In the Fight Against Piracy, Are Curses the Answer?

Outside of a Dog #5

Outside of a Dog is an irregular, and sometimes satiric, 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.

Curses! Gory, gruesome, nasty, cautionary, score settling notices drafted by Egyptian priests, were designed to stop book thieves and plagiarists in their tracks. The copyright notice was created by Congress in the 19th century. It says to those who notice, "I own this" (with reservations).


What takes place within us when confronted by a curse or a copyright notice?  Curses conjure up fear.  You read the text carefully and are forced to reflect on what you are reading - and your mortality.  The copyright notice is seen by most as a toothless warning of remote judicial remedies.  It doesn't scream.  So, it doesn't register.  Plus, it doesn't help that the copyright notice symbol resembles a frown emoticon resting on its side.  

Proper Usage

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, copyright law provides for more potent penalties against willful or knowing infringers, than innocent ones. 

Instead of monetary damages designed to make the plaintiff whole, curses express the wrath of a vengeful god.  Crushing, killing and strangling, rather than monetary damages, are brought to mind when you open an illuminated manuscript.  That is precisely why ancient warnings that bear down on one's mortality, trump copyright notices.

If you are looking for inspiration, below are some classic curses, all of which are in the public domain.      

In Biblioclasm, author (and professional medieval illuminator) Marc Drogan, identifies the following as the most famous literary curse.  I still works.

"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

Moshe Ben-Asher Codex

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 antecedent to the copyright notices, appeared, initially, as concluding statements at the back of manuscripts.  The colophon would indicate the work's title, the scribe or copyist (not the author), date and place of copying, and contain either a blessing or a curse.  So, while a direct connection between the colophon and copyright notice may appear fuzzy, the common assertion of ownership rights, and threat of consequences for those who violate those rights cements the connection in my mind.  

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.

By the early 18th Century, secular threats of legal

Statute of Anne (1709)

action supplanted curses.  With the passage of the Statute of Anne in 1709, England's first copyright act, the regulation of unauthorized copying was transferred from god's exclusive jurisdiction to her Majesty's courts.  In 1802 the U.S. Copyright Act was amended to require a notice be placed on each copy of a work.  For 187 years, until the notice requirement was abandoned, if a work was published without the proper form of notice, it was cast down into the public domain.  While we live in post-notice world, notices are still wildly used, but, their significance is information, not legal.  They announce who owns the copyright.           

Like 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. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with 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.  In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets.  Copyright notice or book curse?  A strong argument can be made for the latter. 

Before March 1, 1989, if a copyright owner failed to affix a copyright notice to a work, the work was ejected into the public domain.  Of course, a public domain work may still be covered by a protective curse.  This is another  advantage of a curse over a copyright notice - however, one that does not comport with strict First Amendment scrutiny.   

King Assur-bani-pal

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 an unobtrusive copyright notice, these admonitions are powerful starts to the reading experience.  Where does the power come from?  Fear.  

Monk, Christ Church

"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."

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:

Albrecht Dürer Print

"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 Maximilian, 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. 

Conclusion

Tensions between copyright law and freedom of speech aside, a serious dilemma exists. How do you effectively retaliate against digital pirates?  There are no good answers.  However, six-months after downloading a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition, Bonnie Foreman of Sheepshead Bay, Brooklyn was found dead in her home in front of her computer.  She expired around page 123.  Curse or coincidence?  I cannot say for sure.  I'm a copyright attorney, not a shaman.     

2015  - 2017 Lloyd J. Jassin. All Rights Reserved.   

Disclaimer / Curse: This article is protected by the Eye of Horus.  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*. Please note that 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.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.

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: http://www.copylaw.org. Follow us on Twitter: http://twitter.com/LloydJassin

Resources

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

The Art of the (Jointly Authored Book) Deal

"I can never understand how two men can write a book together; to me that's like three people getting together to have a baby."-- Evelyn Waugh

If are an expert in your field and have a story to tell, but lack the skill set to tell it, hiring a ghost writer an attractive solution.  By some estimates, up to 90% of books by celebrities and politicians 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 a celebrity, politician, or expert in their field (but not an expert writer), go from concept to published author.   

 

While trust is an essential component of any relationship, without a written agreement laying out each other's responsibilities, compensation, credit, copyright ownership and an exit strategy you are ill-prepared for the challenges ahead. 

