A Few Words About Photo Copyrights

The topic of photo copyrights came up during several of my workshops at last weekend's Colorado Gold Conference (one of the best Writers' Conferences anywhere - and if you've never attended one, PLEASE join us next September, when the conference turns 35!). Authors often have a limited understanding of how copyright law applies to photographs - and sometimes don't realize that using photos pulled from the Internet without a license is copyright infringement unless the photograph is in the public domain (or the owner has released it for use by others).

In light of that, I thought I'd take a little time today to review the law of copyright as it applies to photographs (and their use online), and offer tips for protecting yourself and your work from claims that you've infringed a photo copyright.

Copyright attaches to photographs at the time of creation, and belongs to the photographer who shot the image (or, in some cases, the client who hired the photographer to create works for hire). You cannot use someone else's image without a license (or permission), unless the image is released for your intended use and/or has entered the public domain--and you must be able to prove that status.

In other words: you cannot simply pull someone else's photographs from the Internet and use them, even on a blog that earns no money. 

Also, you cannot assume a photograph is released for use or in the public domain because it appears on Pinterest or on someone else's blog or website. (Even sites that claim to offer copyright-released or licensed photos for free can carry some degree of risk, because if a troll uploads a copyrighted image without the author's permission, people who subsequently use that image may be subject to infringement claims. It's rare, but I've seen it happen, with expensive consequences.)

So what's an author to do?

Some authors subscribe to reliable paid photography services that give access to image libraries. For a fee (and, in some cases, for free on a more limited basis) authors can use the images in these libraries for book covers, blogs, and other creative endeavors. Some services work on a "pay as you go" basis, licensing individual images, while others allow authors to pay a monthly (or annual) fee for unlimited image use. Only subscribe to reputable sites, and when using free photo sites, make sure the operators actually check the source of the images they offer.

Some authors stick with images that have entered the public domain, either due to copyright expiration or a confirmed copyright release by the photographer or copyright owner. Once an image has entered the public domain, it's free to use and it isn't copyright infringement to use it for blogs, book covers, and other creative works. The U.S. Library of Congress has an extensive collection of images, many of which are in the public domain and thus completely free to download and use. (Here's a link to their Japanese collection - much of which is in the public domain.) 

When pulling images from any website, BEWARE. Some free image sites are legitimate, but others may contain stolen or copyright-infringing images uploaded accidentally (or, in rare cases, on purpose by devious individuals wanting to cause trouble). When in doubt, don't use the image. You will be legally liable for copyright infringement even if the infringement was accidental.

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The best solution of all is to create the images yourself. Most people have either a camera or (more commonly) a mobile device that includes a camera. When traveling, or even out and about near home, take photographs of everything from rocks to flowers to automobiles (be sure to blur any license plates you capture - or, better still, take photos where the license plate doesn't show).

 

I refer to this habit of taking photos of various objects and places as "shooting B roll" - and it's a habit every author and blogger should adopt.

In film and television, camera crews shoot a combination of "A roll" - the scenes involving the actors, hosts, or primary subjects of the film - and "B roll" - still and moving shots of background, interesting objects, and other items used in post-production to enhance the film, as well as for bumpers and introductory scenes.

By shooting your own B roll when you're out and about, you're establishing a photo library of images you own, which you can use for any and every purpose, from cover art to blogging and beyond.

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Need a mug for a post on your favorite morning beverage?

 

 

 

 

Done.

 

Don't limit your photographs to family functions, historical sites and lovely landscapes--though they're certainly useful too. 

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Start photographing that B-roll now. It won't take long to build a photo library all your own.

 

 

Like this bowl, you'll be glad you did.

Tips for Pitching Your Novel to an Agent or Editor

With Colorado Gold just around the corner (and other conferences happening around the country throughout the rest of the summer and the autumn), many authors are preparing to pitch a manuscript to a literary agent, an editor, or both. In hopes of reducing stress and helping you land a request for pages, here are some tips for pitching your work to publishing professionals:

1. BE ABLE TO EXPLAIN (AND PITCH) YOUR BOOK IN A SINGLE SENTENCE.

Yes. ONE sentence. No more than a single breath - and that's not negotiable. The longer you talk before the conversation part of the pitch begins (see tip #2...) the less likely the agent or editor is to ask to read your manuscript.

The point of the initial one-sentence "elevator pitch" is to make the listener want to read the book, or at least to ask you for more information. The initial pitch is not the place to explain your protagonist's intricate backstory, six things that happened before the novel opens, or your favorite twisted subplot involving a carp full of angry bees.

Find a way to explain your book in a single sentence. You don't have to tell the entire story--just enough to make the listener curious enough to want to know more. (If you're having trouble condensing or figuring out what to say in that sentence, sign up for a pitch coaching session, ask a friend for help, or read up on elevator pitches in various trustworthy corners of the Internet.)

2. REMEMBER THAT PITCHING IS A CONVERSATION, NOT A MONOLOGUE.

When you sit down with an editor or agent (or ask to pitch them elsewhere at the conference), the opening salvo is a single sentence (or single breath) but after that--if the listener is interested in your work--there's going to be a conversation.

Yes, I know that's terrifying. Yes, you have to do it anyway.

