I'm back! I'm back in Boston after two weeks spent in Pennsylvania visiting family and friends, sleeping a lot, reading for fun, ignoring the internet, and eating a lot of fried food (my cure for a brain fried by a hectic summer semester--filling my stomach with food that's fried). And now that I've rested my brain, I'm back in the blogosphere because I'm in "academic mode"--or at least trying to get myself back into it, because the fall semester rapidly approacheth and I need to be sure my brain is up to it. A mental workout of sorts, if you will.
Now that my summer semester and project are over, I'll continue posting entries on this blog about interesting and amusing copyright stuff that I find. Today I was looking at a link that was sent to me with a humorous chart that the Recording Industry Association of America (RIAA, the fine folks responsible for those lovely "Explicit Content" stickers) supposedly "uses" in determining who to sue for copyright infringement. Find it here.
Hilarious! And probably not far from accurate.
Wednesday, August 29, 2007
Sunday, August 12, 2007
The End - Or Just The Beginning?
What a long, strange trip it's been.
Delving into copyright and writers' issues over the last three months has been not only a great learning experience but also an adventure of sorts. All great adventures entail a journey, which is exactly what it felt like as I traveled from resource to resource, learning about the basics of copyright and building upon each thing I learned as I came to understand just how all these things fit together and affect writers.
Although I had a basic understanding of the issues I covered in this blog (which is how I determined I wanted to study them in the first place), I had no idea just how complex the topic really was. One of the things that most struck me was just how much copyright affects the lives of anyone working with intellectual property in America today, whether they are creators or consumers. Copyright and its associated rights and contractual implications are of great importance to writers. And yet it seems like copyright is one of the most confusing and least understood things writers find themselves grappling with in the publication process. The purpose of copyright is to protect creators, and it instead seems to confuse and hinder them in many ways. Just as confusing is the fact that many of the legal issues surrounding copyright are not clear-cut, black-and-white issues. Instead, copyright law is tinged a thousand shades of gray; the more you learn about it, the more confusing things seem to get.
In my blog poll, I asked what readers thought of the terms of copyright, and the majority of voters think the terms of copyright are too long. The life-plus-seventy term of copyright today is designed to allow copyright holders and their next of kin to exploit and reap the benefits that come with holding a copyright, yet more often than not, due to the quick turnover rate in the publishing industry, people's works quickly go out of print and it seems like the masses are the ones who are then deprived of access to information. Just as Abby learned in our previous entry, copyright can be just as much of a hindrance as a protection.
How do I feel about current copyright terms? While on one hand I do feel that authors (and all creators for that matter) have the right to be protected, I also feel that copyright terms are prohibitive, especially once an author is dead. As media change, so too do the ways in which we create, share, and use information, and thus I feel as though the way in which we use and apply copyright in the future needs to evolve along with our evolving needs. As the internet continues to expand, it will be increasingly difficult to police everything that goes on in cyberspace, including copyright infringements. The fact that we can now digitize entire books and use them in entirely new ways thanks to technology means that keeping a tight rein over information to prevent its dissemination would be counterproductive and counterintuitive. A happy medium must be reached in which authors profit from their works but users can also profit as well, without having to wait nearly a century for information to go into public domain so that it's easy to access. I feel as though authors should be able to create and assign their own terms of copyright to their works as they deem fit. I know Creative Commons has started serving this need, and I feel as though it'll start to become more of the norm as the century (and technology) progress. I certainly want to talk more about Creative Commons. And that brings me to my next point.
Even tough my project is technically over, I do plan to continue posting entries about issues as they arise. I'm not sure if I just didn't see it before because I wasn't studying it, but I seem to see news items come up more frequently that deal with the very issues I covered in this blog, so there shouldn't be any shortage of things to write about. I hope you've all found my blog an informative resource and I hope that you continue reading. And as always, if you have any feedback or suggestions, please let me know.
Stay tuned... it seems this is only the beginning.
Delving into copyright and writers' issues over the last three months has been not only a great learning experience but also an adventure of sorts. All great adventures entail a journey, which is exactly what it felt like as I traveled from resource to resource, learning about the basics of copyright and building upon each thing I learned as I came to understand just how all these things fit together and affect writers.
Although I had a basic understanding of the issues I covered in this blog (which is how I determined I wanted to study them in the first place), I had no idea just how complex the topic really was. One of the things that most struck me was just how much copyright affects the lives of anyone working with intellectual property in America today, whether they are creators or consumers. Copyright and its associated rights and contractual implications are of great importance to writers. And yet it seems like copyright is one of the most confusing and least understood things writers find themselves grappling with in the publication process. The purpose of copyright is to protect creators, and it instead seems to confuse and hinder them in many ways. Just as confusing is the fact that many of the legal issues surrounding copyright are not clear-cut, black-and-white issues. Instead, copyright law is tinged a thousand shades of gray; the more you learn about it, the more confusing things seem to get.
In my blog poll, I asked what readers thought of the terms of copyright, and the majority of voters think the terms of copyright are too long. The life-plus-seventy term of copyright today is designed to allow copyright holders and their next of kin to exploit and reap the benefits that come with holding a copyright, yet more often than not, due to the quick turnover rate in the publishing industry, people's works quickly go out of print and it seems like the masses are the ones who are then deprived of access to information. Just as Abby learned in our previous entry, copyright can be just as much of a hindrance as a protection.
How do I feel about current copyright terms? While on one hand I do feel that authors (and all creators for that matter) have the right to be protected, I also feel that copyright terms are prohibitive, especially once an author is dead. As media change, so too do the ways in which we create, share, and use information, and thus I feel as though the way in which we use and apply copyright in the future needs to evolve along with our evolving needs. As the internet continues to expand, it will be increasingly difficult to police everything that goes on in cyberspace, including copyright infringements. The fact that we can now digitize entire books and use them in entirely new ways thanks to technology means that keeping a tight rein over information to prevent its dissemination would be counterproductive and counterintuitive. A happy medium must be reached in which authors profit from their works but users can also profit as well, without having to wait nearly a century for information to go into public domain so that it's easy to access. I feel as though authors should be able to create and assign their own terms of copyright to their works as they deem fit. I know Creative Commons has started serving this need, and I feel as though it'll start to become more of the norm as the century (and technology) progress. I certainly want to talk more about Creative Commons. And that brings me to my next point.
Even tough my project is technically over, I do plan to continue posting entries about issues as they arise. I'm not sure if I just didn't see it before because I wasn't studying it, but I seem to see news items come up more frequently that deal with the very issues I covered in this blog, so there shouldn't be any shortage of things to write about. I hope you've all found my blog an informative resource and I hope that you continue reading. And as always, if you have any feedback or suggestions, please let me know.
Stay tuned... it seems this is only the beginning.
Friday, August 10, 2007
A Ruckus over Rights: Abby's Translation Headache
Abby is a bilingual literature lover. In addition to reading books in both English and Spanish, she herself is a writer and she also does translation work.
She's found the work of a particular author (let's call him Pedro) to be particularly moving. Pedro is American but the the work is written in Spanish and Abby wants very much to translate it into English. But she's run into some problems.
First off, Pedro is dead. This means she can't contact him to find out how to get the rights to translate his work. When this is the case, the rights to an author's work are either transferred to the person stipulated in the author's will or, if the author's will doesn't make provisions, the rights are divided up with the rest of the author's property according to intestate laws. Pedro's rights were apparently transferred to a guy who, for the sake of argument, we'll call Jerk (because that's what he's ended up being). Jerk appears to have the rights to Pedro's work, and he's not letting anyone else have them. It saddens Abby, because she loves Pedro's work and she wants to translate it into English so that more people in the U.S. can read it. She even has a "hot" agent interested in her project--IF she can get the translation rights. But the agent's not really doing anything else until Abby gets those rights.
Abby found out more about the book's publication history. The book was originally published in Spanish by a small publisher in Miami as the result of Pedro winning a contest. Jerk helped him to edit the book, which may be why he's the one currently holding the rights. The original publisher of a work usually holds the translation and foreign sales rights of a book as stipulated in the author's contract, so Abby thought that the original publisher of Pedro's work might still have these rights. She contacted them but was told that they no longer held the rights to the work and that they no longer had any other information available on the author or his work either. Abby then found out that the book had been published in Spain. When she tried to contact them, she was told that the rights were held by Jerk. She's now contacted a French publisher who did a French-language edition of the book and is waiting to hear back from them.
In the meantime, what can Abby do? Pedro died in 1993, so the end of the life-plus-seventy-years term of copyright protection is rather a long ways off. Unfortunately, if Jerk is the only person still holding the rights to translate the book, Abby's hands are tied. Since the work is still protected by copyright, any translation Abby published of Pedro's work without holding the rights would be considered a copyright infringement and Abby would be involved in a lawsuit.
This is one of those maddening instances when I get really frustrated at how long copyright lasts in this country. It's particularly frustrating in this instance because there's actually an interest in publishing Pedro's work, which would financially benefit Jerk. Abby isn't sure why he's being so protective of Pedro's rights, but he is. At this point, what should Abby do? If she hears back from the French publisher and their answer is negative, does that mean all hope is lost and she must resign herself to a life of pining away for the Translation that Never Was?
Not quite yet. There's one more thing Abby can do. Since the work was written in the U.S. by an American, it is registered with the U.S. Copyright Office. The Copyright Office allows people to conduct searches to investigate the copyright status of a work. Abby can search their catalog and other records in their Washington, D.C., office for free to find out who currently holds the rights. Or, since the work was registered after 1978, she can use their online database to conduct a search. Or she can have the Copyright Office conduct the search for her for a fee of $150 an hour.
Abby can search online to get more information about Pedro's copyright registration. (I recommend viewing the tutorial that's available on this page to get a better idea of how to use the search function and understand your results.) In Abby's case, I think she should use the online search function to get more information about Pedro's copyright and then perhaps she can contact the Copyright Office with questions about contacting the current copyright holder.
This is, of course, an unfinished story, as Abby still has to conduct her search of these records and also hopefully will be hearing from the French publisher soon. I'll post an update once Abby has found out more information.
It can be frustrating to run into walls such as this one when you're trying to republish work that's still protected by copyright--a copyright closely guarded by seemingly irrational people. Certainly Abby's situation is not unique; I had a professor who encountered the same problem when he tried to publish a dead poet's collected works. Some poems were already in the public domain, but some were not and my professor discovered that the rights were still held by a poet's relative. The relative refused to allow my professor to have the rights to include the protected works in the collection. Why? The relative stood to benefit financially from the arrangement and also would not have had to go to the trouble of doing any work herself; my professor would have done everything editorially and otherwise. Perhaps she thought she could publish the work on her own? Perhaps she just didn't want to share her dead relative's work with anyone? Whatever the reason, my professor had to scrap the project and the literary world is now one work poorer. I hope things don't turn out the same way for Abby, because the last thing we need is to be deprived of a good book.
FOR MORE INFORMATION ON COPYRIGHT SEARCHES
Copyright Office Basics: http://www.copyright.gov/circs/circ1.html
This useful website provides a great deal of useful information on copyright--it's sort of like a copyright primer. There are lots of hyperlinks throughout that provide even further explanations and information.
She's found the work of a particular author (let's call him Pedro) to be particularly moving. Pedro is American but the the work is written in Spanish and Abby wants very much to translate it into English. But she's run into some problems.
First off, Pedro is dead. This means she can't contact him to find out how to get the rights to translate his work. When this is the case, the rights to an author's work are either transferred to the person stipulated in the author's will or, if the author's will doesn't make provisions, the rights are divided up with the rest of the author's property according to intestate laws. Pedro's rights were apparently transferred to a guy who, for the sake of argument, we'll call Jerk (because that's what he's ended up being). Jerk appears to have the rights to Pedro's work, and he's not letting anyone else have them. It saddens Abby, because she loves Pedro's work and she wants to translate it into English so that more people in the U.S. can read it. She even has a "hot" agent interested in her project--IF she can get the translation rights. But the agent's not really doing anything else until Abby gets those rights.
Abby found out more about the book's publication history. The book was originally published in Spanish by a small publisher in Miami as the result of Pedro winning a contest. Jerk helped him to edit the book, which may be why he's the one currently holding the rights. The original publisher of a work usually holds the translation and foreign sales rights of a book as stipulated in the author's contract, so Abby thought that the original publisher of Pedro's work might still have these rights. She contacted them but was told that they no longer held the rights to the work and that they no longer had any other information available on the author or his work either. Abby then found out that the book had been published in Spain. When she tried to contact them, she was told that the rights were held by Jerk. She's now contacted a French publisher who did a French-language edition of the book and is waiting to hear back from them.
In the meantime, what can Abby do? Pedro died in 1993, so the end of the life-plus-seventy-years term of copyright protection is rather a long ways off. Unfortunately, if Jerk is the only person still holding the rights to translate the book, Abby's hands are tied. Since the work is still protected by copyright, any translation Abby published of Pedro's work without holding the rights would be considered a copyright infringement and Abby would be involved in a lawsuit.
This is one of those maddening instances when I get really frustrated at how long copyright lasts in this country. It's particularly frustrating in this instance because there's actually an interest in publishing Pedro's work, which would financially benefit Jerk. Abby isn't sure why he's being so protective of Pedro's rights, but he is. At this point, what should Abby do? If she hears back from the French publisher and their answer is negative, does that mean all hope is lost and she must resign herself to a life of pining away for the Translation that Never Was?
Not quite yet. There's one more thing Abby can do. Since the work was written in the U.S. by an American, it is registered with the U.S. Copyright Office. The Copyright Office allows people to conduct searches to investigate the copyright status of a work. Abby can search their catalog and other records in their Washington, D.C., office for free to find out who currently holds the rights. Or, since the work was registered after 1978, she can use their online database to conduct a search. Or she can have the Copyright Office conduct the search for her for a fee of $150 an hour.
Abby can search online to get more information about Pedro's copyright registration. (I recommend viewing the tutorial that's available on this page to get a better idea of how to use the search function and understand your results.) In Abby's case, I think she should use the online search function to get more information about Pedro's copyright and then perhaps she can contact the Copyright Office with questions about contacting the current copyright holder.
This is, of course, an unfinished story, as Abby still has to conduct her search of these records and also hopefully will be hearing from the French publisher soon. I'll post an update once Abby has found out more information.
It can be frustrating to run into walls such as this one when you're trying to republish work that's still protected by copyright--a copyright closely guarded by seemingly irrational people. Certainly Abby's situation is not unique; I had a professor who encountered the same problem when he tried to publish a dead poet's collected works. Some poems were already in the public domain, but some were not and my professor discovered that the rights were still held by a poet's relative. The relative refused to allow my professor to have the rights to include the protected works in the collection. Why? The relative stood to benefit financially from the arrangement and also would not have had to go to the trouble of doing any work herself; my professor would have done everything editorially and otherwise. Perhaps she thought she could publish the work on her own? Perhaps she just didn't want to share her dead relative's work with anyone? Whatever the reason, my professor had to scrap the project and the literary world is now one work poorer. I hope things don't turn out the same way for Abby, because the last thing we need is to be deprived of a good book.
