Protecting Your IP from Theft
There are several things you can do to protect your intellectual property:
- Register your work with the United States Copyright Office (any work you publish is automatically copyrighted, but if you wish to take a dispute to court, it must be registered)
- File DMCA complaints with those who copy your work or distribute it illegally
- Sue those who do not respond to your DMCA complaints
For more thorough guidance on defensively handling intellectual property, review our guide to protecting and defending your content from theft.
In general, your time is better spent creating new content and building stronger connections with your readers than fighting piracy of your books. If someone is claiming to have written your work and is selling it to others, by all means take action, however instances in which others illegally share copies of your books are far less harmful than you might imagine. Increased distribution of your work, even if illegal, might actually help your cause.
Not Breaking the Law Through Your Work
Books are very public things; it can be somewhat difficult to have legal infractions go unnoticed when they are presented through an actively-promoted and distributed work. Therefore make sure that the books you publish are free of:
- Copyright infringement: Do not use others' work without permission
- Defamation: Do not say false things about individuals or businesses that can damage their reputations
- Privacy violations: Make sure that your work does not violate others' reasonable expectations of privacy
- Violations of an individual's publicity rights: Do not attempt to commercially exploit another's name or likeness
- Bad or dangerous advice: This could get you in trouble for negligent publication
Visit Writer's Digest's guide to defamation and invasion of privacy for a brief introduction to those danger zones. Drop by Wikipedia for a friendly introduction to publicity rights complete with plenty of jumping off points for further research. You can learn more about negligent publication over at FindLaw.
The Importance of Contracts
When authors place their financial and professional fates in the hands of others, contracts are typically involved. It is important that you give these contracts adequate attention (before any work begins), as they will set the tone for each of your key strategic relationships.
Avoid viewing contracts as utterly-enforceable bibles. Taking things to court is expensive. Should your loss due to another party's breach of contract be under $20,000, it is probably not even worth taking your conflict to court.
The contracts that have the most value are not long, draconian documents full of legalese, but rather simply-worded agreements that make it clear what each party can expect from one another. Use contracts not to threaten punishment, but to build strong, mutually-beneficial relationships.
Understanding User Agreements
Before settling with a particular publishing platform, carefully read though its terms and make sure you understand:
- What you can and cannot do as an author publishing through a given platform
- How the website earns money from your work
- The proportion of your profits in sales to which the platform lays claim
- Whether that platforms directly charges you for certain services (e.g. listing fees)
- Any rights the website claims to your intellectual property
Signing Contracts with Editors
Before signing a contract with an editor, make sure that it clearly stipulates:
- The services you will receive (e.g. copyediting along with the critique of a query letter)
- The agreed upon rate at which you will pay this editor
- The agreed upon time in which the services will be completed
- Who retains exclusive rights to your work (as editors may lay claim rights to their copyrightable contributions)
With regard to intellectual property rights, be sure to make it clear that you maintain exclusive rights to the manuscript that is being edited. If this is not made clear, your editor may be able to lay claim to a certain portion of your work (especially if he or she does more than just edit your work for typos and grammar mistakes). If your contributions become indistinguishable over time, you may even be considered to be joint authors. "Work Made for Hire" agreements are well-suited to protect you from these potential pitfalls.
Signing Contracts with Agents
Before reviewing an agent's proposed contract, investigate his or her reputation. Even if an agent is a member of an organization like the Association of Authors' Representatives, which holds its members to certain standards regarding skill and ethical conduct, be sure to find references and gain a sound understanding of that agent's expertise and track record.
If an agent charges a fee to review your manuscript, it is particularly important that he or she have a good reputation, and that that fee is associated with a legitimate screening process (one that ideally adds value in the form of editing and feedback). Keep in mind that not all agents charge fees and many do not consider the practice to be respectable.