The good news (great news, really) is that agents and editors are human beings, and I have never known one to actually bite an author in public. (Lawyers, like me, are another story. Get your shots before you engage.) Jokes aside: try to remember that agents and editors come to conferences voluntarily in order to find new authors and projects to acquire. They love stories, books, and publishing. . .just like we do. Plan for your pitch to involve a conversation, and try to enjoy it.

3. KNOW YOUR GENRE AND TARGET AUDIENCE.

It's not enough to know your book and be able to pitch it succinctly. You need to follow up by knowing the genre and target audience for your book. (Spoiler alert: "ALL GENRES IN ONE" and "EVERY LIVING HUMAN" are not the right answers.) Every traditionally published book will have to be placed on a specific shelf in a bookstore or library--and you need to know which shelf that is before you pitch to an agent or publishing house.

(Note: author-publishers have a bit more freedom if their plans for the work do not involve library, bookstore, or similar sales. Otherwise, this applies to self-published authors as well, though admittedly not in the agent/editor context.) 

4. RESEARCH THE AGENT (OR EDITOR'S PUBLISHING HOUSE) AHEAD OF TIME.

Agents and editors normally specialize in certain types of books and certain genres. Pitching your dystopian YA romance to an agent who only represents mystery wastes your time (and also the agent's), and offering your erotic graphic novel to a children's publishing house won't end much better.

Most agents and publishing houses have websites. Visit those sites, as well as the agent or editor's Facebook and Twitter feeds (if any) before the conference. Know the person you're pitching and his or her preferences as well as possible, so you know how to pitch your work to best advantage.

5. DON'T RE-PITCH THE SAME PROJECT (UNLESS IT'S TRULY A DIFFERENT BOOK).

This is a difficult one for many authors, especially those for whom it takes more than a year to write a book. However, it's also a serious turn-off to literary agents and editors to hear a pitch for the same project they considered (and, presumably, passed on) once before.

Exceptions to this are:

  • Where the agent or editor asked you to revise and resubmit, and you've finished and polished the project as requested.
  • Where you have revised the project so much, and so thoroughly, that it truly constitutes a different project. (Have someone else evaluate it if you can't be objective.)

Literary agents hear a lot of "repeat pitches" for the same projects, and I've never heard of one changing his or her mind unless the book was truly different. You'll have a much better chance approaching a different agent or editor--or writing a new and even better book! (And you CAN write another, better book. Trust me. I had to do it five times before I found my agent, and although those years were difficult, I learned a lot along the way. If I could do it, you can do it too.)

6. HAVE FUN.

7.  NO, SERIOUSLY. THIS IS ACTUALLY SUPPOSED TO BE FUN.

Pitching your work to an agent or editor means .... (wait for it...) YOU FINISHED A MANUSCRIPT! That's awesome, and something to celebrate! Don't let it go entirely to your head, but be proud of your achievement, proud of your book, and happy about the fact that you have a manuscript to pitch.

Authors often feel frightened of pitching because they find industry professionals intimidating to talk with. (Don't. They put peas in their ears just like you do. On second thought, nevermind. And my mother says "don't put peas in your ears.") Sometimes authors worry that agents and editors won't like their manuscripts. Maybe not everyone will...but no one will if you don't try.

If you're still nervous, come find me at Colorado Gold or talk to another author who's been through the pitching process and come out the other side. (There are lots of us, and we're glad to talk with you about our experiences.) Pitching isn't easy, but if you go in with the right attitude, it can be educational and fun.

Pitching veterans...what are YOUR top tips for pitching an agent or editor at a conference?

How to Spot (& Avoid) “Pay to Play” Publishing Contracts

In recent months, I’ve seen a resurgence of some terrible publishing “offers” that business-savvy authors need to recognize . . . and avoid.

Although these “deals” are legal if an author signs them, every time I see one of these contracts, I'm reminded of my law school contracts professor’s favorite saying: “You can make as good a deal, or AS BAD A DEAL, as you are able.”

And authors who accept these contract offers are making a very bad deal indeed.

Let's take a closer look:

BAD CONTRACT #1: “WE PUBLISH, YOU PAY”

This contract requires the author pay for some or all of the publisher's costs to produce the book. Often, the costs are not listed in detail up front, leaving the author on the hook for undisclosed (and often enormous) sums. When costs are listed, they often exceed the amount the author would have to pay to self-publish the work - meaning the author could hire a professional cover designer, developmental editor and copy editor . . . and still not pay as much these contracts require.

The publisher, not the author, should be responsible for all the publishing costs in a traditional publishing deal.

There are some legitimate "hybrid presses" that share the publishing costs with the author (and generally pay MUCH higher royalties--at least 50% of gross income--to offset those shared expenses). However, the legitimate ones are vastly outnumbered by the ones who simply want to make a buck off an unsuspecting author's dreams--so always have a hybrid-style contract reviewed by a publishing lawyer who works for YOU before you sign.

Beware: sometimes “pay to play” terms also lurk in the royalty language. A contract which pays royalties on “net receipts” and defines “net” as “amounts received by the publisher less the costs of editing and publishing the Work or less the Publisher’s actual costs to publish and sell the Work” is requiring the author to pay for the publisher’s costs. This doesn’t require payment out of pocket, but it’s still an inappropriate "pay to play" arrangement. 