FOR MORE INFORMATION ON COPYRIGHT SEARCHES
Copyright Office Basics: http://www.copyright.gov/circs/circ1.html
This useful website provides a great deal of useful information on copyright--it's sort of like a copyright primer. There are lots of hyperlinks throughout that provide even further explanations and information.
Thursday, August 9, 2007
Contract Quandary: Ted's Novel
Once again, I've changed my friend's name. However, I'm using the real name of the press he dealt with here because I want others who are potentially considering doing business with them to NOT do so, as they have been involved in lawsuits with more than one of their authors and have had seemingly countless complaints lodged against them. (Go ahead and Google them if you wish, and you'll see it for yourself.)
Ted's a novelist, and a rather talented one at that. But as I mentioned in a previous entry, the publishing industry is pretty tough right now, and Ted's been having a rough time. He sent his query out to many agents, but none of them were biting. He then started querying publishers directly. Still nothing. Finally at the end of his rope, Ted decided that he should probably just self-publish his book. After all, he believed in his book, he understood that it was somewhat unconventional and thus not being picked up by conventional publishers, and he just wanted to see his words in print. He tried for over a year to sell his book and got nowhere, so, in a very self-starter, DIY kind of way, he decided to just do it himself.
But just as he was about to undergo his self-publishing project, he was contacted by a publisher. They wanted to publish his book, they said. Ted was initially quite happy that he'd finally been picked up. He sent out an email to his friends letting them know of his success. "Publish America offered to publish my book," he said. He went on to explain that he would be making royalties from his book (though not very good ones, he admitted) and that he wouldn't have to pay to have his book produced, which is something he would have done if he self-published his work. And by being published by a press rather than being self-published, he thought it would be easier for people to buy his book.
When I received the email, I was curious because I'd never heard of Publish America, and, being a publishing student, I love to learn about different publishers. So I did an internet search to learn more.
I found the publisher's website. I wasn't too impressed with how it looked; it had a somewhat unpolished look that I didn't find terribly professional and the visuals weren't the best, but I knew I shouldn't judge a book by its cover, or a publisher by its website. I browsed around the site a bit, then I went back to the search results page and noticed that there were some articles written about them. I clicked.
What I read wasn't good. Publish America was branded as an "author mill" with countless complaints lodged against it. It was described as being nothing more than a souped-up vanity press, with books that were nearly impossible to find in bookstores, high cover prices, and little or no promotional effort. The company also did minimal editing, and actually charged authors money to edit their work substantially. I read a feature article from the Washington Post, an unflattering Wikipedia entry and posts on the Preditors and Editors site and on other author message boards. I was overwhelmed by the amount of negative feedback I found and quickly emailed Ted to warn him to proceed with caution. I was especially concerned because I read quite a few complaints about how bad the contract was and how hard it was to get out of it. Since I was in the thick of studying contracts, I also asked Ted if he'd signed the contract yet.
He had not. He thanked me for my honesty in warning him about the negative feedback from other Publish America authors and then sent me a copy of the contract they sent him.
At this point, I had seen a few contracts from traditional publishers and had read enough about rights and contractual clauses to have a general idea of what to look for. The contract began with a clause stating that the duration of the contract was seven years, during which time the publisher acquired the right to sell the book in the U.S. and Canada and that the publisher had the exclusive right to arrange for the book to be published in foreign countries. Hmmm, I thought. That's odd. It just sort of threw that in there but never discussed the royalty breakdown that the author would earn upon this sale. And after having read the disgruntled negative comments from Publish America authors, I deduced that the publisher didn't even bother to think about that because they didn't even bother to make the effort to sell the rights anywhere. And I noticed that their statement about selling other rights, such as dramatic and film rights, was a 50-50 split for all these rights, which differed from other publishers whose splits tend to favor the author. The contract also stipulated that the publisher had the right to publish the work electronically, but didn't stipulate royalty splits/author compensation.
The revision clause was pretty lousy, and stipulated no timeline for how much time the author had to revise the work and what constituted an acceptable work. Though through my research I found that the company not only typically didn't bother to revise or edit works but also that the company charged authors for extensive editorial services--that is, those exceeding simple copyediting. And I also noticed that the contract stipulated that if the author decided to add any material to the manuscript after signing the contract, the author had to pay the publisher in order to do this. This seemed messed up to me; I know that editorial departments in publishing houses aren't what they used to be, but surely publishers expect that material is to changed, added, and/or deleted after the contract is signed so that the book is edited up to publication standards. It's one thing to charge an author against expenses if the proofs are ready to go and the author decides to add three entirely new chapters; but it's another thing to charge the author for edits made after the contract is signed, at a point in time when the manuscript hasn't even gone through editing by the publisher.
The contract also stipulated that any revisions made to the work for future editions would not incur any additional initial payment by the publisher. What? Ted probably wouldn't revise any future editions of his novel, since fiction is very rarely revised, but I just thought that was sleazy.
That is, until I got to the portion of the contract detailing the advance. Talk about sleazy.
It was absolutely the last clause in the contract, right above the signature lines, which I also thought was odd because payment isn't usually the very last thing discussed in a contract. It said that the author would receive a one-dollar advance.
One dollar. As in, a buck.
This was what sealed the deal for me. The horror stories and testimonials and articles had me convinced that this company was crap. The one-dollar advance convinced me that not only was this company crap but also that Ted should run screaming for the hills away from this company.
What kind of traditional publisher wouldn't be willing to make an investment in an author, even if only a small $1,000 advance? The dollar advance was like a slap in the face, an insult to the writer. Publish America was nothing more than a vanity press that recovered its expenses by overpricing its books and trusting that the author and his friends and family would buy these overpriced copies directly from them--since they wouldn't be able to find them in bookstores. A paperback novel for $24.95? Why bother? You can get a new hardback novel for that price, or even less that. And you can get it at the bookstore.
Some of the testimonials I read also stated that frustrated authors found it difficult to get out of their contracts after they realized how awfully the company treated them. Others claimed that their contracts were suddenly terminated, with no explanation given by the company, but these people deduced that it was because they had the nerve to pester the company for answers about seemingly fraudulent royalty statements or to ask why bookstores had such problems ordering copies of the book. Bookstores usually don't carry print-on-demand books (which I realized that Publish America books were) because they can't be returned. Apparently, Publish America also offered booksellers a very low discount off of the already high cover price, discouraging stores from buying it. Booksellers and libraries reported having problems ordering copies of the books from major book distributors as well. What's the point of having a book in print, I wondered, if no one can buy it?
After reading the contract and the negative testimonials, I deduced that if Ted truly wanted to see his work in print, he would be better off self-publishing his book with another company. I knew it meant he would have to pay the company for their services and that he'd have to do a lot of publicity work on his own, but I felt that these expenses were Ted's way of paying for his sanity. By self-publishing, Ted would be able to retain all his rights and keep control of his work. He could determine how to market it, what subsidiary rights to sell, if any, and would get to cancel his contract with the self-publisher at any time. This meant that if a traditional publisher finally decided that it did want to publish his work, Ted could easily end his contract with the self-publisher and move on. Or if Ted's second book was picked up by a publisher and they decided to reissue his first book, he'd have the ease to do that as well. Ted may not make a boatload of money off his self-published novel, but at least he'll have the peace of mind that he can control the whole project instead of being locked into a poor contract with a nightmare company. To me, that seems priceless.
Ted's a novelist, and a rather talented one at that. But as I mentioned in a previous entry, the publishing industry is pretty tough right now, and Ted's been having a rough time. He sent his query out to many agents, but none of them were biting. He then started querying publishers directly. Still nothing. Finally at the end of his rope, Ted decided that he should probably just self-publish his book. After all, he believed in his book, he understood that it was somewhat unconventional and thus not being picked up by conventional publishers, and he just wanted to see his words in print. He tried for over a year to sell his book and got nowhere, so, in a very self-starter, DIY kind of way, he decided to just do it himself.
But just as he was about to undergo his self-publishing project, he was contacted by a publisher. They wanted to publish his book, they said. Ted was initially quite happy that he'd finally been picked up. He sent out an email to his friends letting them know of his success. "Publish America offered to publish my book," he said. He went on to explain that he would be making royalties from his book (though not very good ones, he admitted) and that he wouldn't have to pay to have his book produced, which is something he would have done if he self-published his work. And by being published by a press rather than being self-published, he thought it would be easier for people to buy his book.
When I received the email, I was curious because I'd never heard of Publish America, and, being a publishing student, I love to learn about different publishers. So I did an internet search to learn more.
I found the publisher's website. I wasn't too impressed with how it looked; it had a somewhat unpolished look that I didn't find terribly professional and the visuals weren't the best, but I knew I shouldn't judge a book by its cover, or a publisher by its website. I browsed around the site a bit, then I went back to the search results page and noticed that there were some articles written about them. I clicked.
What I read wasn't good. Publish America was branded as an "author mill" with countless complaints lodged against it. It was described as being nothing more than a souped-up vanity press, with books that were nearly impossible to find in bookstores, high cover prices, and little or no promotional effort. The company also did minimal editing, and actually charged authors money to edit their work substantially. I read a feature article from the Washington Post, an unflattering Wikipedia entry and posts on the Preditors and Editors site and on other author message boards. I was overwhelmed by the amount of negative feedback I found and quickly emailed Ted to warn him to proceed with caution. I was especially concerned because I read quite a few complaints about how bad the contract was and how hard it was to get out of it. Since I was in the thick of studying contracts, I also asked Ted if he'd signed the contract yet.
He had not. He thanked me for my honesty in warning him about the negative feedback from other Publish America authors and then sent me a copy of the contract they sent him.
At this point, I had seen a few contracts from traditional publishers and had read enough about rights and contractual clauses to have a general idea of what to look for. The contract began with a clause stating that the duration of the contract was seven years, during which time the publisher acquired the right to sell the book in the U.S. and Canada and that the publisher had the exclusive right to arrange for the book to be published in foreign countries. Hmmm, I thought. That's odd. It just sort of threw that in there but never discussed the royalty breakdown that the author would earn upon this sale. And after having read the disgruntled negative comments from Publish America authors, I deduced that the publisher didn't even bother to think about that because they didn't even bother to make the effort to sell the rights anywhere. And I noticed that their statement about selling other rights, such as dramatic and film rights, was a 50-50 split for all these rights, which differed from other publishers whose splits tend to favor the author. The contract also stipulated that the publisher had the right to publish the work electronically, but didn't stipulate royalty splits/author compensation.
The revision clause was pretty lousy, and stipulated no timeline for how much time the author had to revise the work and what constituted an acceptable work. Though through my research I found that the company not only typically didn't bother to revise or edit works but also that the company charged authors for extensive editorial services--that is, those exceeding simple copyediting. And I also noticed that the contract stipulated that if the author decided to add any material to the manuscript after signing the contract, the author had to pay the publisher in order to do this. This seemed messed up to me; I know that editorial departments in publishing houses aren't what they used to be, but surely publishers expect that material is to changed, added, and/or deleted after the contract is signed so that the book is edited up to publication standards. It's one thing to charge an author against expenses if the proofs are ready to go and the author decides to add three entirely new chapters; but it's another thing to charge the author for edits made after the contract is signed, at a point in time when the manuscript hasn't even gone through editing by the publisher.
The contract also stipulated that any revisions made to the work for future editions would not incur any additional initial payment by the publisher. What? Ted probably wouldn't revise any future editions of his novel, since fiction is very rarely revised, but I just thought that was sleazy.
That is, until I got to the portion of the contract detailing the advance. Talk about sleazy.
It was absolutely the last clause in the contract, right above the signature lines, which I also thought was odd because payment isn't usually the very last thing discussed in a contract. It said that the author would receive a one-dollar advance.
One dollar. As in, a buck.
This was what sealed the deal for me. The horror stories and testimonials and articles had me convinced that this company was crap. The one-dollar advance convinced me that not only was this company crap but also that Ted should run screaming for the hills away from this company.
What kind of traditional publisher wouldn't be willing to make an investment in an author, even if only a small $1,000 advance? The dollar advance was like a slap in the face, an insult to the writer. Publish America was nothing more than a vanity press that recovered its expenses by overpricing its books and trusting that the author and his friends and family would buy these overpriced copies directly from them--since they wouldn't be able to find them in bookstores. A paperback novel for $24.95? Why bother? You can get a new hardback novel for that price, or even less that. And you can get it at the bookstore.
Some of the testimonials I read also stated that frustrated authors found it difficult to get out of their contracts after they realized how awfully the company treated them. Others claimed that their contracts were suddenly terminated, with no explanation given by the company, but these people deduced that it was because they had the nerve to pester the company for answers about seemingly fraudulent royalty statements or to ask why bookstores had such problems ordering copies of the book. Bookstores usually don't carry print-on-demand books (which I realized that Publish America books were) because they can't be returned. Apparently, Publish America also offered booksellers a very low discount off of the already high cover price, discouraging stores from buying it. Booksellers and libraries reported having problems ordering copies of the books from major book distributors as well. What's the point of having a book in print, I wondered, if no one can buy it?
After reading the contract and the negative testimonials, I deduced that if Ted truly wanted to see his work in print, he would be better off self-publishing his book with another company. I knew it meant he would have to pay the company for their services and that he'd have to do a lot of publicity work on his own, but I felt that these expenses were Ted's way of paying for his sanity. By self-publishing, Ted would be able to retain all his rights and keep control of his work. He could determine how to market it, what subsidiary rights to sell, if any, and would get to cancel his contract with the self-publisher at any time. This meant that if a traditional publisher finally decided that it did want to publish his work, Ted could easily end his contract with the self-publisher and move on. Or if Ted's second book was picked up by a publisher and they decided to reissue his first book, he'd have the ease to do that as well. Ted may not make a boatload of money off his self-published novel, but at least he'll have the peace of mind that he can control the whole project instead of being locked into a poor contract with a nightmare company. To me, that seems priceless.
Copyright Conundrum: Nancy's Poetry Website
During my studies I was fortuitous enough to not only have friends of mine read my blog and tell me that it was helpful but also to have friends who experienced some of the very issues my blog entries touch upon. I’ll be presenting their stories here (with names and details changed to protect the innocent!) along with my thoughts. I’ll put each story in a separate entry to make them easier to read.
My friend Nancy is a lover of all things literary. She’s a big supporter of the arts and of emerging artists. She has a master’s degree in literature and taught the subject at the undergraduate level. And she’s also a great writer herself. So when it comes to the written word, I’d have to say she’s a pretty big proponent.
She’s also relatively web-savvy. She’s got blogs and websites for her various publishing and writing projects. I was perusing her online projects recently where I came upon one of her sites where she has posted poems. At first I thought what a neat idea it was—making poetry easily accessible on the web, especially since many of them were lesser-known poems that people might not otherwise have the opportunity to read. As I looked through them, I recognized some as older poems published decades—or even centuries—ago. But there were other poems I didn’t recognize. After one of these poems was a link, which I clicked. It led me to a website for an online magazine in which the poem had originally been published.
Had Nancy gotten permission to reprint the poem on her site? I went back to Nancy’s website to see if there was any information on there about getting permission to reprint, but there was none.
