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Publishing Contracts: Pros & Cons of Self Publishing vs Traditional Publishing
- 1. CONFIDENTIAL © Copyright Baker Botts 2016. All Rights Reserved. Publishing Contracts: Pros & Cons of Self-Publishing vs. Traditional Publishing Nicole Sallie Franklin Elizabeth K. Rucki June 12, 2016
- 2. BAKER BOTTS Greeting / Introductions 2 Elizabeth King Rucki Nicole Sallie Franklin Elizabeth.Rucki@bakerbotts.com texasiplaw@outlook.com (formerly Elizabeth Stanley) **The information presented herein shall not constitute legal advice; any third parties referenced in this presentation are not endorsed by Baker Botts or the individual presenters
- 3. BAKER BOTTS Overview of Presentation Copyright Overview - The Basics Using a Traditional Publisher: Legal Issues Key Things to Remember When Negotiating Publishing Agreements 01 03 04 3 02 Self-Publishing: Benefits vs. Challenges & Legal Issues
- 4. COPYRIGHT OVERVIEW: THE BASICS 01 4
- 5. BAKER BOTTS Copyright Law: What does it Protect? • "Original works of authorship fixed in a tangible medium of expression" – Includes: Literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture • Copyright law protects: – Literary works (including computer programs) – Musical works (including accompanying lyrics) – Dramatic works (including accompanying music) – Pantomimes and choreographic works – Pictorial, graphic and sculptural works – Motion pictures and other audiovisual works – Sound recordings – Architectural works 5
- 6. BAKER BOTTS Copyright Law: Copyrights • A Bundle of Rights - Copyright owner has the right (or may license others) to: – Copy/reproduce – Distribute – Display – Perform – Prepare derivative works (i.e. "alteration") based on the original • Authors of "works of visual art" have additional "moral rights" under Sec. 106A: – Right of attribution – Right of integrity 6
- 7. BAKER BOTTS Copyright Law: Copyright Does Not Protect? • Ideas or works not fixed in a tangible form of expression • Titles, names, short phrases, slogans • Facts, procedures, processes, systems, methods of operation, concepts, principles or formulas – But may protect the way these things are expressed • Functionality (e.g., clothing designs, useful articles) • Against independent creation of a work 7
- 8. BAKER BOTTS Copyright Law: Acquiring Copyrights • Copyright exists at the time of creation – as soon as “original works of authorship” are “fixed in tangible medium of expression.” 17 USC §102(a). • Duration – Single Author- Life of author + 70 years – Joint work prepared by 2 or more authors: Life of last surviving author + 70 years – Work made for hire; anonymous and pseudonymous works: 95 years from publication/120 years from creation (whichever is shorter) 8
- 9. BAKER BOTTS Copyright Law: Copyright Notice & Registration • Copyright Notice – Advisable, but not required – © (Year of First Publication) (Name of Copyright Owner) © 2016 Baker Botts • Copyright Registration – Not required, but beneficial – Required for litigation – Statutory presumptions of ownership, validity – Allows for recovery of statutory damages & attorney's fees 9
- 10. BAKER BOTTS Copyright Law: Registration Process • File application with the U.S. Copyright Office • Requires: 1) Completed Application form Title Author Claimant (who is claiming ownership) Year of creation Date of publication Limitation of Copyright Claim 2) Filing Fee ($35 or $55 if done online) 3) Non-Returnable Deposit (copy of the work being registered) 10
- 11. SELF-PUBLISHING: BENEFITS / CHALLENGES & LEGAL ISSUES 02 11
- 12. BAKER BOTTS Self-Publishing: Benefits 12 • Freedom • Final say on all aspects of publication • Faster time to market • Retain all IP rights • Higher royalties • Readers do not shop for book by publisher
- 13. BAKER BOTTS Self-Publishing: Challenges 13 • Stigma • No assistance with process • Assume all legal and monetary risk • No validation • Difficulties getting into traditional bookstores • Less recognition
- 14. BAKER BOTTS Self-Publishing: Legal Issues 14 If you self-publish, be sure to: • VET YOUR WORK • Use original images/graphics and text – Obtain assignment of copyright if hire third party to create • If you want to use third party materials: – Obtain permission at outset – Public domain? – Fair use?
