Beyond Copyright: Understanding Idea Misappropriation Claims for Writers

While copyright law protects the expression of creative works, it explicitly excludes protection for underlying ideas and concepts. For writers, this creates a significant vulnerability when pitching concepts to producers, publishers, or other industry professionals. Understanding idea misappropriation claims—a distinct legal theory from copyright—can provide crucial protection for your creative concepts during the development process.

What is Idea Misappropriation?

Idea misappropriation occurs when someone uses another's idea without permission or compensation, typically after the idea was disclosed in a confidential or business relationship. Unlike copyright infringement, these claims don't require that the idea be fixed in a tangible medium. However, not all ideas qualify for protection—courts generally require that ideas be novel, concrete, and sufficiently developed beyond abstract concepts. Because the standards and remedies differ widely, recovery for the theft of an idea ultimately depends on state law, underscoring the importance of consulting local counsel with entertainment law experience.

Understanding the Required Relationship

Courts require a confidential or business relationship between the parties. This typically means:

• The recipient solicited the idea for potential business use
• There was an expectation of confidentiality (express or implied)
• The disclosure occurred in a professional context, not casual conversation

Protecting Your Ideas

To protect yourself against idea misappropriation, there must be a special relationship between you and the person receiving your pitch or reviewing your material. The landmark California case Desny v. Wilder (1956) established the framework for protecting ideas through implied contracts, but also warned writers about unsolicited submissions. As the court cautioned: "The idea man who blurts out his idea without having first made his bargain has no one but himself to blame for the loss of his bargaining power." 

1. Deal with Reputable Parties. Research the track record and business practices of individuals and companies before sharing ideas

2.  Create a Paper Trail. Maintain detailed records of including: dates,  attendees at all meetings, written summaries of what was discussed

3. Follow-Up Communications. After pitch meetings, send a follow-up email or note summarizing the discussion and confirming that the meeting was for the possible development of your project.
   

4. Document Your Idea: While copyright registration doesn't protect the underlying idea, documenting your expression through Copyright Office registration or Writers Guild registration establishes a timeline and demonstrates development.

5. Non-Disclosure Agreements (NDAs). In theory, the best way to protect an idea is to have the recipient sign an NDA before you share it. In practice, however, the major players—whether the “Big Five” New York publishers, Disney, or Amazon MGM Studios—will not sign NDAs. In Hollywood the studios rely instead on idea submission policies or boilerplate submission agreements, which typically state that unsolicited ideas become company property or may be used without any obligation to compensate the submitter.

Legal Theories in Idea Misappropriation

Legal protection varies significantly by state or jurisdication, and understanding these differences is crucial for determining where to pursue claims:

Contract Theory (California and other states): Courts may find implied contracts when ideas are submitted with expectation of payment if used. The idea must typically be novel and concrete, and there must be evidence the parties understood compensation was expected.

Property Theory (New York and other states): Some states treat sufficiently novel and concrete ideas as quasi-property, protectable regardless of contractual relationships. After establishing that the idea merits protection as property, the plaintiff must demonstrate that the defendant used it without authorization.

In How to Avoid Reel Legal Problems, attorney James Sammataro observes that some idea submitters try to rely on “industry custom”—arguing that because entertainment companies often compensate for ideas, payment should be implied. He cautions, however, that this is at best a weak argument. Courts do not regard “industry custom” as a reliable basis for misappropriation or breach of implied contract claims, and if that is your only argument, “you’re likely to get the short end of the stick.” That said, if you clearly state when submitting your idea that you expect to be paid if it is used, and the recipient accepts the submission without objection but later exploits the idea, you may have given them enough rope to hang themselves. 

Conclusion

Copyright law provides scant protection for idea submitters, focusing on expression rather than underlying concepts. As Dorothy Parker famously observed, "the only 'ism' in Hollywood is plagiarism." Her wry remark reminds us that while borrowing and imitation may be part of the industry's DNA, they represent ethical lapses rather than legal infringements. Courts don't conflate plagiarism with copyright violation—the former is a question of professional ethics, the latter a matter of enforceable law.

The legal standards for proving idea misappropriation remain demanding, particularly the requirements for novelty, concrete development, and establishing the requisite confidential relationship. 

For writers, this emphasizes the importance of preventive measures—proper documentation, and careful relationship management—rather than relying on litigation as a primary protective strategy. While idea misappropriation claims provide some protection beyond copyright, they remain challenging and expensive to pursue. 

