Everything you need to know about the legal aspects of the publishing business and how we can help as your attorney
With the coming of the digital age, the business of literary publishing took on a new dimension. Digital and online books have created both opportunity and headaches. Significant copyright issues have arose, and many remain unsettled. Whether you are a publisher or a writer, you need a knowledgeable attorney at your side to navigate this complex and changing landscape.
So much entertainment content stems from literature. Books become movies, which become television series, and whose characters become action figures etc. The first contract between a publisher and author is crucial in determining who has control over this process. Let us make sure you’re protected!
In addition to the contract between the publisher and author, there are likely to be contracts for paperbacks, foreign, and merchandise licensing, motion picture and television rights, and audio book options. We have knowledge in each of these areas and can guide you through the process!
Contract Implications We Regularly Advise On
Your negotiating ability in a publishing deal all comes down to bargaining power. While much of one’s bargaining power rests on the demand for an author’s work or a publishing house’s services, it also rests on having a knowledgeable attorney in your corner advocating on your behalf! Whether you’re an up-and-coming author or publishing house, look no further than Kerry Law for thorough publishing agreements that advocate your best interests!
All major book publishing deals will include some form of a delivery clause. These clauses have been the subject of substantial litigation and need to be looked at by a keen and experienced eye. Generally, manuscripts are subject to approval by the publishing company, but these clauses can be negotiated to give the author more protection such as a “comparable performance clause.” Even if the publisher has broad approval discretion, they must be held to a good faith standard. If the publisher finds your submitted manuscript to be unsatisfactory in any way, you could be forced to return your advance.
Publishing companies must also be wary that they don’t involuntarily waive the benefit of a delivery standards clause due to faulty contractual language. Publishers generally have a duty to provide editorial assistance in making the manuscript commercially satisfactory. Failure to do so could void the delivery clause. If you are being denied your advance, or as a publisher, you are planning to reject a manuscript, contact us now!
Before signing or having an author sign your publishing contract you need to understand the delivery expectations. Let us draft or review your publishing contracts to make sure you’re protected!
Publishing companies can open themselves up to a problem and litigation if a clause promising specific promotional and marketing commitments is drafted incorrectly. Let us take a look before signing your authors!
How paperback exploitation rights will be handled are important to both the author and publisher. Sometimes the publisher will handle paperback publishing, but often times these are sublicensed out to other publishers. In any event, these implications need to be in the clear language of the contract.
Foreign publication rights can either be included in the overall publishing deal or contracted separately from U.S. and Canada rights. They usually have far lower royalty rates. Will the author or publisher have review of translations to check for faithfulness to the work? What are the precise territories? How prompt will repatriation of royalties be? These are just some of the questions we ask and advocate on your behalf.
A merchandise licensing agreement must outline precisely what is being granted, what products can be produced, the degree of quality control, and how long the license is being granted, amongst many other considerations such as territorial limitations and types of marketing.
Publishers often seek to include these rights in the original agreement. However, if an author can retain these rights they can often have a significant financial reward. On the other hand, major publishing houses may be able to significantly induce a higher level of interest in these rights.
Typically when there is motion picture or television interest in a literary work the first step is an option contract. Usually, the other is paid an initial fee and a second payment is rendered upon the exercising of the option. This payment can either be cash or a percentage of profits, or both. The contract should define the length and terms of the option as well as the terms of the ultimate agreement should the option be exercised. Major considerations in options contracts are; the creative control retained by the publisher or author, how long before the production must be made, sequel and spin-off rights, and of course, royalty and fee arrangements.
We have extensive knowledge of option contracts and can advocate the positions of both writers and producers!
These agreements should specify the length of the contract, the types of income the agent’s fees will be based, and if the agent has any authority to act on behalf of the author. Before signing anything, let us take a look at your contract!
Publisher agreements often contain provisions which require the author to agree not to publish future books based on the material of the book under contract. However, the publisher is typically not willing to reciprocate the favor by not publishing similar books. With that said, we encourage authors to grant no more than a very limited, specific noncompetition provision.
For obvious reasons, these provisions require strict scrutiny. Percentages can be based on many things and you need a knowledgeable attorney to draft and review these provisions. Generally royalties are as follows:
- Hardback – 10% of retail price for the first 10,000 copies, 12.5% on the following 5000 copies sold, and 15% on all other copies.
- Paperbacks – 6% on the first 10,000-20,000 and 7.5% thereafter.
- Mass market additions – 8% on the first 150,000 copies and 10% thereafter.
- Audio Editions – 8% of revenues
- Electronic Versions – 25% of revenues
There is no automatic right to audit so authors should insist on an auditing provision.
Who will be held liable if claims are made against the book for copyright infringement, libel, or breach of privacy? These are very important questions and are unfortunately negotiated on a case by case basis.
Must revisions and updates be done by the original author and if so, are they able to refuse?
If these clauses are not drafted carefully they will likely be ruled unenforceable as an “agreement to agree.” In any event, authors are encouraged to push back fiercely on these clauses in exchange for a “right of first negotiation,” or better yet a “right of first refusal.”
The Impact of Industry Custom & Usage
Typically, the plain language of the contract rules the day. However, if there is no contract or the wording of the contract is ambiguous, then industry standards will come into play. Because of this, in any dispute, it is important to work with a knowledgeable attorney who can guide you through the process. Furthermore, if you work with us in the first place, we will make sure it’s all on paper and that you are protected to the fullest extent.
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