Any time a "traditional" publisher tries to shift the costs of publishing the Work to the author—either up front or in the royalty share—the publisher is altering the traditional model and asking the author to take on an unfair share of the risk.

Legitimate hybrid publishers are always up front about the nature of the arrangement and the fact that the author isn’t being offered a “traditional deal.” Anyone who tries to tell you that the “author pays” model is a “typical New York contract” or a “traditional publishing opportunity” is trying to take advantage of your ignorance.

BAD CONTRACT #2: “WE PUBLISH, YOU BUY”

A publishing contract should never require the author to purchase copies of the finished book. Most publishing contracts permit the author to purchase finished copies, usually at a significant discount from the cover price. Some contracts restrict what the author can do with those discount copies (for example, some contracts prohibit their re-sale). However, traditional publishing contracts don’t ever require the author to purchase books from the publisher at any price.

One publishing “offer” I see a lot requires the author to purchase several thousand copies of the book and to pay the publisher for them in advance. The author must pay the publisher tens of thousands of dollars up front, but give the publisher full control over cover art, editing, and the content of the finished work. Don't do this. Ever.

Do the math: if the author buys five thousand copies of the finished work from the publisher at $16.95 apiece, how many copies does the publisher have to sell someone else to make a profit? The answer, of course, is NONE—and these publishers often make no effort to sell their books to anyone other than the authors.

NEVER sign a contract which requires a mandatory purchase of the work. Legitimate publishers just don’t work that way.

BAD CONTRACT #3: MANDATORY PAID MARKETING & "AUTHOR TRAINING" 

A few publishers offer unsuspecting authors a “traditional publishing deal” – where the publisher pays publishing costs and industry-standard royalties on sales – paired with a “mandatory marketing and author training contract” that requires the author to pay the publisher (or an affiliated marketing agency) thousands of dollars for marketing and "author training" services.

This is not a traditional publishing deal, and it’s not a good deal, either.

Once again, the author pays thousands of dollars out of pocket in return for unspecified "marketing" and "training." Even if services are specified, they usually include only things the publisher (or its “marketing arm”) can do in-house, like writing press releases, promotional Facebook posts, and other things authors can easily do themselves. Here, too, the publisher doesn’t need to sell any books to make a profit, and authors usually end up paying far more than the value of what they receive. 

Fortunately, authors can avoid bad contracts like these by following a few simple guidelines:

1.  Never sign a "traditional" contract that requires you to pay the publisher money (for publishing costs or royalties). 

2.  Never sign a contract that lets the publisher recoup its publishing costs before calculating your royalty share.

3. Never sign any contract without having it reviewed by an agent or a publishing attorney.

4. If you suspect your publishing deal isn't fair, or if something seems "not right"--be willing to walk away. 

Save your money and your work--because having no publishing deal at all is always better than having a deal you regret.

What Should an Author Expect from an Agent?

In the months between now and Colorado Gold, my guest posts here at the RMFW blog will take a lawyer's eye view at some issues that may be relevant to authors trying to choose a publishing path or figure out who (and how) to pitch their work at conference. Today, we'll kick that off with a little introduction to some the things agents do...and a few they don't.

Mismanaged (or mismatched) expectations are a fundamental cause of problems in the author-agent relationship. Before signing an agency contract, authors should understand the business and try to establishrealistic expectations about the author-agent relationship.

Know What Agents Do … and What They Don't.

A literary agent can fill many roles in an author’s world. Some of the common ones include:

- Line editing client manuscripts ("editorial" agents do this, but not usually at the first draft stage).

- Pitching manuscripts to publishers, and negotiating contract offers.

- Consulting with authors about new ideas and series development.

- Discussing short-term and long-term plans for the author’s writing career.

- Marketing advice (but they don't do the marketing - that's the author's job).

- Mentioning clients' work on the agent’s social media feeds.

- Acting as an intermediary between the author and publisher (especially when conflicts arise).

- Selling foreign, translation, and other subsidiary rights, either directly or through sub-agents.

Not all agents fill all of these roles. Investigate agents before you query, and talk with an agent who offers representation (before you sign!) about his or her preferences and business practices.

All agents should review client’s manuscripts, pitch and negotiate deals, and act as an intermediary with publishers on some level (some do more, and some do less). Beyond that, your mileage may vary.

Know What You Want YOUR Agent To Do (Within Reason)

Consider the list in the heading above. Do you want an editorial agent? Someone who’s active on social media? How involved do you want the agent to be in your long-term plans?

Beware the temptation to say “I want it all” (or "I don't want any of this") without more thought. Publishing is a business, and authors need both a business plan and a solid concept of how an agent fits (or, in some cases, doesn't fit) within it. Make a list, and be reasonable...it doesn't much matter whether or not you want your agent to give you a magical glitter-and-book-deal farting unicorn. You're not going to get it. 

Do Your Research, and Find an Agent Who Matches Your Expectations

After you know what you want from your agent, you need to focus on finding an agent who matches your expectations. If you only query agents who aren't editorial, you have only yourself to blame when the agent you sign with doesn't edit your manuscript.

