Tag Archives: #PubLaw

Don’t “Gag” on your Publishing Contract

Today's guest post relates to a topic I'm seeing more than I'd like to in the publishing lawyer side of my day: contracts containing a "nondisclosure" clause which prohibits the author from discussing the publisher--or the author's relationship with the publisher--in public.

Too many authors sign these contracts without an understanding of industry standards -- or the fact that this kind of nondisclosure clause gives the publisher far more power than it deserves. As a result, I want to shed some light on these clauses, and why they're bad news for the author.

Nondisclosure is not the same as "confidentiality."

Some contracts contain a "confidentiality" clause which states that the parties (if mutual) or one party (negotiate for mutuality whenever possible) cannot disclose the other party's "confidential information" in public without permission from the party which owns the information. This is more common in business and employment contracts, which often involve the disclosure of business methods and proprietary information (like software), than in publishing.

If you work for a company which owns proprietary information or uses trade secrets, you've probably seen this kind of clause before. It appears in employment contracts, contractor agreements, and "nondisclosure agreements" (also known as NDA's).

Confidentiality provisions don't make sense in the publishing context the way they do in business. In publishing, the author's information (the manuscript) is supposed to become public (that's what publishing means, yo) and the publisher generally doesn't share trade secrets or other confidential information with authors. Therefore, there's really no reason for confidentiality provisions.

However, sometimes publishers do include a confidentiality clause in publishing agreements. A "standard" confidentiality clause should always be mutual and should state that neither party to the contract can disclose the other party's legally protectable trade secrets and proprietary information without the permission of the party that owns that information. Although obnoxious, this kind of clause isn't necessarily a deal breaker -- as long as it's not overly broad and relates only to certain kinds of "legally protectable" confidential information.

Even so, I'd suggest you ask the publisher to remove it.

If you see a confidentiality clause in your contract, don't sign without an attorney or an agent reviewing the contract and either negotiating it out or letting you know that the wording and content isn't a trap.

By contrast, "Nondisclosure" provisions are contract clauses which prohibit one or both parties from any public discussion of either: (a) the terms of the contract, or (b) their relationship.

General "nondisclosure" provisions do not belong in a publishing contract.

Good publishers don't want to stifle the author's ability to talk about the publisher or the publishing process. Publishers would prefer that authors spoke about them in a positive way, of course--and authors should behave professionally in public whether or not a contract requires it. However, it's dangerous for the author, and for publishing generally, for publishers to try to stifle the author's freedom of speech.

Publishers can attempt to enforce a general nondisclosure provision in ways which prevent the author from speaking out if the publisher fails to comply with its contractual obligations. Sometimes, these clauses can be invoked to stop the author from mentioning when the publisher behaves inappropriately, or to prohibit authors from warning others away from the publishing house.

Overreaching nondisclosure provisions can be used to prohibit the author from speaking either in public (e.g., on blogs or social media) or in private - meaning that the author is completely barred from discussing the publishing house in any way without the publisher's permission (which publishers like this usually grant only for purposes of advertising the author's book and experience in positive ways).

If you're offered a contract which contains a nondisclosure provision, ask the publisher to remove it. If the publisher refuses, be willing to walk away--or to hire an attorney or agent to negotiate on your behalf.

Don't let yourself get stuck in a situation where you have no power to speak about your experiences. Insist on industry-standard contract terms which don't prohibit you from discussing your publishing experience. If you're not sure what that entails, or how to ensure you've obtained it, don't sign anything without an agent or lawyer reviewing the contract on your behalf.

Finally, remember: HAVING NO DEAL AT ALL IS BETTER THAN HAVING AN UNFAIR DEAL OR A DEAL YOU REGRET. 

This can be difficult to remember in the heat of the moment, or when your dream appears to be on the verge of coming true, but remember: Bad contract language can turn that dream-come-true into a waking nightmare. Keep your business wits about you and insist on a contract that respects your legal rights as well as the publisher's interests.

What do you think about confidentiality in publishing?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

For Your “Consideration” – Royalties in Anthology Contracts

This month's RMFW #PubLaw post continues our ongoing series on writing for anthologies. Specifically, it's time to show me the money - and look at royalties in the anthology world.

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When it Comes to Royalties, Anthologies Vary. Know the Terms Before You Commit.

