Tag Archives: Susan Spann

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-exclusive” and 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).

So You Want to Publish An Anthology? Read On…

By Nikki Baird, Rocky Mountain Fiction Writers Anthology Chair

nikkibairdAnthologies have experienced something of a renaissance, thanks to the indie publishing market. Lots of writers have short stories that they’ve written over the years, and in a lot of cases, the publishing rights to those stories revert back to authors fairly quickly, so there aren’t a lot of legal reasons that get in the way of republishing.

Plus anthologies can be great marketing tools. They can help promote a collection of authors by making the workload something you can share, and they can provide a way for readers to try a lot of new authors for a low entry price. For single-author anthologies, they can also serve as a “try before you buy”. Anthologies are also great books to give away for free when promoting a new novel, especially when they are stories you’ve already written.

So what goes into making an anthology? Well, a lot, trust me. But I’ll give you three big ones, with a primary focus on multi-author anthologies, since that’s where my experience lies.

A Theme. An anthology needs something to hold it together. For single-author anthologies, the theme is simple – it’s the author! However, even then, you might want to think about selecting a collection of short stories that relate to each other.

When you come up with a theme, probably the biggest challenge is to make sure that it is rich in possibility. The core conflict or tension needs to be easy to grasp and yet also deep and/or broad. Also, the theme should relate to your group. Sometimes this means genre – for example, you wouldn’t really want to throw a blood-and-guts zombie story in with a bunch of regency romance. But if you’re looking at a collection that crosses genres, then a core subject or theme becomes particularly important in helping readers understand what to expect from the book.

For the RMFW anthology, particularly because we chose open submissions, we put theme front and center: Colfax Avenue. We could’ve chosen Sunset Boulevard, or Madison Avenue, or some other historic/infamous street in America, but as we are the Rocky Mountain Fiction Writers, keeping the location close to home seemed important. Plus I was dealing with a precedent set by previous RMFW anthologies. Dry Spell and Tales of Mistwillow were both based on themes important to the Rocky Mountain region – water, and life in a (made-up) mountain town. RMFW’s third anthology deviated from this theme (Broken Links, Mended Lives), and we may stray from a Rocky Mountain angle again in the future, but this year the Colfax idea quickly took hold and became a slam-dunk.

 A Submission Process. If you’re soliciting submissions, you need a well-defined submission process. We had to navigate several choices. Do you want to invite specific authors to contribute? Famous authors, when you can get them, can help sell the book. But their time is very precious, especially writing time. If you’re looking to hook a famous author, it helps to either have an existing relationship or to have a cause that they support as a beneficiary for anthology proceeds.

For Crossing Colfax, we opted to not pursue specific authors. One, people like Carol Berg, Mario Acevedo, and Jeanne Stein have already been very generous in the past. Two, we specifically opted to open submissions only to RMFW members in order to feature and promote the writing talent within RMFW. So it didn’t seem quite right to hold spaces in the anthology for select authors when what we really wanted were good stories no matter who they came from within our community. In the end, we had about the right mix: 3 stories from established authors (Linda Berry, Warren Hammond, and Thea Hutcheson) and 12 from newbies.

We held open submissions with only the membership requirement. We also had a blind reader panel, rather than a committee. There were a couple of reasons for that. One, not everyone was co-located, so trying to have meetings was going to be difficult. Two, and this one’s all on me, I liked the idea of getting basically as much reader input as I could. A small selection committee can fall into group-think mode, where everyone ends up reinforcing each others’ opinions, and radical new ideas get lost. With blind readers, this was in some ways like stopping people on the street who like to read and asking their opinions. Stories that I didn’t particularly like at first came back with thumbs up from readers, and stories that I loved didn’t do nearly as well as I thought they would. In the end, we ended up with a collection that I think is the better for it – with a wider appeal, and a more varied set of stories than we otherwise might have.

A Contract. This one’s always the fun part. The last RMFW anthology was published in 2009. That contract included no provisions for e-pub. In fact, that is why you don’t see any past RMFW anthologies in e-pub format in the market today, because we only have print rights to those books. Someday I’d love to go back and get the e-rights to bring the past anthologies online, but that is work for another day. Since we are writers helping writers, it seemed silly to have the kind of contract that makes agents wince, so we tried to be very open and fair. We asked for exclusive rights for one year, and perpetual rights to the story as long as it was published in the anthology. Outside of the anthology itself, RMFW has no rights. So after the year is up, the authors are welcome to publish their stories in other anthologies or stand-alone or however they choose. I will say, though, that we had our contract reviewed by Susan Spann, who volunteered her considerable legal services. And I would not recommend skipping that step!

Is it all worth it? From an editor perspective, you bet. It’s hard work, and multiplied because you’re working with multiple authors, but I get a smile on my face every time I see the Crossing Colfax cover. I’m so proud of the variety, the freshness, and the imagination that sits within those pages. Over the next year, I hope I’ll also be able to say that it was a valuable experience for our authors too – because, while a lot of the work is over, a lot more work has only begun!

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Originally published at Patricia Stoltey blog September 18, 2014

You can find out more about Nikki by reading the RMFW Spotlight post from the Rocky Mountain Fiction Writers Blog.

Crossing Colfax is available at amazon.com and barnesandnoble.com.

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).

