The Unoriginal Sin: Differences Between Plagiarism and Copyright Infringement

Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.

By the way, I cribbed every word of that first paragraph from Black's Law Dictionary, which, in turn, was quoting (with attribution) from copyright guru Paul Goldsteins' book Copyright's Highway.   If I hadn't bothered to mention Professor Goldstein, I would have been guilty of the sin of plagiarism, but not the actionable offense of copyright infringement.  (As a matter of copyright law, my quotation from Goldstein is, I trust, safely within the bounds of "fair use.")

In the words of Merriam-Webster Online, "plagiarism" is the act of steal[ing] and pass[ing] off (the ideas or words of another) as one's own; use [of] (another's production) without crediting the source."   By contrast, "copyright infringement," occurs "when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner."  (See the definitions section of the U.S. Copyright Office website.)  Similar, but not exactly the same.

Many acts of plagiarism are not copyright infringements.  And many acts of copyright infringement do not arise from plagiarism.  This post seeks to clarify the differences between the two transgressions -- differences that writers (and sometimes judges) often tend to blur.  Indeed, even Professor Goldstein engaged in a bit of blurring; it would have been more precise to say that "if the plagiarized work is protected by copyright and the copying is substantial, the unauthorized reproduction may sometimes also be a copyright infringement."

Copyright infringement is a legal offense against property rights, whereas plagiarism is an ethical failure to honor one's intellectual forefathers and foremothers.  Plagiarism does not amount to copyright infringement unless (a) the plagiarist has republished copyrightable expression of another, and (b) the amount of copied expression exceeds the boundaries of fair use.  For example, facts and ideas are not protected by copyright; only original "expression" is.  So, an academic who harvests facts from another scholar without giving due credit may be a  plagiarist, but, if she expresses those facts and ideas in her own words, she is not an infringer.  Or to take another example, works first published in the U.S. before 1923 are no longer in copyright.  Consequently, a novelist who lifts sentences and scenes from the short story sequence Winesburg, Ohio (first published in 1919 and now in the public domain in the U.S.) without crediting Sherwood Anderson would also be a plagiarist, but not an infringer.  When I pass off as my own original work ideas or public domain expression or sufficiently brief snippets of expression taken from others (e.g., my quote taken from Goldstein, devoid of quotation marks), I may have  -- depending upon the context -- committed plagiarism because, in the words of Judge Richard Posner, "readers of the new work are invited to think that those features are the inventions or discoveries of the plagiarist."  Yet I could not successfully sued for copyright infringement.

Conversely, if I quote too lengthily from the copyright-protected works of others, I may be a copyright infringer, even though I have carefully and fully acknowledged the author and work that I am quoting.  Thus, for example, in one well-known copyright case, the poet Ian Hamilton was found to have committed infringement by quoting too extensively from J.D. Salinger's unpublished letters in a biography of Salinger, even though Hamilton meticulously footnoted each quotation.

Examples of plagiarism are legion.  The Wikipedia offers a long, varied, and fascinating list of plagiarism controversies.  (Did you know that Helen Keller was caught up in a plagiarism scandal?)  Caslon Analystics of Australia has published another inventory of alleged incidents of literary plagiarism.  Wikipedia has a discussion of the theory and history of plagiarism here.  And Caslon Analytics's useful overview of plagiarism (again, with an Australian slant) may be found here,

I have just finished reading Judge Posner's book entitled The Little Book of Plagiarism, which provoked this post.  Judge Posner touches upon many of the famous unoriginality controversies of recent years, including those involving Doris Kearns Goodwin, Joe Biden, Stephen Ambrose, Laurence Tribe, and Kaavya Viswanathan.  (As Judge Posner points out, an uncommon number of such scandals seem to implicate Harvard personalities, not because plagiarism is especially common at Harvard, but because exposing the lapses of the academic elite gives the press and readers an extra shot of schadenfruede; see the Harvard Plagiarism Archive here for a master list of such controversies since 2002.)

Judge Posner offers an especially good explanation as to why some unacknowledged copying is plagiarism, and some is not:

A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them. 

* * * *

The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism.

I am also indebted to Judge Posner for teaching me the word "cryptomnesia," which refers to "unconscious plagiarism, a sin of neglect rather than intention and, therefore, less blameworthy."  When caught in the act, almost all plagiarists, including Helen Keller, plead cryptomnesia.  But Judge Posner cites research suggesting that cryptomenesia is almost always a fallacious excuse when the copying consists of "verbal passages of more than trivial length."

The legal remedies for copyright infringement are powerful and plainly set forth in federal law.  (See Chapter 5 of the U.S. Copyright Act.)  But, as per Professor Goldstein's observation quoted above, the legal remedies, if any, for plagiarism are by no means clear-cut.

For many years, authors (and other creative people) sought to use the federal Lanham Act as a basis for litigation against those who used their work without proper authorization or credit. That legal strategy reached a dead end when the Supreme Court held in the 2003 case of Dastar v. Fox that the Lanham Act cannot be used to "creat[e] a cause of action for, in effect, plagiarism -- the use of otherwise unprotected works and inventions without attribution."  Law geeks may wish to take a look at this law review article -- and this one, too -- deploring how Dastar and its progeny effectively eliminated the Lanham Act as a remedy for failure to give credit where credit is due.  Without resort to the Lanham Act, victims of plagiarism -- who do not also have a viable copyright claim -- are left with few means of legal recourse.  In commercial settings, a buyer of a book riddled with plagiarism might theoretically seek to use consumer deception statutes to achieved redress, but there is no economic incentive to sue to recover the price of a book, and a plagiarized author may not even have standing to assert such a claim. See this earlier post discussing some less-than-satisfactory post-Dastar options, including ethical complaints to professional organizations and academic institutions.

After Dastar, shaming (either in private communications with the plagiarists' supervisors or in published accusations) remains the most effective tool for attacking plagiarism and plagiarists.  Timothy Noah of Slate offered this original idea for formalizing the shaming process in the book publishing industry; alas, it is not likely ever to be adopted.  And beware: all too often, accused plagiarists respond to shaming efforts with libel lawsuits against their accusers, as discussed in this article from The Chronicle of Higher Education.

