Law and the Writer

Last week a young writer who is also a lawyer was on blog tour, and I have asked her if she wouldn’t mind stopping by the comments today to answer some questions. The usual disclaimers apply: although she is a lawyer, she is not your lawyer, and nothing you read in the post or comments should be taken as legal advice. If you think you need a lawyer, get one, internet lawyering may well be worse than useless. That being said, it’s great to get some insight into the sometimes murky world of Intellectual Property law.

I’m pleased to introduce Amie Gibbons, whose energy in real life translates into her books. She writes lighthearted stories with sweet Southern sass, belles who pack heat, and a dollop of romance on top of things that go bump in the night. Her latest is Psychic Undercover (With the Undead) and it’s a fun romp of a book.

Okay, if you’re a writer, you’ve heard the term copyright. It’s very important in the arts. So what is a copyright?

It is literally what it sounds like, the right to copy. It means you own that type of mental work and you are the only one who can make reproductions of it.

On some things, it’s easy to say what’s copyrightable and what isn’t. A book is copyrightable, but what about a title? Or a made up word? Or a general plot? There it gets a little more tricky. It gets grey. Lawyers love grey, it gets us lots of money.

This post is just going to touch on the basics of copyright.

1. For something like a book, the first question is usually along the lines of, “Do I have to register it to have protection?” Basic answer is no. You created it, it’s yours and legally no one can take it from you. You have copyright as soon as the art is put on a medium, as in, words are put on the page.

So no, you don’t have to register it with the copyright office, and you really do not have to do the “poor man’s copyright” (that’s where people would mail themselves their manuscripts in the mail and keeping the dated paperwork to prove they had the work on that date).

The tricky part if you get caught in a legal battle is proving it was yours first. This is where a registered copyright helps because it helps prove it was yours on the date registered (it also does other stuff for you like you can sue in federal court and get greater damages in court).Read the rest here… 

The post on copyright, fair use, and other common IP questions appeared at my blog, and then on James Young’s blog, Amie delved into the dank world of Contract Law.

Well, first up, most publishers have a form contract they expect you to sign and if you don’t want to, they’ll tell you it’s standard across the industry and you can take it or leave it. If you leave it, don’t worry, there are a hundred authors behind you who will have no problem with it.

That is one of the big things to look at in contract negotiations. Does one side have more bargaining power than the other? Usually the answer is yes. Unfortunately for writers who are set on going trad pub, the answer is extremely yes. The publisher has all the power because they don’t really need you. Unless you have already made it huge like that Fifty Shades woman and they want to get on board the train, you’re replaceable.

Does that mean you can’t try to negotiate? Of course not. Hire an IP lawyer who specializes in author contracts to look at the contract, to explain it to you if need be, and to go to the table to negotiate on your behalf.

First rule of negotiations, you never send the person with the power to say yes to the table.

Why? Because if you as the author are at the table, they can pressure you right there to agree to something. If your representative is there, there is nothing they can say to get the rep to say anything but, I’ll take it to my client, because the rep legally cannot say yes, no matter how good the deal sounds. Even if you tell them they can say yes if the deal has XYZ terms, they’ll still most likely say they’ll take it back to you because they know how to negotiate and that no legit deal requires you to say yes in the room.

Again, will this help if the publisher says this is the form contract that is standard across the industry so you will take it or leave it? Probably not. But you never know. There might be a few things that are just egregious to the author that publishers have in there because they know they can get away with it, but really don’t mind dropping if you ask. Read the rest here…

Amie has some very practical things to say, with a good dollop of commonsense. I know this is a lot of reading when you follow the links, but it’s all worth digesting. Then come on back here and ask questions in the comments, both Amie and I will be around to answer them! I am not a lawyer, at all, but I can usually come up with a link to an answer.

20 Comments

Filed under CEDAR SANDERSON, IP Law

20 responses to “Law and the Writer

  1. amiegibbons15

    Hey guys. I’m lurking and keeping an eye out for questions/comments. 🙂

  2. Thanks! Many thanks! If I ever have time, I will have to buy and read one of your books. Alas, I am attached to writing, which eats my time.

  3. Do you know of good resources to point new publishers at for good sample contracts? I’m working with one whom I think inherited contracts from an associated company. It may be that they should just have their own lawyer review things with them so they know exactly what’s in there.

    They’ve got some nice author-friendly things in their contract, but they’re likely running on faith that it’s all good.

    For example, contract calls out audio books in one section. They thought if I crossed out some other section on derivative works that they wouldn’t get audio book rights even though it’s still called out explicitly. (I work in software so I understand contract-eze and logic pretty well, but I could be missing something on the legal front.)

    • amiegibbons15

      They should *Always* have their own lawyer review contracts. Not sure what situation is going on where they’d inherate contracts but they definitely need the lawyer to look over it before they start giving it out.
      Just like when you’re the writer, you don’t want to be signing something you don’t understand when you’re the publisher either.
      You could just google something like publishers and authors form contracts and pull stuff up to put together one, or just go through and redline the one they already have with their lawyer.

      • From my days of reading contracts (not publishing contracts, but in several other business fields) – all too many of them are the result of a “process” just like too much of software development.

        Client says “we need X in our contracts.” Lawyer translates to legalese and inserts X. But doesn’t look at the whole thing, thus not noticing that X causes problems for B, L, and P…

        • amiegibbons15

          That is not a good lawyer. When I worked in contracts, you changed one provision, you made damn sure you knew what it affected.

          • Oh, entirely agree. Now, I have nothing but personal statistics on the proportion of good contract lawyers to bad, but it was rather low back in those days.

