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Calling All Authors – Protect Yourself Before You Publish

You have finally finished your manuscript and are looking to close your publishing deal. The next, critical step is to retain counsel to provide legal advice on any publishing agreement.

Publishing companies, in general, will use a form agreement in negotiations with an author. Keep in mind, however, that form agreements are usually drafted by attorneys hired by the publisher and may not be written with the author’s best interests in mind. Here is a limited list of provisions typically found in publishing agreements, and points to be negotiated.

Copyright: Authors may get sidetracked in negotiations over whose name will be on the copyright of the work. Keep in mind, however, that even if the registered name on copyright is the author, those rights will be subject to the publishing agreement allowing the publisher to exploit those rights. Under U.S. copyright laws, the author retains the right to terminate the grant of the copyright to the publisher under certain circumstances, and this termination right cannot be waived by contract prior to a termination.

Licensing: This provision is the standard means by which the publisher will seek to gain many if not all of the rights to the work. These rights will include the right to license, sell and publish the work and will also identify additional licensing rights, such as electronic, multi-media, microfilm, audiocassette, performance rights, among others. While it may be acceptable to license the rights to one publishing company, the author should ensure that he or she receives a percentage of proceeds from the negotiation and exploitation of these rights.

Representations and Warranties: This provision requires the author to guarantee that the manuscript and materials are in fact the rightful property of the author and have not been plagiarized, stolen, or previously sold to another publisher. While a warranty provision is necessary for the publisher, the author’s liability should be limited for conditions that arise at no fault of the author. In addition, publishers will generally require clearances that the author’s materials have been used with permission by their owners and that the author has a license to use them, whether in the form of a quote, photograph, or other sources of information provided by third parties. It is usually best for both the author and the publisher to obtain licenses because any litigation that ensues will likely name both of them.

Approvals: The publisher will generally retain the right to make revisions, but usually subject to the author’s approval. During the final stages of production, however, the author’s changes to a manuscript may be limited.

Advances and Royalties: Advances, typically taken against royalties, provide the author with financial support prior to the book being completed. Royalties identify the profitability of the work to the author and usually range anywhere from 5% to 15%. Additional provisions may include escalation clauses providing a lower percentage royalty for the first set of copies (for example, 5,000 copies) and a higher rate for the next.

Termination of Agreement: Several issues must be parsed in order to have a full disclosure of what transpires upon dissolution of the relationship between author and publisher. One instance in which an agreement may be terminated is if the book is declared “out of print” by the publisher. But what exactly does “out of print” mean and who can define the phrase in light of the contract? What are the pre-conditions that must take place in order for the book to be declared “out of print” and what must happen upon that event? More important, what are the parties’ rights in the event of a termination? Will the author be able to secure a list of outstanding licenses and other third-party deals executed by the publisher? Upon termination, will the author own the intellectual property rights in the work? In addition, is the author entitled to any reacquired stock of the work?

Stock: Publishing agreements often provide that the author will receive a set number of copies of the work to give to friends and family. Any stock that remains unsold can be reacquired by the author, usually at a reduced rate.

Assignment: Ownership of the rights in the work will impact what the author or publisher can do with the work down the road. For example, a publisher that has not been assigned the rights in a work will not be permitted to transfer company such rights without written permission from the author.

The list of items above is by no means exhaustive. Rather, it is a sampling of the many issues that any author should consider and negotiate with the help of legal counsel.

For more information please contact Pamela K. Riewerts at (410) 583-2400 or riewerts@bowie-jensen.com.

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