Wednesday, November 25, 2015

What Every Author (and Publisher) Should Know About Media Perils Insurance

By Lloyd J. Jassin & Steven C. Schechter

Adapted from The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers by Lloyd J. Jassin and Steven C. Schechter

Publishing is a risky business.  Copyright infringement, defamation, right of
privacy are just three of the media perils authors, and their publisher partners, must contend with every day.  In addition to providing your own insurance by becoming well-versed in fair use, and clearing rights to preexisting materials when permission is required, you can manage risk with insurance that will pay the cost of defending your right to speak freely.

Media perils policies are available to authors and publishers to protect against intellectual property and defamation (or libel) claims. These policies generally cover claims of copyright and trademark infringement, invasion of privacy, defamation and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas, as well as a number of other media perils. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

What Should I Look for in a Media Perils Policy?

Insurance policies vary widely. It is important to emphasize that Comprehensive General Liability insurance ("CGL") policies, that many businesses carry, do not cover most of the types of claims discussed in this article. However, if you are sued, or threatened with a lawsuit, your attorney should consult your CGL policy to ascertain the scope of protection - if any - offered.  In the following section we discuss what questions you need to ask when shopping for a media period insurance policy.

1. Does the Policy Cover Attorneys' Fees?

Determine if the policy provides coverage for legal fees and defense costs, as well as payment of damages. Some policies have defense costs within the limit of liability, while others offer defense costs in addition to the limit of liability. Defense costs outside the limits of the policy provide broader coverage.  Other policies require you to obtain approval before incurring any attorneys' fee or expenses. It's also important to determine whether the policy requires the insurance company to defend a lawsuit against you.  If it does, you can save a tremendous amount of money in legal fees.  A secondary concern is whether the policy will allow you to choose your own defense counsel. 

2. Does the Policy Cover Punitive Damages?

Another key point to investigate is whether the insurance policy covers punitive or exemplary damage awards. Some states, such as New York, do not permit insurance companies to insure you against punitive damages. Because an award of punitive damages may be substantial (sometimes even more than actual damages and attorneys' fees), where permissible, you should make sure that your insurance policy will cover any punitive or exemplary damage award.  The potential for coverage of punitive damages, may turn on agreeing to retract allegedly libelous statements - whether the retraction is legally warranted or not. 

3. Does the Policy Require a Lawyer's Opinion?

Many insurers will not issue a media risks policy unless the publisher, or author, provides an opinion letter from a publishing lawyer analyzing the risks of a lawsuit. Find out whether you will need to provide such a legal opinion letter because the cost of hiring a lawyer to review your manuscript and write an opinion letter can be significant. The cost of obtaining the legal review and opinion should also be taken into account when comparing policies and their rates.

While more common in the film world, some policies will not insure the title of a work unless they receive a lawyer's opinion.  While titles are not protected by copyright law, some may fall under trademark protection, especially well-known and series titles.  Therefore, the cost of obtaining a title report should should be taken into consideration when shopping for coverage.  

4. What Types of Claims Are Covered?

It is important to speak with an insurance broker familiar with this type of coverage to find out exactly which types of claims are covered and which are not. For example, some policies cover claims of intentional infliction of emotional distress or misappropriation of ideas, while others do not. Other insurance policies offer optional coverage, for an additional fee, for claims for bodily injury or property damage resulting from negligent advice or instructions.

All writers and publishers should obtain a policy that covers, at a minimum, claims of libel, slander, invasion of privacy, invasion of the right of publicity, trademark and copyright infringement, and unfair competition. Obviously, the more types of claims covered, the better the policy. Many insurance policies exclude certain claims, such as those alleging intentional or malicious acts, from coverage. It is important to find out what types of claims are excluded. Keep in mind that you will have to bear the cost of defending these claims yourself.

5. Which Versions of the Work Are Covered?

You should investigate whether the insurance policy will cover more than one version of your work. If your work will be published in hardcover and paperback forms, make sure the insurance policy will cover both versions. Additionally, find out whether the policy covers condensed versions, serializations, audiobook and other versions of your work. Similarly, you should find out if coverage extends to book jackets, flap copy, press releases, advertising and promotional materials (including catalog copy), and personal appearances.

6. Where Is the Policy Effective?

It may seem like a simple question, but many policyholders fail to ask whether their policy covers claims outside the United States. Most insurance policies cover claims only brought in the US. If your work is going to be distributed outside of the United States, you'd better make sure that your insurance policy will cover claims and lawsuits brought in any country where your work is sold, or translated.

