PARSING THE FINE PRINT

What You Need to Know About Contracts, Copyright, and Protecting Your Work

San Francisco Writers Conference 2017

Presented by:

Elizabeth Lacks– Senior Associate Editor, St. Martin’s Press (

Dana Newman–Literary Agent, Dana Newman Literary; Attorney (dananewman.com,@DanaNewman)

Jennifer Chen Tran – Associate Agent, Fuse Literary; Attorney ( @JenChenTran)

I.Developing Content: Copyright Protection

A. How to get copyright protection:

1.Attaches automatically once original work is “fixed” in a tangible medium

2. Notice and registration no longer required, but recommended

a.Notice: symbol ©, word “Copyright”; year of first publication; name of owner

b. All rights reserved

B.Duration of copyright: life of the author + 70 years

C. Registration:

1. - deposit two copies, $35 online fee

2. Register within 3 months after first publication, additional recoveries include attorneys’ fees and statutory damages

D.What is protected:

1.Original works of authorship - manuscripts, books, poems, lyrics, scripts, news articles and other text, blog posts and web pages, images and movies, songs, musical notations, recordings

2. No protection for ideas (only the original expression of an idea); stock characters, settings and story lines; No copyright protection for titles or author names (possible trademark, if part of a series or where other products/services are offered).

II.Fair Use: When can you use another author’s work in your book without a release from the owner, and it won’t be copyright infringement?

A.Attribution alone is not sufficient

B.The six cases:Criticism; Comment; News reporting; Teaching; Scholarship; Research

C.Balancing Test: depends on the facts of the particular case

1.Nature of the use

2.Nature of the work

3.Amount and substantiality of the portions used

4.Effect on the potential market

D.Parody – may be fair use, even if commercial. Needn’t be funny, but must comment on or criticize the original.

E. Common questions: Titles of songs, movies, TV shows, names of people, places, things are OK to use. Songs – usually always require permission to use one or more lines.

III.Permissions: for work not in the public domain or fair use, you must make a reasonable effort to contact the legal owner of the work

*NOTE: Acknowledging the source does not substitute for getting permission

A. Where to look:

1.Publisher

2.U.S. Copyright Office, WorldCat.org

3.Licensing Organizations:

•Publications: Copyright Clearance Center

•Photos: Getty Images Corbis Images

B.Special issues: multi-media works; co-authors/ghostwriters

IV.Contract Basics:

A. Literary Agency Agreements

a.You should have a written agency agreement separate from publishing contract.

b.Terms

i.Scope of representation*/ agent’s right to represent you and your work

ii.Mutual right to terminate relationship

  1. Having at-will termination clause probably most important clause
  2. Notice requirements (usually 30 days)
  3. Agent still entitled to collect commission on compensation earned for all works placed before agency ended (varies depending on your clause)—will likely continue to collect commission on contracts already negotiated, executed, or earning money before (or within a short time after)

iii.Commissions and expenses

  1. 15% domestic
  2. 20% usually for foreign (depending on territory), film
  3. Expenses: author’s approval for miscellaneous expenses more than certain amount (usually $50 to $100, cumulative)—should limit your reimbursement obligation to those specifically listed
  4. Standard practice is to deduct commission and expenses, then agent/ agency cuts you a check for the rest
  5. Can request separate payments so publisher will send separate checks directly to author and agent (some publishers may or may not agree)

iv.Agent’s duties to you

  1. Agent’s best efforts to market work
  2. Submit all offers to author (unless you want otherwise)
  3. Attain permission before signing any contracts
  4. Reasonable care of materials
  5. Promptly forward royalty payments and correspondence to author—agent will collect all proceeds from your work and oversee publisher’s compliance with contract
  6. Right to an accounting (specified in contract)

B. Traditional Publishing Agreements:

1.License of Work: which rights (uses) are granted, in what territories, for how long?

2. Definition of electronic works – verbatim, or multimedia?

3. Compensation: advance, payment schedule, royalties (list price or net), bonuses, e-book royalties, subsidiary rights, MFN clause

4.Delivery and Acceptance: manuscript, related materials (index, permissions, photos), right to revise, legal vetting

5. Warranties and Indemnification: right to use, no infringement/libel/right to privacy violations, should only apply to author-provided material, insurance

6. Non-Compete Clauses – reasonable term, limit to same or similar work, exception for some % for professional use

7. Option Clauses – same genre, option to negotiate, term runs from delivery (not publication)

8. Accounting and Audit Rights – when, reserve for returns, who pays for audit

9. Out of Print Clauses, and Reversion of Rights:

a. Seektodefineout-of-printtofulllengthU.S., Englishlanguage,tradeeditions.

v.Ideally want English regular trade full length edition

vi.Exclude e-books

vii.Threshold issue: earning threshold is better than a quantity threshold

viii.Time window, publishers often impose 1, 2, 3 year window before you can assert it

ix.Notice period?

c. Are theresalesthresholdsifelectronicandprint-on-demandeditionsareincludedinanoutof printdetermination?

d.The problem of persistence: some publishers notoriously slow in responding to reversion requests, the key is persistence

i.You might need to engage legal counsel if publisher non-responsive

ii.Beware sample reversion letters on internet

iii.This reversion of rights is different than a termination of rights under copyright law

V. Legal Vetting

A.Performed by outside legal counsel

B.Required by publishers for most nonfiction books

C.Required by publishers for some fiction, if real people/events are heavily used, particularly if portrayed in a negative light

D.If your manuscript requires a legal review, you will not receive your acceptance payment for the manuscript until the legal review is complete and the manuscript is satisfactory

VI. Defamation

A.Inspiration vs. defamation – the difference between using real people/events/products in your manuscript and defaming them

B.A defaming statement is both false and “injurious,” or harmful to someone’s reputation

1.(This does not mean it’s necessarily a good idea to portray a real person negatively, even if your statements are demonstrably true)

C.How to use public figures vs. private figures

D.When it is okay to portray a real person in a negative light

E.Why merely changing names isn’t always enough

F.Using information on the public record vs. your own private knowledge of a person/event/product

1

Parsing the Fine Print

SFWC 2017