Saturday, February 26, 2011

Distinguishing the Good, the Bad, and the Ugly in Publishing Agreements

What are some of the best online and ink-on-paper resources regarding publishing agreements?  I'll try to answer that question below, and I will point you to at least one really cool (Columbia University) site.  But, first, here is a bit of general advice on how such resources should be used.

1.  Publishing agreements are often long and complicated legal documents. Some are also filled with traps for the unwary.  These can be treacherous waters, and you need a guide.

2.  Authors often wonder whether, in seeking advice, they should consult a literary agent, a literary property attorney, a book on publishing law, or simply a friend who has signed such an agreement before.  All can be helpful in somewhat different ways.

3.  If you already have an agent, she would be your first and likely best source of information. A good agent knows the ins and outs of the documents (such as standard book publishing agreements) that she deals with on a daily basis and -- crucially -- has an informed view about what a literary work may be worth in the marketplace.  She will also (one hopes) have a web of relationships with acquisition editors, which is, of course, helpful in placing a work and obtaining the best financial terms.  But, for a beginning writer, finding a good agent can sometimes be almost as difficult as finding a publisher.

4.  Agents and lawyers have different areas of expertise.  (Of course, some agents, like the venerable Mort Janklow are lawyers.)  Like an agent, an experienced literary property lawyer can explain your rights and duties under the terms of a publishing agreement (and point out all of the ways in which you are being taken advantage of).  But a literary property lawyer may not have any idea how much money your work could reasonably command, and he may not be much use at all in placing it for you.  On the other hand, a literary property lawyer may be especially helpful in a deal that is somewhat out of the ordinary.  Consequently, an agent may sometimes enlist the services of a literary property attorney, on an "as needed" basis.  Keep in mind that a lawyer who does not regularly do intellectual property work may not be cost-effective.

5.  Sometimes an author is presented with a publishing deal that (1) he has obtained without the assistance of an agent, and (2) he knows to be a fair financial deal.  (An example might be a proposed contract from a university press for an academic work, where there is no reasonable prospect for a large advance or meaningful royalties.)  In that case, it might make sense to consult a lawyer without pulling an agent into the deal.  An agent understandably may want her standard commission in exchange for her advice, even though she has not placed the book; and if there is only, say, a $1,000 advance, she may not be interested in getting involved, even though it is a bird in hand. Of course, if you have access to an agent, it never hurts to ask whether she would be willing to review your contract for a reasonable flat fee.  And, of course, a lawyer's advice will not come cheap either, probably costing you several hundred dollars an hour, depending on where you live.  (That said, reviewing a book contract shouldn't ordinarily take very long.)

6.  Particularly if money is tight, you may want to explore alternative sources of personalized advice on publishing agreements. Members of the Author's Guild can make use of the Guild's contract review service.  The National Writers Union provides a similar service.  Writers who are not members of associations that provide contract advice might be able to obtain help from volunteer lawyers groups, such as those listed in this previous post, albeit they may not be able to assist on a pro bono basis if your income exceeds their set ceilings.

7.  A friend who has experience with publishing agreements can sometimes provide good advice.  He will certainly have your best interests at heart, and (depending on the friend) may have valuable insights.  But a little knowledge is a dangerous thing, and so . . . .

8.  Even if you have an agent or a lawyer or a well-informed friend, you should educate yourself about the legal and business terms of publishing agreements.  There are several online and off-line resources that provide a good place to start.

9.  My current favorite: I recently stumbled across a highly instructive website, maintained by Columbia University, at KeepYourCopyright.org.  It includes this entertaining and instructive feature that gathers together 173 different clauses from contracts with writers and other creative people, and rates each clause as "creator-friendly," "could be worse," "creator-unfriendly," or "incredibly overreaching."  Even more helpfully, the site explains in a paragraph or two the reasons for each rating.  You may find it useful to compare the key clauses posted on this site with the corresponding clauses in any contract you are offered.  It can be illuminating.

10.  The Science Fiction Writers Association has a good introduction to publishing contracts on its website, as well as a few specimen agreements.

11.  There are several practicing lawyers who have posted on their websites useful resource materials concerning publishing agreements.  For example, Lloyd Jassin provides a book contract checklist at his CopyLaw.com website. And here are links to another checklist and an outline of the "nuts and bolts" of publishing contracts -- both from Boston attorney Howard Zaharoff.

12.  Many publishing lawyers own a copy of Perle & Williams on Publishing Law; pertinent portions relating to publishing contracts may now be viewed through Google Books.  Non-lawyers will actually find it quite readable.  Similarly, a useful chapter from Roy Kaufman's Drafting Print and Online Agreements may also be accessed through Google Books. I frequently consult Roy's fine collection of model agreements in my practice.

13.  As to ink-on-paper resources, all of the books discussed in this earlier post have useful things to say about publishing agreements.  If I had to choose just one on this subject, I would select The Writer's Legal Guide, by Tad Crawford and Kay Murray.  Negotiating a Book Contract, by Mark Levine, and The Writer's Legal Companion, by Brad Bunnin and Peter Beren, are also quite good.

14.  So, here is what I would recommend you do before signing your first publishing agreement.  First take a look at the online resources.  Then buy (or borrow) and read the relevant sections of at least one of the law and publishing books.  If you have access to an agent, she should be your first resort for personalized advice.  If you don't have an agent, consider seeking personalized advice from a writers organization or a literary property lawyer before signing any professionally or commercially significant publishing agreement.  Here is a cautionary story about what can happen if you don't.

15. But keep a sense of proportion about it all. What if, for example, you are presented with a proposed agreement for a one-off magazine article that you have only spent a few days writing and that will generate a fee of only a few hundred dollars?  It would be great to have your agent glance through it, if you have one.  It would be great to have your cousin, the intellectual property lawyer, take a look at it for free.  But, realistically, you aren't going to be eager to pay a lawyer to review your contract when your profit margin is slim to the point of anorexia.  That's why it's important for writers to teach themselves what they can about contracts from the myriad of resources available.  

1 comment:

  1. Thanks for writing these posts - I always find them to be very helpful.

    This one reminds me of advice I received from my marketing professor: "when you get an accountant, make sure he's a lawyer too."

    Of course, that advice is contingent on being able to afford one too. Great post.

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