It can be difficult to determine, with certainty, whether an agent's business model matches your own before you receive an offer of representation. That’s okay. “The call” is a perfect time to talk about expectations—the agent’s, as well as yours.

Obviously, authors only get to choose from the agents who actually offer representation. That’s why "doing the research before you query" is such a critical step.

If you're planning to pitch agents at conferences (including this September's fabulous Colorado Gold - registration is open now!) do your research in time to choose your pitch appointments wisely. Don't limit yourself to the conference website. Google the agents and editors, visit their websites, and find the ones who seem like a match for your preferences and your work.

Realize: There is No Magical Ring to Rule the Publishing World. You Won't Get One - And Your Agent Won't Have One, Either.

No matter how well an agent matches the author’s business expectations, we have to remember that no one can guarantee an offer, a publishing deal, or a place on the bestseller list. Sometimes a manuscript doesn't sell, no matter how hard an agent works. Sometimes publishers drop a talented author.

Publishing failures often aren't the agent’s fault - and the possibility of failure even if you do everything correctly is a sad but real expectation authors need to manage.

On the other hand, if the agent isn’t living up to the author's expectations, authors have the right to consider a change. Just make sure, if you make the decision to terminate an agency contract, you make it on the basis of an objective, honest evaluation—what the agent has done (or not), in comparison to industry standards—not on the basis of emotion or unreasonable expectations.

Managing expectations in publishing is a lot like herding cats or nailing Jell-o to a tree. It's a constant process, and it's going to get away from you at times. 

Even so, it’s worth the effort. The better you know the industry, and treat publishing as a business, the more likely you are to find an agent who meets your needs and becomes a beneficial partner in your publishing career.

What do you expect your agent to do for you? How do you manage your "agent expectations"?

 

Tips For Evaluating a Traditional Publishing House

The explosion of small and micro-presses in the United States (and elsewhere) makes it more important than ever for authors to investigate publishers carefully before signing a publishing contract. While even diligent research can't help you foresee and avoid every possible problem, here are some tips to help you evaluate whether or not to accept a publisher's offer:

1. Does the Contract Require the Author to Pay for Anything?

If the answer is "yes," do not pass go, do NOT pay $500...or even $1. This is not a traditional publishing house. It's either a "hybrid press" (where the author shares the costs--and benefits--of publication), a "vanity press" (where the author pays far too much for far too little), or a scam. If you think it's a hybrid press, contact an agent or a publishing attorney you trust and arrange for professional review and negotiation before you sign.

Do not rely on the publisher's word that the contract is "hybrid" or "fair"--and don't forget: a traditional publishing house will never expect the author to pay anything out of pocket (and none of the publishing costs, except for unreasonable changes demanded by the author after the proofs are approved). No exceptions.

2. Does the Publisher Also Offer "Paid Marketing Programs"?

A number of vanity presses have recently started offering "fully traditional contracts" which also require the author to participate in paid "author training programs" and "marketing programs." The marketing contract is an addendum to the "traditional publishing deal" and can cost the author several thousand dollars out of pocket. Legitimate traditional publishers never make authors pay for anything out of pocket, either as part of the publishing contract or in a separate (but required) agreement.

3. Does the Publisher Make Any Claims About Success, Sales, or Reviews?

No legitimate publisher can or will ever promise an author success (financial or otherwise), sales, or good reviews (they can't even promise legitimate reviews, let alone good ones). Any publisher whose website contains statements like "Make extra money writing books!" or "Become a bestseller by publishing with us!" -- or anything else of that nature -- is not a legitimate, traditional publishing house. Run, don't walk, in the other direction.

4. Does the Contract Require Authors to Purchase Copies of the Finished Book?

Some small presses' contracts require the author to purchase a stated number of copies of the book upon release. Many times, the author is also required to pay for these books (in part, or completely!) before the publication date, and sometimes before the author even sees the proofs of the finished work. Legitimate presses will never make an author commit to purchasing any copies of the work (though often they do offer authors a discount on copies the author elects to buy).

A little related publishing math: if the author commits to paying the publisher $8,000 for copies of the work at $16.00 apiece, how many additional books does the publisher have to sell to pay for its investment in the book? (The answer is generally, none, especially since these publishers normally publish "Print on Demand," which means the publisher keeps no stock of the printed work.) 

5. How Long Has the Publisher Been in Business?

The answer to this is not a deal-breaker, but it's something to consider. The longer a publisher has been in business, and the more books it produces, the better authors can evaluate the publisher's history of contract compliance, sales and distribution, and successfully published work. It's perfectly fine to take a chance on a newer publisher if you choose...but only if all of the other factors align with industry standards. Also, authors should be aware that working with newer publishers represents a business risk, because publishing houses have high failure rates--so make sure the contract contains appropriate protections for the author (including appropriate termination rights).

Note: new presses that work with experienced counsel, or have experienced editors or publishers at the helm, generally present a smaller risk in this regard. 