In Europe, the legal doctrine of droit moral or moral rights gives authors the ability to claim a right of attribution in their works.  However, even in Europe, droit moral lawsuits are not routinely used to provide a remedy for garden variety plagiarism.  The United States recognizes droit moral or moral rights only with respect to certain limited categories of visual arts.  (See this brief summary of protections accorded by the Visual Artists Rights Act  in the United States.)  Writers do not have equivalent protections for the "right of attribution."

Interestingly, in June 2011, the Third Circuit Court of Appeals seems to have imported into the Digital Millennium Copyright Act ("DMCA") what is, in essence, a kind of cause of action for plagiarism in certain narrow circumstances.  The kinky case involved two New Jersey shock jocks, who hired a photographer to take a picture of them, apparently nude, with their manliness concealed by a sign bearing their station's logo, WKXW.  The photograph originally appeared in New Jersey Monthly.  Later, however, the station scanned the photograph, stripped out the photographer's credit line (without permission), posted it on the station's website, and invited fans to manipulate the image.  The photographer sued for copyright infringement and, based upon some on-air comments that the shock jocks made about him, defamation. The district court dismissed the photographer's claims, but the Third Circuit reinstated them, concluding, among other things, that the photographer's credit line was "copyright management information," and the digital manipulation and removal of the credit potentially violated the DMCA. Here is the always-entertaining Eriq Gardner's summary of the case.  And you  can see a portion of the image in question in this analysis of the case by New York lawyer Peter Fakler. You can read the entire decision here.  Of course, the DMCA does not provide a tool for addressing plagiarism outside of the context of digital manipulation, but it is an interesting new tactic in the age-old wars over plagiarism.

This New York Times article suggests that plagiarism is on the rise among college students and others, who find it tempting and easy to cut and paste into their papers the expression of others available the web.  Plagiarism.org's website cites a national survey published in Education Week that found that 54 percent of students admitted to plagiarizing from the internet.  Schools have responded by requiring the use of plagiarism-detection software, such as Turn-It-In, created by IParadigms.  

My firm recently handled case where plagiarism detection intersected with alleged copyright infringement.  Several students from McLean High School in northern Virginia tried to turn the tables on IParadigms, and sued the company for copyright infringement.  In checking for plagiarism, Turn-It-In software compares student papers not only to a huge textual database drawn from the internet, but also to an archive consisting of virtually all past papers submitted by students for scanning and review by the Turn-It-In software.  This archive is important to the review process because it enables the software to determine when students have copied from each other rather than copying from the internet.  The database of student papers is not published in any way, but merely resides on computers in the form of digital files used to carry out the comparisons.  The students contended that, in maintaining copies of their papers in these digital files, IParadigms infringed their copyrights in those papers.  In submitting their papers, the students had agreed not to assert any claims against IParadigms, but they argued that the agreement was against their will and otherwise unenforceable.  The courts disagreed and found that the archiving of the students' papers was effectively consented to and, in any event, a "fair use." Here is the opinion of the Fourth Circuit Court of Appeals affirming the lower court's decision of non-infringement.  (My firm represented IParadigms.)

One of the things I do in my legal practice is review manuscripts before they are published for potential legal problems.  The legal vetting task is fairly clear-cut when it comes to identifying issues such as libel or invasion of privacy.  However, it is often nearly impossible for a lawyer (or an editor) to spot potential copyright infringement when an author has plagiarized his sources, failing to use quotation marks or endnotes.  As a result, some publishers are now sometimes using anti-plagiarism software to detect unauthorized copying in manuscripts, particularly in high profile books by celebrity authors.  According to this article in The Chronicle of Higher Education, academic journals are similarly "turn[ing] the anti-plagiarism software that professors have been using against their students on the professors themselves."

As Judge Posner is at pains to point out, what constitutes plagiarism and what does not is not always clear.  Many universities publish useful online resources for identifying and preventing plagiarism, including this one maintained by the UCLA libraries.  And here is the American Historical Association's Statement of Standards of Professional Conduct, which includes a fine discussion of plagiarism, and the sage advice: "No matter what the context, the best professional practice for avoiding a charge of plagiarism is always to be explicit, thorough, and generous in acknowledging one's intellectual debts."

Which reminds me, I almost neglected to mention that the headline to this post is a knock-off of the title of this great article by Roy Peter Clark on plagiarism in the newsroom, which originally appeared in The Washington Journalism Review. Clark's article is filled with examples of journalistic plagiarism and offers good counsel on distinguishing between permissible re-purposing and unethical, intellectual fraud.

Actually the phrase "unoriginal sin," has been used by many other writers in connection with articles about plagiarism.  (See this Google search report.)  Likely, this is the result of independent creation -- numerous writers separately coming up with the same pun, though it wasn't at all original on my part.  Suffice it to say that not every lifted phrase or unattributed joke is a sin.  Remember, Judge Posner's point that there must be some element of deceit and the originator and/or the reader/listener must have some reason to care about the undisclosed repurposing.  This well-known anecdote illustrates the irrepressible tradition of passing off the jokes of others as one's own:

After hearing his friend James McNeill Whistler make an especially witty remark, Oscar Wilde said, "My God, James, I wish I had said that."  To which Whistler replied, "You will, Oscar, you will."

Cultivating a Healthy Loathing for "Work Made for Hire" Agreements

The "work made for hire" clause is the bete noire of freelance writers.  While the clause is frequently very unfair to authors, it is not unfair in all circumstances; it's never your friend, but there are times when it is not necessarily your enemy.  Following are twelve questions and answers that may help you to cultivate a healthy, not-unduly-paranoid loathing for "work made for hire" agreements.

But first, in digesting this somewhat geeky post, it is useful to know that, as explained here, any "original work of authorship" is subject to copyright protection the moment that it is "fixed in any tangible medium of expression."  For example, a love letter is instantaneously subject to copyright protection as it flows out beneath your fountain pen.  By way of further background, the U.S. Copyright Act uses the term "author" to refer to all types of creators: writers, composers, visual artists, choreographers, filmmakers, architects,  musicians, computer software programmers -- anyone who creates a copyrightable work.  (See Section 102 of the Copyright Act for a general list of the types of copyrightable works.)  The "work made for hire" doctrine addresses the question:  Who is the "author" of -- and the owner of the copyright in -- certain types of works at the moment when they come into existence?

