santos to do the cover for Justice? He's not cheap. What happens if he can't finish my cover because a bunch of paint cans falls on his head and he's in the hospital in a coma?

You don't need a huge, complicated twenty-five-page, double-sided, eight-point font legal document, but you should have some sort of agreement about what happens if your independent contractor can't fulfill his agreement.

Then there's my situation where I'm co-authoring a novel. In our case, Laura drafted what she refers to as the "What if a bus hits us" clause in our agreement. We negotiated ownership percentages (for both early stages of drafting and the completed work), buy-out terms should the affected writer need to withdraw from the project (including buy-out terms for after the novel goes on sale), and what terms would apply to our estate representatives.

Considering how far along we are when I was biopsied, I could have finished my share of the writing if I had cancer before chemo brain set in, but poor Laura probably would have been saddled with the majority of the editing and marketing. Like I said, no one wants to think about worse case scenarios, but any time you're working with another person, you need to have contengencies in place.

This is hardly a comprehensive list of items you need to consider. Every writer's personal situation is different. It's also best that you check with your own attorney prior to signing a contract.

In our e-mail exchange concerning my situation, Laura asked that I add the following:

Maybe add a paragraph to your blog about the need to be flexible on the timetable as you go along. Especially if you're middle aged women, because -- if the past couple of years are any indication -- it's not IF the catastrophe occurs but WHEN.

Which is very true. We're at that lovely age where we're caught between two generations, both of which need our help.

A lot.

And if you're a generation younger than us fifty-something broads, please, PLEASE don't make the assumption that this crap won't happen to you. DH was diagnosed with cancer seven months before our wedding, two months after his thirty-first birthday. A close friend of ours was diagnosed with testicular cancer at eighteen. And my karate instructor's son was diagnosed with cancer at the tender age of six.

I beg you, don't take your life for granted, whether you're a writer or not. But always, ALWAYS cover your ass.

*I'm no longer a licensed attorney, and nothing I've stated on this blog constitutes legal advice or legal representation. As always, please consult with your own attorney prior to signing any contract.

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