Tuesday, February 21, 2012


     A publishing contract is like any other contract. It establishes a business relationship between the author and the publisher. It is not an admission to a private social club. Although an author may feel privileged and proud to have a work under contract, the purpose of the contract is to exploit and disseminate the author’s work, not to stroke the author’s or the publisher’s egos.

I. “Shall” vs. “May”

     The publishing contract sets out the road map for the parties’ dealings, specifying what actions are required and so must be performed, and what actions are permitted and so are within the parties’ contemplation, but may or may not occur. Mandatory or required actions are frequently, though not exclusively, found in a clause containing the word “shall”.

Section 3--Within ten (10) days of the execution of this Agreement,  Author shall deliver three, right justified, printed copies of the Work on 17”x 23.529411” green paper to Publisher at Suite 123, Drilling Platform 138, North Sea.

Under this Section 3, the Author is required to deliver three copies of the work in a specific form, at a specific place, within a specified time period. Failure to perform any of these requirements constitutes a breach of the contract. Even though 20” x 20” paper has the same total surface area as 17” x 23.529411” paper, Author is required to use the latter paper.

     Permissive actions are frequently, though not exclusively, found in a clause containing the word “may”.

Section 4—Author may, in its sole discretion, substitute an electronic copy in PDF format for any written document or notice required or permitted to be sent under this Agreement. Any such substituted document or notice may be sent by facsimile transmission or e-mail in accordance with the contact provision of Section 3, 287 of this Agreement.

Under this Section 4, Author has the right, but not the obligation, to fax or email a document, rather than send a printed copy.

II. Basic Contract Construction

“You keep using that word. I do not think it means what you think it means.” Inigo Montoya in The Princess Bride (1987)

     The primary purpose of putting the parties’ agreement into writing is to make the parties’ rights and obligations clear. Unfortunately, sometimes the agreement isn’t as clear as the parties expected. Courts assume that everything in a contract was put there for a reason. Accordingly, wherever possible, a court will attempt to give meaning to every word in a contract. Therefore, just because the parties may disagree as to the meaning of a contract clause, it does not follow necessarily that the contract clause is ambiguous or unenforceable as written.

     Courts rely on a number of different kinds of rules for interpreting a contract. The most important rule, of course, is one that supports your position. That said, let’s take a look at a few of the more common rules.

     The first rule of contract construction is that there is no need to interpret a contract if the meaning is clear. Words are given their plain and ordinary meanings. If a simple reading will suffice, then a court will look no further.

Section Five—Author shall stand on the corner of Fifth Ave and Main Street in a chicken suit for one hour, commencing at 1:00 p.m. central standard time, on the third Tuesday in each calendar month containing the English letter “Y”.

This Section Five provides clear and unmistakeable direction. Author is required (“shall”) to stand in a specified place, at a specified time, for a specified duration, in a specified manner of dress. There is no question as to Author’s obligations under this clause. A court will not resort to any rules of interpretation beyond the plain and ordinary meaning of the words in the clause. (The wisdom of such a clause is not the court’s concern. The clause was important to the parties or it wouldn’t have been included in the contract.)

     If there is some question as to a party’s rights or obligations under a particular contract clause, the next step is for a court to look at the contract as a whole to determine the meaning of clause.

“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth…”  JARECKI v. G. D. SEARLE & CO., 367 U.S. 303 (1961)

     The meaning of general words that follow specific ones is limited by the meaning of the specific words.

"The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty. Ordinarily, it limits general terms which follow specific ones to matters similar to those specified...” Gooch v. United States, 297 U. S. 124, 297 U. S. 128 (1936)

Similarly, contract clauses that are specific take precedence over general clauses (generalia specialibus non derogant rule). Although the Publisher may have the general right to control the cover design, if the Author has the right to review or reject a cover, that exception will take precedence.

     Another rule of construction worth noting is the rule that “the expression of one thing excludes other things” (expressio unius est exclusio alterius). Sometimes, what isn’t included in a contract is just as important as what is. When a contract clause expressly provides that the Publisher has the right to do “A”, “B” and “C”, then it does not have the right to do “D”. If the Publisher has the right to review and correct the text, that does not mean that it has the right to line edit and change those portions of the text that are not erroneous. The right to correct means that the Publisher can fix mistakes such as closing open quotations and replacing misspelled words with the proper spelling. It doesn’t mean it can change the Author’s word choices.

     Finally, while there are other rules of construction, one rule particularly needs mentioning. When all else fails, and a contract provision’s meaning is still unclear, then a court will construe a contract against the party that drafted the provision (contra preferentem rule). In most cases, the contract will be drafted by the publisher, and presented to the author on a “take or leave it” basis. In such a case, where any doubt remains as to the meaning of a clause, the court will construe the provision in question against the publisher.

