A literary agency agreement followed by a book contract marks the beginning of an author’s professional relationship with an agent and publisher. The publishing contract represents the cornerstone on which to build the successful publication and distribution of an author’s work.
It is natural to have a lot of questions and there are many more than here that I generally field. One should never be afraid of asking. Some common questions include:
Q: Do I need an agent? Or, what does an agency agreement do for me?
A: This is the first question writers ask me. The real question, though, should be “How do I protect myself?” The purpose of a literary agency agreement is to pin down an agent’s fiduciary responsibilities, the scope of their representation, and other similar terms. Scope of representation is particularly important.
Q: What is a “standard publishing” agreement? If I can trust the publisher, can I just sign the agreement?
A: Some authors are so happy to receive a contract that they overlook that as presented for signature it represents the publisher’s best business interest and not the author’s. This is why authors need professional guidance in order to negotiate an agreement that is fair to the author and mutually beneficial for both parties. Always remember that publishing contracts are drafted by the publisher and sent to authors for signature. Get a start on familiarizing yourself with terms in publishing contracts, read my essay on “Fair and Unfair Publishing Agreements” published in the New York State Bar Association, IP Journal (Bright Ideas) Winter 2016. Other essays are posted under the Essays tab.
Q: Are there contract terms that I should particularly be concerned about?
A: Territory, rights assigned (does the contract include derivative rights for example?), reversion, warranty. All of these have to be looked at carefully.
Q: Who is responsible for copyright registration?
A: Generally, with traditional publishers, the publisher will register the copyright in the author’s name. This can vary if the book is a work-made-for-hire, in which case the copyright will be in the name of the employer.
Q: What can I do if my copyright is infringed?
A: This is why it is so important to register the copyright because you cannot commence an action until you actually have a copyright registration. Copyright infringement claims have to be filed in a district court. They are not actionable in a state court.
Q: I’m writing a memoir. What can I say (or not say) about people I know, my family, and others? Are there rules?
A: This is a particularly tricky area. It implicates the laws of defamation and privacy. Generally, it is advisable to be circumspect and be guided by a clear-eyed understanding that certain statements may be actionable.
Q: I hear a lot about having a platform. Is there any best practice?
A: Publishers generally insist that authors take an initiative in the marketing of their books. Having a presence on the Internet is important. Authors should certainly acquire domain names of their names and book titles. This is something we can assist you with.