6. How Much, And What Kind of, Publishing Experience Does the Publisher/Editor Have?

Again, while not a deal-breaker, authors should be aware that many small publishers open with great intentions, but little or no practical experience in traditional publishing, sales, and distribution. This creates enormous risk, both for the publisher and the author. Before signing with a small press, always ask about the publisher's experience, distribution program, and how many books they have in bookstores outside their local area. Also, publishers without much practical experience tend to have a more difficult time negotiating contracts and complying with contract obligations--not from malice, but because they simply don't understand what's involved in running a traditional publishing house.

7. What Do Other Authors & Industry Watchdogs Have to Say?

Never, ever sign with a publishing house unless you've researched both the house and the publisher/editor with industry watchdogs like Publisher's Marketplace, Writer's Digest, Writer Beware, and Preditors and Editors. Pay attention to what you see there, too. While lack of a listing may suggest the publisher is legitimate, it also might indicate a publisher is simply too new for the watchdogs to have flagged its bad behavior. For maximum safety, don't sign with any publisher unless you can actually confirm legitimacy and positive ratings with industry watchdog sites.

Also: always talk with at least 2-3 other authors published by the publisher before you sign a contract. Ask the publisher to give you authors' names and contact information, or find them online--make connections through friends, if you can. If authors won't speak with you honestly (or tell you the contract won't let them talk about the press), move on. Don't ever commit yourself and your work to a press that doesn't get glowing reviews from its authors--no matter how big or experienced the press.

8. What Do the Publisher's Other Books Look Like?

You have seen their other books, right? In print? On Amazon ("look inside" should be enabled, and you should actually do it) or in bookstores. Find them. Hold them--on an e-reader if they're ebook only. Look at the font, the production values, the covers, and then ask yourself: is this what I want my book to look like? Would I be proud if my name was on this cover?

9. Where Are the Publisher's Other Books Sold? 

Many small publishers don't have distribution arrangements, and even if they do, that may or may not translate to actually having books on shelves in stores. Ask where the publisher's books are sold. Confirm it. This isn't a deal-breaker, one way or the other, but you need the information to decide whether this is a house that will be able to support your work the way you want them to.

10. How Many Books Does the Publisher Release Each Year?

Again, not a deal breaker, just something smart authors evaluate. Sometimes a lower number works in your favor, and sometimes larger numbers work against you. Sometimes, it's the opposite. Generally speaking, the more books a publisher releases each year, the fewer resources the publisher has to dedicate to each individual book. That's especially true when you consider that many publishers dedicate the lion's share of advertising time and resources to A-list titles by authors who already have a substantial following.

11. Does Anything Else Seem...Odd?

Trust your instincts. They're better than you think. If anything seems "odd" or "not quite right" about the publisher, remember: you're better off with no publishing deal than signing a deal you later regret.

12. Even if Everything Else Looks Good, Consult a Publishing Lawyer or Agent Before You Sign the Contract.

Starfleet regulations don't allow a compromised captain on the bridge...and every author is compromised (to one degree or another) when it comes to evaluating a publishing deal. Always consult a lawyer or an agent before you sign a publishing contract, particularly if you're not experienced reading and negotiating legalese.

I can't promise these questions will save you from signing a publishing deal you regret, or protect you against every predatory or inexperienced publisher. That said, if you keep these in mind, you'll have a much better start when evaluating prospective publishing houses for your work.

*Disclaimer: This post does not constitute legal advice, create an attorney-client relationship between the author and any person, and is intended for educational purposes only. Author makes no representations that this post is complete or contains all relevant information required to protect authors when choosing a publishing house, escaping from zombies, or trying to avoid a swarm of lawyers wielding bee-infested carp. Your experience, legal rights, and favorite cupcake flavor may vary.

Beware of Hidden Dangers in Short-Form Publishing Contracts

Authors have a lot to watch out for when reading a publishing contract, but one of the most common dangers is actually invisible: the protections typically missing from short-form contracts.

Standard publishing contracts run 10-30 pages, in little type, with wording that ranges from “difficult” to “possibly penned in Hieroglyphs.” Most authors don't know how to approach the dense legalese, or find it uncomfortable and intimidating.

By contrast, many authors see a three-page form and think “Hooray! A contract that makes sense!”

Beware: that way be dragons.

Publishing contracts are long because they address a wide range of legal rights and issues. “Copyright” is actually a group of rights, and each of them must be addressed in a proper contract. Failure to deal with issues creates dangerous ambiguities and loopholes, most of which cut in the publisher’s favor in short-form contracts. (This is because the short-form contract deals with rights as a bundle rather than separating them, and often they simply license the entire bundle to the publisher.)

Sometimes, publishers try to claim their short-form contracts offer authors a “better deal” than “traditional, complex forms.”

Again, beware.

These shorter contracts are often missing a number of critical provisions that authors don’t realize they need to include for their own protection. When a problem arises, the author goes to the contract, only to find that the “friendly short form” doesn’t address that issue (or, when it does, the publisher prevails).

Here’s a list of some important provisions many short-form contracts don’t include: 

1.  Proper reservations of subsidiary rights to the author. The shorter the contract, the more likely it is to simply grant the publisher “all rights” in and to the work “in all forms, formats, and territories.” Publishers don’t need “all rights” to a work. Most publishers need print, ebook, and sometimes serial rights. Everything else is open for negotiation. At a minimum, those other rights (often called “subsidiary rights”) should be separately listed and addressed in the contract language. One-size-fits-all rights language is not the best option for the author, and something authors should be watching for with an eagle eye. 