III. The Zipper Clause

"Th-Th-Th-Th-Th-... That's all, folks." Porky Pig

     Somewhere near the end of the contract, there is probably a “zipper” clause. The zipper clause (also known as a “merger clause” or “integration clause”) states that the contract represents the entirety of the parties’ agreement. Any other writings or representations to the contrary are of no force or effect. What the court sees, is what it gets. A strong zipper clause can cause a court to ignore evidence about what was discussed in the formation of the contract (parol evidence).

     It is important before signing a contract with a zipper clause to make sure that the contract fairly and accurately reflects Author’s negotiations with Publisher. If the Publisher talked about sending Author to an all expenses paid writer’s retreat in Fiji, it better appear in the contract. If it doesn’t, Author will not be permitted to argue, “But they said they would. That’s why I signed the contract."

IV. Non-compliance – Cure – Termination of Agreement

“Once more unto the breach” Shakespeare

     A failure to follow the requirements of a contract is known as a “breach”. While every breach of a contract constitutes some kind of violation of a party’s rights or responsibilities, there is no hard and fast rule about the parties’ course of conduct following a breach. Some breaches can be fixed or “cured”. Other breaches cannot be fixed, and may lead to claims for damages and/or termination of the contract.

     How the parties respond to different breaches depends in part on their general course of dealings. If the parties have been dealing professionally and respectfully with each other, then it is more likely that minor breaches such as sending a document a day late where time is not of the essence will be ignored by the receiving party. However, where there is antipathy between the parties, even minor breaches may become major issues.

     Treating the other party professionally is more than a mere platitude or common sense. I recently had a problem with a publisher that had total control over the cover of one of my works. When I raised my concerns over the proposed cover with the publisher, instead of attempting to address those concerns, the publisher claimed its rights to control the cover under the contract. However, instead of stopping at an assertion of its rights, the publisher chose to add in gratuitous ad hominem attacks on me for having the audacity to question its judgment. When the publisher committed several breaches of the contract that were time sensitive and could not be fixed or cured prospectively (a bell once rung cannot be unrung), I exercised my right to terminate the agreement. Had the publisher addressed my concerns over the cover in a professional manner, even if I was unhappy with the final result, I might have been more forgiving of their subsequent breaches.

     Some contracts may include specific procedures for handling alleged breaches. For example, a clause may require the aggrieved party to notify the offending party of the nature of the breach, and give the offending party a certain amount of time to fix or cure the problem. However, if the breach is not cured in a timely manner, the offended party may be entitled to certain specified damages, or may even be entitled to terminate the contract. If there are specific procedures in the contract for raising the issue of a breach with the other party, then the complaining party may be required to follow those procedures before seeking relief in a court.

V. And in Conclusion…

     The best contract is one that the parties never need to consult. By maintaining a professional relationship, it may be possible to resolve many issues without ever resorting to the agreement. However, if it becomes necessary to review the contract, then be sure to read not only any provision in question, but also any other provisions that may help you understand it. Finally, when in doubt, don’t be afraid to consult with legal counsel.

CK 2/19/12

Sunday, February 19, 2012

Review for Ken Charles's Slightly Twisted Sisters

A review of Ken Charles's Slightly Twisted Sisters is up at Risque Reviews.

"Ken Charles is a great author with the ability to change the 'voice' of his stories." That's just peachy. My alter ego's head swells any more, it won't fit in my skull.

Wednesday, February 15, 2012

5 Star Review for Ken Charles's Billy's Tale

5 Star review for Ken Charles's Sex Tales from West County - Billy's Tale at Amazon and Barnes & Noble.



Sunday, February 12, 2012


A. The Rejection Letter

     Contrary to popular belief, a rejection letter is not the end of the world. In fact, it’s rarely even environmentally unsound nowadays. In the good old days, rejection letters used to come in envelopes and were printed on paper. An author could put them up on the wall for inspiration or insulation, or even burn them in cold weather. Today, many rejections are sent via e-mails. While the author could print them out, it is probably better to just file them away.

     Rejection letters come in various sizes, shapes and flavors. Regardless of the form, the only universal fact that may be derived from a rejection letter is that the sender does not want the submission in its submitted form as of the time it reviewed the submission. Anything else is supposition.

The Form Letter Rejection --

Dear Author:

Thank you for your recent submission of “Super Wonderful Story”. Unfortunately, we are unable to offer you a contract for this submission. Good luck in your future endeavors.

Sincerely yours,
Isa P. Ighead, Acquisitions Editor
Narrow Minded Press

Disappointing? Certainly, but there other seas to fish in.

The Encouraging Rejection Letter --

Dear Author:

Thank you for your recent submission of “Super Wonderful Story”. Although the submission (insert whatever was liked), unfortunately it is not a good fit for our readership. I am confident you will have no problem placing this story with another publisher.