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DISCLAIMER: This article provides general information and should not be construed as legal advice. Laws vary by jurisdiction and specific circumstances. Consult with qualified legal counsel for advice regarding specific situations.

ABOUT THE AUTHOR. Lloyd J. Jassin is a New York publishing and entertainment attorney with 30+ years of experience representing bestselling and first-time authors (and their heirs), literary agencies, and publishers. A former publicity director at Prentice Hall Press (a division of Simon & Schuster), he combines legal expertise with deep industry knowledge.

Mr. Jassin specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates. He co-authored The Copyright Permission and Libel Handbook (John Wiley & Sons) and has been quoted in The New York Times, Wall Street Journal, Forbes, and Time Magazine.

An active member of the publishing community, he has spoken at BookExpo and Publishers Weekly conferences, served as an adjunct professor at NYU Center for Publishing, and previously chaired the Center for Independent Publishing executive committee. He currently serves on the Beacon Press advisory board.

Licensed to practice law in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, defamation and privacy law in the evolving entertainment landscape.

Contact: Jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, New York, N.Y. 10018. With offices in Morristown, N.J. 

Related Articles

Can You Copyright Historical Facts? A Writer's Guide to Historical Fiction Copyright

(c) 2025. Lloyd J. Jassin. 

Can You Copyright Historical Facts? A Writer's Guide to Historical Fiction Copyright

Authors and screenwriters working in historical fiction have the opportunity to transform real events into powerful creative works. While historical facts themselves cannot be copyrighted, the way those facts are creatively expressed—through plot, character development, and narrative choices—can be. This article delves into the complexities of copyright law through a landmark case study: a lawsuit involving Steven Spielberg's historical drama Amistad and Barbara Chase-Riboud's novel Echo of Lions. By examining this case, writers can better understand how courts distinguish between protected creative elements and unprotected historical facts, empowering them to draw inspiration from the historical record while respecting legal boundaries when adapting true stories for page or screen.

Historical Fiction and Copyright: Who Owns the Past?

The headline in The Washington Post read: "Judge Refuses to Block Release of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed." Echoing Dorothy Parker's bon mot that "The only ism Hollywood believes in is plagiarism," bestselling African American novelist, poet, and sculptor Barbara Chase-Riboud claimed that Spielberg's film Amistad infringed the copyright to her novel about a real-life mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically, Chase-Riboud alleged that the DreamWorks' script impermissibly copied "themes, dialogue, characters, relationships, plots, scenes and fictional inventions" from her 1989 historical novel, Echo of Lions.

Although Spielberg's production company had flown Chase-Riboud to Los Angeles in 1988 to discuss optioning rights to her novel, and there existed ample evidence of overlap between ideas and characters in the novel and the film, the court recognized that historical facts and basic character types are not protectable. Since the only common elements between the book and movie related to historical facts and broadly drawn characters, the court determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial. Consequently, her motion for summary judgment -- which would have assured a quick resolution of her claim -- was denied.

Because copyright does not protect ideas and facts or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and historical facts) and compare the copyrightable elements in the works. Unfortunately, as this case illustrates, there is no simple test to distinguish unprotected ideas from protected expression.

"Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement."

Understanding Substantial Similarity in Copyright Law

Under copyright law, only an author's particular expression of an idea, not the idea itself, is protectable. Prior copyright infringement lawsuits against writers have held that basic plots, stock settings, and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob bosses, corrupt cops, Nazi zombies) are not protected by copyright. These literary devices -- which are part of every novelist's and screenwriter's toolkit -- belong to a common pool of literary techniques analogous to unprotected ideas.

In a copyright infringement case, the plaintiff must prove that the defendant actually copied its work and that the copying was "substantial" enough to constitute an unlawful taking of the plaintiff's work. Unlawful copying exists when there is not only substantial similarity between two works but also substantial similarity between protectable elements.

In the Amistad case, since DreamWorks did not dispute having access to Chase-Riboud's book, the only issue for the court to decide was whether substantial similarity of expression between the two works existed.

While copyright is important, a work may be protected under other legal theories. For example, under the law of idea misappropriation—which varies from state to state—if you submit a story idea to someone and the idea is used, provided there was a prior understanding you would be paid for your idea, an enforceable contract may exist. 