 
Good Contracts Make Good Writing Partners

The key reasons collaborations fail are lack of commitment, lack of communication and unrealistic expectations.  Contracts define the parties' responsibilities, rights, remedies, and if closely followed will help you avoid disputes.   The art of converting a deal into an effective agreement, requires you to address the following: (i) money (how much and when paid), (ii) business and creative decision-making authority, (iii) ownership, (iv) authorship credit, and (v) how to handle disputes.

How you choose to address these issues depends largely on your sense of fairness, your bargaining power, industry custom and practice, and, if you are represented by an attorney, their support and guidance in reaching a workable agreement.   And yes, sometimes it's not about the money, but what the book can do for you, your brand, or a cause that matters to you.  
The Law Presumes 50/50 Ownership

In the absence of a formal agreement, the way copyright law deals with authorship is black and white.  When two people blend their independently copyrightable contributions with the intent to write a book, or other creative work, each party is presumed to co-own the copyright.   That allows either party to publish the work without the other's permission.  If there is no written agreement, each co-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 arise when there are multiple offers for the work or requests for exclusive rights and no written agreement exists between the parties.  If there is no written agreement, or the agreement fails to address the issue, an uncooperative co-author (or a deceased co-author's estate) can prevent the other party from licensing or selling book, film or other rights, as no publisher, or producer, will acquire rights on a non-exclusive basis.  If the book is a memoir, or an extension of one author's business or brand, then that party should be concerned about controlling business and creative decisions. Relinquishing control, or foregoing credit, however, does not necessarily mean the party giving up those rights receives a smaller financial interest.  Neither does it equate with lack accountability or transparency, provided those concerns are advanced by the party drafting - or negotiating - the agreement.

Ghost Written & "As Told To" Books 

If you are a ghostwriter of a memoir, or the writer of an "as told to" based on conversations with the subject, are you delivering a “warts and all” portrait?  Alternatively, is your role to put the best face on your subject’s story, without resorting to blatant deception?   You need to flesh this out.  In drafting the agreement, the subject's attorney will structure it so payment to the writer is tied to delivery and acceptance of the manuscript.   

Compensation is generally in the form of progress payments tied to satisfactory (and timely) delivery.  A portion of the writer's fee is paid on signing the ghostwriter or collaboration agreement.  A further payment will be due on delivery of an acceptable book proposal. If the book is is sold to a publisher, further payments will be tied to payments of the advance.  The greater you detail what is to be delivered, the less arbitrary the acceptance standards will be.

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, who worked without a contract, on the chance a publisher would acquire the book and pay them an advance.  The authors signed a deal with Little Brown, which promised to pay them an advance of $300,000, half of which was paid on signing, with balance due on delivery and acceptance of the complete manuscript.  After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, which required him to repay the advance. However, he allowed Kaplan to keep his share of what had already been paid, or $60,000.  While Kaplan and Vincent had exchanged draft versions of a collaboration agreement before their relationship devolved into an intractable dispute, the issue before the court was whether Vincent could prevent Kaplan from publishing any of the work they created.  See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  Because they were friends, Kaplan "did not believe a formal agreement was necessary."   If they had a formal agreement – as opposed to an oral understanding -- costly, time consuming and psychologically draining litigation would have been avoided.

The Elements of the Deal

Some of the deal points found in these agreements are quite simple and other are not.   Below are the major elements of a typical ghostwriter or collaboration agreement.  Whether you push and push, or settle for less, is between you and your attorney (or agent).  But, don't lose sight of  the fact a workable agreement, is often a reasonable agreement. 

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, generally, the writer will prepare a book proposal before completing the manuscript.  A book proposal is a detailed overview of the book, it contains the author’s credentials and information about how the book can be marketed, plus one or two sample chapters.  The proposal is the bait used to solicit interest from publishers. A nonfiction book 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. 

In some circumstances, where one party is 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 parties has greater immediate financial needs -- whether money is needed to pay their rent or for travel-related research -- the other party can defer all or part their compensation from the initial advance.  As discussed above, it is customary for commercial publishers to advance a sum of future royalties to the authors when they sign a publishing agreement.  It's been likened to a pay day loan.  Once that money that has been recouped or refunded from future proceeds, the author who deferred can start getting paid, perhaps on more favorable terms than if they 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 without having to go out of pocket for a large sum.  

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 author's obligation to repay their advance.  Any agreement between collaborators should deal with the return of the portion of the advance paid to each collaborator.   