7. Is the Policy a "Claims Made" or "Occurrence" Policy?

There are two types of insurance policies: "claims made" policies and "occurrence" policies.  An occurrence policy offers broader coverage.  A "claims made" policy covers claims made during the policy period, whether or not the actual activity which gives rise to the claim occurred before the policy came into effect. An "occurrence" policy covers material published during the policy period.  If your policy is a "claims made" policy, and a lawsuit or claim is brought the day after your policy expires, the insurance policy will not cover the claim even though the acts giving rise to the claim occurred while your policy was in effect. Alternatively, with an occurrence policy, it doesn't matter when the claim is made. As a rule, you should avoid "claims made" policies.

Insurance Policy Prices

The premiums for media insurance policies vary depending a number of factors, including the amount or limit of protection you elect.  The premiums generally take into consideration several additional factors, including:

Whether you consulted a qualified publishing attorney. Most insurers allow rate card credits to authors and publishers who have their manuscripts reviewed by an experienced publishing, or media law, attorney.
The type of book. For example, the premium for a science-fiction novel will be less than that for an investigative report, or roman a clef, which might result in a lawsuit for defamation or invasion of privacy.
Whether your releases and permission forms cover all the territories, uses, versions, editions and the work that are contemplated. Where appropriate permissions and releases have been secured, there is reduced risk of lawsuits.
Whether you've cleared the title of the book.
Whether any claims have been threatened.
The amount of coverage sought and the deductible. As coverage goes up, so do the premiums, but as deductibles go up, premiums go down.
The writer's experience and reputation.
If you are the publisher, the adequacy of the intellectual property representations and warranties (and indemnity) clauses written into your author agreement.
The revenues you expect to derive from the sale of your work. This makes it important to purchase a policy with a "flat" premium that is not subject to audit. 
If you are an author, you can ask your publisher to name you as an additional insured under their media perils policy, if they carry one.  However, don't be lulled into a false sense of security, as these policies often have very high deductibles, which are used to lower the publisher's insurance costs. 

If you self-publishing and there is already a claim made against the book, the insurance company may refuse to insure you, or exclude the pre-existing claim.   For this reason, think twice about publishing all or part of the book online, or in a magazine or newspaper before book publication - unless you already have secured an insurance policy.


While not an exhaustive list, here is a checklist of points to raise with the broker when shopping for a media perils policy:
          What types of claims are covered?  
          What is the period of coverage? 
What is the deductible and the limits of coverage for each claim? 
Are legal fees and defense costs covered separately or in addition to the maximum policy coverage? 
What are the conditions for coverage, i.e., is pre-publication review and an opinion letter by an attorney required? 
Who is covered (publisher, author, or both)? 
Is there an additional charge or fee for naming an author as an "additional insured" party? 
Are lawsuits outside the United States covered? 
Is the policy a "claims made" policy or an "occurrence" policy? 
Does it cover translations or other editions of the work (e.g., mass market paperback, trade paperback,  eBook versions, etc.)? 
Are punitive damages covered? 
Do you have the right to have your own attorney represent you or does the insurance company require their attorney? 
Can the insurance company settle a case without your approval or do you have the right to approve all settlements?

Organizations such as the Authors Guild and National Federation of Press Women, offer its writer members affordable media perils insurance policies. The Independent Book Publishers Association (IBPA), offers their members significant discounts on media perils policies as well. If you are an author, you can ask your publisher to name you as an additional insured under their media perils policy, if they carry one. However, don't be lulled into a false sense of security, as these policies often have very high deductibles, which are used to lower the publisher's insurance costs.  

Disclaimer: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney in private practice. He is co-author of the bestselling Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg, FL 12, 1501 Broadway, New York, NY 10036, Tel: (212) 354-4442, email: Follow him on Tweeter:

STEVEN C. SCHECHTER is a media and entertainment law attorney based in Fair Lawn, NJ, and co-author of The Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Steven C. Schechter, 36 Farview Ter, Paramus, NJ 07652, Tel: (201) 880-9818, email:

Sunday, September 13, 2015

In the Fight Against Piracy, Are Curses the Answer?

Outside of a Dog #5 (Halloween Issue)
Outside of a Dog is an irregular series that features publishing wisdom from a variety of classic and contemporary sources. As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases. The title is borrowed from Groucho Marx, who famously said, "Outside of a dog, a book is man's best friend. Inside a dog, it's too dark to read." Like the challenge of reading inside a dog, this collection records the fact that authors and publishers trying to strike a balance between literary merit and financial need, labor in the dark without any economic certainty. Since human fallibility is fun to read about, and the dead can't sue for defamation, there's an emphasis on the failures and foibles of dead poets, novelists, dramatists, editors and publishers.

Curses! Gory, gruesome, nasty, score settling, cautionary messages drafted by monk scribes to stop book thieves and plagiarists in their tracks. Curses and copyright notices perform a similar function - striking fear into the hearts of word thieves. While the basic premise of both is deterrence, the copyright notice is seen by most as a bluff, not a genuine threat.   While the legal benefits of using a copyright notice are limited, there are several or more non-legal incentives to support the use of curses in the fight against piracy.   The following is an overview of book curses and copyright notices, and their commonalities.  The question that arises is what type of deterrence is best.  