I was concerned. While I agreed with what Nancy was doing—exposing more people to poetry, the sadly most-overlooked form of literature out there it seems—I also knew that she could get into trouble for copyright infringement. Some of the poems she printed were old enough to be in the public domain, so that was no problem. But some other poems were recent creations, meaning that they were still protected by copyright.
Does this even matter? I thought. Nancy’s site is still in its infant growing stages and isn’t visited by a relatively small number of visitors each day, as compared to other websites. Who’s going to notice? Who’s going to care?
But then I thought further about the nature of the internet. The whole point of the internet, and specifically search engines, is to find the information you’re looking for quickly and easily. The internet’s biggest strength and weakness is simultaneously that information is so easy to access. It means that anyone can publish anything—which means copyright infringements flying everywhere. How much these infringements are enforced or even noticed is questionable; but I do think that creators of copyrighted materials are becoming more aware of the issue and are increasingly acting more upon it.
As I thought about who would notice Nancy’s site and its infringements, I imagined one of the poets Nancy had reprinted typing his own name into Google (admit it, we all do it!), and finding not only his poem “My Poem” on the original online magazine site but also on Nancy’s site.
“Wait a minute,” says Mr. Poet. “I know I sold this poem to Website X, but I don’t recall selling it to this Nancy character.” So he contacts someone from Website X, to see if perhaps they sold reprint rights to his poem and just neglected to tell him.
“Huh?” say the editors at Website X. They go to Nancy’s site. Trouble could thus begin. It could begin even if Mr. Poet never got paid a dime to publish his poem initially on Website X. He still probably gave the right to publish to Website X, and if Website X didn’t give anyone else permission to reprint the poem elsewhere (namely Nancy), that spells trouble.
I was in quite a quandary. What to do? How could I protect Nancy from possible infringement problems while still preserving the integrity of her site and helping her spread poetry to a greater audience of readers? (A lofty notion, perhaps, but one I find worthwhile.)
I knew that Nancy could use older poems that are in the public domain with no worries. But what about the poems still protected by copyright that were published on other sites? First I considered urging Nancy to seek permission from all the original publishers of the poems she wanted to post. But after considering this idea, I ruled it out as impractical. First off, Nancy's sole job was not this website; she worked full time and also managed several other projects that took up a considerable amount of her time. Seeking out the permissions would be quite time consuming, not to mention the lag time that would come between Nancy's request and the request being granted. Secondly, Nancy did not make any money from this project (or from some of her other projects) so she was in no position to pay for permissions should some of the original publishers request compensation. So that was out. As I thought about Nancy's problem further, I realized that the very medium she was working in provided a solution that would lessen her risk and allow her to continue with her project.
Nancy could provide the links to the original websites where the copyrighted poems appeared. Providing sources to copyrighted material, without actually reprinting the copyrighted material, is fine. Under fair use, I suggested that she write one or two lines of the poem and then provide the link to the original source. While not 100% fail-proof (remember how sketchy the “guidelines” for determining fair use are?), it was certainly safer than just reprinting the entire poem.
While Nancy was disappointed that she couldn’t just reprint the entire text of any poem she wanted, she was grateful for what I pointed out. “I was wondering if anyone would notice what I was doing,” she admitted. She was a little confused about how else to present her content—she knew she might get in trouble, but she loved poetry so much that she didn’t want to stop doing it—so she appreciated my suggestion and took me up on it.
Even though she no longer reprints whole poems and her site visitors now have to go through the extra step of clicking a link to go to a new page, I think she feels a little safer. And I don’t think it’s such a bad thing to have to take that extra step. The beauty of the internet is that we can present information in nonchronological ways. The way we read and access information is no longer constrained to conventional page format. We can click links to be taken to new pages, have more than one webpage open at a time, watch a video halfway through a story, and even listen to things while we read. What could have presented a problem for Nancy in another format is thankfully solved rather easily and simply due to the nature of the medium she’s using. Copyright conundrum solved.
My friend Nancy is a lover of all things literary. She’s a big supporter of the arts and of emerging artists. She has a master’s degree in literature and taught the subject at the undergraduate level. And she’s also a great writer herself. So when it comes to the written word, I’d have to say she’s a pretty big proponent.
She’s also relatively web-savvy. She’s got blogs and websites for her various publishing and writing projects. I was perusing her online projects recently where I came upon one of her sites where she has posted poems. At first I thought what a neat idea it was—making poetry easily accessible on the web, especially since many of them were lesser-known poems that people might not otherwise have the opportunity to read. As I looked through them, I recognized some as older poems published decades—or even centuries—ago. But there were other poems I didn’t recognize. After one of these poems was a link, which I clicked. It led me to a website for an online magazine in which the poem had originally been published.
Had Nancy gotten permission to reprint the poem on her site? I went back to Nancy’s website to see if there was any information on there about getting permission to reprint, but there was none.
I was concerned. While I agreed with what Nancy was doing—exposing more people to poetry, the sadly most-overlooked form of literature out there it seems—I also knew that she could get into trouble for copyright infringement. Some of the poems she printed were old enough to be in the public domain, so that was no problem. But some other poems were recent creations, meaning that they were still protected by copyright.
Does this even matter? I thought. Nancy’s site is still in its infant growing stages and isn’t visited by a relatively small number of visitors each day, as compared to other websites. Who’s going to notice? Who’s going to care?
But then I thought further about the nature of the internet. The whole point of the internet, and specifically search engines, is to find the information you’re looking for quickly and easily. The internet’s biggest strength and weakness is simultaneously that information is so easy to access. It means that anyone can publish anything—which means copyright infringements flying everywhere. How much these infringements are enforced or even noticed is questionable; but I do think that creators of copyrighted materials are becoming more aware of the issue and are increasingly acting more upon it.
As I thought about who would notice Nancy’s site and its infringements, I imagined one of the poets Nancy had reprinted typing his own name into Google (admit it, we all do it!), and finding not only his poem “My Poem” on the original online magazine site but also on Nancy’s site.
“Wait a minute,” says Mr. Poet. “I know I sold this poem to Website X, but I don’t recall selling it to this Nancy character.” So he contacts someone from Website X, to see if perhaps they sold reprint rights to his poem and just neglected to tell him.
“Huh?” say the editors at Website X. They go to Nancy’s site. Trouble could thus begin. It could begin even if Mr. Poet never got paid a dime to publish his poem initially on Website X. He still probably gave the right to publish to Website X, and if Website X didn’t give anyone else permission to reprint the poem elsewhere (namely Nancy), that spells trouble.
I was in quite a quandary. What to do? How could I protect Nancy from possible infringement problems while still preserving the integrity of her site and helping her spread poetry to a greater audience of readers? (A lofty notion, perhaps, but one I find worthwhile.)
I knew that Nancy could use older poems that are in the public domain with no worries. But what about the poems still protected by copyright that were published on other sites? First I considered urging Nancy to seek permission from all the original publishers of the poems she wanted to post. But after considering this idea, I ruled it out as impractical. First off, Nancy's sole job was not this website; she worked full time and also managed several other projects that took up a considerable amount of her time. Seeking out the permissions would be quite time consuming, not to mention the lag time that would come between Nancy's request and the request being granted. Secondly, Nancy did not make any money from this project (or from some of her other projects) so she was in no position to pay for permissions should some of the original publishers request compensation. So that was out. As I thought about Nancy's problem further, I realized that the very medium she was working in provided a solution that would lessen her risk and allow her to continue with her project.
Nancy could provide the links to the original websites where the copyrighted poems appeared. Providing sources to copyrighted material, without actually reprinting the copyrighted material, is fine. Under fair use, I suggested that she write one or two lines of the poem and then provide the link to the original source. While not 100% fail-proof (remember how sketchy the “guidelines” for determining fair use are?), it was certainly safer than just reprinting the entire poem.
While Nancy was disappointed that she couldn’t just reprint the entire text of any poem she wanted, she was grateful for what I pointed out. “I was wondering if anyone would notice what I was doing,” she admitted. She was a little confused about how else to present her content—she knew she might get in trouble, but she loved poetry so much that she didn’t want to stop doing it—so she appreciated my suggestion and took me up on it.
Even though she no longer reprints whole poems and her site visitors now have to go through the extra step of clicking a link to go to a new page, I think she feels a little safer. And I don’t think it’s such a bad thing to have to take that extra step. The beauty of the internet is that we can present information in nonchronological ways. The way we read and access information is no longer constrained to conventional page format. We can click links to be taken to new pages, have more than one webpage open at a time, watch a video halfway through a story, and even listen to things while we read. What could have presented a problem for Nancy in another format is thankfully solved rather easily and simply due to the nature of the medium she’s using. Copyright conundrum solved.
Lawsuit-Free Writing in Lawsuit-Happy Land: Is It Possible?
I’ve covered the contracts you need to know about once you’re done with the writing process—the publishing contract, the agency contract. But what about legal issues pertaining to the actual writing itself? Remember those warranty and indemnity clauses in the contracts? What exactly do they mean? How do laws surrounding copyright and related issues affect you and your writing?
We’re lucky to live in the United States; we have a more lenient policy when it comes to free expression. The right to express ourselves is protected by the First Amendment to the Constitution, which prohibits, amongst other things, laws that prohibit freedom of speech and freedom of the press. But, like anything else, there can be some exceptions to this rule.
The way copyright law is structured is such that it works in tandem with the First Amendment to create a balance: ideas can be freely exchanged amongst U.S. citizens while the creator/expresser of these ideas is simultaneously protected from having his or her ideas used illegally (infringement, plagiarism, and such). So you, as a writer, can say pretty much anything you want (thanks to the First Amendment) and you, as a writer, also have the ability to protect and exploit what you’ve said (thanks to the Copyright Act).
But writers can face some issues when they’re writing about real-life people, whether the book is considered fiction or nonfiction. Although the First Amendment protects a writer’s right to freedom of expression, writers must be careful if they’re writing factually about other people—even if they’re just basing a fictional character on a real person’s personality traits or experiences.
Here are some things writers should be aware of when they’re using real people in their writing. (Once again, I disclaimer myself by saying that I’m just making you aware of legal issues and I am offering some basic suggestions, but in no way am I offering you legal advice; contact a lawyer for that!)
Using real people in writing, especially in nonfiction, is unavoidable. Newspapers, reference books, biographies--all would be impossible if writers weren't permitted to write about real people. The whole point of nonfiction is that the reader assumes the truthfulness of what is being written. What happens if a writer doesn't write the truth? What is it okay to reveal and what isn't okay? These questions regard defamation.
Defamation is the act of hurting a person's reputation by making information about that person known to the public. When referring to defamation done through the written word or through broadcast, it is termed libel. (Slander defines spoken defamation.) There's actually no federal law governing libel, so each state has its own variation on how it handles libel suits.
What constitutes libel? Like everything else regarding intellectual property, there are no clear-cut answers to this question either, but here are some questions to consider in determining whether something is libelous.
Is the statement true? If so, it's not considered defamatory. Lies, however, are defamatory. George W. Bush is an unpopular president is true; numerous polls support this fact. George W. Bush is really a woman in disguise is false, unless anyone out there is willing to get really adventurous to prove it true.
Is the statement conveyed as a fact? Something conveyed as a fact is more likely to be ruled as defamatory. Opinions, however, are protected under the First Amendment. A restaurant reviewer can thus say that she believes the chef at Joe's Diner doesn't make very good food, because that's her opinion. However, she can't say that the chef at Joe's Diner obviously intends to poison every customer at the restaurant with the horrible food. She may believe it, but that wanders into defamatory territory.
Is the statement published? If the statement hasn't been seen by any third party, it's not libel. For instance, the food reviewer may write a private note to the chef saying, "You're trying to poison me!" But unless that food reviewer makes that statement known to the public, in a newspaper or magazine, the statement isn't libelous.
Is the person in the statement identifiable? Just omitting a name won't get a writer off the hook. Identifying details, such as gender, physical traits, personality characteristics, occupation, and so on are often enough to clue people in on the subject. A reporter standing outside a school on the same day that salary cuts have been made sees a teacher storming angrily out of the school. The reporter doesn't ask the teacher the cause for his anger, instead assuming that it's because he'll now be paid less. When considering the reporter's article, the potentially untrue statement "A teacher at the school was unhappy with the pay cuts" is a lot harder to prove as libelous than "A music teacher at the school was unhappy with the pay cuts, especially after he'd worked at the school for seven years." Those details in the second sentence make it much easier to deduce who the person is.
Has the statement caused real harm to the subject? Perhaps the person was fired from his job, was served a divorce by his wife, or just had his reputation damaged. Perhaps none of these things happened but the publisher had enough reason to believe the statements were defamatory--and published them anyway. That's also grounds enough to be considered as causing injury to the person. But what if all that happened was that the person got extremely pissed off? They may not win the injury card, but they can win by accusing the writer of mental anguish.
Of course these are rather general and sweeping guidelines here and there are exceptions to everything, but they're a good basis for understanding what sorts of things constitute libel.
Another important factor in determining libel cases is a person's status as a public figure. An interesting equation governing libel suits is that the more famous you are, the less you're protected. This is because it is assumed that a person understands that by becoming a more public figure, he or she will thus be more regularly covered in the media and exposed to the public. The public has more of a right to know what's happening in a public figure's life and thus the press has a right to report on it. And a a person's fame increases, so too does the right of the press to criticize that person's behavior and character. The law even oftentimes becomes more lenient towards those who may inaccurately report information about a public figure. So in order for a public figure to prove libel, he or she must prove that there was "actual malice" involved in the defamation--meaning that damaging falsehoods were intentionally printed as fact.
What if someone's dead? Can you happily blast away at them? While it's true that you can't be sued for libel by a dead person, that person's surviving family members, for instance, can sue you for the mental anguish you're causing them.
Ah, you say, but I'm a novelist. I write fiction. None of this pertains to me.
To which I reply: Ah, but it does!
What drives a great novel? Great characters. And where do great characters come from? The depths of the author's imagination. Okay, I'll buy that, but how did the author's imagination come up with them? Real life. Authors use elements of real people--quirky habits, personality traits, physical characteristics, likes and dislikes, experiences--to build characters and their storylines. These novels are known as roman à clef, meaning that fictional characters and storylines are based on real ones. Doing something like using one or very few details from real life doesn't count. Your friend always wears knee socks with Birkenstocks, say, or always says, "You can dig that, right?" after every question and you attribute this to one of your characters--that's not really problematic. Where the problem does come in is when you heavily base a character in your book on a real person and have that character doing negative things--or even have that character exposing negative things the real person did. Just changing the name and a detail or two won't always protect you. In the case Bindrim vs. Davis, the novelist and defendant, Davis, visited a psychologist named Bindrim during one of his therapeutic bath sessions. She basically changed a few details around, but ended up making the doctor and his practice easily identifiable, even reproducing exact lines of his speech that she had recorded. Things ended pretty poorly for Davis, especially when her publisher turned on her by enacting the warranties and indemnities clause to recoup some of the money it lost during the lawsuit. Read the article; it's interesting stuff, though I sadly can't get into the ethics of publishers turning on their authors in this particular entry. It just goes to show that you can't be too careful, even if the story you're writing has the word "FICTION" emblazoned on the front.