Walking the Line Between Inspiration and Infringement

In finding DreamWorks did not violate Chase-Riboud's copyright, the court looked at the "total concept and feel" of the two works -- the standard test for assessing the substantial similarity of expressive elements between a film and a book. The "total concept and feel" analysis looks at similarities of plot, mood, text, setting, sequence of events, and characterizations from the vantage point of the average lay observer.

Because the plot, setting, and general sequence of events of the two works were -- in the court's opinion -- dictated by the historical record, the court determined that the plaintiff could not sustain her burden of proof on these factors alone. As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Moreover, the court noted that the mood and pace of Echo of Lions, which contains a poignant love story, was much different from Amistad, whose mood and flow were dictated solely by historical events.

Since Chase-Riboud also relied on certain specific examples of substantial similarity to support her claim, those examples, too, were analyzed by the court. But none of those basic resemblance, or common themes, were enough. Interestingly, neither the court nor Chase-Riboud cited specific instances of dialogue appropriation.

Looking at certain specific claims, Chase-Riboud claimed that a fictional Black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore Joadson. While both fictional characters are depicted as wealthy, erudite  Black abolitionists residing in New Haven, according to the court, they share little else in common. For example, Amistad's Joadson was a runaway slave, whereas Braithwaite came from a land-owning family that arrived in America in the mid-1600s. Unlike Chase-Riboud's character, Joadson had a critical role in the African's defense, including interviewing attorneys and urging John Quincy Adams to represent them at trial.

While noting that well-developed characters—especially visually depicted ones—are eligible for copyright protection, the court held that since the idea of a Black abolitionist appearing in both works was predictable and only superficial similarities existed between Braithwaite and Joadson, no reasonable juror would find the characters substantially similar from a copyright point of view.

Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and plot devices -- not supported by the historical record -- relating to a historical character named Cinque, who was featured in both works. However, the court held that Chase-Riboud's portrait of the slave Cinque, which included a relationship with John Quincy Adams, was not the stuff that infringements are made of. While "both" Cinque's shared certain similarities, the court held that Chase-Riboud's character was not sufficiently distinctive to enjoy copyright protection. Moreover, since both works "expressed" Cinque differently, the court held that there was no substantial similarity. Moving beyond the characterizations, the court found that other specific claims of similarity, including common endings tied to the Civil War and the destruction of a slave colony with the rendering of the Supreme Court decision freeing the slaves, were sufficiently different to defeat Chase-Riboud's claims.

Case Settled

Hinting at a financial settlement, The Los Angeles Times reported on February 10, 1998, that Chase-Riboud had released the following statement: “After my lawyers had a chance to review DreamWorks’ files and other documents and evidence, my lawyers and I concluded that neither Steven Spielberg nor DreamWorks did anything improper, and I instructed my lawyers to conclude this matter in a timely and amicable fashion. I think Amistad is a splendid piece of work, and I applaud Mr. Spielberg for having the courage to make it.”

The Takeaway

Not all similarities amount to copyright infringement. Regarding copyright protection for historical works, an author's exclusive rights are confined to how their ideas and facts are selected, organized, and presented. In determining similar cases, courts will continue to evaluate plots, moods, scenes, sequences, events, and characterizations to determine whether the defendant has captured the "total look and feel" of the plaintiff's work. As seen in the Amistad case, courts will also review differences, as well as similarities, between the two works when making infringement decisions.

If you are a writer and have questions about copyright infringement, fair use, how to protect a book title or defamation law, contact me for a consultation. 

DISCLAIMER: This article provides general information and should not be construed as legal advice. Laws vary by jurisdiction and specific circumstances. Consult with qualified legal counsel for advice regarding specific situations.

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ABOUT THE AUTHOR. Lloyd Jassin is a New York publishing and literary rights attorney with 30+ years of experience representing bestselling and first-time authors (and their heirs), literary agencies, and publishers. A former publicity director at Prentice Hall Press (a division of Simon & Schuster), he combines legal expertise with deep industry knowledge.

Mr. Jassin specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates. He co-authored The Copyright Permission and Libel Handbook (John Wiley & Sons) and has been quoted in The New York Times, Wall Street Journal, Publishers Weekly, and Time Magazine.

An active member of the publishing community, he has spoken at BookExpo and Publishers Weekly industry conferences, served as an adjunct professor at NYU Center for Publishing, and previously chaired the Center for Independent Publishing executive committee. He currently serves on the Beacon Press advisory board.