2. Author termination rights. Publishing contracts often last “for the life of copyright,” but that’s actually only the contract term if the contract isn’t breached or terminated earlier. Good contracts give the author several ways to escape if things go badly, including the right to terminate (and revert all rights) if the publisher fails to publish within a stated time, goes out of business, breaches the contract, or fails to sell at least a specified minimum number of royalty-bearing copies in a stated period of time. (Each of these termination rights often appears in a different paragraph--look for all of them in your contract!) Short form contracts generally fall woefully short on author termination rights. 

3. Sales Statements. Each royalty check should be accompanied by a sales statement detailing  relevant information about the number and format of books sold and returned during the sales period, as well as any reserves being held against future returns. Not surprisingly, short-form contracts often skip over sales statements—and unwary authors often forget the importance of receiving this documentation until the first (unexplained) royalty check comes in...or doesn't.

4. Audit rights. The author needs the right to audit the publisher’s books and records relating to the work at least once in every calendar year. Again, this is often missing in short-form deals.

5. “Out of Print” status tied to royalty-bearing sales. Short-form contracts often omit the author’s “out of print” termination rights altogether ("whoops…") or tie “out of print” status to “availability” – which usually keeps the work in print as long as an ebook version is offered anywhere for sale.  

Note: this list is not exhaustive. There are other important provisions which short-form contracts often omit, but this list is enough to demonstrate the dangers of short-form contracts. Sometimes, publishers try to claim these clauses “aren’t needed,” or that authors can trust them to “do the right thing.”

SHENANIGANS.

It’s true that publishers and authors should be able to trust one another. However, it’s also true that good fences make good neighbors, and good contracts make for good partnerships—in publishing, as elsewhere. Contract law says that a promise which isn’t contained in the contract does not exist as part of the deal. (There are exceptions, but you should never rely on exceptions.)

Never, ever sign a publishing contract—especially not a “short-form” deal—without obtaining a professional opinion from an agent or a publishing lawyer, to ensure the contract offers adequate protection for your legal rights.

 

Understanding Your Ebook Rights

With a new year upon us, my #PubLaw for Writers guest posts here at the RMFW blog will focus on helping authors understand and protect their legal rights. Today, we're kicking it off with a little more about ebook rights--what they are, and how they function in a publishing contract.

Ebook Rights are Normally Addressed in a Contract's "Grant of Rights" or "Primary Rights" Paragraph. 

One of the first paragraphs in a publishing contract is normally titled "Grant of Rights" (or sometimes, "Primary Rights").

The Grant of Rights paragraph often mentions many different rights, all of which belong to the author as part of the copyright in the work. In the contract, the author grants the publisher a license (legally defined as a "right to use") the enumerated rights.

Normally, the "primary rights" include the rights to publish, distribute, and sell the work in print and ebook formats. Sometimes, the primary rights include a few other rights as well--and we'll look at them in the months to come. (Today, it's all ebook, all the time.)

Note: Ebook-only publishers shouldn't be asking for print rights too, but print publishers normally do request ebook rights.

The Contract Should Never Give the Publisher "Ownership" of Any Rights or Copyrights.

A license is not the same thing as "ownership"--the contract should never give the publisher ownership of the copyright, or any other ownership rights in the work.

Instead, the contract should give the publisher a license--normally "exclusive" with regard to print and ebooks--that lasts for the term of the contract (which may or may not be the same as the copyright term--more on that in a future post). 

The New Frontier: Enhanced Ebook Rights.

Most authors know what an "ebook" is (if you don't...you may have been living in a cave for the past few decades). However, many authors don't know the difference between "ebook rights" and "enhanced ebook rights."

An "enhanced ebook" is an ebook containing not only the text of the work, but also various kinds of supplementary content designed to enhance the reader's experience. Examples of enhanced ebook content might include pop-up maps (such as maps that appear when you click a linked phrase or place name), musical scores or other "background sound effects" to accompany the reading, hyperlinks that open web-based content, and similar added features.

Enhanced ebooks are rare, but several startup companies now offer enhanced ebooks for sale, either as independent products or as an "enhanced overlay" for a publisher's existing ebook content.

Enhanced Ebooks in Publishing Contracts:

Although the standard ebook clause, which normally includes a grant of rights for the publisher to produce ebooks "in any method of ebook production now known or hereafter developed," many publishers are now including the words "enhanced ebooks" as another specific piece of the grant of rights (so the contract now reads: "ebooks and enhanced ebooks" rather than just "ebooks").

By granting enhanced ebook rights to the publisher, the author surrenders his or her right to: (a) determine whether or not an enhanced ebook is made during the term of the contract (the publisher, as the holder of the license, gets to make that call), (b) control the enhanced content, and (c) request a higher, or different, royalty rate on the enhanced ebooks--normally the standard ebook rate would apply.

While some publishers may not be willing to negotiate on enhanced ebooks, since this format might compete with the standard ebook, authors should be aware that this is actually a separate right from ebooks, and that it may be possible to negotiate the grant of enhanced ebook rights.