1.  What is the essential difference between a "work made for hire" and the typical copyrightable work?  Ordinarily when you create a copyrightable work you are its "author" and, at least initially, the owner of the copyright.  (See Section 201(a) of the Copyright Act.) A "work made for hire" is a notorious exception to that default principle.  If a work qualifies as a "work made for hire," your employer (or the person or entity that commissioned you to create the work) is deemed the "author" and initial copyright owner, even if he/she/it contributed no copyrightable expression whatsoever to the work.  In other words, the employer (or commissioning party) owns all rights in the work; you own none -- ever (unless you enter into a contract in which your employer -- or the commissioning party -- bestows some rights upon you). No wonder that the American Society of Journalists and Authors has called work-made-for-hire agreements "all rights contracts on steroids."  (See the ASJA's excellent primer on all-rights agreements here.)

2.  What practical difference does it make whether you sign a "work made for hire" agreement or simply grant broad rights in your work to the commissioning party?  There are two major downsides to a "work made for hire" relationship.  First, as stated, you never have rights all in a work that you create on a "for hire" basis.  Everything embraced by the copyright belongs, at all times, to the commissioning party.  So, for example, if you were to create new works including characters or plot lines that appeared in the "work made for hire," you could be found to have infringed the commissioning party's copyright.  Of course, as discussed in this earlier post, an assignment of your entire copyright interest would put you in a similar "rightless" position.  This brings me to the second major downside: under the Copyright Act, a writer who assigns his copyright at least retains a right to terminate that assignment between the 35th and 40th year after it is made. By contrast, a "work made for hire" is forever.  Since you are not deemed to be the "author" of a "work made for hire," you or your heirs cannot exercise the termination right.

For example, in the Bob Marley case, the court found that five record albums recorded by the great reggae star between 1973 and 1977 were "works made for hire."  Marley therefore never owned the copyrights, which belonged instead to the "employer," Island Records, a subsidiary of Universal Music Group.  Consequently, Marley's family was unable to exercise the termination right to recapture ownership of the albums after 35 years and thereby negotiate a better financial deal for the rights going forward.  Of course, the great majority of works created in any medium have no commercial value by the time the recapture right kicks in.  However, if your work, like Bob Marley's, is one of the rare long-lived exceptions, the fact that you signed a "work made for hire" agreement instead of a simple grant of rights or even an outright copyright assignment could be crucial.  An "all rights contract on steroids" indeed.

3.  How paranoid should you be about "work made for hire" clauses in contracts for your freelance work?  Only reasonably paranoid.  For many types of mundane works, you may have no interest in ever creating derivative works or recapturing the copyrights in 35 years.  Freelance advertising copy.  Annual reports for corporations.  Beer making instructions.  Marketing brochures.  Press releases.  Technical writing.  I wrote all of those kinds of works in my days as a freelancer, before going to law school, and I have never regretted for a moment having no copyright interest in them.  On the other hand, I also published books, magazine articles, and op-ed pieces, and I would not have been pleased to sign "work made for hire" agreements for those works.  When, as a freelancer, you create a novel, a short story, a non-fiction book, a significant piece of journalism, a poem, a song, a play, a screenplay, or a variety of other works into which you pour something of your soul and which have at least some potential to be re-purposed (e.g., turning them into longer works, or re-using characters) it is entirely rational to be reluctant to sign a "work made for hire" agreement or, for that matter, any form of "all rights" agreement.  It's a complex personal, economic, and legal equation, which will vary from writer to writer and work to work.  There are some areas of writing, such as multi-authored textbook publishing, where "work made for hire" arrangements are commonplace.  There are other contexts in which a "work made for hire" contract is little more than a rights grab.  The various conventions of particular markets for writers are beyond the scope of this post, but are addressed in some of the online and printed references mentioned below.

4.  All right, then, when is a work a "work made for hire."  Under Section 101 of the U.S. Copyright Act, a “work-made-for-hire” can arise in only two circumstances: (1) when you, as an “employee,” create any type of copyrightable work within the scope of your employment, or (2) when you, as a non-employee, are specially ordered or commissioned to create one of nine designated types of works and you and the commissioning party agree in writing that the work will be a “work made for hire.” 

5. What are the tricky parts of the "employee" branch of the "work made for hire" doctrine?  The works you create for your employer within the scope of your employment are presumptively "works made for hire."  No written agreement is required.  For example, whatever I write for the law firm that employs me belongs to the firm, not to me.  If my firm is paying me for written work that I create on firm premises during regular business hours with firm computers, I don't find it objectionable that the firm owns all rights to it.  Controversies concerning employee-created "works made for hire" tend to arise in two areas.  First, there may be disputes as to who qualifies as an "employee," such that the copyright vests in the employer, rather than an independent contractor or freelancer.  That was the issue in the case of Community for Creative Non-Violence v. Reid in which the Supreme Court found that a sculptor was not an employee of the non-profit entity that retained him to create a sculpture.  Second, there may be disputes as to whether a work is created "within the scope" of the employee's job responsibilities.  If you work at The New Yorker as an editor during the day, your employer shouldn't own the short stories you are writing at home at night. While I am confident that The New Yorker does not make such an overreaching claim, other employers do sometimes include unfair anti-moonlighting clauses in their employment contracts or employee handbooks that purport to assert ownership over work created on the employees' own time.  (See this amusing blog discussing IP and moonlighting in practical terms.)  Anti-moonlighting rules may sometimes involve a "copyright assignment" issue rather than a "work made for hire" issue, but, either way, employees are too often disadvantaged by such clauses.

6.  In the non-employee/freelancer context, must there be a written agreement with the commissioning party in order for your work to be deemed a "work made for hire"?  Yes.  If you are not an employee of the person or entity that commissions your copyrightable work, then, in order for the work to qualify as a “work made for hire,” there must be a written agreement between the parties, signed by both of them. These days, an inked signature on a piece of paper may not necessarily be required.  But there must be something that qualifies as an “agreement” to which you personally affixed your name in some way. 