To get the most out of a curse (or a copyright notice), it must be displayed prominently.  With a curse, knowing you've been cursed, makes the curse more potent.  Similarly, the law provides for more potent penalties against “willful” or knowing infringers, than innocent ones. Statutory damages, an alternative to disgorging an infringer's profits, can be as low $200 per infringement if found to be innocent, or as high as $150,000 per infringement if found to be willful.   

In the middle ages, illuminated manuscripts were inscribed by monks with curses to protect them from being stolen or copied.  Like the FBI anti-piracy warning, curses threatened personal misfortune, and were prominently featured. However, instead of the wrath of the federal government, five years in federal prison and a fine of $250,000, curses expressed the wrath of a vengeful god.  Crush, kill and strangle, rather than imprisonment or fines.  

In Biblioclasm
author (and professional medieval illuminator) Marc Drogan, identifies the following as the most famous literary curse. 
"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book."  -- Revelations, 22:19
The Christian church didn't have a monopoly on literary curses.  Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew bible, since each of the 304,805 letters that comprised it had divine meaning.  The following lines written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:
"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord.  He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."
The warning associated with the Moshe Ben-Asher Codex concerns rights in the text, not ownership of the copy. It can be interpreted as a early form of copyright control.  Under copyright law, the exclusive right to adapt resides with the owner of the text, not the owner of a particular copy of a book.  Personally, I think disgorgement of an infringer's profits (a remedy under copyright law)  better fits the crime than broken bones or necrotizing fasciitis.  But, that’s just me. 

Medieval colophons (the precursor to today's copyright notices) appeared, initially, as concluding statements at the back of manuscripts.  The colophon would indicate the work's title, the copyist (not the author), date and place of copying, and contain either a blessing or a curse.   

Geoffrey Galister, in the Encyclopedia of the Book (Oak Knoll/British Library), explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen.

Over time, copyright notices and colophons became bedfellows, appearing in close proximity to each other.  In lieu of curses, secular threats of legal action took their place.  With the passage of the Statute of Anne in 1709, the first copyright act, the regulation of unauthorized copying was transferred from god's exclusive jurisdiction to her Majesty's courts.   

Like today's colophons, which list special aspects of the book, such as the paper variety or type style used, copyright notices generally appear on the title page, or reverse of the title page. A copyright notice consists of the familiar ©, and indicates the date and name of the owner (not necessarily the author), and may be followed by a nasty warning, not a curse.   Here's a mildly threatening one: 
ALL RIGHTS RESERVED.  No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher. 
Compare the polite "All Rights Reserved" legend found in close proximity to many copyright notices, with your average illuminated manuscript curse.  If you were lent a manuscript and failed to return it, or made an unauthorized copy, you - and perhaps your forebears and children -- were forever cursed.  Copyright notice or book curse?   You decide.  

Before March 1, 1989, if a copyright owner failed to affix a copyright notice to a work, misfortune befell the author of the work.   Specifically, the omission of the notice resulted in the work being cast out of copyright (in the United States). Of course, if a book falls into the public domain, it may still be covered by a protective book curse.

According to Drogin, the oldest known book curse appears on cuneiform tablets found in the biblical city of Ninevah.  Like today's authors, Babylonian King Assur-bani-pal  (668–626 BC) wasn't just concerned with protecting against theft, but receiving credit for his work.  The French call it “droit moral” – an author’s right to defend the integrity of their work and the use of their name.   King Assur-bani-pal imprinted this form of notice on his royal records: 
Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land.
The profound fear of being forgotten loomed as large in Babylonia as in nearby Egypt.  Removing the name of a king from a cuneiform tablet meant he never existed.  Much the same can be said for failing to credit a writer of a screenplay, whose livelihood (and footnote in history) depends on the works which bear their name.  

Whether a curse or a copyright notice, these admonitions are powerful starts to the reading experience.  Where does the power come from?  Fear.  
May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment.
The question of liability can be a thorny one when it comes to sharing content online.  But, more often than not, it isn't.  Like a talisman created to ward off lawyers, the words "No Copyright Infringement Intended" appears next to innumerable music videos, old movies and television shows illegally uploaded to YouTube. This anti-copyright notice, or digital cornicello, is irrelevant in determining whether an uploader or downloader infringed a copyright, because, even an innocent infringer is liable for infringement. 

An alternative to the "No Copyright Infringement Intended" disclaimer is to pray to St. Columba, a 6th Century Irish monk, credited as the first copyright infringement defendant. Accused of making an unauthorized copy of a fellow monk's Psalter on the sly, the high king of Ireland ruled against Columba, stating, ‘To every cow belongs her calf, therefore to every book belongs its copy’. However, Columba refused to acknowledge the ruling, and a great battle ensued in which 3000 men perished. Defeated in battle, Columba fled Ireland with his pirated copy, which survives to this day, and is reputed to have supernatural (think  Raiders of the Lost Ark) powers.

