Friday, 22 June 2018

When is a commission not a commission? by Simon Whaley

Today's guest is a womagwriter. He also writes books and articles on a range of subjects including writing, climbs hill (but not trees), takes photos, runs workshops... I'm exhausted just thinking about it all, so I'll swiftly hand over to Simon Whaley.

Commissioning Conundrum

When is a commission not a commission? Well, it all depends upon when in the writing process you make the sale.
Patsy asked me if I’d like to write a guest post about the latest confusion concerning some of the fiction markets using the word commission when accepting (or rejecting) a story.
Firstly, here’s the get-out clause: I’m not a solicitor, therefore this isn’t legal advice, your home is at risk and the share price can go up and down, etc, etc.
But here’s how I see the issue…
The Oxford English Dictionary defines the word commission as:
  1. “an instruction, command, or role given to a person or group”
  2. “an order for something, especially a work of art, to be produced specially”
  3. “order or authorize the production of (something)”
Note how they all (in particular definitions 2 and 3) suggest that a commission instructs someone to produce a body of work that does not yet exist.
I never write an article and then send it unsolicited (which means the editor hasn’t asked to see it) to magazines. So I don’t come up with an idea, write up the complete article and then send it off to a magazine hoping the editor likes it and will buy it.
Instead, I think of the idea, pitch it to the editor and then ask if they’d like an article exploring that topic. Sometimes they say yes. When they do, that’s when they commission me to write the finished piece.
The commission becomes the contract. I’m tasked with writing an article on a specific subject, looking at a specific angle, to a specific number of words, with photos (sometimes detailing the sort of photos required) and whether any boxouts are needed. This is also the time when money and a payment schedule is mentioned.
So, technically, at the time of commission, the article does not yet exist, because I haven’t written it. But the commission means the editor wants me to do the work and they will pay me for it … as long as I deliver what they’ve asked me to deliver.
This works well because I know I’m not wasting my time writing something that may not sell, and the editor knows they’re getting what they asked for.
So in this scenario, I’ve sold my piece of writing, before I’ve written a single word of the finished piece. In many cases, I receive a contract that I have to sign and return, accepting the commission. That contract then becomes binding.
However, when it comes to fiction and short stories, rarely do editors commission work: ie commit to buy a story before it has been written. (Okay, if you’re a famous author and you’ve a new book coming out, you may be commissioned to write a short story for a magazine issue that coincides with your book’s publication date. But if that’s the case your literary agent is probably dealing with all of contract work for you.)
In other words, fiction has to be written first and then submitted on spec (unsolicited). You write the story and then submit it to the market you think it best fits. The sale is made AFTER the editor has read your finished piece and has decided that they’d like to buy it.
Editors rarely email short story writers and say, “Can you write me a 2,000 word story with a female protagonist called Helen struggling to come to terms with the death of her pet canary, Eustace, and let’s give it was a happy ending involving a taxidermist called Nigel? … more’s the pity.
Therefore, with fiction, the sale (hopefully!) comes after the writer has done all of the work.
In my opinion, if you submit a story to a magazine and they accept it for possible publication, the use of the word commission is incorrect. The story wasn’t commissioned, it has been accepted for possible publication.
When an article is commissioned, it is usual for the writer still to be paid (some, if not all, of the agreed payment) even if the publication decides not to print the piece. This recognises that the writer was tasked to do the job and was unable to work for anyone else (and earn money) while working on that specific commission.
But when a publication accepts an unsolicited submission for publication, it is not under any obligation to actually publish it.
And therefore, if there’s no commitment to publish, there’s no commitment to pay until it has been published either. (Even if they mention money, all they’re doing is telling you how much they pay if they publish it. They’re not committing to publishing it. In theory, you could withdraw your submission at that point, arguing that the story is worth more and wish to try another market … but, hey, that’s not how it works in Womagland, is it?)
This is why, after the story’s acceptance, an editor can ask the writer to make changes, or even change their mind and later reject the piece. There’s no contract in place for that specific piece of work. (You may have signed a contract in the past that clarifies which rights the publication is buying when they actually buy a story from you, but that doesn’t commit them to buying anything from you in the future.)
Writing on spec like this is risky. Nothing is guaranteed until the money is in your bank account. There is nothing stopping an editor accepting and holding on to a story for several years. At best, there’s still hope that the piece may be published by them, at worst, they’re stopping you from sending that story elsewhere. At least some customers, such as DC Thomson, pay on (or close to) acceptance. So even if they do buy a piece well in advance, the writer has been paid for the work they’ve undertaken. (And having made a financial commitment by buying the story, DC Thomson has a strong incentive to actually publish it.)
Fiction and non-fiction are different beasts, and not just in the short-form either. I’ve been commissioned to write non-fiction books, simply by selling an idea to a publisher. However, my agent can only sell my novel once I’ve written the whole darn thing in the first place.
So if you want to know whether you’ve really been commissioned think about when in the process your sale took place. If it was made before you’d written anything (and you’d signed a contract) then you have been commissioned. If, however, the sale was made after you’d submitted your finished piece then, technically, according to the Oxford English Dictionary, it isn’t a commission.
Proportionately, magazine publishers buy far more non-fiction than they do fiction and, therefore, I wonder whether magazine staff (who are stretched and covering several roles on different publications in some cases) are simply using non-fiction terminology when dealing with fiction submissions.

Simon Whaley writes the Business of Writing column in Writing Magazine. He’s the author of over a dozen books, including The Positively Productive Writer, Photography for Writers, The Complete Article Writer, and the Business of Writing (Vol 1) - a collection of article from his Writing Magazine column. For more information visit www.simonwhaley.co.uk or www.thebusinessofwriting.co.uk

11 comments:

Mike White said...