7.  Does a "work made for hire" agreement have to be made before you create your work?  Yes.  The parties must agree before the work is created that it will be a "work made for hire" belonging to the commissioning party.  Courts are divided on whether the parties can orally agree on a "work made for hire" arrangement beforehand, but wait until after the work is created to sign a written agreement.  Beware of efforts to recharacterize a work as a "work made for hire" after the fact.  Here is Ivan Hoffman's blog post on the regrettable practice of using after-the-fact check endorsements to memorialize the "work made for hire" status of a work.

8.  Does a "work made for hire" agreement have to include the magic words "work made for hire" for it to be effective?  Yes and no.  Ordinarily the agreement should use verbatim the magic words “work for hire" or “work made for hire” in order to give rise to a valid "work made for hire" relationship.  If it does not use those words, the agreement may be interpreted as giving rise to some other form of transfer of rights.  But be careful:  the courts have sometimes cut commissioning parties some slack in terms of the exact phrasing, as long as the intention is clear.  An agreement that speaks of the work as being “specially ordered or commissioned” or created “at the direction and expense” of another might conceivably sneak by.  (See the discussion "talismanic words" in this case.)

9.  Do all specially-commissioned, copyrightable works created by freelancers qualify as "works made for hire"?  No.  In an employer-employee relationship, any type of copyrightable work may be a "work made for hire."  By contrast, in a non-employee/freelance situation, only a copyrightable work that falls within one of nine categories specified in Section 101 of the Copyright Act can properly be deemed a "work made for hire," namely:

a work specially ordered or commissioned for use [1] as a contribution to a collective work, [2] as a part of a motion picture or other audiovisual work, [3] as a translation, [4] as a supplementary work, [5] as a compilation, [6] as an instructional text, [7] as a test, [8] as answer material for a test, or [9] as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Not infrequently, through ignorance or subterfuge, a commissioning party will ask a freelancer to sign a "work made for hire agreement" for a type of work that can't be a "work made for hire."  For example, even if your contract for a novel says that it is a "work made for hire," it probably isn't. Similarly, in the Creative Nonviolence case above, a contract characterizing a sculpture as a "work made for hire" failed because a sculpture does not fall within one of the nine categories.  Usually, however, a sophisticated commissioning party will include a "belt an suspenders clause" that says, in essence, "if for any reason the work does not qualify as a 'work made for hire,' writer hereby assigns to the commissioning party all right, title, and interest in the work, including, but not limited to, all copyrights therein throughout the world." But, if there is only an assignment of copyright, rather than a "work made for hire" relationship, a writer would at least retain the right to terminate the transfer after 35 years (unlike the Bob Marley in the case discussed above).


10.  Are there other differences between a "work made for hire" and a conventional copyrighted work?  A few.  For example, unlike a traditionally authored work, for which the duration of copyright in the United States is the life of the author plus 70 years, a "work made for hire" enjoys a term of copyright that runs for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter.  But the essence of the "work made for hire" doctrine turns on copyright ownership and the absence of a termination right.

11.  Are there any limits on what an employer or commissioning party can do with a "work made for hire"?  Not many. Such limits as there are come from areas of the law other than copyright.  Right of publicity law or unfair competition law may prevent the proprietor of the work from using your name without your written permission.  And you can, of course, enter into a contract with the proprietor that imposes upon him any terms you both agree upon, such as the duty to pay you royalties or to obtain your permission for certain uses.  But absent a contract or right of publicity violation, the proprietor has free rein to create derivative works, combine the work with others, translate it, abridge it, change it, exploit it in all media  -- the full scope of rights of a copyright owner.

12.  What should you do when you are asked to sign a "work made for hire" agreement in a context where you believe it is unfair?  Propose a license of less extensive rights as an alternative, which gives other party what he really needs, but not the many rights he really doesn't need.  If that doesn't work, bargain for more money for derivative uses.  Or ask that the commissioning party to assign the rights to you after a period of years. Of course, if you have little or no bargaining power, the commissioning party may tell you to take it or leave it.  I you have a literary agent, she can offer you advice on the commercial realities of your particular situation.  If you don't have an agent and if it is a commercially significant project, it may be prudent to seek the advice of a lawyer concerning the contract language and your legal options.  See this earlier post on 44 sources of free or low-cost legal help for writers.

There is a wealth of good advice on how to respond when presented with a "work made for hire" contract in the ASJA primer mentioned above.  The Writer's Legal Guide also offers pointers on negotiating strategy, including the reminder that, if you do sign a "work made for hire" agreement, you should obtain a written promise of any authorship attribution you are seeking.  The Writer's Legal Guide also sagely advises that you try to bargain for a promise that, if the commissioning party cancels the project for any reason, the copyright in the work will be assigned to you.

For general information of the "work made for hire doctrine," the place to start is Copyright Office Circular 9.  There is also a short, helpful discussion of "works made for hire" at the KeepYourCopyright.org site.  The Professional Artists League has posted a feisty article on "work made for hire" abuses; while it focuses on visual artists, writers confront many of the same abuses.  New York lawyer Lloyd Jassin has written a good article on drafting "work made for hire" agreements, written primarily from the point of view of a publisher seeking to acquire works on a "for hire" basis.

Finally, please note that this post is highly U.S.-centric.  The "work made for hire" doctrine exists in some form in many countries, but the rules vary significantly from jurisdiction to jurisdiction.

The Agent from Hell and the Top Six Scams Targeting Writers

Pity the poor writers who chose the Deering Literary Agency of Nicholasville, Kentucky, to represent them. According to The Seattle Times, the founder of the agency, Dorothy Deering, was:

an out-of-work bookkeeper saddled with a felony embezzlement conviction. By 1987, she had written a science-fiction novel and been swindled by three "fee agents" who promised to find her a publisher. Rather than react bitterly, though, she was inspired to start a new career: Taking advantage of aspiring writers just like her. 