But even the most private individuals can sue you if they're identifiable as characters in your novel, and this is because of their right to privacy. What if a friend confides a particularly embarrassing or painful secret to you, and you think, wow, this would make a great dramatic twist in my new novel. So you insert a character with a painful secret into your novel. You changed the character's name and the fact that she lives in Brooklyn (your character now lives in Queens), but other than that, you couldn't change much else or the painful secret part wouldn't work. That's an invasion of privacy. The secret your friend told you was previously unknown, but now all your mutual friends have bought your novel and figured out who the character was. The secret also wasn't of general interest to the public, since it concerned a private, relatively unknown individual whose personal business was important to no one else. Just because your book carries that "This is a work of fiction... resemblance is purely coincidental" clause at the beginning (you know the one I'm talking about; pick up any novel and take a look at the copyright page) doesn't mean you're protected. The publisher puts that there to cover his bum on the assumption that by signing your contract, which included the warranties and indemnity clause, you verified that the material in the book wasn't going to, among other things, expose your friend's secrets under the guise of a "fictional" character. In this situation, looks like you're in a heap of cow dung.
Okay, then, you say. I'll just stick to writing about public figures in my novels since I can have a little more leniency with those. But just when you thought you were off the hook, here comes something else to worry about: the right of publicity. This is a person's exclusive right to use, or to prevent the use of, his or her name, likeness, or aspects of his/her persona for commercial gain (with "persona" here meaning aspects of a person's character perceived by others). It's sort of like the right of privacy but for better-known people. By using another person's persona or an aspect of it without authorization, you could be leaving yourself open for a right of publicity claim. Once again, there's no federal law governing this, so the way it's handled tends to change from state to state. A person can't sue for an invasion of right of publicity if the use of their name or likeness is cursory or if there's something newsworthy going on attached to this person that's of general interest. (There goes that First Amendment again.) But if the person's name or image is being used for commercial gain, like to sell a product or service, and the person didn't authorize it, then the trouble begins.
Like all other areas in publishing, this one's laden with gray. Use of a persona is allowed editorially: for use in the news, in a scholarly way, or for reasons of historical, cultural, educational, and/or public interest. Don't worry, fiction writers, you haven't been forgotten either: it's okay to an extent to use names or likenesses in fiction that incorporates real people. Basically, as long as the goal of a work is artistic or to inform the public of something that would interest them, rather than being solely for economic gain, it's generally permissible.
Oy vey, you say, and throw up your pen (hopefully not word processor) in despair. What can I write then, if I'm constantly afraid someone's going to sue me for something? The publishing scene may look even more discouraging now, or downright bleak, but take heart. There are things you can do to protect yourself. No method's foolproof, but here are some ways to reduce the risk.
Fact checking is invaluable. Get proof for everything you possibly can. You might think that New Yorker-style fact checking is extreme (Harold Ross had his fact checkers verifying the location of the Empire State Building), but in this lawsuit-happy era, it seems like you can never go too far to verify a fact. Also be aware that in libel cases, the amount of time a writer had before publication counts. The more time a writer had to fact check something, the more accountable he is. A newspaper writer is up against a daily deadline; a biographer often has months or even years to complete a project. The newspaper writer has far less time to fact check; thus, he would more likely get off the hook than would a book author.
To reiterate the importance of never assuming, here are some assumptions that can get writers into trouble: accusing someone of a crime without proof of conviction; associating someone with a group (especially an unsavory group like a cult) without proof of association; describing someone's incompetence instead of describing the situation; accusing someone of unchaste or sexually unscrupulous acts.
If you're in doubt about whether you should publish a particular story, consider it from an ethical standpoint. Is the subject a public figure or a private one? If the person is a private figure, consider whether his or her activities are of general interest to the public. If it's an older news story involving private figures, like a decades-old unsolved murder case, consider whether the story is still of interest to the public. If the story has been forgotten by the general public and is particularly scandalous, dredging it up again could be grounds for a suit. Make sure you fact check everything you can. Knowing that public records about the person and/or events you're describing are readily available, and using them, may make you less liable for libel.
If you're writing fiction and are basing a character on a real person, try to keep that character minor and use as few identifying details as possible so that the character can't be recognized as a real person. Change identifying details or mix up several real people's identifying characteristics. Or try sticking to using public figures, although they can claim that their right of publicity has been invaded. You can also stick to writing about a dead person, private or public, but be aware that if that person can be identified, you can be sued for mental distress. And also be aware that suits are on the rise involving similar names. So if you're going to write about a concierge who works at the Four Seasons named Larry who is a serial killer by night, you should check with the Four Seasons to be sure that such a person doesn't work there. Again, it's always best to cover your bum by checking your facts and being overly careful than to leave your bum exposed and ready for a good, swift kick.
Also know that many larger publishers have a legal department that will assist them in determining if any parts of your book could pose future problems. If you're working with a smaller publisher or are self-publishing, it might be worth your while to invest in the services of a lawyer to read your manuscript and identify any potential problem spots. For instance, a local publisher is planning to publish a fictional book by "Fake Steve Jobs" that is a spoof on the real Steve Jobs (Apple CEO) and his life. The book is so obviously a parody, and the material is fictionalized and marketed as such, so it got the legal okay. But if the book tried to pass itself off as nonfiction--say, if the cover said "Steve Jobs" instead of "Fake Steve Jobs" or if the book didn't brand itself as being fiction--well. Things would hit that proverbial fan.
Chances are, if you're writing about other people, you're going to say something that's going to offend somebody (which isn't always a bad thing). Make sure you're aware of the problems you could potentially be up against and use a little common sense to guide you during the writing process. If something feels like it might cause a problem, seek help from a professional (like a lawyer) before someone else decides to turn it into a problem. Yes, we live in a lawsuit-happy society, but we also happen to live in a country that values its free speech (though post-9/11 some may contest this) so proceed with caution but don't let the fear of a lawsuit keep you from proceeding at all.
BOOKS THAT ARE USEFUL:
How to Be Your Own Literary Agent, by Richard Curtis (again).
The Writer's Legal Companion, by Brad Bunnin and Peter Beren. One's a lawyer and the other works in the publishing biz. A dream team.
Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans. A pair of attorneys spell everything out rather clearly. They even include a handy CD-ROM with copies of all the appropriate copyright forms and etc. that they refer to within the book that you can print out.
We’re lucky to live in the United States; we have a more lenient policy when it comes to free expression. The right to express ourselves is protected by the First Amendment to the Constitution, which prohibits, amongst other things, laws that prohibit freedom of speech and freedom of the press. But, like anything else, there can be some exceptions to this rule.
The way copyright law is structured is such that it works in tandem with the First Amendment to create a balance: ideas can be freely exchanged amongst U.S. citizens while the creator/expresser of these ideas is simultaneously protected from having his or her ideas used illegally (infringement, plagiarism, and such). So you, as a writer, can say pretty much anything you want (thanks to the First Amendment) and you, as a writer, also have the ability to protect and exploit what you’ve said (thanks to the Copyright Act).
But writers can face some issues when they’re writing about real-life people, whether the book is considered fiction or nonfiction. Although the First Amendment protects a writer’s right to freedom of expression, writers must be careful if they’re writing factually about other people—even if they’re just basing a fictional character on a real person’s personality traits or experiences.
Here are some things writers should be aware of when they’re using real people in their writing. (Once again, I disclaimer myself by saying that I’m just making you aware of legal issues and I am offering some basic suggestions, but in no way am I offering you legal advice; contact a lawyer for that!)
Using real people in writing, especially in nonfiction, is unavoidable. Newspapers, reference books, biographies--all would be impossible if writers weren't permitted to write about real people. The whole point of nonfiction is that the reader assumes the truthfulness of what is being written. What happens if a writer doesn't write the truth? What is it okay to reveal and what isn't okay? These questions regard defamation.
Defamation is the act of hurting a person's reputation by making information about that person known to the public. When referring to defamation done through the written word or through broadcast, it is termed libel. (Slander defines spoken defamation.) There's actually no federal law governing libel, so each state has its own variation on how it handles libel suits.
What constitutes libel? Like everything else regarding intellectual property, there are no clear-cut answers to this question either, but here are some questions to consider in determining whether something is libelous.
Is the statement true? If so, it's not considered defamatory. Lies, however, are defamatory. George W. Bush is an unpopular president is true; numerous polls support this fact. George W. Bush is really a woman in disguise is false, unless anyone out there is willing to get really adventurous to prove it true.
Is the statement conveyed as a fact? Something conveyed as a fact is more likely to be ruled as defamatory. Opinions, however, are protected under the First Amendment. A restaurant reviewer can thus say that she believes the chef at Joe's Diner doesn't make very good food, because that's her opinion. However, she can't say that the chef at Joe's Diner obviously intends to poison every customer at the restaurant with the horrible food. She may believe it, but that wanders into defamatory territory.
Is the statement published? If the statement hasn't been seen by any third party, it's not libel. For instance, the food reviewer may write a private note to the chef saying, "You're trying to poison me!" But unless that food reviewer makes that statement known to the public, in a newspaper or magazine, the statement isn't libelous.
Is the person in the statement identifiable? Just omitting a name won't get a writer off the hook. Identifying details, such as gender, physical traits, personality characteristics, occupation, and so on are often enough to clue people in on the subject. A reporter standing outside a school on the same day that salary cuts have been made sees a teacher storming angrily out of the school. The reporter doesn't ask the teacher the cause for his anger, instead assuming that it's because he'll now be paid less. When considering the reporter's article, the potentially untrue statement "A teacher at the school was unhappy with the pay cuts" is a lot harder to prove as libelous than "A music teacher at the school was unhappy with the pay cuts, especially after he'd worked at the school for seven years." Those details in the second sentence make it much easier to deduce who the person is.
Has the statement caused real harm to the subject? Perhaps the person was fired from his job, was served a divorce by his wife, or just had his reputation damaged. Perhaps none of these things happened but the publisher had enough reason to believe the statements were defamatory--and published them anyway. That's also grounds enough to be considered as causing injury to the person. But what if all that happened was that the person got extremely pissed off? They may not win the injury card, but they can win by accusing the writer of mental anguish.
Of course these are rather general and sweeping guidelines here and there are exceptions to everything, but they're a good basis for understanding what sorts of things constitute libel.
Another important factor in determining libel cases is a person's status as a public figure. An interesting equation governing libel suits is that the more famous you are, the less you're protected. This is because it is assumed that a person understands that by becoming a more public figure, he or she will thus be more regularly covered in the media and exposed to the public. The public has more of a right to know what's happening in a public figure's life and thus the press has a right to report on it. And a a person's fame increases, so too does the right of the press to criticize that person's behavior and character. The law even oftentimes becomes more lenient towards those who may inaccurately report information about a public figure. So in order for a public figure to prove libel, he or she must prove that there was "actual malice" involved in the defamation--meaning that damaging falsehoods were intentionally printed as fact.
What if someone's dead? Can you happily blast away at them? While it's true that you can't be sued for libel by a dead person, that person's surviving family members, for instance, can sue you for the mental anguish you're causing them.
Ah, you say, but I'm a novelist. I write fiction. None of this pertains to me.
To which I reply: Ah, but it does!
What drives a great novel? Great characters. And where do great characters come from? The depths of the author's imagination. Okay, I'll buy that, but how did the author's imagination come up with them? Real life. Authors use elements of real people--quirky habits, personality traits, physical characteristics, likes and dislikes, experiences--to build characters and their storylines. These novels are known as roman à clef, meaning that fictional characters and storylines are based on real ones. Doing something like using one or very few details from real life doesn't count. Your friend always wears knee socks with Birkenstocks, say, or always says, "You can dig that, right?" after every question and you attribute this to one of your characters--that's not really problematic. Where the problem does come in is when you heavily base a character in your book on a real person and have that character doing negative things--or even have that character exposing negative things the real person did. Just changing the name and a detail or two won't always protect you. In the case Bindrim vs. Davis, the novelist and defendant, Davis, visited a psychologist named Bindrim during one of his therapeutic bath sessions. She basically changed a few details around, but ended up making the doctor and his practice easily identifiable, even reproducing exact lines of his speech that she had recorded. Things ended pretty poorly for Davis, especially when her publisher turned on her by enacting the warranties and indemnities clause to recoup some of the money it lost during the lawsuit. Read the article; it's interesting stuff, though I sadly can't get into the ethics of publishers turning on their authors in this particular entry. It just goes to show that you can't be too careful, even if the story you're writing has the word "FICTION" emblazoned on the front.
But even the most private individuals can sue you if they're identifiable as characters in your novel, and this is because of their right to privacy. What if a friend confides a particularly embarrassing or painful secret to you, and you think, wow, this would make a great dramatic twist in my new novel. So you insert a character with a painful secret into your novel. You changed the character's name and the fact that she lives in Brooklyn (your character now lives in Queens), but other than that, you couldn't change much else or the painful secret part wouldn't work. That's an invasion of privacy. The secret your friend told you was previously unknown, but now all your mutual friends have bought your novel and figured out who the character was. The secret also wasn't of general interest to the public, since it concerned a private, relatively unknown individual whose personal business was important to no one else. Just because your book carries that "This is a work of fiction... resemblance is purely coincidental" clause at the beginning (you know the one I'm talking about; pick up any novel and take a look at the copyright page) doesn't mean you're protected. The publisher puts that there to cover his bum on the assumption that by signing your contract, which included the warranties and indemnity clause, you verified that the material in the book wasn't going to, among other things, expose your friend's secrets under the guise of a "fictional" character. In this situation, looks like you're in a heap of cow dung.
Okay, then, you say. I'll just stick to writing about public figures in my novels since I can have a little more leniency with those. But just when you thought you were off the hook, here comes something else to worry about: the right of publicity. This is a person's exclusive right to use, or to prevent the use of, his or her name, likeness, or aspects of his/her persona for commercial gain (with "persona" here meaning aspects of a person's character perceived by others). It's sort of like the right of privacy but for better-known people. By using another person's persona or an aspect of it without authorization, you could be leaving yourself open for a right of publicity claim. Once again, there's no federal law governing this, so the way it's handled tends to change from state to state. A person can't sue for an invasion of right of publicity if the use of their name or likeness is cursory or if there's something newsworthy going on attached to this person that's of general interest. (There goes that First Amendment again.) But if the person's name or image is being used for commercial gain, like to sell a product or service, and the person didn't authorize it, then the trouble begins.
Like all other areas in publishing, this one's laden with gray. Use of a persona is allowed editorially: for use in the news, in a scholarly way, or for reasons of historical, cultural, educational, and/or public interest. Don't worry, fiction writers, you haven't been forgotten either: it's okay to an extent to use names or likenesses in fiction that incorporates real people. Basically, as long as the goal of a work is artistic or to inform the public of something that would interest them, rather than being solely for economic gain, it's generally permissible.
Oy vey, you say, and throw up your pen (hopefully not word processor) in despair. What can I write then, if I'm constantly afraid someone's going to sue me for something? The publishing scene may look even more discouraging now, or downright bleak, but take heart. There are things you can do to protect yourself. No method's foolproof, but here are some ways to reduce the risk.