Thank you, Simon. A very clear explanation of a term which evidently puzzles people in the business as well as outside it.

carrie said...

Thank you Simon - and Patsy - for an informative and very interesting article.

Anonymous said...

Thank you, Simon, for a very interesting, clear and detailed article.

Susie

Anonymous said...

This is really interesting and clear Simon, thank you.
So the acceptance emails we receive are in no way legally or contracturally binding for fiction then? Is that all in the way they choose to word the acceptance email? A sale isn't really, legally, a sale? And the fee offered is not for the piece they have accepted but for any version of that piece with any number of alterations we can be asked to do? There seems to have been a subtle shift with some magazines. We may once have been asked before acceptance to make changes - to sort out an ending, say. Fair enough. But the shift to accepting a story and some time later to be approached to change it - to add or reduce the word count - is somewhat different and more galling. At the very least it seems bad form. To use an analogy I go into Zara and buy a jacket. Its 20 pounds. The sleeves are too long (or the message on the back is unclear...). I alter them or I pay to have them altered. I don't ask Zara to do it free of charge. Am I being too simplistic? My OH receives purchase orders in his business. If there are changes to the order he charges the client for the extra work or expects the client to do it themselves. I fear I am being dim in not seeing how accepting a piece of fiction as it stands is any different? It seems that by dint of choosing to write fiction over non-fiction we are automatically legally much more vulnerable?!

Anita Loughrey said...

Excellent explanation. Most writing for education is also commissioned but the publishers usually prefer to come up with the ideas in-house.

Sharon Boothroyd said...

Many thanks Patsy and Simon.
I think My Weekly did actually commission some of their writers last year to write a 12 days of Christmas fiction feature.
But I too, thought the acceptance email was legally binding eg if a fiction ed says they are going to publish your work and pay accordingly, they will do. Yet publication could be years later!

Cathy Cade said...

That makes sense. I was a little surprised when my last story submitted to Woman's Weekly was turned down with the phrase '...decided not to commission...' but I suspect that was a case of '...simply using non-fiction terminology when dealing with fiction submissions.'
It doesn't really matter what you call it when it's a rejection, does it? It was a pleasant change to get a written slip though, instead of a form letter.

Patsy said...

Thanks, Simon.

I had thought any form of 'we'd like to buy/use/accept/commisson this story and pay you £X' formed some sort of contract and that if we accepted the offer then the magazine would be under some kind of obligation to use the story. Of course they usually do – and as far as I'm aware, no editors have been withdrawing offers after writers thought they'd made a firm sale? Although in some cases there is now a longer than usual wait between acceptance and publication, I'm still hopeful that the stories we thought we'd sold, will actually be bought – unless the author decides to withdraw them, as it seems we'd have the right to do. I can understand that some may prefer to do that, rather than have the story apparently in limbo.

I know people have been asked to make changes after acceptance. It's happened to me too. I was asked, and agreed to that request (I've not heard back since making the amendment). I'm aware that accepted stories are sometimes edited before publication and personally I prefer the chance to do that myself, even though it does involve more work.

@ Sharon – yes in some cases authors are commissioned to write a particular story. That happened to me once – I was given a word count and theme. At the time I hadn't realised that gave me more rights, but as the story was published and paid for that wasn't an issue.

Anonymous said...

It is quite de-motivating as it seems fiction writers aren't treated very well for the time spent writing. I don't like the lack of respect for our time and energy spent writing stories then don't hear if they'll be accepted for months on end. Wouldn't really happen in any other profession really, would it? I don't submit often, I use my time doing things that will earn me a crust - even writers have to eat lol.

Thanks for another great and informative post.

Simon Whaley said...

I think one of the problems is that, historically, publishing has worked quite a bit on a gentleman's agreement. If an editor said they would like to buy your work, they genuinely did and tried to use it quickly. I took had several pieces accepted and published in this way.Some magazines have moved to contracts, but when it comes to emails, these can be grey areas.

An email that says, "I'd like to accept this story for publication in XYZ magazine" is not saying they're definitely going to publish it. Just that they're 'accepting' it. An email that says, "I loved your story and would like to accept it for publication in a future issue of ABC magazine" is still a bit wafty because ... November 2052 is a future issue, and if they haven't published it by then, there's always a future issue, so they haven't actually broken any 'contract' as such.

However, if you get an email that says, "I would like to accept this short story and have scheduled it for use in the August 2018 edition of RST magazine for £200, for which I will need First British Serial Rights" then you have something that is a little more binding.

And with regards to Anonymous's comment about their OH's Purchase Order system, yes - a purchase order is a form of contract. It states explicitly what will be supplied, when it will be supplied, who will be supply it and how much they will be paid for supply it. Everyone knows exactly where they stand. The supplier then quotes the Purchase Order reference on their invoice, and accounts know it's a genuine invoice to pay for works delivered. So, if you get a purchase order from a magazine for a short story, then you have a contract. (And I get many of these for my articles). But an acceptance email is not a purchase order.

When you go house buying, and you put in an offer to the estate agent, it's not binding until the contracts have been signed. Although you've expressed an interest in buying the property, and even plan to buy it ... technically ... you're not liable to buy until you've signed a contract. You can pull out at any time before contracts are signed.

It's clear there are things going on in the background at WW Towers - probably far more than we're aware of. Who knows what's round the next corner?

Celia said...

The longest I've ever waited between acceptance (and payment: My Weekly) and publication is, wait for this - SEVEN YEARS. I would be very unhappy to wait that long now (Woman'a Weekly) as payment is on publication.