On Literary Agents and Lawyers….
A scenario that many top authors have successfully employed is hiring both an agent and a lawyer who is a literary and publishing specialist. The agents sell the authors’ books, serve as their literary advisors and manage their writing careers, and the lawyers handle their publishing contracts. Here is some advice on working with a publishing attorney or specialist:
Publishing attorneys, like literary agents, are specialists. Don’t use a friend or a relative to negotiate your book contract; find a specialist, because otherwise, the negotiation could go badly. Some other guidelines to follow:
§ If you hire an entertainment or copyright attorney, make sure that he or she has experience in representing authors and books. Ask what percentage of his or her practice is devoted to books and authors.
§ Chose someone with an intimate knowledge of publishing. Publishing contracts are traps for unwary lawyers as well as unsuspecting authors.
Publishing attorneys tend to be clustered in major cities and their services can be expensive. Attorneys generally charge on an hourly basis, not on a percentage of what you make. Rates typically range from $250 to $450 or more. If you don’t have an agent but have been offered a book contract, it makes sense to have an attorney negotiate the sale of rights on an hourly basis or for a percentage that is less than 15 percent.
Although attorneys’ hourly rates can be steep, they will usually cost you far less than what you would pay an agent over the life of your book. Here’s the math: 15 percent of $15,000 (a typical advance for a midlist book) is $2,250, about twice what many attorneys will charge for a full contract review and a comment letter.
When authors who have businesses write books, they are often extensions of their business. They should think about being represented by an attorney because legal issues can arise that go beyond the territory agents usually cover.
For example, if the title of the book is tied to the author’s branding strategy, the author needs to be able to approve the book’s ultimate title. Unless you negotiate for title approval, the publisher, not the author, has the sole right to select or change the title.
“In these situations, you’re talking about brand extension,” attorney Jassin advises. “Sometimes it’s not about the book, it’s about the author’s nine-to-five career. So, you may be negotiating something more than just a book contract.”
Before signing a book contract, your attorney should explain the:
§ Grant of rights clause;
§ Option and right of first refusal;
§ Publisher’s duty to publish;
§ Reversion of rights clause;
§ Noncompetition provision;
§ and, Postcontract liability.
Some agents are both agents and attorneys. So with agent/attorneys, you can have the best of both worlds.
In most dealings with traditional publishers, an agent is usually preferable to an attorney who does not specialize in literary and publishing law. If you decide to hire an attorney, hire one who has experience in literary and publishing law and performing the precise type of work you want him or her to handle.
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