Fact checking is invaluable. Get proof for everything you possibly can. You might think that New Yorker-style fact checking is extreme (Harold Ross had his fact checkers verifying the location of the Empire State Building), but in this lawsuit-happy era, it seems like you can never go too far to verify a fact. Also be aware that in libel cases, the amount of time a writer had before publication counts. The more time a writer had to fact check something, the more accountable he is. A newspaper writer is up against a daily deadline; a biographer often has months or even years to complete a project. The newspaper writer has far less time to fact check; thus, he would more likely get off the hook than would a book author.
To reiterate the importance of never assuming, here are some assumptions that can get writers into trouble: accusing someone of a crime without proof of conviction; associating someone with a group (especially an unsavory group like a cult) without proof of association; describing someone's incompetence instead of describing the situation; accusing someone of unchaste or sexually unscrupulous acts.
If you're in doubt about whether you should publish a particular story, consider it from an ethical standpoint. Is the subject a public figure or a private one? If the person is a private figure, consider whether his or her activities are of general interest to the public. If it's an older news story involving private figures, like a decades-old unsolved murder case, consider whether the story is still of interest to the public. If the story has been forgotten by the general public and is particularly scandalous, dredging it up again could be grounds for a suit. Make sure you fact check everything you can. Knowing that public records about the person and/or events you're describing are readily available, and using them, may make you less liable for libel.
If you're writing fiction and are basing a character on a real person, try to keep that character minor and use as few identifying details as possible so that the character can't be recognized as a real person. Change identifying details or mix up several real people's identifying characteristics. Or try sticking to using public figures, although they can claim that their right of publicity has been invaded. You can also stick to writing about a dead person, private or public, but be aware that if that person can be identified, you can be sued for mental distress. And also be aware that suits are on the rise involving similar names. So if you're going to write about a concierge who works at the Four Seasons named Larry who is a serial killer by night, you should check with the Four Seasons to be sure that such a person doesn't work there. Again, it's always best to cover your bum by checking your facts and being overly careful than to leave your bum exposed and ready for a good, swift kick.
Also know that many larger publishers have a legal department that will assist them in determining if any parts of your book could pose future problems. If you're working with a smaller publisher or are self-publishing, it might be worth your while to invest in the services of a lawyer to read your manuscript and identify any potential problem spots. For instance, a local publisher is planning to publish a fictional book by "Fake Steve Jobs" that is a spoof on the real Steve Jobs (Apple CEO) and his life. The book is so obviously a parody, and the material is fictionalized and marketed as such, so it got the legal okay. But if the book tried to pass itself off as nonfiction--say, if the cover said "Steve Jobs" instead of "Fake Steve Jobs" or if the book didn't brand itself as being fiction--well. Things would hit that proverbial fan.
Chances are, if you're writing about other people, you're going to say something that's going to offend somebody (which isn't always a bad thing). Make sure you're aware of the problems you could potentially be up against and use a little common sense to guide you during the writing process. If something feels like it might cause a problem, seek help from a professional (like a lawyer) before someone else decides to turn it into a problem. Yes, we live in a lawsuit-happy society, but we also happen to live in a country that values its free speech (though post-9/11 some may contest this) so proceed with caution but don't let the fear of a lawsuit keep you from proceeding at all.
BOOKS THAT ARE USEFUL:
How to Be Your Own Literary Agent, by Richard Curtis (again).
The Writer's Legal Companion, by Brad Bunnin and Peter Beren. One's a lawyer and the other works in the publishing biz. A dream team.
Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans. A pair of attorneys spell everything out rather clearly. They even include a handy CD-ROM with copies of all the appropriate copyright forms and etc. that they refer to within the book that you can print out.
Sunday, August 5, 2007
I've Got an Agent! Now What?
My previous entry dealt with contracts and assumed that you were working directly with the publisher, sans literary agent. In this entry, I'll introduce you, briefly, to what a literary agent does and doesn't do. I won't, however, spend any time telling you how to get a literary agent to work with you. There are numerous books published and revised on the subject every year, along with guides such as Literary Market Place that are updated annually with details about publishers and agents. Also, I've never tried to get a literary agent for myself, so I'll spare you all the presumption of knowing what the hell I'm talking about in that arena.
A literary agent is someone who often has previously worked in publishing and thus has a great knowledge of both literary markets and the workings of the industry. An agent is an author's representative and acts as a liaison between author and publisher. Both parties stand to benefit from the agent. The publisher benefits because the agent acts almost as a screener, scouting for and determining what manuscripts are worth buying, saving the publisher time. In fact, the nature of the business is such that pretty much all major houses and many smaller ones now don't even bother looking for material themselves, instead relying on what they get from agents. The author benefits because the agent becomes his advocate, looking out for him and many times also being the only steady person during the whole transaction. Publishing has a rather rapidly spinning revolving door as people move on to other positions and companies, so an author may suddenly find his book "orphaned" at the publishing house, meaning that the editor or person responsible for it has left and the new person taking it on is probably not paying much attention to it. Having an agent helps because she will make sure to keep track of the book, often by pestering the publisher and the staffer's predecessor about it. An agent also often gives editorial advice to the author to help improve his manuscript and also helps the author develop new projects.
Both parties benefit from a literary agent's involvement because the agent handles the negotiation of the contract, which saves the publisher the hassle of dealing with an author's inexperience and saves the author from the potential of getting royally screwed due to ignorance. The agent also handles the money from advances and royalties and gives it to the author after taking her 15% commission first. And the agent is often well-connected to others to whom she can then sell sub rights. It's in the agent's best interest to sell as many rights as she can for the author, since she gets a cut of it all, so having an agent is really helpful, especially for inexperienced authors.
So let's say you've gone through the querying process and found an agent who wants to work you, Abby D. Agent. "Leave it to me, kid," she says knowingly, after showering you with glowing accolades about your manuscript masterpiece. "I'll make you a star."
"Great!" you say, enthused. You can hardly believe your luck! This person believes in you and your work and is going to help you sell it and, if not get rich off it, at least make enough extra bucks to afford going out to dinner once in a while or getting a new couch to replace the old one your cat peed on. "This all sounds great. Where do I sign?"
"Oh, there's nothing to sign," says Abby breezily. "We're all friends here. Besides, there'll be enough paperwork once I get you that nice publishing contract. Let's not kill anymore trees."
A little feeling of uneasiness settles over you, but what do you know about the pub biz? This must be how they do it. And the environment is a hot-button issue these days. Maybe saving trees is a good idea.
While some agents do operate under this no-contract policy, depending on how casually their offices are run, many do offer simple contracts or at least letters stating the terms of your working relationship with them. Even if you find an agent who doesn't seem to believe in adding more paper to her life, you should still get your agreement in writing. If your agent doesn't offer you a contract, suggest that one of you will write a letter or email outlining what the agent will do for you, how long the agent will try to sell your work for, how either of you can terminate the agreement, what happens if the agreement does get terminated, and how the agent gets paid and handles your money. When it comes to someone dealing with your intellectual property and eventually hopefully with your money, it's always wise to get it on paper.
Let's assume that you have convinced Abby Agent to draw up an agreement for the two of you to sign. Obviously a contract with an agent is not as in-depth or lengthy as a contract with a publisher (I'm starting to wonder if anything on Earth ever could be), but here are some of the basics it should cover.
A grant of authority and limits. This clause dictates the power that an agent does and doesn't have. For instance, Abby Agent may be the person responsible for negotiating and selling your rights, but you want to have some idea of what's going on. This clause would say that you want to see and approve of all deals and contracts rather than just letting Abby sign the contracts on your behalf. Let's face it: you may trust your agent with your life (and your rights), but you should still be the one to put pen to paper.
An agent's obligation. Naturally when you sign on to work with an agent, you are putting your trust in that agent to sell your rights, but you don't want to be waiting around forever. You also want some guarantee that the agent is working in your best interests. This clause usually includes phrases to the effect of the agent making her "best efforts" to sell your work and using all "commercially reasonable" means to get you a deal. The agent should submit to you all offers made on your work, even if she thinks they suck, so that the two of you can decide what's best. And your agent should keep you informed of all rejections and feedback, too, allowing you to see rejection letters if you request them and passing along comments editors have made that may help you improve your work. Your agent should work hard for you, but she can't work miracles, and you aren't her only client. Expect her to put in a very valiant effort, but don't expect her to move mountains. Expect regular communication, but don't expect daily hour-long chats. She's busy and should be using her time to sell your work, not counsel your every editorial move. However, if she seems like she's seriously slacking, puts you off, doesn't give you any time or advice, or is not upfront with you about things, it might be time to call it quits and move on. (See the length of relationship and termination clauses below.)
An author's obligation. Yes, you have an obligation to your agent, too. (What did you think, that contracts were a one-way street?) Many agents want their authors to enter into an exclusive agreement with them, meaning that while Abby's trying to sell your work you won't also have agent Betty trying to sell it too. Read this section carefully. Some agents want to represent all their authors' works, even works that the author wrote before working with that particular agent (this means retroactive commissions, which to me seems unfair, but you need to decide what you think is fair). Some agents want commission on every work their authors sell, called an "exclusive sale" arrangement, even if the author sells those works entirely on his own. (Again, you can decide if this is fair or not.) And some agents just want to opportunity to represent all their authors' future works and receive commissions from them. If you already have connections directly with editors at, say, magazines or newspapers and have sold or intend to continue selling works directly to these editors, consider whether giving your agent a commission on these works is worthwhile to you. On the other hand, if you don't already have connections with editors at periodicals but would like them so you can try your hand at the occasionally lucrative world of magazine writing, having an agent can be helpful as she can forge these connections for you, can handle contracts with the periodicals, and take care of hounding them for your money (after all, she wants her commission just as promptly as you want your payment). When it comes to this clause in an agency agreement, you need to consider how you want things handled. Personally I think it sucks for an agent to expect compensation for work she hasn't done for you, and if you think it sucks too then don't agree to it. It does seem ridiculous, but an agent's authors are her bread and butter, so she's going to try to exploit all of you as best she can.
Commissions and payments. Most agents nowadays charge a 15% commission on all money you receive from sales they make. Many times this royalty increases to 20% for the sale of sub rights because your agent is selling the work to another agent and the commission must be split. I'm putting these numbers out there so you understand that they're industry standard and are considered fair. Some agents also charge their authors for extraneous expenses: for instance, long-distance calls made on the author's behalf, excessive photocopying or mailing, etc. In publishing, it's typical for a publisher to issue payments and royalties directly to the agent and for the agent then to manage the author's accounts. It's a good idea to let your agent handle your accounts because she understands the intricately complicated web of royalties statements better than you, or even a rocket scientist, could. She'll take her commission out and then issue the remainder to you. Your contract should stipulate how much time you should expect to pass between her receiving the check and you receiving yours and any other pertinent financial information pertaining to your agreement (such as how agency expenses, if any, will be billed). Make sure the commissions structure here makes sense to you, especially that involving the employment of other agents to sell sub rights. If anything is unclear, ask. Don't take chances when it comes to your money and stay informed of what to expect.
Warranties and indemnities. This is sort of like that clause from the publishing contract, stating that you have the right to your work. It also protects the agent if you do something foolish, like sign two exclusive agency agreements simultaneously. You sign on thinking that the two never have to know about each other and that this just increases your chances of selling your work by doubling your work force. So let's say Abby sells your work to Pancake Press on Monday. You're elated. You decide to break things off with Betty. But before you can do, Betty calls you on Tuesday. "I just made an offer to Peacock Press, and they want to buy your work." Shit. Now what do you do? Two presses cannot simultaneously publish your work, so you're going to have to back down on one of the offers. But since Betty made good on her promise to sell your work, even if you decide to remain with Abby for the long haul, you still owe Betty her commission for selling your work. And Peacock Press could hold her liable for selling her a work she was no longer authorized to sell to you; since your contract with Betty also contained this clause, you are obligated to stand behind her in this situation. So, my advice is to do yourself a favor and never need to worry about these potential messes by sticking with one agent at a time. Polygamous relationships in publishing can often get very messy.
Length of relationship. Obviously, both you and your agent want a long, beautiful friendship. It works for you because you've got someone on your side to watch out for you, negotiate the best deals for you, and otherwise help usher you through what is hopefully a long and illustrious (or illustrious enough) publishing career. It works for your agent because she's got someone who will provide her with a steady enough source of income over the long term, from either your backlist items that continue to sell or from your new works (though publishing new works often revives the market for your older works). However, sometimes a relationship with an agent just doesn't seem meant to be; for whatever reason, she simply cannot sell your work. If this is the case, this clause will dictate the amount of time the agent will devote to trying to place your manuscript. Usually this term is a year. If after this year your agent hasn't been able to sell your work and she's exhausted all her avenues, it's probably time to call it quits: she wants to move on to clients whose work she can sell and you want to give it another go, either on your own or with another agent. A year may seem like forever, but remember that book publishing is a very hurry-up-and-wait kind of business, meaning that brokering deals can be very time-consuming. Give your agent at least this year, which is a reasonable amount of time, in which to sell your work.
Termination of agreement. Breaking up is hard to do. But it shouldn't be impossible. Barring the length of relationship clause, you and the agent should both have the freedom to end your relationship at any time for whatever reasons you may have. Maybe you just don't seem to get along; maybe she's lost interest in the kind of work you're producing or you think you could get better service from another agent you met at a cocktail party who seemed excited about your work and with whom you meshed well. So it's time to break up with your agent. This clause usually stipulates that either of you can terminate the agreement by putting the decision in writing and giving thirty to ninety days of notice. This amount of time is only fair to allow both of you to tie up loose ends and make the transition smooth. This clause will also indicate what will happen if the agent has sold some of your work and what will continue to happen regarding commissions. Perhaps your agent will continue to receive royalty payments for works she sold for you and will divvy out your share to you. If your parting with your agent is amicable, you may be okay with this, but if there's animosity there, you should consider having royalties paid to you (or your new agent) and then disbursing your agent's commission. Or your new agent may decide that she'll be the one to handle all royalties from past and future sales and their divvying up from here on out. Make sure you understand how commissions and royalties will continue to be handled if the two of you should split up because after all, money does cause the most grievances in relationships. Don't let it cause you angst in this one and get it all in writing.
The right to assign you to another agent. This clause is somewhat straightforward. Many agents work for agencies where there are other agents (sometimes a few, sometimes dozens depending on the size of the agency). This clause states that the agent has the right to transfer you to another agent of her choosing, typically within the same agency. If you're not comfortable with this idea and would prefer this not to happen, speak up and don't allow for this clause to appear. But if you're fine with transferring agents, just state under what terms it would acceptable to you: the agent must be at the same agency, or it must be an agent that you both mutually consent to. If this clause doesn't appear in your contract, ask your agent what her or her agency's policy is on the matter.
