Thursday, November 18, 2010

John Scalzi is a Smart Man

I know that on this blog I don’t talk about politics or law but since I blogged about the budget deficit, what the heck I’ll blog about contracts.  But this is NOT legal advice, this is just my reaction to an ongoing series of posts at John Scalzi’s blog Whatever

Let’s let him set the stage:

Recently New York magazine published a story, in which Columbia University’s graduate writing program invited James Frey to come chat with its students on the subject of “Can Truth Be Told?” during which Frey mentioned a book packaging scheme that he had cooked up. The contractual terms of that book packaging scheme are now famously known to be egregious — it’s the sort of contract, in fact, that you would sign only if you were as ignorant as a chicken, and with about as much common sense — and yet it seems that Frey did not have any problem getting people to sign on, most, it appears, students of MFA programs. Frey is clearly selecting for his scheme writers who should know better, but don’t — and there’s apparently a high correlation between being ignorant that his contract is horrible and being an MFA writing student.

I think I’m going to steal the phrase “it’s the sort of contract, in fact, that you would sign only if you were as ignorant as a chicken, and with about as much common sense” and I’m going to use it at work.   I don’t count it as plagiarism if I blurt it out in a conference room in a sidebar with a client.  Maybe I’ll sheepishly say “John Scalzi said that” after the client looks at me incredulously.  As a general rule one shouldn’t insult paying clients but sometimes it is necessary to get their attention. 

I’m really torn on this whole issue.  I think these MFA students were taken for a ride.  On the other hand I have no patience with suckers. 

These are people who want to write for a living.  They want to string together nouns and verbs and adjectives and adverbs into sentences.  And get paid for it.  They want to string together sentences into paragraphs and paragraphs into chapters and chapters into novels.  And get paid for it.

And yet when someone puts a piece of paper in front of them full of nouns and verbs and a few adjectives and adverbs, they can’t figure out by simply reading it that there is a very good likelihood that they are being taken for a ride?

These are people who will pay $50,000 for an MFA program in writing (!!!) and won’t pay a lawyer to look at the first contract they are offered for their writing? 

Ok.  I know I’m being harsh.  I am not suggesting that they should understand all the contractual terms written in legalese or the terms of art for the industry.  But they should be able to smell a rat when the sentences written in plain English have terms that are unconscionable.

In fact, Elise Blackwell, the director of the MFA program at the University of South Carolina, responded by saying exactly this:

… it requires little training to identify Frey’s contracts as absurd. (Does anyone really think $250 is fair market value for a commercially viable novel or that letting someone else use your name as they please is smart?) The writers who signed those contracts weren’t acting out of ignorance but from some combination of desperation, hope, and a sense of exceptionalism that writers need to get out of bed. (“I know James Joyce died in poverty, Kafka worked a desk job, and Dan Brown can’t coax a sentence out of a bag, but I can be brilliant and rich.”) Some of them were just taking a flyer.

Yep.  They were living the dream and they didn’t want to wake up and face the contract in front of them.

Scalzi responds to Blackwell:

The issue with that awful, awful contract isn’t what’s obvious, but what’s not. Sure, anyone with a brain could see that $250 for a novel is terrible, but what those damnably ignorant MFA students were looking at wasn’t the $250; they were looking at the alleged 40% of backend, which includes (cue Klieg lights and orchestra) sweet, rich, movie option money!!!!!!!! And what they don’t know, or undervalue because reading contracts is difficult when you’ve not done it before and no one’s explained them to you, is that it’s not really 40% of everything, it’s 40% of whatever Frey decides to give you after he’s trimmed off his share, and, oh yeah, you have to take his word for it because you’re not allowed an audit. So yes, the $250 (or $500) for a book is awful and obvious. But it’s everything else about that contract which is truly rapacious, as it appears to promise so much more, and it all seems perfectly reasonable when you don’t have the experience to know what a horror it is.

Well, yeah.  But the fact that the plain English sections were so egregious should have been a clue that the other parts that were harder to understand had problems too.  Again, these people want to  write sentences in English for a living, so they can read.  And presumably they can use the Google.

And once you have Google you aren’t living in a vacuum.  If they really want a movie contract someday they probably read news stories like, oh I don’t know, how Peter Jackson had a big lawsuit over what he was actually owed by the studio for Lord of the Rings and how Hollywood manipulates percentages.  It doesn’t take a rocket scientist to know that contracts that have anything to do with movies are known for screwing the writer.  All it takes is someone who can read and knows how to Google.   In this day and age, anyone who can’t figure out how to use Google to get a basic knowledge of industry standards is just plain stupid.

But that’s not the problem.  It isn’t really about stupidity.  It’s about the dream.  The fact is, these people didn’t want to know the contract was bad.  Most of these students probably never even read the contract before they signed it.  That’s right, they never read it.  At most they skimmed it.   

Here’s the thing.  People sign stupid contracts all the time.  And when I ask them why they signed the stupid contract, most people tell me that they didn’t know it was stupid because they never bothered to read it. 

I used to be surprised by that.  A long time ago.  When I was young and innocent.

But now I just expect it.  As do most lawyers I know.  So, rather than than berate clients after the fact, we try to take affirmative action before the fact.  We give seminars and invite clients and potential clients.  We tell them all the bad things that can be in contracts.  We try to scare them to death.  Sure, we do it to drum up business but we also do it because we love our clients and we don’t want them to sign stupid contracts without reading and understanding them

And that’s why Scalzi makes the very, very smart suggestion that MFA programs offer their students some training.

So, MFA writing programs, allow me to make a suggestion. Sometime before you hand over that sheepskin with the words “Master of Fine Arts” on it, for which your students may have just paid tens of thousands of dollars (or more), offer them a class on the business of the publishing industry, including an intensive look at contracts. Why? Because, Holy God, they will need it.

A very practical suggestion.  Not because it will make these students experts on contracts (god no), but because it will, hopefully, scare the shit out of them for their own good.  Because it will ruin the dream before the bad contract is ever put in front of them.  And, hopefully, the nagging little voice in their head will say, “I really should get someone to look at this.”

Here’s my non-legal advise.  If your MFA program offers a business class, take it. Whether it does or does not, when you take out your loans to cover the the $50,000 for the MFA program and the extra to cover some living expenses, decide to live on more Ramen noodles than you’d like and put some of the funds aside.  Call it your business fund.  And use it to pay a lawyer to look at your first contract. Do a little research and pick a lawyer who specializes in these kinds of contracts.  I know they can be expensive, but this is your livelihood you are screwing with.   If you are lucky, your local Bar Association may have a Volunteer Lawyers for the Arts program that can get you a discounted rate. 

And read the contract before you go to the lawyer to discuss it.