Licensed to practice law in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, defamation, and right of publicity and privacy law in the evolving entertainment landscape.

Contact: Jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, New York, N.Y. 10018. With offices in Morristown, N.J. 

(c) 1999 - 2025. Lloyd J. Jassin.  An earlier version of this article was first published in Creative Screenwriting Magazine.

AI vs. Copyright: How Publishers and Author Brands Will Survive the Generative AI Revolution

Generative artificial intelligence is fundamentally challenging copyright law and traditional publishing models. As AI systems create vast amounts of content without human authorship, author and publishers face unprecedented questions about creativity, originality, and intellectual property protection in the digital age.

To understand this disruption, you must first understand the policy behind copyright law. The premise is that without copyright protection, authors would have no incentive to create new works. However, algorithms and artificial intelligence don't require incentives in the same way humans do. This creates a fundamental tension that threatens the traditional copyright framework.

Why Author and Publisher Brands Matter More Than Ever

As publisher Alfred A. Knopf recognized in 1957, "a publisher's imprint means something and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less." This insight, which appears in Knopf's The Borzoi Credo, a publishing manifesto first published in The Atlantic Monthly, becomes even more critical in the AI era, where content provenance and brand authenticity serve as essential quality filters for consumers navigating an ocean of machine-generated content.

Unlike book publishers, who generate royalties for human authors, internet platforms prioritize data-driven and machine-learning engagement for advertising revenue. They harness user interactions and behavior to sustain their financial models. As a result, these AI systems can generate vast amounts of content, from good enough to outright toxic, blending fact and fiction without any regard for copyright protections or permissions. For the time being, this glut of AI-generated media poses complex questions about information quality and attribution as well as the boundaries of creativity and originality.

As the volume of AI-generated media increases, the provenance of information will become more important, creating market incentives and consumer demand for publishers and creators who can demonstrate authenticity and high quality.

The Publisher Advantage in an AI World

While addressing the complexities of regulating AI-generated content remains an open question, the established community of publishers has an important advantage in addressing consumer comfort levels as provenance plays a central role in fostering trust and reliability in information. Publishers (with a capital "P"), through selectivity in what they acquire, careful editing, collaboration amongst sales and marketing, publicity, and the payment of royalties, offer a baseline of trust in the data they publish.

Amidst growing uncertainty in consumer trust towards AI, the presence of author brands, publisher imprints, and robust metadata becomes pivotal. These elements act as guiding beacons for consumers, helping them navigate the overwhelming volume of data and identify high-quality works amidst the vast sea of information.

Without trademarks, John Oathout, author of  Trademarks, wrote, "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking."

Trademark Protection as a Strategic Response

Unlike copyright law, trademark law can be used to stop the unauthorized use of a bestselling author's name, a series title, symbols, and markings that the public associates with a particular publisher or other source. In this respect, trademark law is an effective cudgel against those who pass off their wares as endorsed by or coming from an established creator, publisher, or producer.

Trademark registration of an author's name, a series title, or a publisher's imprint also opens doors to Amazon's Brand Registry, empowering authors and publishers with takedown tools. The Brand Registry is a quick and cost-effective alternative to litigating unfair competition and right of publicity claims. The hitch is that the name or mark must be registered, which requires showing consumers perceive the name to be a badge for literary services.

The Future of Publishing in the AI Era

While the publishing industry understandably has antagonism towards large language models, the industry will no doubt take an active part in shaping the future of AI, whether through legislation, licensing their books to train AI, creating bespoke AI models with their own curated datasets, and trumpeting the Good Housekeeping Seal of Approval value of their author and publisher brands.

As Norbert Wiener warned in The Human Use of Human Beings (1950), technology left unchecked can reduce people to little more than cogs in a machine. Today, generative AI is undermining the incentives given to authors by copyright law while simultaneously fulfilling copyright's constitutional purpose of promoting "the Progress of Science and useful Arts." This tension will work itself out over time, but we need human editors and publishers for transparency, accountability, and quality control purposes. In an age of generative AI that can masterfully simulate the verisimilitude of human authorship, authentic human curation and editorial judgment become more valuable, not less—making publisher brands and trademark protection essential competitive advantages.