Some anthologies pay contributing authors a royalty on copies sold. Some anthologies do not. Always ask--and get a clear answer--about the royalty structure before you agree to contribute your work to an anthology. Also, make certain your contract states, with clarity, how sales proceeds will be handled and whether or not you receive a royalty share. If the anthology doesn't pay royalties to authors, the contract should state who receives the money earned on anthology sales.

What Does it Mean if the Contract Says I Receive "Consideration"?

"Consideration" is the legal term for value a person receives in return for entering into a contract. By law, consideration can be money, rights, an exchange of promises, or a unicorn--essentially, any (legally permitted) object or value the person signing the contract agrees to accept. One court famously stated that "even a peppercorn will do" if that's what the signatories to the deal agree on.

In many publishing contracts, the "consideration" is money, but where the author is not receiving royalties on sales of the work, the anthology language may look something like this:

CONSIDERATION, AUTHOR COPIES. Consideration of the Work for possible publication in the Anthology and, if appropriate, inclusion of the Work in the Anthology constitutes the full and complete compensation due to Author by [Publisher], under this Agreement or otherwise. No additional compensation is due Author whether or not [Publisher] ever Publishes, distributes, markets, or sells any copies of the Anthology. If the Work appears in the Anthology, [Publisher] will also provide Author with [some real number of] complimentary copies of the first edition of the Anthology, in printed format, after publication. Author acknowledges that no royalties are due, payable, or owed to Author on sales of the Anthology, regardless of the number of copies of the Anthology produced, printed, and/or sold. All receipts, revenues and profits from the Anthology will belong to [Publisher] exclusively.

Note that the language includes the important elements mentioned above:

1. What the author receives: "inclusion in the Anthology (if appropriate) and author copies." This is the author's consideration.

2. Whether or not the author receives royalties (here, no): "no royalties are due, payable or owed to Author..."

3. Who does receive the money earned on sales of the anthology: "All receipts, revenues and profits...belong to [Publisher] exclusively."

The contract may also allow the author to purchase copies of the anthology at a reduced price, and may specify whether or not the author can re-sell those copies at a profit.

Whether or Not to Participate in Non-Royalty-Bearing Anthologies is a Business Decision for the Author Alone.

If you ask three different people whether or not you should publish your work in a non-royalty bearing anthology, you'll get at least three different answers (more, if one of them is a lawyer).

Sometimes, it makes business sense to participate in a non-royalty bearing anthology.

People do die of "exposure," but for authors seeking a jumpstart publishing credit, anthologies may offer a chance for the kind of exposure that earns revenue by another means. Publication alongside more established authors exposes the newer author to readers who may then purchase the newer author's works as well.

Sometimes, non-royalty bearing anthologies provide a financial benefit to important nonprofit organizations. Contributing to these anthologies helps authors "give back" to groups that provide education and other helpful services to the larger community--and contributing work on a non-royalty bearing basis allows the author to contribute to the nonprofit's activities.

Finally, non-royalty bearing anthologies may offer an author a chance to participate in a project with other like-minded authors in circumstances which were never designed to generate a profit. Some groups publish anthologies at cost, or free of charge, as a service to certain communities or to readers. In this case, the author knows from the start (and the contract should state) that the anthology will be sold "At cost" and that its existence is not intended to generate significant profits. (Note: even here, the contract should state what happens to any profits or proceeds the anthology does generate.)

Some authors never contribute to anything which doesn't pay royalties. Others may choose to publish in non-royalty bearing projects now and then. As long as you know up front what kind of situation you're entering into, the choice is yours--and yours alone--and you should treat it as a business decision, taking all of the relevant facts and circumstances into account.

Has your work been published in an anthology? How do you feel about royalties in anthology situations?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Protecting Your Copyright in Anthology Contracts

By Susan Spann

Happy Holidays!

Today, we continue our ongoing series on writing for anthologies with a look at copyright clauses in anthology contracts.

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Anthology writing differs from other forms of publication, and though the contracts often look similar, authors need to be aware of the critical differences between anthology contracts and those which govern publication of single-author (or even two-author collaborative) book or novella-length fiction.  

Anthology contracts should contain at least two clear statements of copyright:

1. A declaration that copyright in the author's work remains the sole property of the contributing author; and

2. A declaration that the copyright in the anthology "as a collective work" belongs to the anthology publisher.

Let's look at each one in more detail:

1. The Author's Retention of Copyright.

The anthology contract should contain the following statement (or something substantially similar): "Author is the sole copyright owner of the Work, and retains all rights to the Work except for those expressly granted to [Anthology Publisher] in this Agreement."