Tips for Conference Goers, Especially First Timers — Part I

A few of your regular RMFW Blog contributors have submitted their best advice for an enjoyable and educational conference experience. These suggestions work for any conference, of course, but will be especially meaningful for those who plan to attend the Rocky Mountain Fiction Writers Colorado Gold Conference September 5-7 at the Westin in Westminster.

Feel free to add your own tips in the comment section.

Kerry Schafer

1. Talking to writers at a conference is easier than talking to “normal” people, because you can drop the small talk. If you don’t know what to say, just ask, “So what are you writing?” Even shy writers are generally happy to start telling you about their latest project, and this helps to break the ice.

2. Have a business card or bookmark you can pass out with your name, email address, and social media contacts. This allows people you connect with at the con to find you again later. You can get inexpensive business cards at Moo.com or Vistaprint, or even make some yourself and print them on cardstock. Definitely worth the time.

3. Agents and editors are people. They don’t like to be spammed any more than you do, but they are looking for the next wonderful book and it might just be yours. Treat them with respect and let your enthusiasm shine through.

Kevin Paul Tracy

1. Don’t necessarily attend all the same workshops/classes as all your friends. Split up, then come together later and share notes.

2. The hospitality suite is great, but explore, there are all sorts of impromptu gatherings all over the place all weekend.

3. Listen more than you speak. You’ll overhear so much more that way and learn all sorts of interesting things.

4. Don’t go to bed early – stay up past your bed time. Some of the best conversations come after 1am and everyone is well lubricated.

5. When you make a new friend, get their “deets” right away, so you can stay in touch. You will forget later.

Robin D. Owens

1. There is no “one true way” to do things. What the seminar speaker is telling you works for him/her. Take what works for YOU from the workshop and use that.

2. Sometimes you have to hear a concept several times or phrased in different ways before it sinks in and is useful for you.

3. Stop when you get overwhelmed.

Susan Spann

1. Set specific, and reachable, personal goals. When I go to a conference, I try to meet (and remember) three new people every day. I used to feel shy about approaching strangers and introducing myself, but that became much easier when I replaced “Meet lots of people” with “Meet three new authors every day of the conference.” I usually end up meeting many more, but focusing on initiating three conversations made the goal more personal and reachable.

Jeffe Kennedy

Don’t over-schedule in advance, particularly regarding panels and workshops. Leave room to talk to people and go to panels and workshops as the opportunities arise. Connecting with other people is the one part of the conference you won’t be able to replicate some other way.

Please come back on Friday for Part II of Tips for Conference Goers, Especially First Timers, featuring Liesa Malik, Pam Nowak, and Katriena Knights, and Jeanne Stein.

“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.

Do You Know How to Juggle … Contracts?

By Susan Spann

Last week, someone asked me if I’d ever written a post about the legalities of contracting with multiple publishers (or publishers and others) for various forms and formats of the same creative work. 

In simpler language: “What do I need to know before I license print rights to one publisher and then license audio, or translation, or film rights (to the same work) somewhere else?”

Today we’re starting a discussion of that very topic. It’s a complex one, so we’ll come back to it for the next few months, at least.

I’ve mentioned before that “copyright” includes a bundle of different rights, including print, ebooks, translation to foreign languages, TV and film rights, audio rights, apps and gaming, braille, and many more. Until and unless an author licenses some or all of those rights, the author owns and can control them all.

Sometimes, a publisher wants to contract for more than one kind of rights. Some publishers take only one or two. We could write an entire book (and many blog posts) about the decision whether or not to license multiple rights at once–but for now, I want to focus on what happens when the author has the chance to split the rights among different publishers or companies.

IF YOU WANT TO HAVE MULTIPLE CONTRACTS, PLAN AHEAD.

The author needs to plan for multiple contracts from the very beginning–meaning BEFORE he or she even signs the first one.

Publishing contracts (and film, TV, app and gaming contracts also) always contain two clauses:

– A clause which states that the author cannot enter into any contract which would violate the terms of the contract (s)he is signing, AND

– A clause in which the author warrants (a fancy legal word for “promises”) that the current contract doesn’t violate the terms of any other existing contract or agreement involving the author and this work.

Do you see the issue?

If the author gives away too many rights in the first (or any other) contract, or doesn’t make sure that each contract allows the author to dispose of the remaining rights in any way the author chooses, the author can end up trapped and unable to license additional rights, sometimes even if those rights weren’t expressly included in the first contract.

BEFORE YOU SELL RIGHTS TO YOUR WORK, MAKE A LIST OF THE DIFFERENT CONTRACTS YOU HOPE TO OBTAIN 

Create a list (or a spreadsheet) containing all of the rights you might want to license. This might include:

Leave space so you can write in the name of the publisher (or company) to whom you license each set of rights.

In addition to keeping your publishers straight, this list becomes your “rights review checklist” every time you prepare to enter a contract. Make sure each contract names and licenses only the rights you want to license to the company in question. Be clear during negotiations: let the publisher know in advance that you’re offering only certain rights, and that you intend to license and exploit your other rights in other ways.

You’ll also need to ensure that each publishing language contains some important language protecting your rights … but that’s the topic of next month’s #PubLaw post here at the Rocky Mountain Fiction Writers Blog.

So tune in next month for the next installment!

In the meantime, if you have questions about this or other publishing legal issues, please feel free to ask in the comments! 

 

 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.