Before Johannes Gutenberg's invention of the printing press in the mid-1400s, books were precious objects worth fighting over.  Coveted by the wealthy elite, stolen in a prior era by marauding Norsemen, literary monks went to great lengths to protect their collections of valuable manuscripts.  Not only did they employ curses, but, they tethered their bibles to bookshelves and lecterns with chains.    

As the fifteenth century became the sixteenth, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies, and protect the livelihood of authors and publishers.  German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:
Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximillian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger.
A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind. Dürer's transitional curse succeeds at both tasks. 


Tensions between copyright law and freedom of speech aside, a serious dilemma exists. How do you prevent a digital book, or other digital work, from being copied without permission? There are no good answers.  However, six-months after downloading a pirated copy of The Copyright Permission and Libel Handbook: The Cursed Edition, Bonnie Foreman of Sheepshead Bay, Brooklyn died of an infected mosquito bite. Curse or coincidence?  I cannot say for sure. 

(c) 2015  Lloyd J. Jassin. All Rights Reserved. If you infringe this article, may you be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*. Go ahead, I dare you. (adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.)

Disclaimer: This article is not designed to give any specific advice concerning any specific circumstances. Readers are strongly cautioned to consult an attorney before consulting a practitioner of the occult arts.

Law Offices of Lloyd J. Jassin. We offer a broad understanding of the industries in which our clients operate and a network of contacts within the publishing, entertainment and licensing communities. Clients gain access to all of the knowledge, counsel, and advocacy that the firm can provide. View my complete profile.
Contact:   Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (Email), or visit: Follow us on Twitter:

The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.

Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy. U. Chi. LJ, 1992

Tuesday, August 11, 2015

Do You Need a Collaboration Agreement?

Double the Trouble or Half the Work?

Nearly everyone has heard the oft-repeated statistic that 50% of all marriages end in divorce. But what about creative partnerships?  The odds are no better.  Pity the poor expert, celebrity, author, playwright or screenwriter who enters into a creative partnership without thinking about the financial, emotional and practical challenges ahead of them.  If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.   If the relationship fails, that agreement will help make it a clean break up. 

Like marriage, the key reasons most authors cite for failed collaborations are lack of commitment, lack of communication, unrealistic expectations, and of lack of respect. While trust is an important element of any relationship, without a written agreement you are ill-equipped to deal with these and other conflicts.  Contracts define rights and remedies, and thus help avoid misunderstandings.  Put another way, good contracts make good neighbors.

Tip:  If avoiding conflict is not sufficient reason for having a written collaboration agreement, take note that many publishers contractually require – as a condition of working with the author team – that joint authors have a formal written agreement between them.
The Law Presumes 50/50 Ownership

The formation (and dissolution) of a creative partnership is governed by federal copyright law and state contract law. When authors blend their independently copyrightable contributions and talents with the intent to create a unitary work, each collaborator is presumed to co-own the copyright, and share equally in the money the copyright generates - whether profits or royalties. Further, under the default rules of the U.S. Copyright Act – which can be altered by a written agreement -- each collaborator can license the nonexclusive rights to the work to a third party, provided they fairly account for the profits to the other. 
Important! In the absence of an agreement, the way copyright law deals with authorship is black and white.  If there are two authors - and there is no written agreement - each author receives 50% of the profits.  Judges do not apportion a larger or smaller share  based on the collaborators' contributions, experience, reputation or seniority.  
Decision making problems between collaborators commonly arise when there are multiple offers for the work or requests for exclusive rights and no agreement exists between the collaborators. If your collaboration is not working, and your agreement doesn't delegate the right to make business decisions to one of the partners, a recalcitrant collaborator can prevent the other collaborator from licensing or selling film or other rights in the work.  For this reason, you might consider changing the default rules of equal control and ownership, if the book is memoir, or an extension of one author's business or brand.  Relinquishing control, however, does not necessarily mean a smaller financial interest or lack of transparency.   Of course, how collaborators split proceeds and make decisions, ultimately, depends on the writing partners’ sophistication, bargaining power and sense of fairness.  

Ghost Written & "As Told To" Books 

If you can't hold it together long enough to see the work published, the impact of a literary breakup can be devastating.  One such disaster scenario is the unilateral termination of "as told to" collaborations, such as the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan.  After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, and thwarted Kaplan’s efforts to publish the book under Kaplan’s own name. See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  If the parties had a well-written agreement – as opposed to an oral understanding -- likely, costly , time consuming and psychologically draining litigation would have been avoided. 