This ensures that the author owns the story, even after its publication in the anthology. Elsewhere, the contract should also address any limitations on the author's right to publish the story elsewhere (tune in next month for more details on that issue). However, the contract needs to contain a clear statement of copyright ownership -- which declares that the contributing author remains the sole owner of the copyright in the story.

2. Anthology Copyright in the Publisher.

The anthology contract will probably also contain a statement similar to the following: "To the extent a separate copyright attaches to the Anthology as a collective work, [Anthology Publisher] is the copyright owner of any such copyright on the Anthology as a collective work."

The reason for this second clause is to ensure that no one else can infringe the publisher's copyright by reproducing or publishing "pirated" (i.e., infringing) copies of the anthology without permission. A statement of the publisher's ownership in the collective work gives the publisher the sole right to produce that collective work. The copyright in the work as a collective work is not the same thing as the copyright on the individual stories, however, and you should never give the anthology publisher ownership of your copyright in your work.

To repeat: The publisher doesn't need your copyright to publish your work as part of an anthology or other collective work.

You may ask the publisher to add: "provided that no collective work copyright will limit or prevent Author's rights to exploit, publish, and profit from the Work separately from or in addition to the Anthology except to the limited extent provided in this Agreement." That language isn't absolutely required, but it's something authors might ask for if there's any ambiguity in the contract with regard to copyright. (It's also something to ask for if you don't know the publisher well.) 

A Word About Copyright Registration

Publishers often want to register copyright on an anthology as a collective work. That's OK, as long as the registration is clear that you, the author, own the copyright in your contribution. Make sure the contract is clear about the manner in which copyright may (and may not) be registered, and states that:

(a) The publisher will include an appropriate notice on the verso page (commonly known as the "copyright page") of the anthology, properly identifying the contributors as the owners of the copyrighted material contained in the work; and

(b) If the publisher registers copyright with the U.S. Copyright Office, that registration will cover the collective work only, and will acknowledge the author(s) as the copyright owner(s) of the contributed works. 

A little attention to detail can help protect your copyrights and ensure a more successful anthology experience.

Have you contributed an an anthology? Did you notice the copyright language in the contract?

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month and a finalist for the Silver Falchion Award for Best First Novel. BLADE OF THE SAMURAI (Shinobi Mystery #2), released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

Limiting Grants of Rights in Anthology Contracts

By Susan Spann

Last month, my #PubLaw guest post took a look at important legal issues authors face when writing for anthologies. Today, and in the months to come, I'll be taking a closer look at anthology contracts, and at the special issues unique to anthology writing.

Today, we start with a look at the grant of rights in anthology contracts, which differs significantly from the grant of rights in a standard book-length publishing deal.

The following are all normal or standard grants of rights which authors can expect to see in anthology contracts:

1. Grant of "first" print rights (or, sometimes, "non-exclusive print rights") -- and limits those rights to use in the specified anthology only. Many anthologies want "first print rights" to the stories they contain, which means those stories cannot appear elsewhere, in print or electronic formats, before they are published in the  anthology. (Most of the time, publishers of book-length works want first print rights as well.) For this reason, the grant of rights in anthology contracts typically reads: "Author hereby grants first English-language publication rights" or "Author grants first English-language anthology publication rights."

When the work has appeared somewhere else before, the anthology contract may modify this language by removing "first" and inserting "non-exclusive," or "second" or some other appropriate identifying word.

Note: if the work in question has appeared in print or electronic form somewhere else (including publication on a blog) in whole or in significant part, you must let the publisher know before you sign the anthology contract, to be sure the grant of rights is properly phrased (and that the publisher is willing to take previously published work).

Be careful to ensure that the grant of rights enables the publisher to publish the work as part of a specified anthology only. The grant of rights is for anthology publication, not for standalone or other unspecified purposes.

2. Grant of continuing, non-exclusive print or publication rights (as part of the specified anthology only). Authors writing for anthologies should always be careful to ensure that the contract's grant of rights contains the word "non-exclusiveand clearly states that the anthology's publisher has the continuing, non-exclusive right to reproduce the author's work as part of the specified anthology only.

Publishers need "continuing" non-exclusive rights so the work can be included in future editions or subsequent printings of the anthology.

