If you have written or are considering writing a book, you would probably like to see it published. Typically, authors either go to a book publishing company or they self-publish. Either way, there are legal issues that could impact your revenue, intellectual property rights and liability. An experienced publishing attorney can guide you through the publishing process to help protect and represent your best interests.
What is a Publishing Agreement?
When working with a publishing company, you will be required to sign a publishing agreement. This sets forth the rights and obligations of both parties. Typically, the publisher is responsible for editing, layout, production, marketing and selling the book as well as paying the author royalties. Authors are required to provide satisfactory content in accordance with the terms of the contract and to indemnify the publisher for any book content that results in lawsuits.
Both parties have primary and subsidiary rights to the book as specified in the contract.
What Are the Key Terms in a Publishing Agreement?
The publishing agreement will address many issues, but there are several key terms that you must understand. Good legal advice can help you avoid agreeing to unreasonable terms or risking legal liability.
Grant of Rights
The book publishing contract will indicate who owns the copyright to the work and what rights belong to the publisher versus the author. There are two types of rights – primary and subsidiary. Often, the copyright is held by the author (but not always). The author then assigns the publisher the primary right to publish the book in print and/or electronically. However, there may be geographic limitations on this right and the author should discuss this issue with an attorney.
Subsidiary rights encompass the rights to create or license other versions of the work. This may include foreign translations, adaptations, serializations, audio books, film/television rights, merchandising and other uses. These should be carefully negotiated to ensure that you are not giving up rights that the publisher is not in a good position to exploit or where you could get more favorable terms from another party.
It is common for an author to use material in the book that may be copyrighted or trademarked by a third-party (ex. photos, artwork, text excerpts, etc.). Generally, publishers want the author to take responsibility for obtaining and paying for any necessary clearances or permissions. However, there may be room to negotiate this. If the publisher handles permissions, any fees paid to the rights holder may be deducted from the author’s royalties.
The contract will set forth when and how the author must deliver the manuscript. This includes the due date, format and length of the manuscript. Typically, the publisher has the right to reject the manuscript if it is not satisfactory but may have to give the author prior written notice and an opportunity to cure the problem. You should take care that deadlines are realistic, and you understand what is expected of you before signing the agreement.
Warranties and Indemnities Clause
Typically, authors warrant that the work does not infringe any third-party rights, constitute libel or invade anyone’s privacy. In the event of a breach of warranty, you will have to indemnify the publisher, including the cost of defending an action against the publisher.
An experienced attorney is essential in negotiating warranties and indemnities. He or she can help limit your liability in various ways, including with caps on the indemnity and adding you as an additional insured under the publisher’s insurance policy.
Competing Works Clause
Authors are generally prohibited from authoring a competing work for another publisher. This is to protect the publisher’s financial interests.
The publisher may want to reserve the right to ask you to revise the book for a later edition. This generally occurs with nonfiction/academic books. If you refuse, the publisher may have the right to hire someone else to do the updating and can continue to use your name in connection with marketing and selling the book. Authors should negotiate for limits on this.
How Can Self-Publishing Lead to Legal Problems?
In self-publishing, the author handles (or hires others to handle) the various duties of a publisher (e.g., editing, layout, printing, publishing, etc.). As a result, legal issues that the publishing company would have addressed are now the author’s responsibility. Seeking legal advice is recommended because there is the potential for significant liability or the loss of intellectual property rights if the author does not act effectively.
Copyright and Fair Use
There are two types of copyright concerns in self-publishing. The first relates to the author securing his or her copyright in the work. While authors are not required to register their copyright, there are numerous benefits to registering a copyright with the U.S. Copyright Office. In addition, copyright owners must continually police their rights to prevent infringement. A copyright lawyer can help you with registration and enforcement against infringers.
The other type of copyright issue involves the author’s use of someone else’s copyrighted material. This includes any use of images, graphics, text and lyrics even if it is just an excerpt. Depending upon the amount and type of such material used, the author may need to license the right to use such material; or the author may, in some limited circumstances, rely on the copyright concept of fair use to use such material without a license. Fair use requires individual legal analyses of each use. An experienced copyright attorney can determine the risks involved and help the author understand possible outcomes.
Defamation, Privacy and Publicity Issues
An author can be liable for publishing information about a real person in certain cases. Typically, this arises in nonfiction writing.
- Defamation is a false statement of fact about a person, that causes harm to the person’s reputation.
- The right to privacy may be infringed where an author publishes highly personal facts about a person, such as financial, medical or similar confidential records.
- The right of publicity protects people from having others commercially exploit their name and likeness without their express consent.
If your book makes statements about real, living people, you may want to obtain a legal review of the content to check for possible liability.
Writers may be liable for trademark infringement, dilution or disparagement if they use trademarked brand names, phrases or logos in their book. There are complex rules associated with trademark law. As a result, consult an attorney.
Authors must take care not to make false or misleading claims about their background, credentials or their book (including publishing false reviews) and must make sure that nothing in the book could be considered unsafe.
Liability insurance may be a good idea for some authors, particularly if they run some of the risks mentioned above. In addition, writers are businesspeople and may want to buy separate insurance to cover them for damage to their workspace or property.
If you are considering working with a publishing company, you should seek the advice of a qualified attorney. A lawyer can help ensure you are signing a fair contract so you can focus on what’s important to you – the writing itself.
For those who plan to self-publish, educate yourself on the non-creative aspects of writing (i.e. marketing, contracts, tax forms, copyright claims, etc.). However, consult an attorney if your work may raise some of the issues discussed here. It will save you significant time and energy in the long run.
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