The right to represent your competition. You're a mystery writer, and mysteries are what Abby Agent sells best. It's a match made in heaven. But as you look through her client list, you realize that Abby's got quite a few other clients who write mysteries very similar to yours (say, involving telepathic animals or little old lady detectives). It's within her right to do so. By taking you on, Abby isn't going to forsake all these other writers who write similar subject matter to yours. In fact, it's to your benefit if she represents other authors who write the same sort of thing. It means she's had success selling work similar to yours, which means there's a market for it--which means your odds of a sale are that much better. Don't begrudge your agent her right to represent however many of whatever kind of client she wants.
The right to multiple agents. Some agents have relationships with sub rights agents and will thus handle these deals for you. But sometimes an agent doesn't want to deal with certain sub rights, like foreign sales or film sales. This clause will spell out if she's okay with you hiring these agents on your own. Be sure you understand how the commission structure works here; your agent will usually want a piece of the sub rights sale pie, no matter how small. It's wise either way to find out how your agent deals with sub rights sales before you enter into an agreement with her since sub rights can often be quite lucrative.
As you can see, there's actually quite a lot more that goes into an agreement with an agent than the blind faith that she'll sell your work. This is why it's wise to get an agreement with your agent, even if it's just a letter laying all these things out. If any of these parts are missing, talk to her about it and insert them if necessary. Understanding how the relationship works before you even begin will save both of you a lot of time, confusion, and grief later on.
For more information on literary agents (let's face it, if you want to get one, inform yourself thoroughly of what they do and what they want from you), try some of these books:
Literary Agents: A Writer's Introduction, by John F. Baker. This is a great book featuring profiles of many leading industry agents reflecting on the business and offering tips for writers as to how to get and keep an agent.
Mastering the Business of Writing and How to Be Your Own Literary Agent, by Richard Curtis. Curtis is a big-name agent who's been at it a long time and he's got a lot of good things to say. Any work by him is quite helpful, and it helps that his style of writing has some humor sprinkled throughout.
How to Get a Literary Agent, by Michael Larsen. This book has tips on how to get an agent and keep them written in a friendly, accessible style.
And for listings of literary agents, try the annual literary agent guide published by Writers Digest Books, Jeff Herman's annual guide to publishers, editors, and agents, or the annual edition of Literary Market Place (check your local library for this one, it's pricey and of an unwieldy size).
A literary agent is someone who often has previously worked in publishing and thus has a great knowledge of both literary markets and the workings of the industry. An agent is an author's representative and acts as a liaison between author and publisher. Both parties stand to benefit from the agent. The publisher benefits because the agent acts almost as a screener, scouting for and determining what manuscripts are worth buying, saving the publisher time. In fact, the nature of the business is such that pretty much all major houses and many smaller ones now don't even bother looking for material themselves, instead relying on what they get from agents. The author benefits because the agent becomes his advocate, looking out for him and many times also being the only steady person during the whole transaction. Publishing has a rather rapidly spinning revolving door as people move on to other positions and companies, so an author may suddenly find his book "orphaned" at the publishing house, meaning that the editor or person responsible for it has left and the new person taking it on is probably not paying much attention to it. Having an agent helps because she will make sure to keep track of the book, often by pestering the publisher and the staffer's predecessor about it. An agent also often gives editorial advice to the author to help improve his manuscript and also helps the author develop new projects.
Both parties benefit from a literary agent's involvement because the agent handles the negotiation of the contract, which saves the publisher the hassle of dealing with an author's inexperience and saves the author from the potential of getting royally screwed due to ignorance. The agent also handles the money from advances and royalties and gives it to the author after taking her 15% commission first. And the agent is often well-connected to others to whom she can then sell sub rights. It's in the agent's best interest to sell as many rights as she can for the author, since she gets a cut of it all, so having an agent is really helpful, especially for inexperienced authors.
So let's say you've gone through the querying process and found an agent who wants to work you, Abby D. Agent. "Leave it to me, kid," she says knowingly, after showering you with glowing accolades about your manuscript masterpiece. "I'll make you a star."
"Great!" you say, enthused. You can hardly believe your luck! This person believes in you and your work and is going to help you sell it and, if not get rich off it, at least make enough extra bucks to afford going out to dinner once in a while or getting a new couch to replace the old one your cat peed on. "This all sounds great. Where do I sign?"
"Oh, there's nothing to sign," says Abby breezily. "We're all friends here. Besides, there'll be enough paperwork once I get you that nice publishing contract. Let's not kill anymore trees."
A little feeling of uneasiness settles over you, but what do you know about the pub biz? This must be how they do it. And the environment is a hot-button issue these days. Maybe saving trees is a good idea.
While some agents do operate under this no-contract policy, depending on how casually their offices are run, many do offer simple contracts or at least letters stating the terms of your working relationship with them. Even if you find an agent who doesn't seem to believe in adding more paper to her life, you should still get your agreement in writing. If your agent doesn't offer you a contract, suggest that one of you will write a letter or email outlining what the agent will do for you, how long the agent will try to sell your work for, how either of you can terminate the agreement, what happens if the agreement does get terminated, and how the agent gets paid and handles your money. When it comes to someone dealing with your intellectual property and eventually hopefully with your money, it's always wise to get it on paper.
Let's assume that you have convinced Abby Agent to draw up an agreement for the two of you to sign. Obviously a contract with an agent is not as in-depth or lengthy as a contract with a publisher (I'm starting to wonder if anything on Earth ever could be), but here are some of the basics it should cover.
A grant of authority and limits. This clause dictates the power that an agent does and doesn't have. For instance, Abby Agent may be the person responsible for negotiating and selling your rights, but you want to have some idea of what's going on. This clause would say that you want to see and approve of all deals and contracts rather than just letting Abby sign the contracts on your behalf. Let's face it: you may trust your agent with your life (and your rights), but you should still be the one to put pen to paper.
An agent's obligation. Naturally when you sign on to work with an agent, you are putting your trust in that agent to sell your rights, but you don't want to be waiting around forever. You also want some guarantee that the agent is working in your best interests. This clause usually includes phrases to the effect of the agent making her "best efforts" to sell your work and using all "commercially reasonable" means to get you a deal. The agent should submit to you all offers made on your work, even if she thinks they suck, so that the two of you can decide what's best. And your agent should keep you informed of all rejections and feedback, too, allowing you to see rejection letters if you request them and passing along comments editors have made that may help you improve your work. Your agent should work hard for you, but she can't work miracles, and you aren't her only client. Expect her to put in a very valiant effort, but don't expect her to move mountains. Expect regular communication, but don't expect daily hour-long chats. She's busy and should be using her time to sell your work, not counsel your every editorial move. However, if she seems like she's seriously slacking, puts you off, doesn't give you any time or advice, or is not upfront with you about things, it might be time to call it quits and move on. (See the length of relationship and termination clauses below.)
An author's obligation. Yes, you have an obligation to your agent, too. (What did you think, that contracts were a one-way street?) Many agents want their authors to enter into an exclusive agreement with them, meaning that while Abby's trying to sell your work you won't also have agent Betty trying to sell it too. Read this section carefully. Some agents want to represent all their authors' works, even works that the author wrote before working with that particular agent (this means retroactive commissions, which to me seems unfair, but you need to decide what you think is fair). Some agents want commission on every work their authors sell, called an "exclusive sale" arrangement, even if the author sells those works entirely on his own. (Again, you can decide if this is fair or not.) And some agents just want to opportunity to represent all their authors' future works and receive commissions from them. If you already have connections directly with editors at, say, magazines or newspapers and have sold or intend to continue selling works directly to these editors, consider whether giving your agent a commission on these works is worthwhile to you. On the other hand, if you don't already have connections with editors at periodicals but would like them so you can try your hand at the occasionally lucrative world of magazine writing, having an agent can be helpful as she can forge these connections for you, can handle contracts with the periodicals, and take care of hounding them for your money (after all, she wants her commission just as promptly as you want your payment). When it comes to this clause in an agency agreement, you need to consider how you want things handled. Personally I think it sucks for an agent to expect compensation for work she hasn't done for you, and if you think it sucks too then don't agree to it. It does seem ridiculous, but an agent's authors are her bread and butter, so she's going to try to exploit all of you as best she can.
Commissions and payments. Most agents nowadays charge a 15% commission on all money you receive from sales they make. Many times this royalty increases to 20% for the sale of sub rights because your agent is selling the work to another agent and the commission must be split. I'm putting these numbers out there so you understand that they're industry standard and are considered fair. Some agents also charge their authors for extraneous expenses: for instance, long-distance calls made on the author's behalf, excessive photocopying or mailing, etc. In publishing, it's typical for a publisher to issue payments and royalties directly to the agent and for the agent then to manage the author's accounts. It's a good idea to let your agent handle your accounts because she understands the intricately complicated web of royalties statements better than you, or even a rocket scientist, could. She'll take her commission out and then issue the remainder to you. Your contract should stipulate how much time you should expect to pass between her receiving the check and you receiving yours and any other pertinent financial information pertaining to your agreement (such as how agency expenses, if any, will be billed). Make sure the commissions structure here makes sense to you, especially that involving the employment of other agents to sell sub rights. If anything is unclear, ask. Don't take chances when it comes to your money and stay informed of what to expect.
Warranties and indemnities. This is sort of like that clause from the publishing contract, stating that you have the right to your work. It also protects the agent if you do something foolish, like sign two exclusive agency agreements simultaneously. You sign on thinking that the two never have to know about each other and that this just increases your chances of selling your work by doubling your work force. So let's say Abby sells your work to Pancake Press on Monday. You're elated. You decide to break things off with Betty. But before you can do, Betty calls you on Tuesday. "I just made an offer to Peacock Press, and they want to buy your work." Shit. Now what do you do? Two presses cannot simultaneously publish your work, so you're going to have to back down on one of the offers. But since Betty made good on her promise to sell your work, even if you decide to remain with Abby for the long haul, you still owe Betty her commission for selling your work. And Peacock Press could hold her liable for selling her a work she was no longer authorized to sell to you; since your contract with Betty also contained this clause, you are obligated to stand behind her in this situation. So, my advice is to do yourself a favor and never need to worry about these potential messes by sticking with one agent at a time. Polygamous relationships in publishing can often get very messy.
Length of relationship. Obviously, both you and your agent want a long, beautiful friendship. It works for you because you've got someone on your side to watch out for you, negotiate the best deals for you, and otherwise help usher you through what is hopefully a long and illustrious (or illustrious enough) publishing career. It works for your agent because she's got someone who will provide her with a steady enough source of income over the long term, from either your backlist items that continue to sell or from your new works (though publishing new works often revives the market for your older works). However, sometimes a relationship with an agent just doesn't seem meant to be; for whatever reason, she simply cannot sell your work. If this is the case, this clause will dictate the amount of time the agent will devote to trying to place your manuscript. Usually this term is a year. If after this year your agent hasn't been able to sell your work and she's exhausted all her avenues, it's probably time to call it quits: she wants to move on to clients whose work she can sell and you want to give it another go, either on your own or with another agent. A year may seem like forever, but remember that book publishing is a very hurry-up-and-wait kind of business, meaning that brokering deals can be very time-consuming. Give your agent at least this year, which is a reasonable amount of time, in which to sell your work.
Termination of agreement. Breaking up is hard to do. But it shouldn't be impossible. Barring the length of relationship clause, you and the agent should both have the freedom to end your relationship at any time for whatever reasons you may have. Maybe you just don't seem to get along; maybe she's lost interest in the kind of work you're producing or you think you could get better service from another agent you met at a cocktail party who seemed excited about your work and with whom you meshed well. So it's time to break up with your agent. This clause usually stipulates that either of you can terminate the agreement by putting the decision in writing and giving thirty to ninety days of notice. This amount of time is only fair to allow both of you to tie up loose ends and make the transition smooth. This clause will also indicate what will happen if the agent has sold some of your work and what will continue to happen regarding commissions. Perhaps your agent will continue to receive royalty payments for works she sold for you and will divvy out your share to you. If your parting with your agent is amicable, you may be okay with this, but if there's animosity there, you should consider having royalties paid to you (or your new agent) and then disbursing your agent's commission. Or your new agent may decide that she'll be the one to handle all royalties from past and future sales and their divvying up from here on out. Make sure you understand how commissions and royalties will continue to be handled if the two of you should split up because after all, money does cause the most grievances in relationships. Don't let it cause you angst in this one and get it all in writing.
The right to assign you to another agent. This clause is somewhat straightforward. Many agents work for agencies where there are other agents (sometimes a few, sometimes dozens depending on the size of the agency). This clause states that the agent has the right to transfer you to another agent of her choosing, typically within the same agency. If you're not comfortable with this idea and would prefer this not to happen, speak up and don't allow for this clause to appear. But if you're fine with transferring agents, just state under what terms it would acceptable to you: the agent must be at the same agency, or it must be an agent that you both mutually consent to. If this clause doesn't appear in your contract, ask your agent what her or her agency's policy is on the matter.
The right to represent your competition. You're a mystery writer, and mysteries are what Abby Agent sells best. It's a match made in heaven. But as you look through her client list, you realize that Abby's got quite a few other clients who write mysteries very similar to yours (say, involving telepathic animals or little old lady detectives). It's within her right to do so. By taking you on, Abby isn't going to forsake all these other writers who write similar subject matter to yours. In fact, it's to your benefit if she represents other authors who write the same sort of thing. It means she's had success selling work similar to yours, which means there's a market for it--which means your odds of a sale are that much better. Don't begrudge your agent her right to represent however many of whatever kind of client she wants.
The right to multiple agents. Some agents have relationships with sub rights agents and will thus handle these deals for you. But sometimes an agent doesn't want to deal with certain sub rights, like foreign sales or film sales. This clause will spell out if she's okay with you hiring these agents on your own. Be sure you understand how the commission structure works here; your agent will usually want a piece of the sub rights sale pie, no matter how small. It's wise either way to find out how your agent deals with sub rights sales before you enter into an agreement with her since sub rights can often be quite lucrative.
As you can see, there's actually quite a lot more that goes into an agreement with an agent than the blind faith that she'll sell your work. This is why it's wise to get an agreement with your agent, even if it's just a letter laying all these things out. If any of these parts are missing, talk to her about it and insert them if necessary. Understanding how the relationship works before you even begin will save both of you a lot of time, confusion, and grief later on.
For more information on literary agents (let's face it, if you want to get one, inform yourself thoroughly of what they do and what they want from you), try some of these books:
Literary Agents: A Writer's Introduction, by John F. Baker. This is a great book featuring profiles of many leading industry agents reflecting on the business and offering tips for writers as to how to get and keep an agent.
Mastering the Business of Writing and How to Be Your Own Literary Agent, by Richard Curtis. Curtis is a big-name agent who's been at it a long time and he's got a lot of good things to say. Any work by him is quite helpful, and it helps that his style of writing has some humor sprinkled throughout.
How to Get a Literary Agent, by Michael Larsen. This book has tips on how to get an agent and keep them written in a friendly, accessible style.
And for listings of literary agents, try the annual literary agent guide published by Writers Digest Books, Jeff Herman's annual guide to publishers, editors, and agents, or the annual edition of Literary Market Place (check your local library for this one, it's pricey and of an unwieldy size).