Never surrender your rights to publish the work in other formats, other anthologies, or in other collections. Some anthologies may require the author to wait for a stated period of time before publishing the work elsewhere (6-12 months is reasonable--go longer only if you decide you want to agree to a longer term). That's okay, and reasonable if the time requested isn't too long. However, beware anthologies that bar you from ever publishing or using your work again in other places. That's not reasonable, and not something authors should grant.

Note: NEVER grant or transfer your copyright in your work to an anthology publisher. We'll deal with "anthology copyrights" in next month's post, but for now, remember: an anthology publisher DOES NOT NEED to own the copyright in your story. The author should always retain copyright ownership in his or her work.

3.   Grant of English language rights only (no translation rights). Unless the anthology's publisher regularly translates anthologies into foreign languages (and this is rare), the publisher needs only English language rights to the author's work. Retaining foreign language (and translation) rights enables the author to sell those rights elsewhere, or arrange for foreign-language publication in foreign anthologies, without limitations.

4. No grants of subsidiary rights. Film, TV, apps and gaming, merchandising, and other subsidiary rights don't generally belong in anthology contracts, except to the extent the contract specifies that they belong to the author alone.

5. A statement that the author retains all rights not expressly granted to the publisher in the contract. This is standard language, but should appear in all contracts an author signs, just to ensure all parties are clear that the only rights being granted are those the author states, clearly, that (s)he is licensing to the publisher.

Some of these terms resemble the ones in a book-length publishing contract, but authors need to ensure that anthology contracts contain only the limited grants of rights the publisher needs to publish, print (and reprint) the work as part of the anthology in question. Anything beyond that should remain with the author alone.

Susan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann), where she founded and curates the #PubLaw hashtag.

The Legal Side of Anthologies (Part 1)

By Susan Spann

Anthologies offer a great opportunity for authors to publish creative works and find new readers. Some anthologies feature works by authors from a specific group (for example, RMFW's own CROSSING COLFAX, which contains short stories from members of the Rocky Mountain Fiction Writers organization), while others have open submissions on a specified topic, like horror or science fiction. Still others feature a publisher's in-house authors, or a group of authors who come together to write about a topic of mutual interest (such as A DAY OF FIRE, a novel in six parts, about Pompeii and the eruption of Vesuvius).

In short: the options are almost limitless.

Anthologies lend themselves equally well to traditional publication and self-publishing, and can help new or lesser-known authors achieve much broader exposure, due to shared marketing efforts and the ability to "cross pollinate" from other authors' existing readership.

But I'm a lawyer, so you know there must be a fly in this ointment somewhere.

Handled properly, anthologies have many benefits and relatively few drawbacks (aside from those common to publishing as a whole). However, it's important to ensure--before you submit-- that the anthology you're considering provides both you and your work with proper protection and consideration of your legal rights.

In the months to come, we'll break down the legal issues surrounding anthologies here on the RMFW blog. Today, we'll take an overview look at the biggest legal traps and pitfalls present in anthology publication.

1. Contract, Contract, Contract.

Never publish your work in any anthology that doesn't have a professional, written publishing contract. Never. No exceptions. No ifs, ands, or buts. NO.

The contract needs to contain the same type of language, and address the same issues, as any traditional publishing contract (plus some special terms applicable only to anthologies)even in the case of self-published anthologies. Why? Because you're allowing someone else (the anthology publisher) the right to publish your work. The terms upon which that publication happens must be spelled out clearly in a written contract, so both you and the publisher (whoever that is!) have a written reference and foundation for publication.

2. Don't Sign Away Your Copyright.

Anthology publishers need only a limited license to publish the work as part of the anthology. Anthology publishers do NOT need copyright ownership of the individual works. While authors have the right to transfer copyright to the anthology publisher, that eliminates the author's right to use and publish the work in other contexts later on. My law school contracts professor taught us that "you can make as good a deal...or as bad a deal...as you are able," but why make a bad deal about your writing?

Anthologies are plentiful, and most of them do not take the author's copyright. The decision is yours to make, but I strongly recommend you refuse to submit to any anthology that tries to take the copyright in your work.

Note: the anthology contract probably will contain language stating that the publisher owns the copyright on the anthology as a collective work. This is different from owning the copyright on your story. Copyright on the collective work means the right to publish the anthology itself, as a collection consisting of all of the stories within it -- and that copyright exists to ensure that no one else can copy and sell the anthology as a whole without permission. If you can't tell what your contract says in this regard, be sure to get an opinion from an experienced copyright attorney before you sign.