If the subject gets cold feet and pulls out (assuming both writer and subject are parties to a third party publishing agreement), stipulating in the collaboration agreement that the writer does not have to repay their portion of the advance will 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.

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. B

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 ghostwritten, 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 ghostwriters should receive higher fees, because their names don’t appear on the finished book.   In the case of an equal in credit collaboration agreement, the size and prominence of names, as well as the order of names on the cover and title page, needs to be negotiated and agreed to in writing. 

Copyright.  A work for hire is a term defined by statute.  It can either be a work specially commissioned, or one created by a regular employee in the course of their employment. 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, which is why an effective contract includes a back-up copyright assignment.  

Death & Disability.  In the event of  either party's death, disability or an intractable disagreement, the agreement should have 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 subject's estate, or the writer (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 other'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.  

Control of Business & Editorial Matters. Control of business  affairs (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?) are critical issues. Unanimity may be required for certain decisions (e.g., approval of the initial publishing contract).  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.  Requiring the party with approval rights to provide detailed editorial reasons for any dissatisfaction, arguably, establishes objective criteria by which the writer can revise and have their contribution judged. 

Representations & Warranties.  From a ghostwriter, or "as told to" writer's perspective, the subject must provide representations (or promises) and warranties that they have or will: (i) provide access to pertinent documents, whether diaries or memorabilia, or business papers; (ii) provide reasonable access to themselves; (iii) use their best efforts to provide the writer with access to other individuals as may be required to write or finish the book; and (iv) cooperate in good faith with the writer in pursuing a publishing deal.  Special attention should also be paid to the indemnity clause.  An indemnity is a promise to reimburse the other party should they breach their warranties.  

Reciprocal representations and warranties are the norm as well.  They include: (i) no contractual commitments (e.g., a confidentiality agreement) exist that will interfere with the ability to perform their obligations; (ii) their contributions are original and will not violate any copyrights, proprietary rights, or rights of privacy, publicity, or constitute a libel against, or violate any other common law rights or other rights of any person or entity.  

If any liability arises because of a breach of either party's’ representations or warranties, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees), and damages paid out 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.  If a writer is relying on material provided them by the person who hired them, they should exclude this material from their own representations and warranties.   

TIP.  Since verifiable truth is a complete defense to libel (at least in the United States), your agreement should require that both parties retain copies of all recorded interviews, transcripts, books, notes, letters, emails and other research materials used in preparation of the book. If there is a lawsuit, you may be required to prove the truth of the statements that are published. (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).

Confidentiality & Non-Disparagement Clauses.

Confidentiality clauses are huge issues for celebrities and other public figures.  The downside of not dealing with confidentiality and non-disparagement issues is reputational harm.  Here's an example of the confidentiality clause from the unexecuted collaboration agreement between Fay Vincent and David Kaplan discussed above:  

All material whether oral or written contributed by either party for use in the manuscript, including materials and information provided prior to the execution hereof, shall be considered confidential, and neither party shall use any of such material or the facts or the information contained therein that have been provided with the parties' collaboration except as permitted hereunder or under an agreement with a third party to which both parties have previously agreed in writing, without the express prior written approval of the other party. In no event shall any confidential material otherwise be used by the party that has not furnished the same in the event there is any termination of the agreement. Specifically, Kaplan agrees not to participate in interviews, write any articles or books, or take any actions in or by which he discloses in any manner any of the unpublished information furnished to him hereunder, or any portion thereof, in connection with the work which is not publicly available or independently discovered by Kaplan, including any non-public aspect of the relationship of the parties involved in the preparation or the writing of the Work and/or its adaptation for use in any media whatsoever ....

An effective contract might also include a non-disparagement clause.   This is particularly important if you are a public figure, or represent a public figure.  

You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame Subject, his family, his business associates, company, directors, officers, shareholders, employees, agents, or attorneys, with or through any written or oral statement or image, whether or not they are made anonymously or through the use of a pseudonym. 

The subject's lawyer will also include a provision that requires the writer to agree to treat the ghostwriter agreement itself as confidential.   One common error is not to include exceptions, such as sharing the agreement with your agent, attorney, tax preparer, or as compelled by a court or  government agency (e.g., the IRS).  In terms of remedies for breach, in addition to injunctive relief (necessary because "A lie can travel halfway around the world while the truth is putting on its shoes." -- Charles Spurgeon), the ghostwriter might be required to forego royalties, or repay amounts previously paid, but any such remedy will be subject to scrutiny by the courts and a possible finding of unenforceability.  