Please consider Somewhat Enlightened Publishing for your future stories.

Sincerely yours,
May B. Later, Acquisitions Editor
Somewhat Enlightened Publishing

Still disappointing? Of course, but there is an upside. The acquisition editor found something of merit in the submission. I received a couple of these letters for Earth Angel before finding the right fit.

The Foot-in-the-Door Rejection Letter --

Dear Author:

Thank you for your recent submission of “Super Wonderful Story”. Although the submission (insert whatever was liked), Penultimate Submissions Press is unable to accept the story at this time. If you remove the sex scene with the banana slugs and (insert any other changes desired), PSP would be happy to consider the revised story for publication.

Sincerely yours,
C. Arrotanstich, Acquisitions Editor
Penultimate Submissions Press

Disappointed again? Not necessarily. At this point, the author is closing in on placing the story. While the author is free to continue submitting “Super Wonderful Story” to other markets, PSP is interested in the work. Author has to decide whether or not to make the suggested revisions and resubmit the story to PSP.

The Time-to-Consider-Taking-Up-Painting Rejection Letter --

Dear Author:

This letter is to inform you that Highly Indignant Press received your submission “Super Wonderful Story”. Please be advised that any further communications will be referred to appropriate state and federal authorities.

Sincerely yours,
The Entire Staff (including custodial) and their families, friends (including social media) and acquaintances at
Highly Indignant Press

The letter speaks for itself. If you are still disappointed, an intervention may be in order.

B. The Acceptance Letter and Contract

     Omigod! They want it! You’ve read the e-mail letter three times, and it hasn’t changed. The publisher wants your story. Breathe. That’s better.

     You finally found a home for “Super Wonderful Story”. However, before you move in, there is the matter of the contract. As you sit there hyper-ventilating, you control everything. That control will change once you sign or e-sign the contract.

     What is a contract? A contract is an agreement, a meeting of the minds wherein the parties mutually undertake certain obligations or cede certain rights in exchange for something of value, commonly known as consideration. Consideration can be something tangible such as money or property, or it can be a promise to take or refrain from taking an action. The contract creates legal obligations between the parties.

     The contract for “Super Wonderful Story” will contain a series of undertakings and ceded responsibilities. Before signing or e-signing the contract, Author better understand the terms. Courts will try to give meaning to every word in a contract. If something is unclear, the time to ask for clarification is before signing the contract. The contract is nothing to be afraid of, but it is far more than a mere “detail” on the road to fame. The contract defines the scope and nature of an author’s working relationship with the publisher.

     Some basic questions (by no means an exclusive list) that Author should be able to answer after reading the contract (to prevent problems later, not to scare Author) include:

    What publishing rights is Author assigning to Publisher--electronic publishing only, or print rights as well? Any geographical limitations or world-wide?

    Who controls publicity--Publisher only, or Publisher and Author?

    Who controls the cover art--Publisher only, or does Author have rights of approval? 

    Who controls editing and content--Publisher or Author? Does Publisher merely have the right to proofread a document for errors (e.g. for punctuation and spacing errors and typos), copy edit (proofreading plus fact checking and correcting syntax and format),  or does it have full rights to line edit and make substantive changes to the story line without Author’s agreement?

    Are there firm deadlines?

    How does either party get released from the contract?  

    What is the duration of the contract?  Is there a renewal provision?

    Where can the contract be enforced--only in Publisher’s local state or federal court, or Author’s local courts as well?

    Does the contract specify which jurisdiction’s law will be used to interpret the contract?

    Is there an arbitration clause? If so, what is the scope of the arbitration clause?  Who pays for arbitration? Is there a specified method or agency for selecting an arbitrator (such as the American Arbitration Association --very expensive)?

    How does Author get paid? How much and how is the amount calculated? When? Method of payment?

     Some of the terms of the contract may not be particularly favorable to Author. Author may or may not be able to negotiate with Publisher over some of these terms. Ultimately, however, at some point Publisher will make its final offer (which may well be its original contract proposal). Author must decide whether the overall benefits of the contract to Author are worth the costs.
If the overall costs-benefits are satisfactory, then sign the contract.


CK 1/20/12


Friday, February 10, 2012

Now available from No Boundaries Press:
Slightly Twisted Sisters by Ken Charles

This collection of fourteen short stories is a bit edgier than many of my stories. The heroines are haughty, headstrong, bitchy and even outright sociopathic. There is sex, but sex isn’t the focus.