3. Show Me the Money (and Where it's Going).

Sometimes the participating authors get a share of royalties on anthology sales. Other times the proceeds go to the organization sponsoring the publication, to charity, or to someone else entirely. Make sure you know, and evaluate, where the money is going before you agree to participate.

4. Consider the Source.

All publications are not created equal. Some anthologies carry more cachet (and sell more copies) than others. Evaluate the publisher, group affiliations, and other aspects of the anthology before you submit, and  publish only with groups that you want your name affiliated with.

5. Stand and Deliver - on Time.

Anthologies have deadlines, like any other publication. Don't submit your story late, or unfinished, or in non-publishable condition ... and if you do, prepare to accept the consequences.

6. Ask About Purchase and Marketing Requirements.

Some anthologies require participating authors to purchase a specified number of copies of the finished work and/or to participate in specific marketing efforts. (Note: no matter what the requirements are, be prepared to help market the anthology when it releases. It's rude to expect someone else to do all the work.) Know what your obligations are beforehand, so you don't have rude surprises down the line. 

In the months to come, my #PubLaw posts here at the RMFW blog will look in-depth at these and other anthology-related issues, including those sneaky contract provisions specific to anthologies. Have questions I haven't answered? Feel free to ask in the comments, and I'll work them into future posts!  

Susan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, released on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium.You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann).

The First Rule of #PubLaw: Don’t Be a Jerk

By Susan Spann

One of the lessons I seem to repeat most often in my #PubLaw posts has (on the surface) little to do with law. In fact, I repeat it so often that I'm officially calling it #PubLaw Rule #1:

Don't be a Jerk.

It's a slightly more "SFW" version of the gaming community's popular Wheaton's Law (Google it...research is good for the soul.) and no less applicable in publishing ... or anywhere else in life, for that matter.

Unfortunately, it's sometimes hard to keep your cool when dreams are on the line, especially when negotiations, contracts, reviews, or sales don't go your way. And at some point in your career, all of those things will go against you.

Today, we're taking a look at some ways to prevent yourself from being "that author" ... the one who ends up on the bad behavior lists.

1. Don't Let the "Submit" Button Go Down on Your Anger. Business moves much faster--and more publicly--in the digital age. Blogs, Facebook, Twitter give us instantaneous access to other authors, readers ... and everyone else on the planet with a computer and a few extra minutes to kill. Unfortunately, that also makes it faster and easier for authors to make angry public statements which feel justified in the moment but which, upon reflection, were unnecessarily hostile or ill-advised. The best rule is never blog or use social media when angry. If you must write something, write it offline and give it 24 hours to "settle" before you post. Review it only after the initial anger passes...and see whether you still believe the comments are justified and constructive.

2. Don't Kick Sleeping Dogs, and Don't Respond to Bad Reviews. Some people won't like your book. Some people will actually hate it. Some people will say, in public, that your book should be burned as a service to humanity, to prevent an innocent reader from accidentally stumbling across it in a used bookstore (yes, that's a real review, which a friend of mine received). DO NOT RESPOND TO BAD REVIEWS. Period. End of story. Even a troll has a right to an opinion, and no single review will make or break a novel. What can break a novel--and a novelist-- however, is a reputation for arguing with readers and reviewers in public. Let the reviewer have his or her opinion. You're free to disagree--but do it in private.

3. Compliment and Support Other Authors. Rising tides float all ships, and getting people interested in reading helps all authors. Read a good book? Tweet or Facebook or write a review--and don't expect repayment in return. Authors who give to others acquire a good reputation; those who never read, never give a compliment except in exchange for "equal value," and never share their own love for books are missing a great opportunity. Nice people do nice things. Be nice. It comes back around to you.

4. Try to See Negotiations, and Other Publishing Situations, From the Other Person's Point of View (Not Just Your Own). The more you practice seeing situations from someone else's side, the better you'll be at spotting creative solutions, not only in negotiations but in  all aspects of your publishing career.

5. Kill Your ... Emotions (Once You Reach the Business Side). Emotion increases myopia, so do your best to remove the emotion from the negotiating and publishing process. Pour your feelings into your writing ... let your passion flow on the page. But when you reach "The End" remember: writing is an emotional process, but business belongs to the logical brain.