About the Author

Lloyd J. Jassin is a New York publishing and entertainment attorney with 30+ years of experience representing bestselling and first-time authors, literary agencies, and publishers. He specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates. He co-authored The Copyright Permission and Libel Handbook (John Wiley & Sons) and has been quoted in The New York Times, Wall Street Journal, Forbes, and Time Magazine.

Licensed to practice in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, and privacy law in the evolving entertainment landscape.

Contact: Jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, New York, NY 10018. With offices in Morristown, NJ.

How to Negotiate a Book Contract: Essential Terms and Rights

Asking an Attorney to Review a Book Contract

Book Contract Checklist of Deal Terms

When negotiating a book publishing contract, it’s crucial to ensure that the terms are specifically tailored to meet each author's unique needs and long-term goals. For example, if you're a subject matter expert or entrepreneur, your book can be a powerful tool to elevate your brand identity, build trust, and enhance credibility in your field. In this case, key contract considerations include securing approval over the title and cover design to align with your brand image, negotiating favorable terms for bulk book purchases, and setting a firm publication date that capitalizes on cross-promotional opportunities tied to your business or marketing strategy. These elements are vital for maximizing your book’s value in reinforcing and growing your brand.

On the other hand, romantasy authors (or other fiction authors) who have a long-term vision for their characters and the fantasy world they're building, will have different contract priorities. Retaining ownership of their characters, securing trademark rights for the series title, and maintaining exclusive rights to publish sequels and prequels are essential for protecting their rights.  Additionally, negotiating favorable advances, royalty rates, and controlling subsidiary rights (such as film, television, and  merchandise rights) forms the foundation of a solid publishing contract.

While legal terms in publishing contracts share a common language, a publishing attorney, or competent literary agent, can spot abnormalities or points that have been omitted to the detriment of the author. Unlike the film and television industries, the grant of rights is (and should be) narrow. In exchange for an advance against royalties, the publisher receives the basic right to print and publish your manuscript in book, eBook, and, more often than not, audiobook form for the entire term of copyright. Be wary if the grant of rights includes film, television, theater, and merchandise licensing rights. Typically, these rights are not granted to the publisher.

Common Contract Pitfalls to Avoid

Given that copyright protection extends for seventy years beyond an author's passing, the long-term implications of contract terms become particularly significant. You might wonder, what could possibly go wrong over such an extended period? The answer: quite a lot.  Without a properly negotiated book contract, potential pitfalls include:

• no reversion of rights if the publisher fails to pay royalties or goes out of business
• inability to recover rights when books go out of print or have minimal sales
• inability to reclaim unexploited audiobook or foreign translation rights 
• no voice in legal settlements of infringement, defamation, and other claims
• restrictive non-compete clauses
• option clauses that trap authors in unfavorable deals, often mistaken for guaranteed multi-book deals.

Timing Your Negotiations: The Romance Phase Advantage

Publishers are generally most open to accommodating requests for contract adjustments during the initial stages of the relationship, often referred to as the "romance" phase. Later is too late. Unless a book publishing contract allows an author to terminate for cause if the relationship goes awry, or rights are granted on a "use it or lose it" basis, the author is caught between bad and worse options - asking a court to rescind the contract (rescission is seldom granted) or waiting 35 years to exercise their right of termination under the Copyright Act. 

A Book Contract Should Not be Entered into Hastily

The primary purpose of a book contract is to detail the rights, delivery and acceptance conditions, payment terms, and remedies for breach of contract. For example, rather than relying on a lawsuit to get back rights, if a publisher fails to publish within a contractually agreed time limit, there should be a mechanism that permits an author to regain their rights. Similarly, if a publisher fails to exploit specific subsidiary rights (e.g., audiobook or foreign translation) within a reasonable time, it should trigger a reversion of those rights. In addition to reclaiming or recapturing rights, an author should reserve, or hold for their own use, film, television, live stage, podcast, and merchandise licensing rights. If a book publisher claims these rights, they deviate from industry norms. 

The Attorney's Role in Contract Review

Preceding the actual book contract is the term sheet. The term sheet contains the main deal terms. To decode a term sheet some authors turn to literary agents, who will receive a 15% commission on everything from books to audiobooks to film deals. Others retain flat or hourly fee book contract attorneys to help them negotiate royalty rates, the grant of rights, and, later, decipher the legal provisions found in the actual publishing contract.  