Thursday, August 2, 2007
The Anatomy of a Publishing Contract
So I’ve been absent from the blogosphere for a few days, mostly because I’ve been poring over books about publishing and agency contracts, the role of literary agents, and the ways different rights are bought and sold in the publishing universe (which is a whole other planet as far as I’m concerned), and there’s been so much to digest that I’ve only just come up for air. And now, fellow readers, rejoice! For here I am to share it all with you.
But before I start, a disclaimer: don’t consider any of this to be legal advice. If you actually have a contract and have questions about it, certainly use the information I’m providing as a starting point for deciphering what all the different clauses mean, but if you have any questions, doubts, or concerns, or need help negotiating, turn to a lawyer who’s got publishing experience, or try to get an agent to work with you. (That’s me covering my arse so I don’t get in trouble.)
And now: the anatomy of a publishing contract.
What is a publishing contract, anyway?
To understand what goes into a publishing contract (and why each one seemingly uses up half a ream of paper), one must first understand the nature of the publishing industry—or, as my old coworker used to call it with a snarl on her face, the “pub biz.” Some people have compared publishing to a casino, involving books. I tend to agree, because it’s all a gamble.
As genteel or artistic as it may seem, publishing is, bottom line, a business. And like any other business, it involves the exchange of goods for money. But unlike some other businesses, publishing is a highly speculative business. A publisher may be pretty good at predicting how certain books will do on the market, but it’s an imperfect science. “Guaranteed” best-sellers may fall flat on their faces while novels of a literary bent may suddenly catch on, thanks to a number of factors that are hard to control: word of mouth, intriguing or timely subject matter, a hot new trend (like ethnic lit or chick lit), a memorable title, Oprah. So like any business based on speculation, publishing is a risky endeavor.
Think about it. Books aren’t a necessity, like toothpaste or gasoline. Books are more of a luxury commodity, something purchased to enhance a buyer’s life by providing extra information or offering entertainment. This means books are purchased with expendable entertainment income and are not necessarily factored into people’s budgets. So when a publisher is determining whether or not your book deserves to be published by their company, they’re not necessarily evaluating the merit or quality of your book, or at least that’s not the most important aspect they’re looking at. They’re evaluating its salability, its potential to make a buyer look at it and say, “Yes, this is worth spending between twelve to thirty dollars of my expendable income on.”
So when a publisher draws up a contract with a writer, they’re making an investment that they hope will be profitable at a later date. Buy low, sell high, hope to earn back the initial investment and some profit. This is why the first version of a publishing contract has terms that generally tend to financially benefit the publisher at the writer’s expense.
Every publisher is different and each one has a unique contract, but they all include the same basic information:
• which parties are entering into the agreement (the author[s] and publisher);
• when the contract begins and how long it lasts;
• what rights are transferred from author to publisher;
• what compensation the author and publisher will receive when and under what conditions;
• when rights revert back to the author;
• what happens if there are legal problems (I’ll go further into the sorts of legal issues writers could face in a future entry).
Of course, you’ll probably see even more clauses in your contract, but you should be sure that your contract has all these clauses, since they cover essentially all the steps of the publishing business.
Someone’s buying my book! Now what?
After months, or years, of toil, a publisher has finally agreed to buy your book. Your excitement is palpable. You get a copy of the contract in the mail or via email or fax. You’re so excited to get the process started and see your words bound in a book that you sign on the lines and send the contract back to the publisher with hardly a glance at the terms and conditions therein.
If you do this, I’ll be perfectly honest: you deserve a good flogging, preferably with a massively heavy copy of the OED. Common sense dictates that you read something before you sign it or else the only person to blame when you get screwed (because trust me, you will get screwed) is yourself.
Perhaps as a first-time published author you don’t think you’ll understand the legalese. Or perhaps you think that you have to take whatever they offer you or they’ll withdraw the offer and move on to another author desperate to be published. Or maybe you think you have to act fast or they’ll lose interest. None of this is true. Publishers are used to writers (or their agents) negotiating with them to get a mutually beneficial (or at least more mutually beneficial) deal. Publishers are okay with you taking a day or two or more to digest everything, figure it out, get help if you need it. Things don’t happen overnight in book publishing; it may take a year or two for your book to even appear on shelves. Be smart and take the extra time to determine what you’re being offered and what you can do to be sure you don’t get screwed. Don’t sign anything until you’re at least satisfied that you’ve done your best to get what you wanted.
Clauses, clauses, clauses! What do they all mean?
A publishing contract will begin with an introductory clause that lays out the parties involved in the contract (the author and the publisher) and what the contract is in regards to (the manuscript). It also lays out the date when the contract comes into effect. There’s also usually a brief description of the work the author’s submitting. Sometimes this is vague to the point of being nearly indecipherable—just a title and then a few words of description: “Eighteen Wheels: A novel about truckers” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide.” You may want to flesh this description out a bit on the contract (or on an attached page that you can refer to as a rider) so that it’s more specific what you understand that the publisher expects from you. “Eighteen Wheels: A novel of approximately 70,000 words about a group of truckers and their adventures traveling across America” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide of approximately 50,000 words including directions for working with wiring and projects, along with illustrations and photos.” Inserting this little bit of extra information will give you a little peace of mind, especially considering the next clause that’s included in a publishing contract: delivery and acceptance of the manuscript.
The delivery and acceptance clause gives the date when the publisher expects you to turn in the completed manuscript of your project, and it often also spells out in what format they wish to receive it. If you’re writing fiction, you most likely have the manuscript completed and perhaps only have a few tweaks or formatting issues to resolve before turning the book in, but nonfiction books are often sold on the proposal and one or two sample chapters alone, so the due date is especially important. If you feel that you simply can’t turn in the manuscript by the publisher-assigned date, negotiate it, don’t just ignore it, as turning your work in late can render you in breach of contract.
Also be certain to pay attention to the terms of acceptance included in this clause. It should spell out what you’re expected to turn in and what happens if the publisher is unhappy with the work. Often the wording here is vague, merely saying that the manuscript should be “satisfactory” to the publisher or the publisher can drop the project. But that means different things to different people, so this phrase is a sort of “get-out-of-contract-free” card for the publisher. Make sure you discuss what “satisfactory” (or any other sort of vague wording) means with your editor so that you have an idea of what’s expected from you. You should add in more specific wording as to what “satisfactory” means. And you should add in a phrase saying that if the manuscript isn’t up to the publisher’s standards that you’ll then get a certain amount of time to revise the manuscript to their recommendations.
You'll then find a grant of rights clause listing the rights the author is giving the publisher, the territory in which the rights apply (for instance, the United States and Canada), the amount of time the contract will remain in effect. Basically, what this clause means is that you are transferring ownership of whatever rights are listed to the publisher to do with as he pleases while the agreement is valid. This is where I'm asking you to dredge your memory a bit. Remember when I listed the "bundle of rights" that are yours and are protected by copyright? Here's where they come into play. When you first examine your rights clause, you'll find that your publisher probably wants all of them, and that's not necessarily in your favor. Naturally you want your publisher to have the rights to duplicate and sell your work, otherwise known as primary rights; that's the whole reason you entered into this arrangement in the first place. (Most publishers, however, will allow you to keep your name next to the copyright notice in the front of the book; they just want the right to publish the book, so they don't care if you yourself appear as the copyright owner.) But do you want your publisher to take on ownership of your subsidiary rights (otherwise known as sub rights) to create derivative works, such as screenplays, foreign editions, translations, and audio books? It's a tough call.
Sub rights are a sort of inexact science (what a surprise). Sometimes it's to your benefit to allow your publisher to own and sell these rights; your publisher may already have well-established connections with publishers of mass market paperbacks who'd be interested in printing an edition, or with foreign publishers eager for American books. Or perhaps they're good at getting audio book deals for their authors. If your publisher is a larger house with a separate sub rights department or has a good past track record of successfully selling sub rights for many of their authors, and you also don't have an agent who will help you in the sale of these sub rights (more on this in the agents entry), it's in your best interest to allow your publisher to sell these rights on your behalf and split the profits with you. On the other hand, if you're publishing with a small house that lacks a sub rights department and that doesn't seem to have much clout when it comes to sub rights sales, you're probably better off retaining these rights for yourself and trying to sell them on your own. Think of it this way: why would you give away something that could potentially be valuable to you to another person who's just going to let that potentially valuable thing sit on a shelf and collect dust? You may not make any more headway selling these rights than your publisher would, but at least you retain them so that you have the option to do with them as you please.
Sub rights can be incredibly profitable--sometimes more so than the original book--which is why your publisher, and in turn you, should be so interested in keeping as many of them as possible. These have thus become a big negotiating point. When negotiating with your publisher over sub rights, keep in mind that most publishers tend to split the proceeds from sub rights sales with authors in percentages that favor the author, by 5 or 10 percent or more. Negotiate to get the best deal for you. Determine which rights you want to keep, if any, and which you want your publisher to have. Also decide what percentage of profit will make it worth your while to let your publisher have them. You may also want to add a phrase such as, "All rights not expressly granted to the publisher are hereby reserved by the author." This gets a little knit picky, but it's worthwhile to include. “Rights not expressly granted” could include the right to create and use your name as a website domain, the right to sell author copies, and so on. You can also limit the rights you give your publisher by language or territory, and you can limit the amount of time that the publisher can own specific rights. For instance, if certain rights haven't been sold within 2 or 3 years, you can stipulate that they then automatically revert to you. When it comes to deciding what you want to do with your sub rights, it depends on what kind of potential you and your publisher think the book has for being converted into other formats. Does your how-to book lend itself to a home improvement television series? Does your novel have the potential to be a blockbuster on the big screen? Consider what sort of “life” your manuscript has beyond the bookshelf to determine what sub rights negotiations will be best for you.
Then we come to the lovely advance and royalties clause that determines how and when you’ll get paid. An advance is just what it sounds like: an advanced payment from the publisher paid out before your book is even published. Royalties are a percentage of money that you earn from the sale of each book.
An advance is paid out against royalties—in essence it’s a loan from your publisher. Let’s say you are paid a $5,000 advance against royalties. This means that you get the $5,000 in advance of publication of your book. When your book starts selling, the first $5,000 of royalties you earn won’t go to you; it goes back to your publisher. Any royalties you earn after $5,000 will then be paid to you. If you earn more than $5,000 in royalties, you are said to have earned out your advance, a joyous day in the life of your publisher because many books nowadays don’t even earn that much back.
Advances are usually paid out in 2 or 3 installments: when the contract is signed, when the manuscript is submitted, and when the book is published. Be sure to read your contract carefully to determine whether your publisher expects you to pay back any portions of your advance if your manuscript is rejected, as some publishers expect this.
Royalties are a percentage of money you earn on every book sold. They are often based on an escalating scale—for instance, you might earn 6% royalties on the first 5,000 copies sold, 8% on copies from 5,001 to 10,000, and 10% on copies 10,001 and up. Royalty percentages tend to be lower for paperbacks and higher for hardcovers due to differences in cover price (and thus profitability) of each. Some publishers pay royalties based on the cover price, but this is becoming increasingly rare. Due to rising publishing, warehousing, and distribution costs and the larger discounts being given to booksellers, publishers are more commonly basing royalties on the net profits received by the publisher. Make sure you understand which of these systems your publisher is basing your royalties on and ask how much of a discount they give booksellers and what percentage of the cover price is given to distributors so you’ll have a better idea of how much income to expect from your royalties. You should also find out if nontraditional sales—such as bulk sales to organizations or sales to libraries—are based on a different royalty scale.
If you can, negotiate with your publisher to get a bonus structure if your book achieves bestseller status or wins a literary prize, since these things usually mean increased book sales and subsequently increased profits for the publisher. And be sure to check when you’ll be paid your royalties. Publishers usually pay out royalties in installments during the year, sometimes quarterly, sometimes only once a year.
And what about if you’re using copyrighted material in your manuscript? For instance, each chapter of your novel starts with a song lyric, or you’re using reprints of photographs in your travel guidebook. You’ll need to get permission for these materials. Note the use of the word “you.” Most publishers require the author to go about securing the permissions before publication, and this can be a lengthy and sometimes expensive process. However, if the copyrighted material is something the publisher wants added in (say, additional photos for your guidebook), or if you have to secure a lot of permissions, negotiate with the publisher for assistance, either financial or just help in getting the sources to give permission. Sometimes the clout of the publisher can help you get permission more quickly. But be sure that if getting permission for any material will be important to your book that you work out the details with your publisher.
Beware the option/first right of refusal clause. This clause lets your publisher look at your next manuscript before anyone else does, thus giving them the first chance to either accept or reject it. While this isn’t so bad, be sure to examine the terms surrounding this. Some publishers may say that acceptance of your next manuscript carries with it the same terms as the contract you’re currently signing. This is a lousy deal. By the time your publisher takes on your next book, you’re already an established author and they already have an idea of how your book sold. If your book sold modestly, you may be offered a similar advance and royalty scale as for your first book. But if your book sold very well and had subsequent printings, proving that you’re a valuable commodity to the publisher, it would be pretty crappy to get the same paltry advance and low royalty scale you got the first time around. So be sure that you indicate in your options clause that if the publisher does choose to take on your next project that the terms will be negotiated at the time of acceptance, thereby preventing you from being locked into a contract that could screw you financially.
And be sure that your option clause indicates deadlines for how long your publisher has with your next manuscript—say, 30 days or 90 days. You don’t want to be kept waiting indefinitely for your publisher to make a decision; it’s valuable time you could be using to shop the manuscript around to someone else if your publisher turns it down.
Your contract will also contain a warranties and indemnities clause. This clause basically states that by signing the contract, you verify that you are the sole author of the work in question, that the work doesn’t infringe any copyrights, that it doesn’t contain any deliberately harmful information (recipes containing mushrooms you know are poisonous, for instance), and that it’s free of violations of privacy, defamation, libel, and other potential legal problems. It also states that the author indemnifies the publisher and holds them harmless if legal actions are brought against the book. Although publishers will often help authors somewhat if there are legal problems or will cover authors under the insurance they take out for these very purposes. Sometimes publishers will withhold an author’s royalties towards covering legal fees. So try to cover your bum and be sure your manuscript is as free of potential legal problems as possible. (A little more on these issues later.)
No writer ever wants to think about their book being out of print, but as depressing as the topic may be, it’s important to consider before signing the contract. You should know when a book is considered out of print by your publisher because you want to be sure your rights revert back to you.
One of the most depressing aspects of the publishing industry is how quickly books go out of print. Some cheeses have a longer shelf life than do books. In an industry where the shelf life of a book (the time during which the book is available on shelves in major bookstores) is a year or less, it’s important to know what happens when your book is considered out of print (or OOP in pub biz lingo).
Make sure there’s language in your contract that allows you to get your rights back after your book’s been OOP after a certain amount of time. You should be sure your contract states that your book is considered out of print after a certain amount of time when it’s no longer readily available in bookstores, or after it’s no longer earning a minimal amount of royalties per year.