If you are a writer who has been approached to help write a memoir, your agreement needs to address: (i) access to pertinent documents; (ii) reasonable access to the subject; and (iii) the subject’s good faith effort to secure the writer’s access to interviews with other individuals as may be needed to prepare the proposal or complete the book. From the subject's perspective, confidentiality is a key issue.  

If you are assisting with a memoir, are you delivering a “warts and all” portrait? Alternatively, is your role to put the best face on your subject’s life story, without resorting to blatant deception? A property drafted collaboration agreement will address these issues.  The greater you detail what is to be delivered, the less arbitrary the acceptance standards will be.  Since progress payments are the norm, if the subject is unhappy, you may not see anything beyond your initial payment or advance.  

A professional writer working on an “as told to” book may want to ask for a kill fee if the subject has the unilateral right to terminate the project.  It's funny how increasing someones financial commitment to a project, will increase their personal commitment as well.   If the subject gets cold feet and pulls out (assuming both writer and subject are parties to the Publishing Agreement), stipulating in the collaboration agreement that the writer does not have to repay her portion of the advance will also help take some of the sting out of a failed collaboration.  In other types of creative divorces, it may be possible to separate out each author's contribution, and transfer those rights to the original  contributor.  These strategies overlap, and are not at the exclusion of each other.  

Negotiating Collaboration Agreements 

Writing your own rules can give one of the parties more or less control or compensation than contemplated by the Copyright Act.  Doing so, is not in and of itself, unethical. Key drafting issues include (i) money (how much and when paid), (ii) decision making authority, (iii) copyright ownership, (iv) writing credits, (v) dissolution and withdrawal, and (vi) how to handle disputes.  

Since collaboration and ghost writer agreements do not involve an equal division of work, there must be mutual respect and objectives. If you are not familiar with the intricacies of the publishing industry, or wish to insulate your creative or personal relationship from the business aspects of your literary partnership, look to your literary agent (if a disinterested party) for advice, or, preferably, engage a lawyer with an unbiased understanding of the publishing industry.  Make certain that attorney understands your goals. Is it more important to have a book that establishes you as an expert, than an additional 10% share of the royalties? Is equal credit more important than equal compensation?  Lawyers are often surprised to find out what their client’s real goals are. 

Below are the major sections found in a typical ghost writer or collaboration agreement. If you are using an off-the-shelf or generic collaboration agreement, or one provided by a helpful literary agent, consider having it reviewed by a publishing attorney to ensure what you intend, and what it says, lines up. 

Responsibilities. Be specific.  What must be delivered?  What is the date it must delivered by?  When you engage a writer to help you write a nonfiction book, the writer will prepare a book proposal before completing the manuscript.  A book proposal is a detailed overview of the book’s concept, and contains the author’s credentials and information about how the book can be marketed. The proposal is the bait used to solicit interest from publishers. The proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher. This scenario is common with “as told to” books. 

In some circumstances, where one collaborator is far more knowledgeable in publishing matters, it may be appropriate to grant that person the exclusive right to negotiate with agents and publishers. If you are not the one shopping the proposal, you will either reserve the right of final approval of the publishing contract, or predicate approval on receiving some minimally acceptable payment.  

Compensation.  If one of the collaborators has greater immediate financial needs -- whether money is needed to pay his rent or to travel abroad to research the book -- the other party can defer all or part their compensation from the initial advance.  It is customary for larger publishers to advance a sum of future royalties to the authors when they sign a publishing agreement.  It's like a pay day loan.  Once that money that has been recouped or refunded from future proceeds,  the author who deferred can star getting paid, perhaps on more favorable terms than if he had not deferred payment.  Deferring payment is also a way for the subject of a book to obtain the services of a more experienced writer.  You can "sweeten" the deal, by offering the writer more money tomorrow in the form of a deferred bonus - assuming they are willing to bet on the success of the work.    

Delivery dates in publishing are tied to publisher advances.   A missed deadline can result in cancellation of a book contract. That, in turn, can trigger an authors obligation to repay their advance.  Any agreement between collaborators should deal with the return of the portion of the advance paid to each collaborator.   

Keep in mind, even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important – but not copyrightable -- contribution to the manuscript) may still share in the profits and control of a work through an appropriate contractual arrangement. 

Credit. By some estimates, up to seventy percent of nonfiction books are ghost written. For example, it is widely believed that Theodore Sorenson wrote John F. Kennedy's Pulitzer Prize-winning book, "Profiles in Courage,” for which JFK took both the prize and sole author credit for. Clearly, a talented writer, who knows the ins and outs of publishing, can be a great asset in helping an expert (but not expert writer) go from idea, to book proposal to finished manuscript to published author.  The size and prominence of names, as well as order of names on the cover and title page, needs to be negotiated and agreed to in writing. If there is greater brand equity (or name recognition) in one collaborator’s name, it may make sense for that person's name to appear first. Where the issue is not clear-cut, alphabetical order is another sound approach. 