For example: sometimes the publisher will allow the author to keep enhanced ebooks altogether; if not, perhaps the author can negotiate approval rights over any enhanced ebook content, and possibly also a higher percentage of royalties on the enhanced version.

The Final Decision About Your Enhanced Ebook Rights Belongs To You.

The number of enhanced ebooks on the market now is fairly small--but the same was true of "regular" ebooks, back in the days when e-readers were new. Like any publishing right, only you--the author--can make the business decision whether or not to grant the right to a publisher, and there is no "right or wrong" answer--it depends on your personal business decisions and the other terms of the deal. However, before you sign a publishing contract, be sure you know where ebooks and enhanced ebooks fit in, that you understand the terms being offered, and that you're making the decision you believe is best for you and your work.

Have questions about this or other publishing contract terms? Pop into the comments and let me know!

 

 

How–and Why–to Write a Business Plan For Your Book

“Do you know how to eat a whale?" the old joke asks.

The answer: "One bite at a time!”

The same advice holds true for writing a business plan for your book.

Many authors don't actually take the time to write a business plan. Either the process seems too boring, too complicated, or "not worth the time." In some cases, writers simply don't think to do it. Whatever the reason, writers who fail to write a business plan for every book they write are missing out on an important tool for writing and publishing success.

Business plans are important whether you self-publish or work with a traditional publishing house, and though it's generally better to write them before you start the novel, it's never too late to write a business plan for your current work-in-progress--even if the book has already released (though if that's the case, you'll probably focus more on the marketing sections and less on the pieces dedicated to how the book gets written).

Today, I thought we'd take a walk through the sections of a book business plan, to take a look at what they contain and offers some #PubLaw pointers on how to write them:

A typical business plan has seven sections, and a book business plan is no exception: 

1.  The Summary comes first (but you can write it last if you prefer, because it basically summarizes the rest of the business plan.)

The business plan summary isn't the same as a summary or synopsis of the book itself (that's Section 2). Instead, this summary contains a one-paragraph synopsis (think "jacket copy") of the novel and a summary of the entire business plan, including the genre, target audience, and other “at-a-glance” relevant facts about the book and the way you plan to sell and market it to the intended readers.

2.  The Book Description contains a synopsis of the book. If you haven’t written your novel yet, it’s OK to create a placeholder – a one-page summary of the story you plan to write. If you write your synopsis (or outline) first, you can add it here before you write the book; if you write it after the manuscript is finished, you can add the completed section to the plan at the appropriate time. 

3. The Marketing Section actually consists of three sub-sections, containing your plans to market the book during its pre-release, release, and post-release phases. The more detailed you can be when planning each section, the better. (And if you have no idea how to do this, I've blogged about it in detail at my own blog, in the #PubLaw category.)

4. A Competitive Analysis follows the marketing section. This part of the business plan requires you to identify where your book will sit in a bookstore (even if you plan for an ebook only release) and to examine similar works in the marketplace, analyzing why readers will (or should) want your book instead of (or in addition to) the other options. This is also where you brainstorm strategies to maximize your advantages and minimize any weaknesses you find.

5.  The Development Timelines Section is designed to keep both you and your work on track during the various phases of writing, producing, and marketing the book. Like the marketing section, this actually consists of three different timelines: one for the writing process, one for the publishing process (regardless of whether you publish traditionally or self-publish, there will be things you do during the publishing process), and one for marketing the work.

6.  In the Operations and Management section, you plan (in detail) who will handle each specific part of the writing, publishing, promotion and sales process. If you publish traditionally, many of the duties will fall to your publisher, whereas if you self-publish, this part of the plan becomes a critical roadmap to the staff and process of bringing your book to market.

7. The Budget finishes up your business plan. As with operations and management, this portion may be simple or complex, depending on the author’s plans and past experience. This is where you plan the budget for everything from production costs (primarily an issue for author-publishers) to marketing and travel expenses associated with the book's release.

In a panic? Don’t be! Business plans take work but they’re not as difficult as they seem. They're also a powerful tool to take control of your book and your writing career.

Have you ever written a business plan for your book? If not, would you consider it in the future? I'd love to hear your thoughts on the business plan!

It’s Full of Stars

In many ways, a writer's journey has much in common with Arthur C. Clarke’s novel-turned-classic-film 2001: A Space Odyssey.

The hapless author boards his-or-her craft (a manuscript instead of a rocket), launches into a hostile space, and spends many months (or, sometimes, years) in what seems like suspended animation. Time passes, the author alternately waiting for something to happen and struggling with the perpetual fears that NO ONE WILL EVER OPEN THE POD BAY DOORS no matter how much (s)he begs.

(HAL’s got nothing on a writer’s subconscious. Trust me here.)

During those weeks, and months, and years, the author keeps busy, studying craft and working on as many manuscripts as it takes to reach the destination. Agents get queried, tearstained rejections get filed, and life moves on. Eventually, the writer finds an agent and a publisher, or decides the self-publishing path is the right one.

Then, just like the astronaut in 2001, the author's journey reaches its endpoint–the book release. At which point, the author stares in awe at the real, live book in her hands and whispers softly...