Initially, a publishing attorney will review the deal terms and make recommendations to their client. The initial task is to determine if the deal terms measure up to industry standards. We do this by comparing the terms to similar terms offered by similarly situated publishers for comparable books. After both parties agree to the deal terms, the publisher will prepare a contract incorporating those terms, plus the publisher's stock provisions. Like agents, attorneys are buffers that save you from dealing with the minutia of contract negotiation. They will help the client think through the offer and its possible ramifications and advise them on what is negotiable and what is not. An author's attorney can argue for the exclusion of certain items or rights from the proposed contract and the inclusion of others, such as naming the author as an additional insured on the publisher's media perils policy. 

Decoding Royalty Structures and Industry Standards

It’s no surprise that book publishing contracts, drafted by the publisher's lawyer, are rife with double dips and legal loopholes that favor the publisher. When it comes to royalties, they often create a hall of mirrors where what is stated and what it actually means can be two very different things. The Big Five New York publishers offer royalties based on the suggested retail price. Royalties for trade paperback books range from 7% - 7.5% of the list price on average. Typically, established publishers offer 10% of the list price for the first 5,000 hardcover copies sold, 12.5% on the next 5,000 sold, and 15% thereafter. Many smaller publishers base their royalty on the "net amount received," which may be 40% to 50% less than the retail price.  The standard eBook royalty rate offered by established publishers, and many independents, is 25% of the net.

Is Your Book Contract Signable?

When presented with the contract, you will want to modify specific terms.  In the case of a subject matter expert, business owner, or series author, you want title approval. Yet most stock contracts state the publisher decides the book's title.  Contract clauses are malleable, not words set in stone. A good publishing attorney - or agent- knows the contract managers at the major publishing houses. Logical arguments supporting rational positions and knowledge of industry practice are the underpinnings of most book contract negotiations.

Whether one of the big five New York publishing houses or one outside of the insular world of New York publishing, a well-drafted publishing contract can anticipate potential issues, reduce disputes, improve financial return, and save thousands of dollars in legal fees later on. 

Post-Signature Review: Understanding Your Existing Deal

For those who have already signed a publishing agreement, a publishing attorney or literary lawyer can help you understand the deal's limitations and determine if those limitations are enforceable. For example, a publishing attorney can advise whether a next book option is enforceable or simply an unenforceable agreement to agree. For example, a common concern is whether a non-compete clause can prevent an author from writing a new book on a related topic. Similarly, a publishing attorney can advise on termination for cause options or termination as a matter of right under the Copyright Act.  

Tip. 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 world of books and authors.     

Book Publishing Contract Checklist

Below are matters to consider when you draft or negotiate your next publishing agreement. Each key point deserves greater attention than given here (and will be the subject of future blog posts). While not all clauses are equally important (or negotiable), a well-drafted contract will cover all or most of the points outlined below.

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I. General Provisions

• Names and addresses of the parties

• Description of the work (tentative title, word count, illustrations, audience, genre)

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II. Grant of Rights and Territory

• Is this an assignment of all rights or a license?

• Duration (fixed term vs. life of copyright)

• Geographic scope: worldwide vs. limited (e.g., U.S. and Canada)

• Exclusive rights granted:

  • Primary rights: hardcover, trade paperback, mass market

  • Subsidiary rights:

    • First serial (pre-publication excerpts)

    • Second serial (post-publication excerpts)

    • Reprint rights

    • Dramatic rights

    • Film/TV rights

    • Audiobook / Dramatic Audiobook rights (approval over narrator?)

    • Foreign translation

    • British Commonwealth rights

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III. Manuscript Delivery

• Delivery requirements:

  • Due date (is it realistic? “time is of the essence”?)

  • Format and method of delivery

  • Supporting materials: rights-cleared photos, illustrations, charts, permissions/releases

• Manuscript acceptance:

  • Standard: “satisfactory in form and content” vs. publisher’s sole discretion

  • Termination for unsatisfactory manuscript or changed market conditions

  • Notice requirements for acceptance/rejection

  • Good-faith duty to edit

  • Return of author’s advance (first proceeds clause, etc.

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IV. Copyright Ownership

• In whose name will the work be registered?

• Who handles registration with the Copyright Office?

• Collaboration or ghostwriter agreements in place?