Writing credits take various forms.  The most common writing credits are: "by Subject and Writer" or "Subject with Writer" or "as told to Writer." By definition, if the book is ghost written, sole authorship credit for the work will be in the subject’s name only. In that case, the writer-for-hire must make peace with the fact the subject will receive sole authorship credit. Some might argue that ghost writers should receive higher fees, because their names don’t appear on the finished book.  If the hiring party or publisher hires someone to work on the book, does that person become a co-author?  You may want to provide for that scenario when you draft your agreement.    

Copyright.  A work for hire is a work specially commissioned, or one created by a regular employee in the course of their employment. Whether your collaborator is a joint owner, or merely a writer-for-hire with no ownership interest in the book must be addressed contractually before work on the manuscript begins.  If you want to own the copyright yourself, your contract must specify that the work is a  work for hire.  If the work qualifies as a work for hire, 
Tip:  If you are the hiring party, it is especially important to clarify the nature of the writing services before you hire the person you wish to perform those services.  Later may be too late if your objective is to own all of the rights.  After-the-fact attempts to classify a work as "for hire" often fail.  
Death & Disability.  In the event of the death or disability of one of the collaborators, the agreement should set down rules for hiring a new writing partner to complete the book. The agreement might specify that the authority to enter into contracts, and make creative decisions, vests solely in the remaining or surviving author (subject to a duty to account).  If a work is likely to be revised, the agreement should include a clause that allows the remaining author to revise the work and reduce the compensation paid to the collaborator's heirs or representatives if it becomes necessary to hire an outside writer.  The agreement should also specify whether the person hired to complete the work is entitled to receive credit as an author.  When a collaborator dies, state law, or  the Copyright Act, will determine who steps into that deceased author's shoes. If an older work, the order of succession may be determined by the Copyright Act - not the deceased author's will.  For an article on the order of succession under the Copyright Act (which may trump the author's wishes as expressed in her will), read my article on copyright termination and estate planning at:

Control of Business & Editorial Matters. Control of business (e.g., who is responsible for seeking out and approving book deals?) and editorial matters (e.g., who has the authority to approve the final draft of the work or authorize revisions?) critical or key issues. In cases where there are more than two authors, unanimity may be required for certain decisions (e.g., approval of the initial publishing contract). Other decisions may require a simple majority vote. Additionally, the parties may give approval rights over certain decisions (e.g., selection of a literary agent or publishing attorney) to one author, provided that person has superior knowledge and experience in such matters. Action Item! If one party retains approval rights over the manuscript, the other party should try to impose reasonable limitations, such as a chance to correct the manuscript within (e.g., 30) days after receipt of the other party’s comments. One way to avoid disputes over what constitutes a satisfactory manuscript is to reference the approved book proposal. A typical provision may look like this:
Provided Subject has made herself available to Writer as set forth in Paragraph X, Writer shall deliver a complete Proposal, satisfactory to Subject in content and form, on or before __________. Subject shall have the right to approve the Proposal. Subject shall further have the right to promptly review and comment on draft sections of the manuscript from time to time to ensure that the Work substantially conforms to the approved Proposal, and for purposes of ensuring the accuracy of those facts contained therein. Subject shall have the right to approve the final text of the Work prior to the delivery date specified in the Publishing Agreement.
Requiring the subject to provide written reasons for any dissatisfaction of the manuscript establishes objective criteria by which the writer’s contribution will be judged. 

Representations & Warranties. Special attention should be paid to the warranties and indemnity clauses of your agreement.  Warranties are promises that the work does not infringe on anyone's copyright, defame anyone, violate anyone's right of privacy, or otherwise cause harm to anyone.  An indemnity is a promise to reimburse the other party if any of your warranties are false.  Warranties should be reciprocal. If any liability arises because of a breach of either parties’ representations or warranties, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees), and damages paid to others.   If you are a "for hire" writer, meaning, the copyright vests in the party that hired you, the agreement should require the hiring party to make best efforts to have the publisher name you as an "additional insured" on the publisher's media liability policy.  Even if you are added, because the deductible portion of the publisher's media perils policy can be very high, you may want to investigate supplemental deductible insurance.  If you are relying on material provided you by the person who hired you, you should exclude this material from your representations and warranties.    
TIP.  Since verifiable truth is a complete defense to libel (at least in the United States), your collaboration agreement should also require that both parties retain copies of all recorded interviews, transcripts, books, notes, letters and other research materials used in preparation of the book. If there is a lawsuit, you will need to prove the truth of the statements that appear in your book (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).
Miscellaneous.  The agreement should also address who bears the cost and responsibility of obtaining permissions to use other people's copyrighted material; the right to create prequels and sequels; multiple agents; ownership of any trademark or service mark rights that arise as a result of publication; the return of the advance if the book is sold to a publisher, but, ultimately rejected for non-delivery or delivery of an unsatisfactory manuscript; in the event of dissolution, separation of rights in the material contributed by each author; and dispute resolution.   If the intention is to self-publish, keep in mind that you are bound by the same rules that apply to bestselling authors and large scale commercial publishing ventures.