Conclusion

The time to address these issues is before the actual creative process begins. Although collaborators might not feel comfortable discussing long-term financial and other issues, an effective agreement deals with these matters up front, rather than after the brickbats start flying.       

© 2013 - 2022.  Lloyd J. Jassin  


Disclaimer: This article, parts of which were previously published, 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.

 Lloyd J. Jassin is a publishing attorney and entertainment lawyer.  He counsels clients on contract, licensing, copyright, trademark, unfair competition, defamation, right of privacy and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution and litigation. A graduate of Benjamin N. Cardozo Law School, he is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons). 

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

How to Negotiate a Publishing Contract: A Checklist of Terms

Standardized book publishing contracts wield considerable power in contract negotiations.  However, publishing contracts are not etched in stone. Book publishers, understanding the ebb and flow of the literary world, often adapt their contracts when asked. The crux of success in this process lies in discerning exactly what changes to ask for. 

When it comes to deciphering the complexities of a publishing agreement, authors often navigate these waters with different compasses. Some entrust their journey to literary agents, who, for a 15% commission, become lifelong partners in the transition from aspiring writer to published author. Others opt for the counsel of publishing attorneys, offering their services for a flat rate or hourly fee to guide them through the dense forest of legal terminology and publishing industry lingo.

However, once the initial excitement of securing a publishing deal wanes, a stark realization may emerge with startling clarity: signing the contract might have meant relinquishing your rights for an extraordinarily long period. In most cases, the publisher's exclusive control over a work spans the author's lifetime and extends a further 70 years beyond.

Caution is key. Publishing contracts are often laden with hidden traps and legal intricacies, particularly regarding royalties. It's a deceptive maze where the written word and its true meaning can diverge significantly. While major publishers don't typically set out to exploit authors, they are inclined to optimize their benefits, sometimes at the author's expense. As for smaller publishers, they range from benevolent guides to cunning adversaries.     

If chomping at the bit to sign a contract but cannot afford to hire a lawyer, visit Victoria Strauss' Writer Beware blog - a beacon of light in the "shadow-world of literary scams, schemes, and pitfalls." Writer Beware doesn't offer legal advice, but it does a stellar job exposing and raising awareness of questionable business practices in the literary world.   

Book Publishing Checklist

  I.   The Basics

      1.  Sign personally or on behalf of a corporation or LLC?

           -Why signing on behalf of a corporation or LLC may not offer as 

           much protection as you think

      2. Description of work (synopsis)

          -Tentative title, # of words, # of photos, intended audience, fiction, non-                    fiction

II.   Grant of Rights and Territory

      1. Is it a license of certain rights or an assignment of all rights? 
      2. Term of years or life of copyright? 
      3. Geographic scope
           a)     World?
           b)     Limited?  (e.g., the U.S., its possessions & Canada)
      4. Exclusive rights granted
           a)     Primary rights
                  -Hardcover
                  -Trade paperback

                  -Mass market
                  -eBook

          b)     Secondary (subsidiary rights)
                  -Periodical rights
                  1) First serial (right to publish pre-publication excerpts)
                  2) Second serial (right to publish excerpts after publication date)
                  -Book club
                  -Dramatic rights
                  -Film/TV rights
                  -Video Recordings / Audio Recordings

                  -Ebook rights

                  -Other digital versions (apps, enhanced eBooks)
                  -Podcast / Radio rights
                  -Merchandising (commercial tie-in) rights
                  -Future technologies
                  -Foreign translation rights
                  -British Commonwealth rights

        c)    Rights Reserved by Author - Film, Television, Dramatic, Merch         

        d)    Ask for audiobooks or foreign translation rights to revert if they go

                unexploited after a period of time

III.   Manuscript Delivery

    1. Delivery requirements:

          a) When due? Is the date realistic?
          b) What format? Specify the size of the paper, spacing, margins, etc.
          c) What to deliver?
               -Index (who pays?)
               -Number of illustrations, charts, photos (who pays?)
          d) Permissions

                The copyright permissions you receive from third parties 

                 must encompass the same rights you have granted to your publisher.