These aren't the only ways to keep yourself from becoming "that author" in public...but they're a start. Publishing might seem large, but the business itself is surprisingly small, and reputations follow us much longer than we imagine in those early days of a writing career.

The more positive you are, the more attractive others will find you ... a rule that applies as much in publishing as it does in the rest of life.

Got more tips for keeping things on the positive side? Hop into the comments and share! 

Susan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, releases on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium. You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann).

“Negotiation” Is Not a Four-Letter Word

By Susan Spann

Today we continue the pre-conference #PubLaw prep for the contract negotiation workshop at Colorado Gold (which I'm team-teaching with Midnight Ink editor Terri Bischoff) with an unusual look at publishing contracts: one that doesn't talk about contracts at all. 

(Note: You don't have to go to Colorado Gold to benefit from the concepts we're discussing here - so whether or not you're attending the conference....read on.)

Today, we're talking about negotiation.

Many people understand only the "Zero-Sum" approach to negotiation, which essentially boils down to "one person wins, and the other person loses." Under a Zero-Sum philosophy, every negotiation (or contract) point I "win" is one that the other side "loses." The idea, then, is to win as many points as possible, and force the other side to accept a "losing" position in the final deal.

Unfortunately, zero-sum doesn't work very well for publishing contracts. The reason should be obvious. The more one side takes an "author vs. publisher" or "us vs. them" position in the negotiating process, the more difficult it becomes to set those differences aside and build a  business partnership once the deal is signed.

The Mutual Benefit Strategy offers a far more effective method of negotiation for publishing contracts -- and not just because it lays the groundwork for a better relationship after the signing.

"Mutual Benefit Negotiation" is a strategy which focuses on finding not only a "meet in the middle" solution to contract disagreements, but actually finding a place where both sides are better off than they were before.

Admittedly, it isn't always possible to find a win-win solution to every problem. In some cases, only one side can have its way.

A good example is whether or not the contract includes both print and ebook rights. If the author wants to sell both, but the publisher offers ebook only--or, more commonly, the other way around--only one side can prevail and there really is no middle ground.

More commonly, however, there is a place where both sides can "win" and the contract terms can reach a mutually beneficial position.

For an example of this, let's look at translation rights. They don't have to be "all or nothing." If a publisher has an in-house translator for Spanish, or French, or Italian, or regularly sells a lot of translation rights to certain countries, you may be able to negotiate to include only certain languages in your contract.

Another good example is special editions for people with disabilities. Most publishing contracts give the publisher the right to produce or license these editions (for example, Braille versions) with no royalties paid to the author. This is because, many times, the publisher "donates" the rights to these editions and/or licenses them free of charge. As an author, you shouldn't want to deprive disabled people of the chance to experience your books. However, you don't want to give out windfalls, either -- so a compromise position is language which states the publisher can license these editions royalty-free, but that if the publisher does receive financial compensation for the license, that compensation is shared equally with the author. Win-win. The publisher keeps the right to get those editions on the market, and the author gets the right to share in any benefits that arise.

When you negotiate a publishing contract, be clever. Look at the publisher as a business-partner-to-be. That doesn't mean you trust beyond what the publishing house deserves--or that you compromise in unreasonable ways. However, if you can offer creative solutions that leave both parties better off (or at least satisfied with the outcome) you can turn the contract negotiation from a hostile, zero-sum environment into an incubator for the (hopefully long-term) relationship to come. 

Again ... this doesn't mean roll over and show your belly. It means be smart, be creative, and be aware that sometimes the best solution to a problem is Option C - which, often, nobody thought about to begin with.

I hope to see you all at Colorado Gold!

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Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, releases on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium. You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann).

Forget the Money: Show Me the Contract

By Susan Spann

This September, I'm co-teaching a workshop at Colorado Gold with Midnight Ink editor Terri Bischoff. The workshop, titled "Contract Law: Where You Can Make a Difference," is intended to offer advanced-level instruction on which publishing contract clauses are (and are not) negotiable.

In preparation for that, my guest posts between now and Colorado Gold will offer some entry and mid-level information about the contracts process, to help authors get up to speed for the information Terri and I will present at Colorado Gold.

***

For many authors, obtaining a publishing contract is a lifelong dream-come-true.

It doesn't matter whether you publish traditionally, through a self-publishing service like Amazon or CreateSpace, or with a hybrid publisher who gives the author significant control over things like cover art and pricing.

Getting your novels into print is both the fulfillment of a dream ... and also the start of a business endeavor.