Is it double the trouble or half the work?  You decide.  However, a collaboration agreement provides a chance for you – preferably, under the guidance of a qualified attorney – to fashion your own private body of law to govern your creative relationship. Ideally, the time to address the major issues confronting contributors and collaborators is before the actual creative process begins. Although collaborators might not feel comfortable discussing long-term financial and other issues, it is always easier and less expensive to deal with these matters up front, rather than after a dispute arises. 

© 2013 - 2015.  Lloyd J. Jassin  

Disclaimer: This article discusses general legal issues of interest and is not designed to give any specific legal advice concerning any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the advice contained in this article.

About the Law Offices of Lloyd J. Jassin  At the Law Offices of Lloyd J. Jassin we provide more than legal advice. We offer a broad understanding of the industries in which our clients operate and a network of contacts within the publishing, entertainment and licensing communities. Clients gain access to all of the knowledge, counsel, and advocacy that the firm can provide.  View my complete profile

Contact:  Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (Email), or visit: Follow us on Twitter:

Thursday, January 8, 2015

A Helpful Checklist for Book Contract Negotiations

"The author writes, the publisher invests, and from the sales of the book they create together and from exploitation of rights, the author earns royalties and fees, and the publisher earns its profits. It is as simple as simple - and as complicated - as that."
                                      - from Publishing Agreements: A Book of Precedents
This checklist is a navigation tool to help publishers (and authors) analyze, draft
and negotiate a publishing agreement. Whether you are just starting out, or a seasoned publishing professional, the dance steps are the same. You court (or get courted), then you sign a contract. Unlike marriage, where you vow to spend the rest of your life with one partner, when you sign a publishing contract you vow to spend the rest of your life, plus another 70  years (the current term of copyright) with one publishing partner. The possibility of being released sooner exists, but, that is the subject of another post.

A publishing contract confers upon a publisher the status of exclusive licensee. As an exclusive licensee, the publisher enjoys all the benefits of copyright ownership.  That includes the right to sublicense rights, as well assign their duties and obligations to a third party.  While not all clauses are equally important (or negotiable), a well-drafted contract will cover all, or most of the below points.  

This checklist is not intended as a crash course on drafting or negotiating a publishing agreement. If you are determined to draft (or negotiate) your own contract, lock yourself in a room for three days, then call a publishing attorney.
Publishing Contract Negotiation Checklist 

  I.   General Provisions

      1. Name/address of parties
         -Why kind of author?  Joint?  Single?  Corporate entity?
      2. Description of work (synopsis)
          -Tentative title, no. of words, illos intended audience, fiction, non-fiction,

II.   Grant of Rights and Territory

      1. Is it an assignment of "all rights" or a license agreement?
      2. Term or time period (i.e., usually the life of the copyright)
      3. Geographic scope
           a)     World
           b)     Limited (e.g., U.S., its possessions and Canada)
      4. Exclusive rights granted
           a)     Primary rights
                  -Trade paperback
                  -Mass market
          b)     Secondary (subsidiary rights)
                  -Periodical rights
                  1) First serial (i.e., pre-publication excerpts)
                  2) Second serial
                  -Book club
                  -Dramatic rights
                  -Film/TV rights
                  -Video Recordings / Audio Recordings
                  -Other digital versions (apps, enhanced eBooks)
                  -Radio rights
                  -Merchandising (commercial tie-in) rights
                  -New technologies
                  -Foreign translations rights
                  -British Commonwealth rights

III.   Manuscript Delivery

    1. Delivery requirements
          a) When due? Is the date realistic? Time is of the essence?
          b) What format? Specify size of paper, spacing, margins, etc.
          c) What to deliver?
                 -Number of manuscript copies, disks (what WP format?)
                 -Index (who pays?)
                 -Number of illustrations, charts, photos (who pays?)
          d) Copyright permissions and releases
                 -Scope of rights (does it parallel grant of rights?)
                 -Who pays?
      2. Manuscript Acceptance
          a) Criteria: Satisfactory in "form and content" or at "sole discretion" of the  
            publisher? (Note: Historically, this clause has been a litigation flashpoint)
          b) Termination for unsatisfactory manuscript
          c) Termination for changed market conditions
          d) How is notice of acceptance or dissatisfaction given
          e) Good faith duty to edit
          f) Return of the author advance
                 -First proceeds clause
                 -False first proceeds clause

  IV. Copyright Ownership

      1. In whose name will work be registered?
      2. Exclusivity
      3. When will work be registered? (Should be done within statutory period).
      4. Joint authors 