Obviously this list isn’t exhaustive, because there are so many clauses that make up a publishing contract, but I wanted to try to cover some of the clauses covering rights and payments that can cause writers confusion and angst. I’ll be listing some books soon that list more detailed information on all the parts of a publishing contract that you should use to better familiarize yourself with everything that goes into this complicated—but no longer confusing, hopefully—document.
But before I start, a disclaimer: don’t consider any of this to be legal advice. If you actually have a contract and have questions about it, certainly use the information I’m providing as a starting point for deciphering what all the different clauses mean, but if you have any questions, doubts, or concerns, or need help negotiating, turn to a lawyer who’s got publishing experience, or try to get an agent to work with you. (That’s me covering my arse so I don’t get in trouble.)
And now: the anatomy of a publishing contract.
What is a publishing contract, anyway?
To understand what goes into a publishing contract (and why each one seemingly uses up half a ream of paper), one must first understand the nature of the publishing industry—or, as my old coworker used to call it with a snarl on her face, the “pub biz.” Some people have compared publishing to a casino, involving books. I tend to agree, because it’s all a gamble.
As genteel or artistic as it may seem, publishing is, bottom line, a business. And like any other business, it involves the exchange of goods for money. But unlike some other businesses, publishing is a highly speculative business. A publisher may be pretty good at predicting how certain books will do on the market, but it’s an imperfect science. “Guaranteed” best-sellers may fall flat on their faces while novels of a literary bent may suddenly catch on, thanks to a number of factors that are hard to control: word of mouth, intriguing or timely subject matter, a hot new trend (like ethnic lit or chick lit), a memorable title, Oprah. So like any business based on speculation, publishing is a risky endeavor.
Think about it. Books aren’t a necessity, like toothpaste or gasoline. Books are more of a luxury commodity, something purchased to enhance a buyer’s life by providing extra information or offering entertainment. This means books are purchased with expendable entertainment income and are not necessarily factored into people’s budgets. So when a publisher is determining whether or not your book deserves to be published by their company, they’re not necessarily evaluating the merit or quality of your book, or at least that’s not the most important aspect they’re looking at. They’re evaluating its salability, its potential to make a buyer look at it and say, “Yes, this is worth spending between twelve to thirty dollars of my expendable income on.”
So when a publisher draws up a contract with a writer, they’re making an investment that they hope will be profitable at a later date. Buy low, sell high, hope to earn back the initial investment and some profit. This is why the first version of a publishing contract has terms that generally tend to financially benefit the publisher at the writer’s expense.
Every publisher is different and each one has a unique contract, but they all include the same basic information:
• which parties are entering into the agreement (the author[s] and publisher);
• when the contract begins and how long it lasts;
• what rights are transferred from author to publisher;
• what compensation the author and publisher will receive when and under what conditions;
• when rights revert back to the author;
• what happens if there are legal problems (I’ll go further into the sorts of legal issues writers could face in a future entry).
Of course, you’ll probably see even more clauses in your contract, but you should be sure that your contract has all these clauses, since they cover essentially all the steps of the publishing business.
Someone’s buying my book! Now what?
After months, or years, of toil, a publisher has finally agreed to buy your book. Your excitement is palpable. You get a copy of the contract in the mail or via email or fax. You’re so excited to get the process started and see your words bound in a book that you sign on the lines and send the contract back to the publisher with hardly a glance at the terms and conditions therein.
If you do this, I’ll be perfectly honest: you deserve a good flogging, preferably with a massively heavy copy of the OED. Common sense dictates that you read something before you sign it or else the only person to blame when you get screwed (because trust me, you will get screwed) is yourself.
Perhaps as a first-time published author you don’t think you’ll understand the legalese. Or perhaps you think that you have to take whatever they offer you or they’ll withdraw the offer and move on to another author desperate to be published. Or maybe you think you have to act fast or they’ll lose interest. None of this is true. Publishers are used to writers (or their agents) negotiating with them to get a mutually beneficial (or at least more mutually beneficial) deal. Publishers are okay with you taking a day or two or more to digest everything, figure it out, get help if you need it. Things don’t happen overnight in book publishing; it may take a year or two for your book to even appear on shelves. Be smart and take the extra time to determine what you’re being offered and what you can do to be sure you don’t get screwed. Don’t sign anything until you’re at least satisfied that you’ve done your best to get what you wanted.
Clauses, clauses, clauses! What do they all mean?
A publishing contract will begin with an introductory clause that lays out the parties involved in the contract (the author and the publisher) and what the contract is in regards to (the manuscript). It also lays out the date when the contract comes into effect. There’s also usually a brief description of the work the author’s submitting. Sometimes this is vague to the point of being nearly indecipherable—just a title and then a few words of description: “Eighteen Wheels: A novel about truckers” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide.” You may want to flesh this description out a bit on the contract (or on an attached page that you can refer to as a rider) so that it’s more specific what you understand that the publisher expects from you. “Eighteen Wheels: A novel of approximately 70,000 words about a group of truckers and their adventures traveling across America” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide of approximately 50,000 words including directions for working with wiring and projects, along with illustrations and photos.” Inserting this little bit of extra information will give you a little peace of mind, especially considering the next clause that’s included in a publishing contract: delivery and acceptance of the manuscript.
The delivery and acceptance clause gives the date when the publisher expects you to turn in the completed manuscript of your project, and it often also spells out in what format they wish to receive it. If you’re writing fiction, you most likely have the manuscript completed and perhaps only have a few tweaks or formatting issues to resolve before turning the book in, but nonfiction books are often sold on the proposal and one or two sample chapters alone, so the due date is especially important. If you feel that you simply can’t turn in the manuscript by the publisher-assigned date, negotiate it, don’t just ignore it, as turning your work in late can render you in breach of contract.
Also be certain to pay attention to the terms of acceptance included in this clause. It should spell out what you’re expected to turn in and what happens if the publisher is unhappy with the work. Often the wording here is vague, merely saying that the manuscript should be “satisfactory” to the publisher or the publisher can drop the project. But that means different things to different people, so this phrase is a sort of “get-out-of-contract-free” card for the publisher. Make sure you discuss what “satisfactory” (or any other sort of vague wording) means with your editor so that you have an idea of what’s expected from you. You should add in more specific wording as to what “satisfactory” means. And you should add in a phrase saying that if the manuscript isn’t up to the publisher’s standards that you’ll then get a certain amount of time to revise the manuscript to their recommendations.
You'll then find a grant of rights clause listing the rights the author is giving the publisher, the territory in which the rights apply (for instance, the United States and Canada), the amount of time the contract will remain in effect. Basically, what this clause means is that you are transferring ownership of whatever rights are listed to the publisher to do with as he pleases while the agreement is valid. This is where I'm asking you to dredge your memory a bit. Remember when I listed the "bundle of rights" that are yours and are protected by copyright? Here's where they come into play. When you first examine your rights clause, you'll find that your publisher probably wants all of them, and that's not necessarily in your favor. Naturally you want your publisher to have the rights to duplicate and sell your work, otherwise known as primary rights; that's the whole reason you entered into this arrangement in the first place. (Most publishers, however, will allow you to keep your name next to the copyright notice in the front of the book; they just want the right to publish the book, so they don't care if you yourself appear as the copyright owner.) But do you want your publisher to take on ownership of your subsidiary rights (otherwise known as sub rights) to create derivative works, such as screenplays, foreign editions, translations, and audio books? It's a tough call.
Sub rights are a sort of inexact science (what a surprise). Sometimes it's to your benefit to allow your publisher to own and sell these rights; your publisher may already have well-established connections with publishers of mass market paperbacks who'd be interested in printing an edition, or with foreign publishers eager for American books. Or perhaps they're good at getting audio book deals for their authors. If your publisher is a larger house with a separate sub rights department or has a good past track record of successfully selling sub rights for many of their authors, and you also don't have an agent who will help you in the sale of these sub rights (more on this in the agents entry), it's in your best interest to allow your publisher to sell these rights on your behalf and split the profits with you. On the other hand, if you're publishing with a small house that lacks a sub rights department and that doesn't seem to have much clout when it comes to sub rights sales, you're probably better off retaining these rights for yourself and trying to sell them on your own. Think of it this way: why would you give away something that could potentially be valuable to you to another person who's just going to let that potentially valuable thing sit on a shelf and collect dust? You may not make any more headway selling these rights than your publisher would, but at least you retain them so that you have the option to do with them as you please.
Sub rights can be incredibly profitable--sometimes more so than the original book--which is why your publisher, and in turn you, should be so interested in keeping as many of them as possible. These have thus become a big negotiating point. When negotiating with your publisher over sub rights, keep in mind that most publishers tend to split the proceeds from sub rights sales with authors in percentages that favor the author, by 5 or 10 percent or more. Negotiate to get the best deal for you. Determine which rights you want to keep, if any, and which you want your publisher to have. Also decide what percentage of profit will make it worth your while to let your publisher have them. You may also want to add a phrase such as, "All rights not expressly granted to the publisher are hereby reserved by the author." This gets a little knit picky, but it's worthwhile to include. “Rights not expressly granted” could include the right to create and use your name as a website domain, the right to sell author copies, and so on. You can also limit the rights you give your publisher by language or territory, and you can limit the amount of time that the publisher can own specific rights. For instance, if certain rights haven't been sold within 2 or 3 years, you can stipulate that they then automatically revert to you. When it comes to deciding what you want to do with your sub rights, it depends on what kind of potential you and your publisher think the book has for being converted into other formats. Does your how-to book lend itself to a home improvement television series? Does your novel have the potential to be a blockbuster on the big screen? Consider what sort of “life” your manuscript has beyond the bookshelf to determine what sub rights negotiations will be best for you.
Then we come to the lovely advance and royalties clause that determines how and when you’ll get paid. An advance is just what it sounds like: an advanced payment from the publisher paid out before your book is even published. Royalties are a percentage of money that you earn from the sale of each book.
An advance is paid out against royalties—in essence it’s a loan from your publisher. Let’s say you are paid a $5,000 advance against royalties. This means that you get the $5,000 in advance of publication of your book. When your book starts selling, the first $5,000 of royalties you earn won’t go to you; it goes back to your publisher. Any royalties you earn after $5,000 will then be paid to you. If you earn more than $5,000 in royalties, you are said to have earned out your advance, a joyous day in the life of your publisher because many books nowadays don’t even earn that much back.
Advances are usually paid out in 2 or 3 installments: when the contract is signed, when the manuscript is submitted, and when the book is published. Be sure to read your contract carefully to determine whether your publisher expects you to pay back any portions of your advance if your manuscript is rejected, as some publishers expect this.
Royalties are a percentage of money you earn on every book sold. They are often based on an escalating scale—for instance, you might earn 6% royalties on the first 5,000 copies sold, 8% on copies from 5,001 to 10,000, and 10% on copies 10,001 and up. Royalty percentages tend to be lower for paperbacks and higher for hardcovers due to differences in cover price (and thus profitability) of each. Some publishers pay royalties based on the cover price, but this is becoming increasingly rare. Due to rising publishing, warehousing, and distribution costs and the larger discounts being given to booksellers, publishers are more commonly basing royalties on the net profits received by the publisher. Make sure you understand which of these systems your publisher is basing your royalties on and ask how much of a discount they give booksellers and what percentage of the cover price is given to distributors so you’ll have a better idea of how much income to expect from your royalties. You should also find out if nontraditional sales—such as bulk sales to organizations or sales to libraries—are based on a different royalty scale.
If you can, negotiate with your publisher to get a bonus structure if your book achieves bestseller status or wins a literary prize, since these things usually mean increased book sales and subsequently increased profits for the publisher. And be sure to check when you’ll be paid your royalties. Publishers usually pay out royalties in installments during the year, sometimes quarterly, sometimes only once a year.
And what about if you’re using copyrighted material in your manuscript? For instance, each chapter of your novel starts with a song lyric, or you’re using reprints of photographs in your travel guidebook. You’ll need to get permission for these materials. Note the use of the word “you.” Most publishers require the author to go about securing the permissions before publication, and this can be a lengthy and sometimes expensive process. However, if the copyrighted material is something the publisher wants added in (say, additional photos for your guidebook), or if you have to secure a lot of permissions, negotiate with the publisher for assistance, either financial or just help in getting the sources to give permission. Sometimes the clout of the publisher can help you get permission more quickly. But be sure that if getting permission for any material will be important to your book that you work out the details with your publisher.
Beware the option/first right of refusal clause. This clause lets your publisher look at your next manuscript before anyone else does, thus giving them the first chance to either accept or reject it. While this isn’t so bad, be sure to examine the terms surrounding this. Some publishers may say that acceptance of your next manuscript carries with it the same terms as the contract you’re currently signing. This is a lousy deal. By the time your publisher takes on your next book, you’re already an established author and they already have an idea of how your book sold. If your book sold modestly, you may be offered a similar advance and royalty scale as for your first book. But if your book sold very well and had subsequent printings, proving that you’re a valuable commodity to the publisher, it would be pretty crappy to get the same paltry advance and low royalty scale you got the first time around. So be sure that you indicate in your options clause that if the publisher does choose to take on your next project that the terms will be negotiated at the time of acceptance, thereby preventing you from being locked into a contract that could screw you financially.
And be sure that your option clause indicates deadlines for how long your publisher has with your next manuscript—say, 30 days or 90 days. You don’t want to be kept waiting indefinitely for your publisher to make a decision; it’s valuable time you could be using to shop the manuscript around to someone else if your publisher turns it down.
Your contract will also contain a warranties and indemnities clause. This clause basically states that by signing the contract, you verify that you are the sole author of the work in question, that the work doesn’t infringe any copyrights, that it doesn’t contain any deliberately harmful information (recipes containing mushrooms you know are poisonous, for instance), and that it’s free of violations of privacy, defamation, libel, and other potential legal problems. It also states that the author indemnifies the publisher and holds them harmless if legal actions are brought against the book. Although publishers will often help authors somewhat if there are legal problems or will cover authors under the insurance they take out for these very purposes. Sometimes publishers will withhold an author’s royalties towards covering legal fees. So try to cover your bum and be sure your manuscript is as free of potential legal problems as possible. (A little more on these issues later.)
No writer ever wants to think about their book being out of print, but as depressing as the topic may be, it’s important to consider before signing the contract. You should know when a book is considered out of print by your publisher because you want to be sure your rights revert back to you.
One of the most depressing aspects of the publishing industry is how quickly books go out of print. Some cheeses have a longer shelf life than do books. In an industry where the shelf life of a book (the time during which the book is available on shelves in major bookstores) is a year or less, it’s important to know what happens when your book is considered out of print (or OOP in pub biz lingo).
Make sure there’s language in your contract that allows you to get your rights back after your book’s been OOP after a certain amount of time. You should be sure your contract states that your book is considered out of print after a certain amount of time when it’s no longer readily available in bookstores, or after it’s no longer earning a minimal amount of royalties per year.
Obviously this list isn’t exhaustive, because there are so many clauses that make up a publishing contract, but I wanted to try to cover some of the clauses covering rights and payments that can cause writers confusion and angst. I’ll be listing some books soon that list more detailed information on all the parts of a publishing contract that you should use to better familiarize yourself with everything that goes into this complicated—but no longer confusing, hopefully—document.
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