Deering persuaded her clients to pay her thousands of dollars to edit, print, publish, and promote their books.  Most ended up, in the words of The Washington Post, with "no book, no life savings, no nothing." 

Thirteen years after she launched her agency, Deering achieved the distinction of becoming the first U.S. literary agent to be convicted of mail fraud.  She was sentenced to 46 months in prison, and she and her confederates were ordered to repay more than $2 million in restitution to the hundreds of authors they had bilked.

Criminal law professor and ex-FBI agent, James Fisher, recounted the tale of Deering's literary grifterism in Ten Percent of Nothing: The Case of the Literary Agent from Hell.  The title refers to the ten percent royalties that the authors were promised on sales of theirs books. According to The Christian Scientist Monitor, only about six of the 200 books that the Deering Agency contracted to publish ever made it into print.  

But Deering and her accomplices are by no means the only practitioners of this "genteel racket."  Fisher estimated that, in1999, more than 10,000 gullible writers forked over more than $50 million to dishonest literary agents.  The Post called it "one of the dark, ugly secrets of the American publishing industry."

The Top Six Literary Scams

Many writers would give their eye teeth to be published, and there are plenty of scammers ready to take them. Here are six classic literary scams.

Scam 1:  The pay-to-publish companies that (a) charge vastly excessive fees to print your work, (b) produce a shoddy product or no product at all, and/or (c) make misleading claims about their capabilities to market your book, distribute it to bookstores, and have it reviewed. Particularly in these days of do-it-yourself ebooks, the economics and advisability self-publishing are a complex subject.  A very few authors make decent money by publishing their own books, but the vast majority never come close to earning back their investment.  Most authors are probably well-advised to focus their efforts on honing their craft, finding an honorable agent, and moving heaven and earth to place their work with a conventional publisher that reliably pays royalties and (one hopes) an advance.  If you can't find a conventional publisher and crave an audience for your work, the Internet can often provide a community of readers virtually for free.  (But see this earlier post on the implications of Internet publication.) Suffice it to say that if you're planning to pay to have your work published, do a lot of comparison shopping and carefully investigate the track records of companies you are considering. And if you're paying to publish, you should retain all rights (except the strictly limited non-exclusive right to print copies pursuant to your specific authorization).

Scam 2:  Agents Who Charge Up-Front Fees.  The  fees are variously styled as "reading fees," "representation fees," "evaluation fees," "retainers," or "marketing fees."  But whatever they are called, they are a bad deal for writers.  Agents should make their money by selling your work, not by charging you to read your work. Indeed, the Code of Ethics of the Association of Authors Representatives ("AAR") expressly states that "literary agents should not charge clients and potential clients for reading and evaluating literary works in the ordinary course of business."  Here is a list of AAR member agents.  And here is an older Neil Gaiman post on literary agents.

Scam 3.  "Book Doctors" Who Are Quacks.  Using ghost writers, book doctors, and freelance editors is, of course, a longstanding tradition in publishing.  (See this quite wonderful profile of Sarah Palin's ghost.)  There is nothing wrong with it, provided your doctor is talented, reliable, reasonably priced, and willing to enter into a written agreement specifying exactly what she will do, when she will do it, how much she will be paid, how the relationship can be terminated if it doesn't work out, and that she has no rights whatsoever in the finished work.  See this earlier post on the importance of collaboration agreements.  Regrettably, many writers saddle themselves with expensive quacks who are unable to produce a work worthy of publication and, worse still, place a cloud over the ownership rights in the manuscript. 

The genius of the Deering Literary Agency was that it managed to combine the perverse elements of items 1 through 3 above.

Scam 4. (Some But Not All) Pay-To-Play Writing Contests.  There are all too many writing contests where the sponsor is simply trying to make a profit on entry fees; there is no honor, no glory in winning (assuming that a winner is even selected).  Here again the line is not entirely bright.  Some quite respectable contests and awards do require modest entry fees.  But you should be very leery of paying to enter a contest that you've never heard of.  And be especially skeptical of contests that require you to assign to the contest operator any publishing rights in your work (much less exclusive publishing rights), particularly if your work is not even the winner.  The Science Fiction & Fantasy Writers of America ("SFWA") offers some good guidelines for assessing contests here.  And here is a post from winningwriters.com on spotting a bad poetry contest.

Scam 5.  Pay-To-Publish Anthologies.  These are similar to profit-making contests.  You submit a poem or short story; you are notified that your work has been selected for inclusion; and you pressured to buy several copies of the (expensive) book in which your piece is presumably going to appear.  The anthology, if it is published at all, crams in hundreds of poems or stories of no consistent distinction.  Here's what the SFWA says about what are, in effect, vanity anthologies.

Scam 6:  The Classic Deadbeat.  But the ultimate scourge of freelancers is the person or company that hires you to write and never pays (or cynically bargains you down to a sum far lower than was originally promised).  There is no way to completely protect yourself against the deadbeat other than demanding full payment up-front -- an arrangement to which few writing clients will ever agree.  Beyond that, key defensive strategies are to get your financial agreement in writing, try to arrange for interim installment payments and kill fees, and provide in your agreement that rights in your work not transferred unless and until you are paid in full.  The American Society of Journalists and Authors "Getting Paid" webpage offers good advice on strategies for dealing with late payers and non-payers.

"Writer Beware"

The SFWA and Mystery Writers of America maintain the excellent Writer Beware webpages (some of which I've linked to above) that promise to "shine a light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls."  Writer Beware offers detailed discussions of unethical agency practices, fly-by-night publishers, contest scams, vanity press abuses, rip-off services for writers, and Twenty-First Century swindles such as overpriced ebook self-publishing and print-on-demand services. The site includes lists of "two thumbs down" agents and publishers.  And there is a Writers Beware Blog that "provides up-to-the-minute information on specific scams and schemes."  The information is accessible to all -- not just to SFWA members.

"Contract Watch"

The American Society of Journalists and Authors offers an excellent "Contract Watch" feature on its website that focuses on scammy (or otherwise unfair) provisions in book, periodical, and online publishing agreements. 