Smart authors remember to treat it as both.

No matter which publishing route you use, you must have a written contract. Copyright law requires one when rights are licensed on an exclusive basis (which is the case with most publishing contracts), and no smart author would ever publish a book without some writing governing the terms of the publishing deal.

In the case of self-publishing venues like Amazon, CreateSpace, and others, that writing is often the online Terms of Use.  Authors should treat those terms of use like a contract--albeit a nonnegotiable one, since website publishers generally will not change any terms of those contracts on an individual basis. Even so, online terms of use have been held just as binding as written contracts--so beware.

Many authors make serious contract mistakes because they allow emotion to get in the way of business sense. Don't be that person.

When presented with a publishing contract (or preparing to self-publish your work), remember:

1. The financial terms (royalties and advances) are important, but NOT AS IMPORTANT as the sum of all of the legal terms in the contract. Don't let royalties or advances blind you to the other legal terms.

2. Read the entire contract carefully, and get experienced legal help with anything you don't understand. This help might come from an agent or an attorney -- but it should always come from someone not affiliated with the publisher. The publisher may or may not be honest--but publishers have a conflict of interest when it comes to explaining your legal rights. It's always more expensive to try and break a contract after the fact than it is to find out what the contract says up front.

3. Remember that contracts are legally binding documents -- and that ONLY the actual words in the contract govern your legal relationship with the publisher. Emails, telephone calls, and other promises don't mean anything if they're not included in the contract. In some cases, a court may even prevent you from introducing evidence that "outside promises" even existed. Treat the contract as if it's the only document that matters, and the only thing controlling your relationship with the publisher--and then make sure that everything is included.

4. Be wary of ANY contract which doesn't comply with industry standards. In particular, beware: nondisclosure clauses (which prevent the author from talking about the publisher in public or on social media), non-competition clauses preventing the author from publishing ANY other works of any length without the publisher's permission, a total lack of termination options for the author, and "out of print" clauses tied to inventory or "on sale status" rather than sales figures. These aren't the only warning flags, but a contract which contains one or more of these must be approached with caution (and a lawyer in your corner).

These aren't the only things to beware in your publishing contract, but they're a decent start. Next month, we'll take a look at some more contract pitfalls to avoid.

In the meantime - keep treating your writing as a business and remembering that, regardless of your publishing path, YOU are the one in charge of your publishing career.

***

Susan SpannSusan Spann is a California transactional attorney whose practice focuses on publishing law and business. She also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was named a Library Journal Mystery Debut of the Month. The second Shinobi Mystery, BLADE OF THE SAMURAI, releases on July 15, 2014. When not writing or practicing law, Susan raises seahorses and rare corals in her marine aquarium. You can find her online at her website (http://www.SusanSpann.com), on Facebook and on Twitter (@SusanSpann).

Taxes 101 for Authors*

*Note:  If you haven't figured out why I picked today to talk about taxes, you probably need this post more than you think you do... 

Most people in the United States work for someone else, as employees or independent contractors. (And, statistically, most people are employees.)

Most writers have "day jobs" to help support their writing careers.

For those who are self-employed, business owners, or primarily independent contractors, the tax obligations of a writer are probably already familiar. For those whose primary work experience comes as an employee, however, making money from writing means it’s time to think outside the W-2.

WRITING INCOME IS SELF-EMPLOYED INCOME

U.S. residents (and foreign citizens living abroad who pay taxes in the United States) will not receive a W-2 (report of wages earned by employee) from the publisher at the end of the year. Independently published authors won't get a W-2 from the distributions sites through which they sell their books (for example, from Amazon). Instead, an author receives Form 1099 – report of income other than wages, salaries or tips.

People who receive Form 1099 are considered self-employed or independent contractors by the IRS, which is relevant because people in those categories must pay quarterly estimated taxes during every calendar year. As soon as you start making income from writing, you must calculate and pay estimated taxes too.

WHAT ARE ESTIMATED TAXES AND HOW DO I PAY THEM?

Four times a year, on the 15th of April, June, September and December, authors and other self-employed people must estimate the taxes due to the IRS and their state of residence (if the state has an individual income tax – some don’t) on income earned during the previous calendar quarter. On the due date, the author (or contractor) must send a check for the estimated tax amount due (if any) to the IRS (and the state, if appropriate) along with the relevant estimated tax forms.