When reviewing your agent's proposed contract, be aware of:
- Commission rates
- How expenses are charged
- How long the contract lasts
- Whether the agent will claim the right to represent all of your work through all channels and in all formats
- Whether the work your agent claims the right to present includes work you created before the agreement is enacted
- Whether the agent demands exclusive agency or the exclusive right to sell
Typical agent commission rates are 15% plus an additional 5 to 10% for deals that involve sub-agents (sub-agents are often used to establish deals with film studios and foreign publishers). The only instance in which you should expect a lower rate is if you have already found a publisher or film studio that is interested in your work and you simply want help from the agent with negotiating a favorable contract.
While some agents do not charge for expenses, others do. Should your agent charge you for expenses, clarify what expenditures are acceptable and check to make sure that expenses will be deducted from your royalties rather than presented as separate charges.
While agents will generally be motivated to have a contract last as long as possible (some contracts' durations last as long as an author's copyright to his or her work), authors have the most to gain from contracts featuring 30 day “at will” termination provisions, which enable either party to terminate a contract with 30 days' notice. Should an author want the contract to have a longer mandatory duration, be sure to include clauses that enable you to end the contract after a certain amount of time if adequate deals have not been made. Be very, very wary of “interminable agency” clauses, which may grant an agent exclusive rights to your work for the duration of its copyright. Also clearly establish that your contract and your agent's rights will be terminated should your agent quit, die, or have his or her business close or go bankrupt.
When working with an agent for the first time, consider asking for a more limited scope in terms of representation. You may, for example, ask that the agent to just represent one book, or only handle print publication so that you can work with other agents regarding subsidiary rights, such as a film adaptation of your work. Should you enjoy working with an agent, you can always broaden the scope of your contract over time.
Opt for contracts that specify exclusive agency over the exclusive right to sell. The former claim means you cannot work with another agent during the duration of the contract; the latter claim means the agent would be able to claim a commission even if you signed a contract with a publisher without his or her help. Also be aware that in some jurisdictions, exclusive agency might imply the exclusive right to sell, so if it is important to you that you be able to sign deals independently (and we think it is- especially if you end up with a lackluster agent), be sure to make your right to sell independently without owing commissions clear.
For more guidance with reviewing agent contracts, visit Daniel Steven's guide to author-agent agreements on PublishLawyer.com (his article discusses additional details, such as disbursement and accounting, that are not discussed above).
Signing Contracts with Publishers
When signing a contract with a publisher, be especially mindful of:
- What types of rights the publisher will be claiming to your intellectual property
- Whether you retain subsidiary rights to your work (e.g. film, electronic, dramatic, or television rights)
- Whether you will regain rights to your work after your book has gone out of print
- What rights the publisher has with regard to approving the final manuscript, editing your work, selecting a title, and choosing cover art
- When the publisher must pay you your advance
- How royalties are calculated
- When the publisher must have the book published (e.g. within twelve months after the manuscript has been accepted)
- Whether the publisher has the right to update the book over time
Whether it is important that you retain subsidiary rights to film or dramatic adaptations of your work is a matter of personal preference. Generally, if you do not think a publisher has the intention or ability to exploit certain rights, do not grant them. Based on some precedents set in cases like The New York Times v. Tasini and Random House v. Rosetta Books, you should retain electronic rights to your work should you sign a contract with a publisher to run a print publication unless the publisher clearly claims rights to digitally distribute your work in your contract.
Ideally, your publisher will return your intellectual property rights to a book once that book has gone out of print. This will enable you to sell the work independently as an ebook and continue to profit from it over time.
If you are very persnickety about your book's content and the manner in which it is presented, make sure that you are given sufficient influence over your book's revision, alteration, title selection, and cover development.
Some publishers state in their contracts that your advance will be paid "upon execution," which enables them to withhold it throughout the signing and counter-signing process. If it is important to you that you receive money ASAP, clarify that you are paid as soon as your signed version of the contract is delivered.
Ideally, royalties will be specified as a percentage of the Suggested Retail Price of a book, not "publisher's net receipts" or some other less straightforward term. You should be able to clearly calculate how much you will be making based on the number of books you sell.
If your publisher does not specify a time at which your book is to be published, you run the risk of that publisher sitting on your work for an indefinite amount of time. Should the subject matter of your book require that it be regularly revised, make sure you agree with the process by which it will be kept up to date.
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