"The Street Smart Writer"

Writer Jenna Glatzer and Maryland-based lawyer Daniel Steven co-authored a feisty book entitled The Street Smart Writer: Self Defense Against Sharks and Scams in the Writing World.  Glatzer and Steven cover in detail many of the subjects briefly touched on in this post: pay-to-publish vanity press deals; deceptive writing contests; pay-to-read agents. They also have chapters on  "After Publication Rip-Offs for Book Authors," "Special Screw-Overs for Screenwriters," "Dealing with Deadbeats," and "What To Do If You've Been Screwed."  This is not a book for the likes of Jonathan Franzen and Jennifer Egan, who already have access to great agents and lawyers.  But if you're a novelist or poet struggling to break into print or or scrappy non-fiction freelancer continually searching for paying markets for your work, this is a practical self-defense guide with a surprisingly upbeat tone.  Well worth a couple of hours of your time.

Other Anti-Scam Resources on the Web

A few years back, Chicago-based thriller writer Joe Konrath wrote this blog entry on writing scams; it remains one of the better short summaries of the subject, and it has attracted scads of interesting comments from readers. His basic message: "don't pay anyone any money for anything"; but, "if you do, do so knowing the risks involved."  Literary agent Barbara Doyen has also posted a series of articles on scams targeting writers.

Jim Fisher, who chronicled the exploits of the Deering Literary Agency in Ten Percent of Nothing maintains a website with a section on publishing scams.  His "20 Tips on How To Assess a Literary Agent" contains especially pragmatic advice.  Here, by the way, is a Bookslut interview with Fisher.

The amusingly named Preditors & Editors site identifies publishers, contests, and agents that have been the subject of writers' complaints.  Of course, writers who complain are not always in the right; there may be another side to some of the stories.  But it is certainly worth checking online evaluation sites for comments when you are dealing with a new and unfamiliar outlet for your work.

No Competing Works: The Third Nastiest Clause in Book Publishing Agreements

Do you remember Harry Lorayne? If you ever met him, odds are he would remember you.  Lorayne is a memory-training specialist and performer who authored How To Develop a Super Power Memory.  He is also the poster child for the perils of the "no competing works" clause in publishing contracts.

In 1956, Lorayne signed a contract with publisher Frederick Fell for Super Power Memory, which contained a clause that prohibited Lorayne from "participating in the publication of any similar work which would tend to interfere with or injure sales of the book under contract."  Eighteen years later, when Super Power Memory was still in print, Lorayne wrote another book on memory (together with, improbably enough, basketball star Jerry Lucas) entitled The Memory Book, which was published with great success by Stein & Day.  Fell sued -- archly accusing Lorayne of "an apparent moment of forgetfulness" in disregarding the "no competing works" clause.  

A preliminary decision in the Lorayne case is reported here (but it doesn't really tell you much about the contractual issues).  I do not know how the Lorayne case was ultimately resolved; I do know that The Memory Book continued to be sold without interruption.  But, to me, the fundamental question in the case has always been: what in the world would Harry Lorayne ever write about except memory training?  If a court were to enforce a broad "no competing works" clause against him, it would essentially be saying that Lorayne could never write another book as long as Super Power Memory was available in any edition.

Specialists Beware

Like Harry Lorayne, many academicians and textbook writers spend their entire professional lives researching and writing about the same general subject matter.  Take, for example, a professor who authors a textbook on mycology or evolutionary psychology early in her career.  Strictly construed, a "no competing works" clause might mandate that she forever remain a one-book author.  Fortunately, as with covenants not to compete, the courts tend to construe such clauses narrowly, seeking to limit them in time, subject matter, or geographical scope so as not to interfere with an expert's ability to practice her profession and earn a living.

Consider the case of the late Justin Wilson, who was the author of Louisiana Outdoor Cookin'.   When Wilson later tried to publish a book with another publisher entitled Homegrown Louisiana Cookin', his first publisher sued, arguing that the "no competing works" clause barred such a sequel.  Surely, if you are a Cajun chef, living and working in Louisiana, it is unsurprising that you might aspire to write more than one book on Louisiana cookin'.  And a Louisiana court, ruled that Wilson had the right to do so, despite the contractual prohibition.  The judge's decision noted that "non-competition clauses are not favored in the law and are strictly construed against the person attempting to limit the competition."  Because the clause was not limited to a specific time period or restricted area, the non-compete was held to be "too vague and broad to be enforceable."

The essential legal treatise Perle & Williams on Publishing Law mentions another case in California is which the author went on the warpath and sued his publisher, arguing that the "no competing works" clause was an unreasonable restraint on trade in violation of the antitrust laws. (Perle and Williams don't report the outcome; if you happen to know, please send me an email.)

A Typical Clause

To be fair, a publisher is entitled to be protected against the author simply repackaging his book and publishing it a second time with another publisher. But many "no competing works" clauses go farther than they need to, as in this fairly typical example

During the term of this agreement the Author shall not, without prior written consent of the Publisher, participate in the publication of or be otherwise connnected with any work that might, in the Publisher's opinion, directly or indirectly interfere with or diminish the sale of the Work.

This provision is particularly aggressive because (1) it restricts for an indefinite period of time any "participation" in a conflicting work, even as a co-author or contributor; (2) it introduces the vague notion of "indirect" interference with the sale of a work; (3) it is not limited in the types of competing works (e.g., book-length) that it prohibits; and (4) the test of whether book two "interferes" with the sales of book one is subjective, turning entirely on the "opinion" of the publisher.

In contracts with academic writers, it is fairly common for publishers to include an additional clause along these lines:

The Author may, however, draw on and refer to material contained in the Work in preparing articles for publication in scholarly and professional journals and papers for delivery at professional meetings, provided that credit is given to the Work and the Publisher.

Helpful, but it really doesn't give you any protection when it comes to your next full-length work.

A Better Alternative

With works of non-fiction in particular, publishers will often refuse to eliminate the "no competing works" clause entirely.  However, when possible, you should at least try to negotiate a more even-handed clause. The Writer's Legal Guide recommends that the contract describe the type of successor work you are prohibited from writing

as specifically as possible as to subject matter, market, and format. Do not give the publisher the discretion to decide whether a work will compete with the contracted book -- limit the restriction to works that will actually compete with the primary work.

