Today, author and “recovering lawyer” Diane Capri is joining me on the blog to offer some advice for writers considering going it without an agent.
Much as I would love to think that it’s all cotton candy and roses out there, the writing biz, like any industry, does not work that way. Contracts are complex legal documents not to be taken lightly. The industry is changing, and it’s easier to find editors who are willing to accept unagented manuscripts. Many writers are now willing to go it without an agent, at least at first. Making the decision to publish without an agent means that the author will have to learn a new skill–or hire someone with expertise in publishing contracts.
Bottom line, we should understand the terms of the contract before we sign on the dotted line. Diane is lending us her legal expertise to point unagented authors in the right direction. Feel free to ask questions!
Q: As writers, we hear so many scary stories about authors who signed contracts without realizing what they were signing. It’s hard to tell what’s exaggerated urban myth and what’s an issue for genuine concern. For writers who go it without an agent, what should their main concerns be? Any red flags or big no-no’s?
A: There are many clauses in a publishing contract, and any writer who represents herself in negotiations should be aware of the most common ones. Copyright, royalties, advances, acceptance of manuscript, subsidiary rights, special sales, manuscript revisions, warranties, indemnification, termination of rights, options, and so on. Pay particular attention to how unexpected events will be handled. What if the publisher goes out of business? When and under what circumstances can you retrieve your rights to this project and what must happen to get the rights back to you? A good primer is “Negotiating a Book Contract: A Guide for Authors, Agents and Lawyers” by Mark L. Levine.
Q: A publishing contract is a legal document–and a very complicated one. What are some resources for writers who want to learn more about the legalese of contracts? Are there any key terms we should know?
A: In addition to Mark L. Levine’s book, you might want to review “The Writer’s Legal Companion,” by Brad Bunnin and Peter Beren. Writers organizations such as Mystery Writers of America and Romance Writers of America and the Author’s Guild are also good resources for contract questions. You can find the answers to most common questions online, but beware of the source of information. Understand that the law varies and is very fact specific, meaning that changing even one small fact in a question can make a difference in the outcome.
Q: Do you recommend that first-timers (or even experienced authors) hire a lawyer to review their contracts? If so, how can writers find lawyers who specialize in publishing contracts? What should they expect to pay for these services?
A: The easy answer is that I am a lawyer and I hire a lawyer to review my contracts. Realize that no one can anticipate everything and a fresh eye is often helpful. Unexpected stuff happens. All you can do is apply the best of your knowledge under the circumstances. Understand that the deal could go south and before you sign, always ask yourself what you’ll do if this deal does fall apart. Everyone needs a “plan B.”
If you have a reputable and knowledgeable agent, s/he should be able to negotiate your publishing contract. But it never hurts to hire aknowledgeable lawyer to advise you privately. Just be sure the lawyer you hire has current experience in publishing contracts from the type of publisher you’re considering because the business changes constantly.
Lawyers charge either a flat fee or an hourly fee. For a first publishing contract, a flat fee is probably the way to go. Prices vary based on location (everything costs more in New York than, say, Iowa), expertise (the more expert the lawyer, the more expensive she’ll be), and jurisdiction, among other things.
When navigating uncharted legal territory, generally it’s good to ask yourself whether the fee is worth paying under your specific circumstances. A $500 legal fee may not be the best idea for a royalty-only book deal with no advance. Only you can put a price on your project. No one knows the work and its value like the author herself.
Bestselling author Diane Capri is a recovering lawyer. She’s a snowbird who divides her time between Florida and Michigan. An active member of Mystery Writers of America, Author’s Guild, International Thriller Writers, and Sisters in Crime, she loves to hear from readers and is hard at work on her next novel. Diane’s books, including “Annabelle’s Attack” and “Carly’s Conspiracy,” are available wherever e-books are sold. See her Amazon author page for more info.
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