      5. License versus assignment
      6. Independent Contractor or Work for hire
. Reserved rights
          -Overlap between audio & multimedia on the one hand, & performance rights on the other
          -Overlap between print on the one hand,  & screenplay /  play publishing on the other

V. Author’s Representations & Warranties
      1. Author sole creator
      2. Not previously published; not in public domain
      3. Does not infringe any copyrights
      4. Does not invade right of privacy or publicity
      5. Not libelous or obscene
      6. No errors or omissions in any recipe, formula or instructions
      7. Limited only to material delivered by Author

VI. Indemnity & Insurance Provisions
      1. Author indemnifies publisher
      2. Does indemnity apply to claims and breaches?
      3. Can publisher withhold legal expenses? Is it held in an interest   
      bearing account
      4. Is author added as additional insured on publisher's insurance?
      5. Does publisher have ability to settle claims without prior approval of
      author? If so, are there a dollar amount limitation?

VII. Publication
      1. Duty to publish within [insert number] months of ?
          a) Force majeure (acts of god)
                 - Any cap on delays?
      2. Advertising and promotion
      3. Right to use author's approved name and likeness
      4. Bound galleys/review copies
      5. Style or manner of publication
          a) Title consultation or approval?
          b) Book jacket
                 - Right of consultation? Approval?
          c) Changes in manuscript
      6. Initial publication by specific imprint or publisher may sublicense

VIII. Advances & Royalties
      1. Advance against future royalties
      2. When payable? (in halves, thirds, etc.)
      3. Royalties and subsidiary rights:
          a) Primary rights
                 -Hardcover royalties
                 -Trade paperback royalties
                 -Mass market royalties
                 -eBook royalties
                 -Royalty escalation(s)
                 -Bestseller bonus
                 -Royalty reductions
                  1) deep discount and special sales
                  2) mail order sales
                  3) premium sales
                  4) small printing
                  5) slow moving inventory
                  6) bundling with other works
          b) Secondary (subsidiary) rights royalty splits
                 -Book club (sales from publisher’s inventory v. licensing rights)
                 -Serialization (first serial, second serial)
                 -Anthologies, selection rights
                 -Large print editions
                 -Trade paperback
                 -Mass market
                 -Foreign translation
                 -British Commonwealth
                 -Future technology rights
.                 -Audio rights
                 -Motion picture/TV
     4. Reasonable reserve for returns
          a) What percentage is withheld?
          b) When liquidated?
      5. What is royalty based on? (Retail price? wholesale price? net price?)
          a) At average discount of 50%, 20% of net is same as 10% of list
          b) At average discount of 40%, 16-2/3% of net is same as 10% of list
          c) At average discount of 20%, 12-1/2% of net is the same as 10% of list
       6. Recoupment of advances

IX. Accounting Statements
      1. Annual, semiannual, or quarterly statements
      2. Payment dates
      3. Cross-collateralization
      4. Audit rights
      5. Limit on time to object to statements
      6. Limit on time to bring legal action
      7. Examination on contingency basis
      8. Pass through clause for subsidiary rights income
      9. Reversion of rights for failure to account

X. Revised Editions
      1. Frequency
      2. By whom?
      3. Royalty reductions if done by third party
      4. Sale of revised edition treated as sale of new book?
      5. Reviser/Author credit

XI. Option
      1. Definition of next work
      2. When does option period start?
      3. Definiteness of terms (i.e., is option legally enforceable?)
      4. What type of option? (e.g., first look, matching, topping)

XII. Competing Works      
      1. How is competing work defined?      
      2. How long does non-compete run?
      3. Any reasonable accommodations?

XIII. Out-of-Print
      1. How defined? (Eg, __ copies sold over __ accounting periods)
      2. Notice requirements
      3. Author's right to purchase digital files, inventory

XIV. Termination
      1. What triggers reversion of rights?
          a) Failure to publisher within ___ months of manuscript acceptance
          b) Failure to account to author after due notice
          c) Failure to keep book in print (see Section X)
      2. Survival of Author's representations and warranties
      3. Licenses granted prior to termination survive

      4. First proceeds clause

XII. Miscellaneous
      1. Choice of governing law
      2. Mediation / Arbitration?
      3. Bankruptcy
      4. Modification
      5. Literary agency clause

      6. Personal guarantee if the author is a business entity, not a human being. 

Resources Beyond the Blog

Author Guild
Dramatists Guild

Independent Book Publishers Association (IBPA)
National Writers Union (NWU)
Romance Writers of America (RWA)
Science Fiction Writers of American (SFWA)
Society of Authors (UK)
Society of Children's Book Writers and Illustrators (SCBWI)
Text and Academic Authors Association (RWA)

Looking for professional advice? Contact us

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD JASSIN is a New York-based publishing attorney.  He teaches a digital rights & permission at the NYU Publishing Program.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses.

He may reached at or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at

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