Thursday, April 21, 2016

Harlequin Settles

In 2012, Ann Voss Peterson wrote a blog post about Harlequin’s contract terms.

TL;DR - Harlequin allegedly leased ebook rights to a company that it also owned, which effectively reduced author royalties from 50% to 3% for contracts signed in 1990-2004. Several months after the blog, a group of authors filed a lawsuit against Harlequin.

Since then, Harlequin has been acquired by HarperCollins. And to their credit, HC just settled this suit, to the tune of 4.1 million dollars.

Some agents and authors called Ann a whiner for taking issue with this. Their views seemed to be that authors should just shut up and be grateful for whatever crumbs their publishers wanted to toss them. Or that Ann and hundreds of other authors weren't taking responsibility for signing contracts with those terrible terms.

I've blogged at length about unconscionable contracts. Prior to the ebook revolution, writers had no choice but to eat the shitty clauses, or pound sand. But unless authors speak out and share information, and rally when things get bad, one-sided behind-closed-doors deals will remain the norm, and everyone will assume that's just the way things are and can't ever change.

According to Wikipedia: Unconscionability is a doctrine in contract law that describes terms that are so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience. Typically, an unconscionable contract is held to be unenforceable because no reasonable or informed person would otherwise agree to it. The perpetrator of the conduct is not allowed to benefit, 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.

Unconscionability is determined by examining the circumstances of the parties when the contract was made, such as their bargaining power, age, and mental capacity. Other issues might include lack of choice, superior knowledge, and other obligations or circumstances surrounding the bargaining process.

As of yet, no one has taken on the whole of the publishing world, where one-sided, boilerplate clauses would be laughed off the negotiating table in any other industry. The overwhelming majority of newbie authors have no bargaining power, no choice, and very little clue. What reasonable person would take a $5k advance for a book they worked a year on, against never making another dime off of those rights, forever? That five grand is the highest interest loan, ever. And you pay for life.

I'm not a lawyer, and nothing on this blog even comes close to constituting legal advice, but I don't know why some savvy, hungry firm doesn't start looking hard at publishing contracts, because there's money in them thar hills.

This move by HarperCollins is a step in the right direction. I'm not privy to the circumstances of this settlement, but this is undoubtedly a victory for Harlequin authors, and for all authors who never thought they could budge the status quo.

Authors as a group tend to have a "don't rock the boat" attitude. And with good reason; rock the boat, and the captain kicks you out.

But if you say nothing, nothing changes.

In this business, as in life, no one is going to just hand you anything. Because none of us deserve anything. You have to work hard, and fight for whatever you can get. Fighting for something when the outcome is uncertain is a scary thing. That's the definition of bravery.

Bringing this suit was gutsy. These authors faced being blackballed by the largest romance publisher in the world, but took that chance because it was the right thing to do.

If every legacy pubbed author had that attitude, we could do away with "next option" and "non-compete" clauses, raise ebook royalties, and make boilerplate term length ten years, rather than the author’s life plus seventy.

I don't blame any author for signing any contract. This business feeds on hope, and writers are especially vulnerable to being taken advantage of. If I had to do my career over, I still would have signed the same deals I originally did, even though I had to do quite a bit to get my rights back.

Happily, self-publishing has finally given us a choice. We can walk away from deals. We finally do have bargaining power.

And if we don't like the contracts we signed a decade ago, we can hire a lawyer.

Those Harlequin writers who brought the suit found a firm to handle it on contingency. That firm is banking seven figures from this settlement.

So if you're unhappy with your contract terms, it can't hurt to email a few of your peers with similar contracts, and run it past a lawyer or two. I have a feeling this Harlequin settlement is just the beginning...