• Scope of permissions consistent with rights granted

• Reserved rights retained by the author

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V. Representations & Warranties

• Author is sole creator

• Work is original and not previously published

• No copyright infringement

• No invasion of privacy or publicity rights

• Not libelous or obscene

• No harmful errors in recipes, formulas, or instructions

• Limited only to material delivered by the author

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VI. Indemnity & Insurance

• Does indemnity include alleged claims, or only proven breaches?

• Scope of indemnity: claims and/or breaches

• Publisher’s right to withhold legal expenses (how long?)

• Is the author named as an additional insured on publisher’s media liability policy?

• Does the author have approval over settlement of claims?

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VII. Publication

• Duty to publish within a set number of months

  • Force majeure (acts of God) — are delays capped?

• Advertising and promotion commitments

• Right to use author’s name and likeness

• Advance Reader Copies (sent 3–4 months before pub date)

• Style and manner of publication:

  • Book title (consultation or approval rights)

  • Jacket design (consultation or approval rights)

  • Editorial changes to manuscript

• Publication by a specific imprint or in a specified format?

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VIII. Money Issues

• Advance Against Royalties: Timing of Payments

  1. On Signing: [__%] of the total advance, payable upon full execution of this Agreement.

  2. On Delivery and Acceptance: [__%] of the total advance, payable upon Publisher’s written acceptance of the complete and satisfactory manuscript.

  3. On Initial Publication: [__%] of the total advance, payable upon first publication of the Work in hardcover (or, if first published in another format, upon such initial publication).

  4. On Publication of Trade Paperback Edition: [__%] of the total advance, payable upon first publication of the Work in trade paperback format (Note -- from the author’s perspective, tying an installment to a later paperback release is not optimal, as timing may be uncertain or significantly delayed).

• Royalties:

  • Basis for royalty? Suggesedt retail price? Amount received? Net receipts? 

  • Cross collateralization: Are advances/royalties from multiple books lumped together (one pot) or kept separate?

  • Primary rights: hardcover, trade paperback, mass market, ebook

    • Escalations, bestseller bonuses, royalties reductions (deep discount, mail order, premiums, etc.)

  • Subsidiary rights:

    • Book club (sales vs. licensing)

    • Serialization (first/second serial)

    • Anthologies/selection rights

    • Large print editions

    • Foreign translation (Who controls foreigin translation rights?)

    • British Commonwealth

    • Audio rights (Who controls dramatic audiobook rights?)

    • Film/TV rights (Typically, retained by the author)

    • Merchandising

    • Future technology/database rights

• Reserve for returns: percentage withheld, liquidation timing

• Deep Discount Sales: Specify royalty rates (often 10% of net receipts or less) for sales made at high discounts (e.g., 50%+ off list price). Note -- Deep discount clauses can erode author earnings if applied too broadly—watch for language that permits the publisher to classify ordinary sales (such as to Amazon, book clubs, or wholesalers) as “deep discount.” Narrow the clause to true special-market or bulk sales.

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IX. Accounting Statements

• Frequency (annual, semi-annual, quarterly)

• Payment dates

• Can publisher recoup outstanding advances from future books?

• Author’s audit rights

• Deadlines for objections or legal action

• Right to hire forensic accountant (contingency basis?)

• Pass-through clause for subsidiary rights income

• Termination right if publisher fails to account

---

X. Revised Editions

• Frequency and by whom

• Reduced royalties if author doesn’t participate?

• Are revised editions treated as new books?

• Reviser credit (can original author remove name?)

---

XI. Option Clauses

• Definition of “next work”

• When option period starts

• Are terms definite (legally enforceable)?

• Type of option: first look, matching, topping?

---

XII. Competing Works & Morality Clauses

• How is a competing work defined?

• Duration of non-compete

• Exclusions (what does not count as competing)

---

XIII. Out-of-Print

• Definition of “out of print”

• Notice requirements

• Author’s right to purchase plates, files, or inventory

---

XIV. Termination

• Triggers for reversion of rights:

  • Failure to publish within 12–18 months of acceptance

  • Failure to account after due notice

  • Failure to keep book in print

• Survival of author’s reps and warranties

• Do pre-termination licenses survive?

• What triggers repayment of advances?

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XV. Miscellaneous

• Choice of governing law

• Mediation or arbitration clauses

• Bankruptcy protections

• Emerging issues (e.g., AI, morals clauses)

• Literary agent clause

###

 

Illustration: from Lawton Mackall's Bizarre 

Illustrator: Lauren Stout

Date: 1922

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