    
      2. Manuscript Acceptance
          a) Criteria: Satisfactory in "form and content" or at "sole discretion" of the  

            publisher? (This clause is often a litigation flashpoint)
          b) Termination for unsatisfactory manuscript (define "unsatisfactory")
          c) Termination for changed market conditions (potential deal breaker)
          d) When must the publisher either accept or reject? 

          e) Good faith duty to edit
          f) Return of the author's advance
                 -First proceeds clause
                 -False first proceeds clause

 

  IV. Copyright Ownership / Ownership of Series Titles

      1.  Whose duty is it to register the work with the U.S. Copyright Office?
      2.  Joint author?

      3. Work for hire? 

      4.  Rights typically reserved to the author

            -Film, television, dramatic rights, multimedia, merchandise licensing

      5.  Who owns the trademark to your series title? 

V. Author’s Representations & Warranties
      1. The author is the sole creator
      2. Not previously published; not in public domain
      3. Does not infringe any copyrights
      4. Does not invade the dual rights 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 the Author

VI. Indemnity & Insurance Provisions
      1. Typically, the author agrees to reimburse the publisher for losses & expenses
      2. Way to limit author exposure, e.g., author approval of settlements
      3. Can the publisher withhold legal expenses? Is money held in an interest-  

      bearing account
      4. Name the author as additional insured on the publisher's media perils policy 

      5.  Other drafting tips

VII. Publication
      1. Duty to publish within ___ months of delivery & acceptance
          -Failure to publish triggers the author's right to terminate the agreement

      2. Specify which formats the book will in initially be published in
      3. Author's approval over the use of name and likeness
      4. Bound galleys / Library Reviews 

      5. Review copies
      6. Style or manner of publication
          a) Title consultation or approval?
          b) Book jacket approval (needed if the book is a brand extension of a                             service or business)  

        c) No changes to the manuscript galley proofs approved by the author
       

VIII. Advances & Royalties
      1. Advance against accumulated 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 split                                           -                                -Serialization (first serial, second serial)
                 -Anthologies, selection rights
                 -Large print editions
                 -Hardcover
                 -Trade paperback
                 -Mass market
                 -Foreign translation
                 -British Commonwealth
                 -Future technology rights
.                 -Audio rights
                 -Motion picture/TV/live stage
                 -Merchandising
                 -Advertising

     4. Reasonable reserve for returns
          a) What percentage is withheld?
          b) When liquidated?
      5. What is royalty based on? (Retail price? If based on "net," define the term                   net carefully)
          a) At an average discount of 50%, 20% of net is the same as 10% of the list
          b) At an average discount of 40%, 16-2/3% of net is the same as 10% of the list
          c) At an average discount of 20%, 12-1/2% of net is the same as 10% of the list
       6. Recoupment of advance 

IX. Accounting Statements
      1. Annual, semiannual, or quarterly statements
      2. Payment dates
      3. Cross collateralize (good for publishers, bad for authors)
      4. Audit rights
      5. Limit on time to object to statements 
      6. Limit on time to bring legal action
      7. Examination on a contingency basis
      8. Pass through clause for subsidiary rights income
      9. Important! Termination for failure to account

X. Revised Editions
      1. Frequency
      2. By whom?
      3. Does the contractual in royalties correspond to the extent of changes                        made in comparison to the original author's contribution?

      4. Why is selling a revised edition bad for the author's bottom line?
      5. Reviser/Author credit

XI. Option
      1. Definition of next work
      2. When does the option period start?
      3. Definiteness of terms (i.e., is the publisher's option actually 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?
      4. Special issues for fiction writers

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

XIV. Termination
      1. What triggers the reversion of rights?
          a) Failure to publish within (usually between 12 - 18) months of manuscript acceptance
          b) Failure to account to the author after due notice
          c) Failure to keep the book in print (see Section XIII)
      2. Survival of Author's representations and warranties
      3. Do licenses granted before termination survive
 
XII. Miscellaneous
      1. Choice of governing law
      2. Mediation or arbitration?
      3. Bankruptcy
      4. Literary agency clause
      5. Personal guarantee if the author is a business entity, not a human being.
                     

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Twelve Copyright Permission Myths  

Estate Planning for Authors 

Contact: 
Law Offices of Lloyd J. Jassin
The Paramount Building
1501 Broadway, Floor 12
New York, NY 10036
212-354-4442 (tel.)
jassin@copylaw.com (email)

Offices in New York and Northern N.J.


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