FEELING NO PAIN–A city gal finds a unique way to raise her rent at a country/western road house.
A ROYAL BIRCHING–The usurper may sit on the throne, and claim her Mother’s bed, but even a sound birching won’t ever bend the Princess to his will.
PSYCHE AND METAPHYSIC–A young girl writes a letter to cousin setting out her revenge on her arch rival who stole her fiancee.
THREE BLACK CATS–The only thing blacker than the Mistress’s skin is her heart.
THE CREAM OF THE CROP–She may be the finest rider to come out of the stable, but she still has to pay her fees.
UNDERCOVER–Sometimes even a promising rookie needs to be put in her place.
BEDRAKEN JUSTICE–Daddy’s little girl fulfills her destiny.
THE NAUGHTY MAID–Failure to perform one’s duties has consequences.
SINFUL ONE–A fiery backside beats the fires of hell.
A MATTER OF CONSCIENCE–It may not be for everyone, but freedom of choice should remain unfettered.
CANE, BELL AND CANDLE–For whom does the bell toll? It tolls for her.
THIS JUST IN–Vigilantes finally take matters into their own hands to protect the community.
THE CARD–Mom’s diary reveals more than how she quit smoking.


Also available from No Boundaries Press:

Sex Tales from West County-Billy's Tale by Ken Charles

Billy, age 28, was orphaned at a young age, and raised by his distant, exceedingly rich grandmother. He turned his back on his extremely rich upbringing when he turned eighteen, and moved to L.A. But his grandmother died and left him everything. Billy returns home to more money and free time than he ever imagined. He uses his new found resources to explore his kinky side. 


Thursday, February 9, 2012


     It began as a mere speck on the horizon. At first, you weren’t even sure that anything was there at all. It could have been your imagination, or a cruel trick played by the dim light on your tired eyes. But slowly, inexorably
 Yes, I know. I used “inexorably” in my first article. But I wanted to see whether you were paying attention., it grew and took form, amorphous at first (not unlike the thing that appears following the completion of an incantation followed by the word, “Whoops!”), then vaguely cognizable, and finally complete and whole. At long last, the journey that began with a single typo is complete. The story is finished!

     Okay, now what? Well ... that depends on a lot of different factors, including, inter alia, what the story is about and why you wrote it. Let’s assume that the story wasn’t written to fulfill a deadline or contractual obligation.  If it was written solely for your amusement and perhaps that of your friends, then read it, show it off, and put it in a drawer. However, if the intent is to show the story to strangers, put it in the drawer anyway--at least for a day or two. Let the creative passions cool a bit before you send the story off. Give the tale a cold reading and see whether, however improbable, something in the tale might need a bit of tweaking.

     Ignoring the advice that I just wrote, last fall (as my alter ego, Ken Charles) I saw a call for submissions that was ending in a couple of hours. I had a piece that I thought would fit the call very nicely, but it wasn’t quite finished. I still had to adapt a short story that I wrote into one of the chapters. I raced through the last couple of pages and finished with minutes to spare. I gave it a quick scan, shot together a quick synopsis, and sent the work off. Happily, it was accepted and under contract the next day (yes, the next day -- that was unbelievably lucky -- be prepared to wait the full time alloted for responses in the submission guidelines, and more). However, when I got back suggested edits, there were a number of sentences that had extra spaces between words and several missing articles (mostly “the”’s, but one or two “a”’s and “an”’s)  or prepositions (mostly “of”’s). I  suspected that they were lost in transmission. Regrettably, when I went back to the original submission, I found the varmints were missing in the original. I also failed to remove two important words from the short story when I integrated it into the rest of the chapter, taking off a pair of panties at the start of the chapter (from the short story) that is described as being removed again later (in the text of the longer work). Although the tale is now edited, it definitely would have benefitted from a cold reading.

     All right (note--not “alright”-- American slang circa 1890's), the story has sat on your literary cooling rack long enough. You’ve read it over, inserted the missing words, closed the open quotations, and deemed it fit for submission. Whether the work is a haiku poem, or the sequel to War and Peace,  make sure the work is appropriate for the target submission market. Read the submission guidelines carefully. If the guidelines expressly warn against non-consensual sex for purposes of stimulation, think twice before wasting everyone’s time by sending a “rape for titillation" story. If your story is a proper subject matter and an appropriate length, make sure it follows all of the technical guidelines. If the submission requires 12 point type, don’t use 20 point or 10 point.  If the guidelines require left justified manuscripts, then do it. Whatever the particular quirks are of the target market, accept and follow them or send the story elsewhere. And yes, I have read submission guidelines that actually warn not use “alright”.

     If the market does not accept simultaneous submissions, then don’t send the work to more than one place until you hear from the first market. Sure, the first market may never find out if you do send out simultaneous submissions. On the hand, it just might. Why saddle yourself with an undesirable reputation? If the respective markets will accept simultaneous submissions, then have the curtesy to keep the subsequent markets informed if you place the work with one of the others.