For Harvard Medical School CME, May 5, 2006
A. Copyright Overview – Federal Law (Title 17, U.S. Code)
B. Book Publishing in Flux
NB. Always start with due diligence (A rotten contract with a great publisher trumps a great contract with a rotten publisher.)
A. Rights Granted
B. Satisfactory Manuscript: Author’s Primary Responsibility
C. Options & Noncompetes
D. Publisher’s Duties: Prepare, Publish, Promote and Pay
- traditional press: at least highest print rate
- e-book publisher: 20 - 50% net receipts
- e-book vanity press: 35% - 70% list/sales price
E. Termination and Reversion
F. Representations and Warranties
A. Scope of Rights: Avoid work-for-hire, limit electronic rights
B. Exclusivity (first serial rights) tied to publication by certain date
C. Avoid/limit liabilities and indemnities (promise originality only)
D. Electronic aggregation (inclusion in online and electronic databases)
A. Appoint as “exclusive” agent for identified works, perhaps limited to certain rights (e.g., literary vs. motion picture); do not include “next work”
B. Author must approve publishing contracts (perhaps with minor exceptions)
C. Compensation based only on Author’s revenues derived from rights placed by Agent (10-15% generally, up to 20% for foreign sales where Agent compensates subagents)
D. Control reimbursable expenses: invoiced and capped, approval of extraordinary expenses
E. Publisher pays Agent vs. Author (Agent should segregate funds and pay Author promptly)
F. Termination at will, on reasonable notice (e.g., 30 days to conclude publishing contracts in process) after reasonable trial (limit to 1 year)
G. Author’s warranties limited to (1) authorized to enter agreement and (2) originality of covered works
H. No right to assign
A. Clearly delineate rights (including who owns copyright – generally owned by main figure or co-owned – and creative control) and responsibilities
B. Clearly delineate compensation and credit (often a trade off)
C. Unwinding the collaboration: If the collaboration ends prematurely via death or disagreement, who does what, who can do what and who owns what?
A. Validation. Accept that negotiation is proper.
B. Knowledge. Understand –
C. Win/Win Philosophy. Seek solutions that meet both parties’ needs and, as much as possible, desires.
D. Nonconfrontational Techniques
If you would like to discuss publishing contract issues, please feel free to contact Howard G. Zaharoff.
Appendix A: Sources of Information
Harper, Timothy, ed. 2003. The ASJA Guide to Freelance Writing. St. Martin’s Griffin
Kopelman, Alexander and Judith Lavine. 1995. National Writers Union Guide to Freelance Rates and Standard Practice. Betterway Books.
Kozak, Ellen M. 2004. Every Writer’s Guide to Copyright and Publishing Law (3rd Ed.). Henry Holt and Company (An Owl Book).
Perle and Williams on Publishing Law (3rd Ed.), Aspen Law & Business 2000 (updated through 2004).
Waller, James. 2000. National Writers Union Freelance Writers Guide.
Folio: The Magazine for Magazine Management (Cowles Media)
Publishers Weekly (Cahners)
Writer’s Digest (F&W Publications)
The Writer (Kalmbach Publishing)
III. Web Sites
www.asja.org. Site of the American Society of Journalists and Authors. Contains articles, contracts watch and other materials.
www.authorsguild.org. Site of the Authors Guild. Contains database of case digests, position paper on electronic publishing rights and other useful information, including “Improving Your Book Contract: Negotiation Tips for Nine Typical Clauses.”
www.foliomag.com. Site for Folio: magazine. Contains articles on magazine publishing trade.
www.ivanhoffman.com. Site of lawyer Ivan Hoffman. Excellent collection of articles on publishing and contract matters, for writers and publishers.
www.nwu.org. Site of the National Writers Union. Contains useful information for writers, including grievances newsletter, job listings and resource links (the most useful information, including guides on book contracts, agents agreements and collaborations, are for “members only”).
www.publaw.com. Site of publishing Lawyer Lloyd L. Rich. Contains useful, readable legal articles on many topics, including Internet law, copyright, trademarks, publishing contracts, fair use, privacy and publicity rights.
www.sa2.info. Site of Society of Academic Authors. Contains how-to advice on textbook publishing, negotiation points, contract alerts, and citations to legal cases
www.sfwa.org. Site of Science Fiction and Fantasy Writers of America, Inc. Contains writing basics, Q&A, model contracts and “Writer Beware.”
www.taaonline.net. Site of Text and Academic Authors Association. Contains organization information, industry news and members only section.
www.writersdigest.com. Site for Writer’s Digest, a monthly writer trade magazine. Contains tips and Q&A on craft and business of writing.
American Society of Journalists and Authors
The Copyright Society of the U.S.A.
National Writers Union
Science Fiction and Fantasy Writers of America
Society of Children’s Book Writers & Illustrators
Text and Academic Authors Association
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