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Thursday, March 1, 2012

LEGAL ISSUES AND THE WRITER

by Lise Horton


“The path you walk will be thorny, my son, through no fault of your own!”   ---- Maria Ouspenskaya to the Wolfman


Our path as writers can be truly thorny, too. The publishing world is changing like a nervous chameleon and we have to keep up with all these changes if we want to keep our careers from running afoul of monstrous mayhem. You’ll need to educate yourself to make sure your career is on track and you are maximizing your investments of time, effort, talent and money.

One of the trickiest areas to navigate is the legal arena. It can be tough on the best day, in the best circumstances. But as more and more authors opt to publish with digital publishers – the majority of whom don’t require an agent to get “in the door” – they are doing so without the benefit of knowledgeable agents (or publishing lawyers) to help them understand the contracts they are signing, to advise if the terms are “industry standard” or somehow aberrant, and to clue them in to the potential adverse effects when something goes wrong.

On a lot of RWA loops I’ve encountered discussions of the confusion over publishing contract terms (as well as a lot of erroneous “facts”). Likewise I’ve seen a lack of understanding of what is standard in our industry. And the proliferation of publishers has left some authors contracting with operations that are not operating as efficiently – and in some isolated cases, as ethically – as they could be. Then there are the day to day legal issues writers are faced with which are often misunderstood or ignored completely.

The only way to make sure you are on an even keel is to get as much education as you can from reliable sources. And even then, you need to be able to recognize when you are simply in over your head and need professional guidance. You take a chance on missteps that may adversely impact your career, and just make you an unhappy camper if you don’t have this self-knowledge.

So to get an idea of how much you know – or don’t – check out the following questions having to do with things legalistic and contractual:

- What is the difference between an option and non-compete provisions?
- Give an example of a case of material breach of a publishing contact.
- What legal concept covers passing a living author’s work off as your own?
- True or False: You can use song lyrics in your story as long as you give appropriate credit.
- Do you have any recourse when signing a publishing contract if you do not want the publisher to include another author’s ads in your book?
- What does it mean if a work is “in the public domain”?
- Can you copyright a book title?
- When can you trademark a book title?
- What is “Fair use”?
- Give an example of when an author might be required to return an advance.
- Give two examples of when rights in a book might revert back to an author.
- True or False: The following subsidiary rights always belong in total to the publisher –
          o Book club sale
          o Foreign rights
          o Audio rights
          o Dramatic rights
          o Merchandising rights

- An “advance” paid to an author is (choose the correct choice) –
          o A signing bonus
          o An advance against any royalties an author might make on sales
          o A portion of guaranteed income on sales of a book

- What is a “work-for-hire”?


These are just a few of some basic questions an author should know the answers to before she signs any publishing contract, and, in fact, as she moves forward to becoming a published author. Do you know the answers? If you do, congratulations you savvy professional, you! Are you scratching your head and wondering if MAYBE you THINK you know a few of the answers? Then you need more knowledge. This business can be unforgiving if you inadvertently err. Make sure you are making the most of your career – and not mistakenly putting yourself in jeopardy.

Familiarize yourself with the basics. Recognize that contracts are not static, and are changing incredibly fast, as the business changes. “Industry standards” are changing by virtue of changing technologies (not just digital publication, but enhanced eBooks and what they mean, what “out of print” now means and how it continues to evolve). And new opportunities can also present new dangers.

I am not a lawyer, but I’ve been listening to enough situations where authors have gotten mired in difficulties and frustration because they didn’t know enough – and didn’t know they needed to know more.

Don’t let that happen to you!



Lise Horton is the President of RWANYC, and has worked as an assistant in entertainment law, including publishing, for over 20 years. She freely admits she continues to learn new details every day – and urges everyone to seek out this knowledge to protect yourself and make the most of publishing success. For more information on the publishing industry, check out her blog, The Publishing Game, http://publishinggame.blogspot.com/.

1 comment:

  1. Great post, Lise. These are issues writers need to learn about. Putting your head in the sand can be costly. Also, copyrights, when do you need to get one officially and do you ever sell it to your publisher? I hope these questions will all be on the agenda for Saturday's meeting. Well done. Thank you.

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