If you fail to pay estimated taxes on time, or fail to pay enough, the IRS and/or state may assess a monetary penalty against you.

The obligation to pay estimated taxes often comes as a shock to authors who previously worked only as employees or whose employers withheld taxes from the authors' paychecks.

BE PREPARED: ORGANIZE YOURSELF FOR ESTIMATED TAXES

Don’t incur a penalty because you were unprepared! As soon as you (a) sign a publishing contract or (b) self-publish your first manuscript:

1. Find out what you need to know about paying estimated taxes. Get the necessary forms and mark your calendar. If you can't figure it out on your own, attend a local workshop or talk to an accountant.

2. Set aside a portion of every royalty check or periodic self-publishing income to cover your tax obligations – don’t anticipate having enough left over from then-current income when the payment comes due.

3. Don’t forget to document your deductions! Authors may be able to deduct certain costs, including some expenses associated with research, writing, and publication. Consult an accountant or tax advisor to learn which ones, and don’t forget to save and mark receipts to document deductions.

I’m not a tax advisor, and this post should not be taken as tax advice. Consult a qualified accountant or other tax advisor before making decisions on tax-related issues.

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Susan SpannSusan Spann is a California publishing and business attorney who also writes the Shinobi Mysteries, featuring ninja detective Hiro Hattori. Her debut novel, CLAWS OF THE CAT (Minotaur Books, 2013), was a Library Journal Mystery Debut of the Month. Her second novel, BLADE OF THE SAMURAI, releases July 15, 2014. Susan’s legal practice focuses on publishing law and business. When not writing or practicing law, she raises seahorses and rare corals in her marine aquarium. You can find her online at her website, http://www.SusanSpann.com, and on Twitter (@SusanSpann).

Juggling Contracts, Part 3: Beware the Sub-Clauses!

By Susan Spann

Last month's RMFW #PubLaw post talked about contract language authors want to see when juggling multiple contracts for different types of rights.

This month, we'll take a look at the other clauses authors need to watch for.

Even contracts which seem to address only limited rights sometimes contain additional terms that impact sub-rights licensing and limit the other contracts the author can sign without a publisher's permission. Here's an overview of the most common:

1. Sub-rights paragraphs. Check the contract's sub-rights paragraphs against your list of rights you intend to sell. Make sure you're giving away only the rights you intend. Be careful, because the "grant of rights" paragraph doesn't always contain all of the rights language. Many contracts contain sub-rights language in other places, farther down the agreement.

2. Licensing and assignment rights. Many contracts have separate paragraphs authorizing the publisher to sub-license additional rights. Be careful to ensure this doesn't reach beyond the scope of the rights you intend to grant, and make sure these paragraphs specifically state that the publisher can't license or sell rights beyond those "expressly granted to Publisher in this Agreement."

3. Intellectual Property Ownership Provisions. Some publishers try to "grab" rights in the copyright and ownership sections. Read carefully, and ensure that you retain full ownership to all rights in the work (except for the ones licensed to the publisher, of course), and that your contract specifically states that you can benefit from those rights without owing the publisher any share or licensing fee.

4. Competitive Works Provisions. Many contracts prohibit the author from publishing or licensing "competitive works," defined as works which might damage the market for the work referenced in the contract. Be sure these provisions have carve outs for derivative rights and sub-licensing of the other rights you intend to exploit. In fact, the contract should expressly state that the author's exploitation of reserved rights is not a violation of this provision.

5. Option Clauses. Beware the lurking option clause that casts too broad a net. If a publisher takes an option, restrict that option as much as possible. For example, if you're licensing publication rights to a novel, the option should be for "Author's next book-length work of fiction in the same series only" and should not include derivatives, spinoffs, and short stories or novellas.

As you can see, the job of juggling rights becomes more intricate as more publishers and rights become involved. I recommend that authors who want to juggle multiple contracts have an agent or an experienced publishing attorney at their side, and that the author hires professional help before the first contract is signed.

Juggling rights requires careful planning and attention to detail, as well as a solid understanding of legalese and contract law. Don't go it alone. The rights--and the profits--you save will be worth the trouble.

*As always, be aware that this column is general business advice, and not intended as specific legal advice to any person. All authors should consult an experienced publishing attorney before signing contracts or compromising their legal rights.

Have questions about this or other publishing legal topics? I'd love to hear from you in the comments!

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Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release on July 15, 2014. Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. Find her on Twitter @SusanSpann or on Facebook.