It’s full of stars.”

… fade to black. Journey over. Story ended.

WHAT????

Now, wait a minute.

If you're like me, you saw that ending and said. "That can't be all there is."

WHY DIDN'T YOU TELL US WHAT HAPPENS NEXT?

But there's a reason 2001 ended where it did, and why it didn't tell us any more. It parallels the writer's path here, too.

When you get there, you realize the ending--whether we're talking 2001 or an author's debut release--isn't actually the ending at all.

The ending is just the start of another journey.

Publishing is a marathon, not a sprint. (There’s a reason we call it “the writing life.”) The author's initial trip to publication is wonderful, scary, and filled with firsts, and yet it's merely the opening bars of a longer (and even more beautiful) symphony.

Surprise. When it's over? It isn’t over.

And now, another story.

In late December 1973 I was two and a half years old.

A neighbor gave me a pair of lovely presents wrapped in shiny paper and tied with ribbons. I opened the first, unwinding the bow and setting it gently aside before I peeled back the tape that bound the paper. Minutes passed, but I took my time. I savored every moment until at last I removed the wrapping and revealed a brand-new book beneath.

A hardback book.

I don't remember the title but I'll never forget the cool, slick feel of that cover beneath my hands. Immediately, I opened it up and began to "read" the pictures.

My mother gave me a gentle reminder: “Susan, don't forget you have another present. Why don't you open it? What do you think's inside?”

I paused, one hand on the page to hold my place, and looked at the second package. After a moment I answered, "Probably … another book.”

And then, I went back to reading.

That story has more to do with this post than you might initially suspect.

I love my debut novel, CLAWS OF THE CATI enjoyed every part of the detailed process that went into its writing, editing, layout, and publication. The book's release came after ten years of struggle, craft, and rejection, and I savored the feel of that book in my hands as I savored the beautiful Christmas book my neighbor gave me many years ago.

But by the time I held my published book in my hands, I had already boarded another craft--the second book in the series. When that one was finished...I started on the next.

Consider this post your gentle reminder to stop gazing lovingly at the book in your lap--regardless of whether or not it's published--and to continue moving forward, one the next phase of your journey.

Because the writer's journey, the writer's life, is not about a destination. Finish a project and start on the next one.

Never let your fears or insecurities stop you, no matter how impossible the journey seems right now. Don't wait on someone to open the pod bay doors and let you enter this realm--success as a writer is something you have to work for, and accomplish, through hard work, determination, and effort. And you can do it, if you try.

But on the way, take time to enjoy the process, no matter where you are.

Today is the dream.

Today is the journey.

Savor this moment.

Trust me.

It’s full of stars.

Finding Your Writing Pace

Authors often forget that professional writing is a two-pronged calling.

First and foremost, writers write. It's what defines us, and we do it whether or not we write for publication or for pleasure (or, as happens in many cases, both). There’s nothing wrong with writing as an avocation instead of a career – and some writers make a business decision to self-publish (or even NOT publish) their work and never worry about sales or the business side of publishing.

That is a legitimate choice.

But for authors who intend to make writing a career, publication is a business, and sales do count, and to make those sales you must start with a salable product. In publishing, as in any other business, quality is not the place to compromise. Quality works sell better, and are more engaging to read, than unpolished or hurried ones.

As the old adage says, “you never have a second chance to make a first impression.” This goes for authors too. Whether you’re querying agents, approaching a publisher, self-publishing, or marketing your work to readers, professional authors have a business obligation (as well as a personal one) to produce the best work possible.

As an author, you have a story to tell, but a working writer never forgets that a story is also a product, and high-quality goods sell better than shoddy ones.

From a business perspective, an author must plan enough writing time to write, edit and polish each work before the due date or release. Rushed works never please as well as careful, well-developed stories.

As an author, you need to learn how long it takes you to write, revise, edit and polish a work for publication--not "what the market wants," but what you can reasonably do. Your speed might not be the same as anyone else's--and that's okay.

Your time to produce a manuscript will likely decrease with time and experience, but learning how long it takes you to write and polish a publishable manuscript is a fundamental part of every author's early business plan. You’ll need to know in order to set and stick to your publishing schedule – regardless of the publishing path you choose.

Don’t panic if you can't finish a novel as fast as someone else, or if it takes you more than a year from start to finish. If you want to write faster, or more consistently, try setting a schedule and deadlines--even if they're entirely self-imposed. Vary the pace and find your comfort zone. (Also: be open to change – few writers keep the same pace throughout their careers.)

Knowing your pace helps you plan and schedule releases and publishing contracts – regardless of publishing path. It also helps you plan for future projects. Can you handle more than one series at a time? Some authors can, but some cannot--and their results don't matter...what matters is how it works for you. It's not a race, and your writing career cannot--and should not--be defined by someone else's process.

Many authors enter the business with little awareness that writing pace controls many other decisions. Finding your pace means finding the time you need to deliver a polished, professional work that readers will love. Quality wins out over speed every time.

Take some time this week to examine your pace. Try making a schedule. See what works, and discover what doesn't. Challenge yourself, but respect your creative process, too.

Do you know how long it takes you to produce a finished manuscript? Have you gotten faster as the years go by?