- 15. BAKER BOTTS Self-Publishing: Legal Issues (Cont.) 15 • Permission: Steps & Timing – Identify copyright owner & rights you need to license – Contact owner and negotiate payment – Obtain permission or license in writing – Plan for 1-3 months • Beware of privacy and publicity rights - Careful writing about actual individuals – Publicity rights - right to control commercial use of name and likeness; rules vary by state – Privacy rights - right to be left alone; rules vary by state
- 16. BAKER BOTTS Self-Publishing: Legal Issues (Cont.) 16 If you self-publish, be sure to: • Use fictional brand names/trademarks when possible • Consult with an IP or publishing attorney • Obtain liability insurance for libel or copyright infringement Certain companies, like Author's Guild, have info regarding providers that offer media liability insurance for authors • Register your work with U.S. Copyright Office • Police your copyright to address potential infringement
- 17. USING A TRADITIONAL PUBLISHER: LEGAL ISSUES TO WATCH FOR 03 17
- 18. BAKER BOTTS Traditional Publisher: Hire a Literary Agent? 18 • Types of Agency Agreements – Exclusive Agency Agreement - Most common – Exclusive Right to Sell Agreement - Avoid, if possible • Clauses to Watch For: – "Interminable Agency" or "Agency coupled with an interest" • Exclusive, irrevocable right to represent your work for entire term of copyright; Avoid if possible – Power to sign contracts and checks on author’s behalf – Power to assign agency agreement without permission
- 19. BAKER BOTTS Traditional Publisher: Hire a Literary Agent? 19 • Agency Fees: – Typically paid by commission on sale of work Be wary of other fees – Sales to Domestic Publishers: 15% of total income from first sale of work before taxes + 15% of royalties – Foreign Subsidiary Rights and Translations: 20% commission – Self-publishing assistance: 15% commission on all sales
- 20. BAKER BOTTS Traditional Publisher: Beware of…. 20 • Clauses to Watch for in Publishing Agreements − "Grant of Rights" Clause Publisher will want all rights - everywhere Retain as many subsidiary rights as you can License only what need to get the deal done Example Broad Clause on following slide- Source: http://kriswrites.com/2016/05/25/business- musings-the-grant-of-rights-clause- contractsdealbreakers/
- 21. BAKER BOTTS Example Broad "Grant of Rights" Clause 21 • Effective immediately upon the execution of this Agreement, the Author hereby grants to the Publisher the following: 1) The sole and exclusive worldwide rights and license to print, publish, distribute, sell and sublicense, and generally exploit the Work, in all languages, whether in print, electronic, digital, audio, video, television, film, theatrical, or any other form or format now known or hereafter discovered or created, in all languages, including any and all editions and formats of the Work, in whole or in part and all revision of the Work and any edition thereof. As used herein, the term “editions” shall include worldwide rights: the term “formats” shall include all print, book club, and all electronic formats including download (whether over the Internet, through an “app” or otherwise), audio, disk, CD, or any other electronic or digital format known or to be invented, enhanced ebooks, mass market, large print, and any future formats/technologies for the duration of the contract term;...