For example, if you are writing a textbook, you might try to limit the non-compete to another textbook on the identical subject directed to a similar academic level (e.g., high school biology students), clearly reserving the right to publish scholarly monographs or works for a general audience on the same subject.  You could also seek to make clear that a competing "work" must be book-length, and that the clause therefore has no application to articles, etc.  A somewhat better clause might look like this:

For a period of four years, Author shall not publish any book-length work on the same subject as the Work, namely [inserting here a detailed description of the "subject"], directed to the same audience, that will diminish sales of the Work.

And, if you have an idea for a subsequent work on a related subject, you can attempt to expressly carve out that work from the scope of the "no competing works" clause, e.g.:

Publisher agrees that Author may continue to write and publish books and other works dealing with mycology and may expand chapters from the Work to new full-length works.  For the avoidance of doubt, this clause is not intended to prohibit Author's publication of such works.

Of course, whether you can obtain changes of this kind will depend upon your bargaining power.  If you have an agent, she can be a godsend, advising you what's realistic and achievable under your particular circumstances.  For many authors, the language of the "no competing works" clause may not be a deal breaker, but for some specialists it ought to be.

The "No-Competing Works" Clause and Works of Fiction

The "no competing works" clause is primarily a concern in contracts for works of non-fiction. Ordinarily two novels by the same author, published by two different publishers, will not interfere with each other's sales. Neverthless, in rare instances, publishers have taken the dubious position that the "no competing works" clause prohibits re-use of the characters from a novel in a sequel. The "no competing works" clause has little genuine commercial application to fiction, and it is not unreasonable to ask that it be stricken entirely from a contract for a novel or a book of short stories.  At the very least, the publisher should be willing to clarify that the clause does not prohibit you from publishing sequels or re-purposing characters in other works.

What If Your Contract Does Not Contain a "No Competing Works" Clause?

If you do not have a "no competing works" clause in your publishing contract, then you are ordinarily free to write a book on the same topic for another publisher. That's the lesson of Wolf v. Illustrated World Encyclopedia.  But watch out for the "option clause," which may require you to offer your next book to your old publisher.  And remember that, if you granted exclusive publishing rights to Publisher X, it became an owner of a "copyright interest" in the work.  As a result, Publisher X could sue you and your new publisher for copyright infringement, if you cannibalize a meaningful amount of text from the book you published with Publisher X.  Yes, you can be sued for infringing a copyright in a work that you yourself created; do-it-yourself infringement was alleged in the case involving John Fogerty of Creedence Clearwater fame and (more or less) in the arbitration involving The Hunt for Red October, described in this earlier post.

Can Your Publisher Issue Another Work that Competes with Yours?

What about the flip side?  Can a book publisher publish two or more books on the same subject by different authors?  The answer is:  ordinarily yes.  For example, Harry Lorayne's publisher could probably publish two or even twenty books on memory without breaching its duties to Lorayne, unless, as described in Van Valkenburgh v. Hayden Publishing, the publisher promised to use its best efforts to promote one author's book and allegedly did not act in good faith in publishing books by other authors on the same topic.  Suffice it to say that publishers will seldom sign a "best efforts" clause.

More Resources

Here is one health writer's screed on the hazards of the "no competing works" clause.  And here is a discussion of The Authors Guild's views on the clause.  For a general discussion of the good, the bad, and the ugly in book publishing contracts, see this earlier post.

I suggested that the "no competing works" clause may be the third "nastiest" clauses in a book publishing agreement.  What are number one and number two?  Depending upon the phrasing, of course, they are often the option clause and the grant of rights clause.  More about these extremely important terms in later posts.

The Dead as Characters in Fiction: Shoeless Joe, J.D. Salinger, and J.R.R. Tolkien

On January 25 of this year, lawyers for the Estate of J.R.R. Tolkien sent a cease and desist letter to author Steve Hillard claiming that his novel Mirkwood violates the Estate's right of publicity in Tolkien's persona because (among other reasons) Hillard depicts Tolkien as a character in his book. The Estate cited Texas and Kentucky as examples of jurisdictions with statutes that extend the right of publicity to the dead.  Hillard responded by filing a preemptive lawsuit in federal court in Austin, Texas, seeking a declaration that his novel does not violate the Estate's rights.  Hillard's filing cites several good examples of recent novels by well-regarded writers that made prominent use of dead celebrities as characters, including Blonde by Joyce Carol Oates, featuring Marilyn Monroe as a character, The Hours by Michael Cunningham, featuring Virginia Woolf, and Underworld by Don DeLillo, featuring Frank Sinatra, Jackie Gleason, and J. Edgar Hoover, among others.  Early articles concerning the Mirkwood dispute appear here, here, and here.

I gather that the Estate may have other gripes about the allegedly "Tolkien-like" cover and the appearance of Tolkien's name in the subhead "A Novel About JRR Tolkien."  But it's not my purpose here to express a view on the merits of this particular lawsuit.  Instead, I'd like to voice my disaffection for the entire concept of a post-mortem right of publicity.

Briefly stated, the right of publicity prohibits the use of an individual's name or likeness (and, in some places, other elements of one's persona, such as one's voice, signature, etc.) in advertising or for "purposes of trade."  (RightofPublicity.com offers a good background discussion on the right; this good online whitepaper from the Kenyon & Kenyon law firm discusses the right in certain non-U.S. jurisdictions.)

There has been a lot of debate over the years about what falls within the ambit of "purposes of trade."  And there have been a fair number of lawsuits contending that "purposes of trade" include depicting an individual, without his consent (or the consent of his heirs), in a work of fiction, such as a novel or movie.  After all (the plaintiffs argue), the writer or producer is expecting to make money from the fictional work.  On the other hand, thankfully, many right of publicity statutes and court decisions explicitly recognize that there is a strong countervailing First Amendment interest in not curtailing all use of individuals' names in expressive works.

