Publishing Attorney or Literary Agent?

By Jeff Rivera Comment

With so many changes happening for authors in today’s publishing world, many authors have questions about their rights. Authors now have a choice to either independently publish their books directly with services such as Scribd’s print on demand services as mentioned this morning, and or go the traditional route. However, with these new opportunities for authors, it raises new legal questions.

Is there any need for a literary agent any more in such cases? And if so, where will their new place be in the new digital book world? Should authors be concerned about trademark and by exposing their books on the internet, are they giving up any rights? We reached out to publishing attorney, Lloyd Jassin to answer these questions and others in our interview below:

Why choose working with an attorney over an agent?

Entrusting your career solely to an agent is not quite leaving the fox to watch the hen house, but, as your career develops, the issues that relate to your IP assets, inlcuding image and literary works, becomes increasingly complicated. While most agents are good and honorable people, unlike an agent, an attorney owes his duty of loyalty to the client. Find the right people to help you. No single person, whether agent or attorney, can handle all aspects of your career. And, by having a team (i.e., attorney and agent) you create a true system of checks and balances. Agents, as their name suggests, procure publishers. Attorneys advise and counsel, and negotiate contracts. Both seasoned agents and literary attorneys are likely to have long-term industry relationships that can be leveraged for your good.

So, in the best of all possible worlds, you will have an agent and a publishing attorney in your corner. A “publishing” attorney’s main role is helping you make major business decisions. When I say make major decisions, I mean they aren’t just negotiating contracts. Smart literary agents get it. If you say you’d like an attorney to review a contract, provided the attorney is a publishing veteran, most seasoned agents won’t object. I know many agents who care deeply about their clients, and negotiate excellent contracts. But, some agents are better at doing lunch than contracts. Contract negotiations over non-money issues such as control over title, narrowing the non-complete clause, right of approval over derivative works, slows those agents down, and, possibly, denies them an interest in certain revenue streams. So, keep in mind, an agent’s long term interests and an author’s long-term interests may not be perfectly aligned. You may be able to live with the conflict of interest, but make sure the conflict works for you, or you embrace it with eyes open.

Under what circumstances would you hire an attorney and not an agent?

If you’ve been offered a book deal, and you don’t have an agent, why do you need one? Agent’s procure book deals and edit manuscripts. Their primary duty is to locate literary properties and shape them. An agent will take 15% of your gross revenues in perpetuity merely to negotiate your contract. Unless the agent can bring a tremendous added value, hire a qualified publishing attorney, who will work on a straight hourly fee basis. If you don’t have a budget for legal service, some attorneys may even work on a reduced percentage fee basis. In either case, the attorney will negotiate the grant of rights clause, royalty provisions, and the boilerplate provisions that seem innocuous until you seek to get out of your publishing contract, or find yourself on the wrong end of a lawsuit.

What should potential clients expect to pay an attorney?

It all depends on the attorney’s level of skill and the complexity of the contract. For example, a single title fiction contract takes less time, as a rule, to negotiate, than a NF book, which is, in essence, a marketing tools for the author. In the latter case, the trademark, non-competition, and bulk purchase of copies by the author (for workshops and seminars) become important issues. Fees in New York City, where most of us are located, can range from $350 to $700 per hour. If you intend to hire an attorney, make certain he or she sends you a written fee agreement, and is indeed qualified in this arcane area of the law. Music business attorneys are good at what they do, but, don’t hire a music business attorney, unless they know what BEA and an ARC is. And, don’t wait until the last minute to hire a publishing attorney. There are not many publishing attorneys in practice, and it’s not uncommon to have to wait in line. Fortunately, most contracts are negotiated over the course of a couple of weeks (or more, so), reasonable, not immediate, turnaround is what is required.

How can they terminate a bad literary agent contract?

It all depends upon what you negotiated. Some agency agreements are terminable upon 30-days prior notice, others run for one or more years. As a rule, shorter is better. As a rule, have an attorney review your agency agreement before you sign it.

Should writers be concerned about trademarking or copyright?

Absolutely. The foundation of the publishing industry is built around the acquisition, sale and licensing of copyrights. While the copyright law is very paternalistic towards authors, what the copyright law giveth, the author-publisher agreement can taketh away. The fundamental problem is that the typical author-publisher contract seeks a very broad range of rights. These rights go well beyond the basic book or volume rights. But, here’s some good news. Even though a publisher may want everything under the sun — including film, television and dramatic rights– most contracts are negotiable. Keep in mind that you will be negotiating a very long term relationship. If your book is successful, the publisher and you (or your heirs) could be bound together for the life of the book’s copyright. Currently, the life of the copyright is your life, plus another seventy years.

Trademarks are increasingly important to authors. If you are an author, it is helpful to think of your book as the headwaters of your very own intellectual property Nile. Best selling author, Robert G. Allen refers to it as “infopreneuring.” As an info-prenueur, the goal is to create multiple merchandise licensing revenue streams that flow from your book (and book title). If you aspire to be a published author, or, if you have been offered a book contract, remember, you, not your publisher should retain trademark licensing rights to the title of your work. Merchandising rights — which is a category of rights a publisher will seek — includes the right to license the title of your book, and the characters contained in it, for games, toys, clothing, household goods, as well as innumerable other goods and services. To be clear, “licensing” is where the owner of a trademark gives another party the right to use that mark in exchange for payment of a royalty.

Regrettably, many authors ignore the “grant of rights” clause of their publishing agreement. After signing away their rights, a form of seller’s regret sets in. Contracts clauses are malleable, not words set in stone. The reason publishers have contracts department is because contracts are negotiable. Be respectful of your publisher. Know what to ask for, or hire someone that does. That someone can be a knowledgeable agent or a publishing attorney, or both. Or both? Attorneys in the entertainment industry often play a kind of “central command role,” assisting agents in negotiating publishing and merchandise agreements.

What are common questions/answers that clients often ask you?

Can I trademark a title? The answer is, no, you can’t trademark a single literary title, but you can trademark a series title. Other questions that client’s ask are “What is fair use?,” “How can I tell if a work is in the public domain?,” “Can I write about my childhood without being sued for libel?,” and “Can I copyright a title?” You can’t copyright a title. The other questions, unfortunately, don’t lend themselves to “yes” or “no” answers.