- 22. BAKER BOTTS Traditional Publisher: Beware of … 22 • Option Clauses – Exclusive option to acquire publishing rights to next work for certain period of time; Eliminate if possible – At a minimum: remove obligation to submit a completed manuscript rather than proposal delete long consideration periods by publisher (more than 60 days) delete requirement that next book be published on the same terms as current book remove stipulation that you cannot accept offer from another publisher if not on better terms restrict definition of next work (same genre; same series, etc.) – Goal: Give publisher limited period to exclusively consider your work prior to offering to other publishers
- 23. BAKER BOTTS Example Option Clause 23 • The Publisher shall have the exclusive option to acquire upon mutually agreeable terms the publishing rights to the next novel by the Author. The period of this option shall be for sixty days following the acceptance of the last Work in this contract. During the period of this option, the Author agrees not to submit the work or its outline to other publishers. If the Publishers wishes to publish said novel, the parties shall negotiate in good faith the terms of the publishing agreement. If the parties are unable to reach agreement before the expiration of the option herein granted, then the Author shall be free to offer the next work to others, but only on terms more favorable than those offered by the Publisher. The Publisher shall have the right to match the offer of any other publisher. • Source: http://kriswrites.com/2016/05/11/business-musings-long- term-thinking-the-option-clause-contractsdealbreakers/
- 24. BAKER BOTTS Traditional Publisher: Beware of … 24 • Long Delays & Publication Periods − Include time limits for consideration of work and for review of revised work − If no notice within certain period of time after receipt of revised work = deemed acceptable − Require publication within 12-24 months after acceptance of work • Non-Compete Clauses − Agreement not to publish during term of Agreement (and perhaps a certain amount of time thereafter) without written permission of publisher − Avoid if possible
- 25. BAKER BOTTS Example Non-Compete Clauses 25 • The Author agrees that during the terms of this Agreement he will not, without the written permission of the Publisher, publish or authorize to be published any work under this name or any other, including blog posts, short stories, nonfiction articles, novels, or the like. • The Author agrees that, during the term of this Agreement, he will not, without the written permission of the Publisher, publish or authorize to be published any work substantially similar to the Work or which is likely to injure its sale or the merchandising of other rights herein. • Source: http://kriswrites.com/2016/05/18/business-musings-long-term- thinking-the-non-compete-clause-contractsdealbreakers/
- 26. BAKER BOTTS Traditional Publisher: Beware of … 26 • Warranty Clauses – Author's promise to publisher that: • Work is original, • Does not violate any third party's copyright rights • Does not defame (libel) any individual, • Does not invade anyone’s right of privacy or right of publicity – Include “best of your knowledge” standard
- 27. BAKER BOTTS Traditional Publisher: Beware of … 27 • Indemnification Clauses – Author’s agreement to reimburse the publisher for any damages suffered by the publisher if the author’s warranties are false – How to deal with them? Request that indemnities take effect only upon a final judgment and after insurance pays Require notice of claim and consultation prior to settlement Ask to be added to publisher's insurance policy
- 28. BAKER BOTTS Traditional Publisher: Beware of … 28 • Typical Royalty Rates − Hardcover: 10% – 15% − Mass market paperbacks: 6% - 9% − E-Books: 25% of net receipts − Subsidiary rights: 50% of income • What is % is based upon − Net or gross income? − Suggested retail list price or wholesale price? − Watch for reduction for "discounted" sales − Advance against royalties?
- 29. BAKER BOTTS Traditional Publisher: Beware of … 29 • Out of Print Clauses – Grant of rights generally limited by this clause – Link to the publisher’s marketing efforts not just book’s availability • Extension of Rights Clause – At termination, publisher may retain right to sell and dispose of certain amount of inventory - essentially delayed extension of grant of rights • Early Termination Penalty − $ that must be paid by author if wants to terminate contract early − Instead, negotiate waiting period before termination − If contact is not of a limited term - request termination once sales fall below a stated minimum.
- 30. KEY POINTS TO REMEMBER WHEN NEGOTIATING PUBLISHING CONTRACTS 04 30
- 31. BAKER BOTTS Key Points to Remember When Negotiating Publishing Contracts 31 Don't assume contract terms won't apply to you Don't assume language will not be enforced Keep your business sense Don't license away more than you need to Ask questions Don't rely on third party advice or interpretation Get advice from a qualified professional Understand full consequences of the contract
- 32. CONFIDENTIAL © Copyright Baker Botts 2016. All Rights Reserved. Questions?
- 33. AUSTIN BEIJING BRUSSELS DALLAS DUBAI HONG KONG HOUSTON LONDON MOSCOW NEW YORK PALO ALTO RIYADH SAN FRANCISCO WASHINGTON bakerbotts.com ©Baker Botts L.L.P., 2016. Unauthorized use and/or duplication of this material without express and written permission from Baker Botts L.L.P. is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given with appropriate and specific direction to the original content.