There has been a spate of recent right of publicity cases involving the use of real people in fictional works. (See this article from the American Bar Association summarizing recent developments.)  When brought on behalf of living individuals, most cases, like this one involving the television series CSI recently dismissed by an appeals court in California, tend to be yoked with a claim for libel, on the theory that not only does the plaintiff have a property right in his persona, but he has been falsely and disparagingly portrayed in the fictional work. (This raises the separate but related question of libel in fiction, which is the subject of this earlier post.)  However, when libel is not a factor, i.e., when the only claim is one based upon the right of publicity, in most cases -- but unfortunately not all -- the fiction writers have prevailed.  Still, there is no denying that this can be an unpredictable area of the law, as illustrated by the Tony Twist case.

But what about a right of publicity for the dead?  Remember, you can't libel the dead in the United States.  I, for one, see no compelling social benefit in bestowing a new property right on the heirs of dead celebrities, particularly when it is has too often been mischievously used by the living in an effort to suppress creative works, which are (and should be) entitled to robust protection under the First Amendment.  And yet approximately 19 states now recognize a post-mortem right of publicity.  (The laws, I might add, are entirely inconsistent with each other; some according protection for as few as 10 years after death, while Indiana and Oklahoma purport to extend protection for the astonishing term of 100 years!)

Back in the 1980s, I read the great baseball novel Shoeless Joe by W.P. Kinsella.  The title character is the ghost of Shoeless Joe Jackson, who was, of course, one of the greatest hitters of all time and the most famous member of the Chicago White Sox team (or the Black Sox, as they have come to be called) that fixed the 1919 World Series.  The book also features a central character by the name of J.D. Salinger.

If you haven't read the book, you may know the story from the 1989 movie Field of Dreams, which is closely based on Kinsella's novel.  When I saw the movie, I was immediately struck by the fact that J.D. Salinger had vanished from the story and had been replaced by a totally fictional character named Terrence Mann.  I had a work-related reason to learn more about the reason for this dramatic change in the dramatis personae.  So I called around and finally managed to locate W.P. Kinsella, who was living at the time in White Rock, British Columbia, writing more novels.  (I must say he was uncommonly cordial and gracious to a young lawyer calling him completely out of the blue.)  I asked him:  "What happened to J.D. Salinger?"  He told me that the lawyers had said that Salinger, who in 1989 was still very much alive, had to be cut out of the movie version of Shoeless Joe.  The lawyers were worried that Salinger (who had recently pursued a highly publicized lawsuit to block publication of an unauthorized biography that quoted from his unpublished letters) might try to block the release of the movie as a violation of his right of publicity.  The lawyers decided they couldn't take that chance.

(By the way, as far as I know, Salinger and his lawyers never threatened legal action in connection with Field of Dreams; the Hollywood lawyers simply feared he might.  I could be wrong about that.  If anyone knows for sure, please post a comment or send me a message.)

In 1989, New York State Legislature was considering a bill that would have extended the "right of publicity" to the dead.  If the law had passed, the heirs of dead celebrities could sue if their illustrious ancestors' names were used in advertising for "purposes of trade," just as living celebrities could sue under New York law -- then and now.  I was asked to participate in a panel discussion with one of the sponsors of the New York legislation.  And the reason I had tracked down W.P. Kinsella was to support one of the points I wanted to make:

Shoeless Joe Jackson died in 1961.  If New York enacts a statute recognizing a descendible right for publicity for up to a half century after death, I'm afraid that lawyers will be telling the W.P. Kinsellas of this world that not only do you have to cut J.D. Salinger out of Shoeless Joe, but you have to cut Shoeless Joe out of Shoeless Joe.

Well, New York didn't enact a post-mortem right of publicity statute in 1989.  But the legislators are still trying, and a similar bill was introduced for legislative consideration in 2010 and now has now been introduced again in 2011. At the same time, there is a movement afoot to enact a federal right of publicity statute that would include post-mortem  protection.

This is an active, controversial, and (by the low standard of lawyers) interesting area of the law, and my opinion as to the imprudence of a descendible right of publicity may be in the minority is, of course, just that -- one person's opinion.  The fact of the matter is that a post-mortem right of publicity is the law in many states.  Writers should be aware that (as long as they don't falsely imply that their works are authorized or endorsed by the heirs of a dead celebrity) they have a strong argument that the depiction of the dead in works of fiction is protected by the First Amendment. Again, think of Oates, DeLillo, Cunningham -- and Kinsella.  The statutes and the case law generally attempt to distinguish between conventionally commercial uses of a celebrity's name and likeness (such as use of images on tee-shirts) and more expressive, transformative uses (such as, one hopes, use in novels and films).  But the scope of the post-mortem right of publicity is none-too-clear, and celebrities' estates may be well-funded, aggressive, and lawyered-up. It's a grey area, and it may make sense to seek out legal advice before launching on a major project. Like Steve Hillard, you could conceivably end up with a fight on your hands.  If you do, it would be cheerful to have the support of an established publishing house.

Hilliard doesn't.  He self-published his novel.  About 900 copies had been sold prior to the filing of the lawsuit.

Postscript:  The right of publicity is not the only arrow in the quiver of those who would seek to prevent the use of real people, living or dead, as characters in fictional works.  Here, from lawyer Mark Litwak, is a good summary of the various legal theories that have been invoked, with greater or lesser success.  See also this summary from UK attorney David Crocker comparing UK and US law on the descendible right of publicity.  Finally, you might be interested in this account from The Hollywood Reporter of a federal judge recently holding the Washington State right of publicity statute unconstitutional in part.

Update:  Writer Diana Stevan's comment reminded me that I should have mentioned the lawsuit recently filed against Kathryn Stockett, author of The Help.  The plaintiff is a sixty year-old woman, who once worked as a maid for one of Stockett's relatives; she claims that she was used as the model for one of the principal characters in the book.  As is typical of such cases involving living plaintiffs, the complaint alleges a hodgepodge of legal theories, including violation of the right of publicity, false light invasion of privacy, and intentional infliction of emotional distress.  Here is an article by Laura Miller of Salon about the case. A copy of the complaint is here on the Jackson Jambalaya blog. And here is a good discussion Susan Cushman and lawyer John Mason on Jane Friedman's Writer's Digest blog.

See Diana's fine blog at http://www.dianastevan.com/.

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.