            (Also note that the worst contracts I ever went over, like the worst software abortions I’ve ever evaluated, are the “one size fits all” ones, not the “one off” agreements hammered out between just two parties.)

        • Publishing contracts don’t work that way, generally speaking.

          Client says, ‘We need to screw our writers out of X.’ Lawyer translates to legalese and inserts X. Agents baulk. Lawyer therefore removes the X clause and distributes its language sneakily in five other clauses so agents have to play whack-a-mole even to find it. Agents are not licensed to practise law, and fail totally at this job. Writers get screwed out of X.

          The only rational response a good lawyer would have to a typical publishing contract nowadays is, ‘Shred this crap and start over.’

      • It sounds to me like the company in question inherited existing contractual rights and obligations by acquiring assets from the associated company, and is trying to figure out what those existing contracts say. Not always an easy thing; and not something that every business bothers to do. Some just ride roughshod and figure it’s cheaper to fight lawsuits than fulfil the contracts they have acquired from other parties.

        Like f’rinstance, my onetime ISP was bought up by a major telephone company. I had paid for a year’s service at a certain price – a service that would allow me to run my own server. The telco discontinued the service, refused to honour my contract OR refund the money, and told me I could get my prepayment applied pro rata for a more expensive service that would not do what I needed. I have refused to deal with that telco ever since – and it’s been 16 years.

  4. I just published a book with a small press and one of the contract provisions was right of first refusal for sequels to that book. The rights revision was also clearly stated in time-based terms starting from first printing, with a mutual option to renew at that time. It’s actually a fairly simple contract—the fact that the head of the press is also an author who had to deal with contracts elsewhere probably accounts for that. (It’s also quite obviously been handled by a lawyer.)

  5. Readers may want to consider that there are all sorts of rights out there. I was on the IP study committee for my university; we prepared a policy. It took forever. There are rights by geographic area. There are rights to audiobooks, TV shows, movies, etc. There are lunchbox etc rights. Then there are rights you might not have considered. Copyright of likeness: So to speak, you own your face. This did affect SF publishing. People were using images of real people rather than painting on their covers, the likeness right was not owned, and suddenly for a time you could not see faces on some book covers. I specifically asked my published for This Shining Sea to check that they had the needed rights. On the more esoteric side, there are mask rights, a “mask” being something you use to make an integrated circuit.

    • Anytime you use an image, you need to check usage rights. And you can use a photo, although if you do, you need to alter it (stylistically, science fiction and fantasy should never have a photographic cover. Photos can easily be altered to make them look painterly and suit the genre), of someone’s face. You just have to be sure that it is released for commercial use – model releases are a standard thing in the industry, and people who don’t use them are asking for trouble. But this is no different than any other image. You need to be sure that you have the rights for commercial usage, preferably commercial use with modification, on any image.

    • amiegibbons15

      Oh yeah, I didn’t even touch on rights to your image.

  6. What finally decided me on not even trying to get published by one of the big five as a starting author was that I saw what new rights the publishers were asking for from new authors.

    The right of first refusal: Okay, I get it, you don’t want your authors with multiple publishers at the same time because you don’t want them to compete with themselves, but you also don’t want them to publish those books independently for the same reasons, so what the publishers seem to have decided to do is extend that right of first refusal to pretty near complete control. It is possible to publish outside of their purview but they’ve made it very difficult from a legal standpoint. I think this is silly from a business perspective; by restricting authors to your company and publishing on your time frame (one or two a year seem standard for newer authors) you prevent them from maybe having a breakout hit elsewhere (whether indy or other publisher) which would then bolster sales of the books published with you. Plus you may lose the heavy readers if you don’t have the content to feed their appetites.

    All ancillary rights? The author has no say (other than moral disapproval and possibly bad press). And may get minimal payments? But that’s the pot of gold, and you don’t want to share with the authors? What? They created it, get minimal profit, expected to lick the hand? What? Be grateful. What? The disrespect of expecting a one-way business relationship has always been stunning to me.

    The worst, by far to me, is the new notion that the publisher maintains control of your work as long as they continuously publish your work can be extended from printing to e-books. That’s been a clause for a long time, but the publishers had to outlay significant cash to maintain those rights (by printing those books and trying to sell them), and the only reason to print them and maintain those rights was because the property had major value to the publisher. But now they want that extended to e-books? No outlay of cash, but the publisher maintains rights as long as the book remains up for sale in e-book form? It costs them nothing, but it keeps those rights from reverting to the author, which means the author can’t keep writing in that setting without permission, can’t sell the sequels independently, can’t make any money off of a dead property. But, those ancillary rights again come into play as in possibly someone could read the book (used) and buy up the movie rights (or something). Basically, the publishers keep hold of a lottery ticket that almost certainly won’t pay off. But it might, and it costs them nothing, so why not keep it?

    Because it’s immoral and wrong never seems to occur to them as a reason to not do something immoral and wrong.

    • amiegibbons15

      Same here. I didn’t try all the big trad pub places and then go indie as a last resort. I saw, just out of the ones who actually put theirs online, what was in these contracts and said I couldn’t sign that and would never sign that.
      And I decided to go indie that day. Only place I’ve submitted to (informally) is Baen, because they’re the only ones I’d consider.

  7. My non-fic trad-pub contract was such a mess (out of date with industry standards and definitions for terms, self-contradictory) aside from the other flaws, that my IP lawyer said he’d never seen one that shoddy. I passed his assessment on, but more tactfully. No idea if they’ve improved things or not. I suspect it was one of those contracts that just growed, as they say, with bits added on over time as things changed.