Attorney Laura Kirwan on Contracts, Copyright, Foreign Rights, and Other Author Issues

Of all the questions I get in regard to writing, marketing, and publishing, the ones on law and taxes are the ones I’m least likely to have a clue about. I still can’t help you with taxes, but I have someone here today to answer common questions on copyright, contracts, and other legal topics related to books and publishing.

Attorney Laura Kirwan, who specializes in literary and publishing law, practices here in the Phoenix area and maintains a blog that should be helpful for authors all over the U.S.

Hey Laura, thanks for stopping by! Let’s start with this one… What are some of the pitfalls self-publishing authors should look out for?

The biggest mistake I see self-published authors make is not taking their work seriously enough, particularly with e-books.  Just because you’re self-published, the reader is not going to give you a pass on typos and misspellings and sloppy editing.  And they likely aren’t going to give you a second chance to convince them to buy another book.

As a self-published author, you’re not just an author.  You’re also a publisher.  So you need to understand the business side of things and act like a business owner.  Successful business owners understand the industry in which they operate and take good care of their customers.  They honor their obligations.  They hire help when they need it.  They sweat the details.

At a bare minimum, you need to pay for a good line editor. If you start making money, you need an accountant not just for tax prep, but for financial and tax planning.  And if you don’t understand any agreements you run across, hire a lawyer.  It’s not a divorce, it won’t cost $30,000.  An experienced lawyer can review a contract, tell you where the problems are and help you negotiate a better deal and it generally won’t cost you more than a few hundred bucks.

I’m an author, too.  I know what goes into writing.  There’s that Ernest Hemmingway quote about sitting at the typewriter and opening a vein.  You’ve put energy and love and tears and untold hours into your work.  You’ve built a world.  Don’t cheap out and starve it to death on the publication side.

Do you need to file a copyright in order to protect your work?

You hold the copyright to your work as soon as you create it.  Copyright registration isn’t required to create or maintain your copyright, but it’s a good practice.  It creates a public record of your ownership of the work and it provides some specific benefits in the event you have to sue someone for copyright infringement.  I have more detailed information on copyright registration, as well as how copyrights are created and how to use a copyright notice on my website.

What about ISBNs? Most e-bookstores (Amazon, Barnes & Noble, Apple, etc.) don’t require them for ebooks, and Smashwords provides a free one. Createspace also provides one for paperbacks. Are these okay to use or should you buy your own?

Legally, it won’t affect your copyright to get your own ISBN or use one provided by book production companies like Smashwords or Createspace.  There’s no legal significance to an ISBN.  It’s an inventory management tool.  So, despite the more hysterical claims I’ve run across on the internet, using a book printing company’s free ISBN by itself does not grant that company any rights in your work.  But that doesn’t mean you can’t sign your rights away in a contract you enter with them.  So, again read and understand every contract before you sign it.  That includes the one you click through on the company’s website when you sign up with them.

So, it’s really more about the appearance of it. One of the reasons I want to self-publish is I want to maintain control over my work.  I don’t want someone else to pick my cover or my title or tell me to change the names of my characters, etc.  (A lawyer and a control freak.  Go figure.)  I want to self-publish.  Which makes me the publisher.

ISBNs get dramatically cheaper the more you buy, you can hold onto them and use them as you need them, and you can write them off as a business expense.  To, me it’s worth the expense and a sign to the rest of the industry that I take myself seriously as a business owner and an author.

If we get popular as authors, we’ll be approached by agents and publishers. Can you talk about when or why we might want to hire a lawyer instead of an agent?

It’s not an either/or decision.  Lawyers and agents serve different roles and can help you in different ways.  The one time when you absolutely need a lawyer instead of an agent is when you’re reviewing a proposed agency agreement.  I heard an agent say at a writing conference that his agreement was on his website and if he decided to represent you he’d be happy to sit down with you before you sign it and explain what it means.

And my lawyer bells started ringing. His duty of care to you does not begin until the agreement is signed.  Which makes it a conflict of interest for him to advise you on it. What an agent should tell you is that you should review the agreement with an attorney before signing it. (That agent I mentioned? His agreement basically lets him, and his heirs, collect a commission on any deals you make even remotely related to the original book for the life of the copyright.  Ouch.)

Agents get paid on commission.  So they have strong incentive to fight hard to get you the best deal they can.  The good ones, and most are, represent you because they believe, often passionately, in your work and your talent. Lawyers, at least the kind that you’d want to hire for this sort of work, generally get paid by the hour. They may not fall in love with or even read your book and they get paid about the same regardless of the deal you reach.  They’re going to take a dispassionate and skeptical look at the proposed deal.  They’re going to ask questions you and your agent never even considered. Lawyers are trained to spot potential problems and legal potholes. A good lawyer is skilled at imagining the myriad and spectacular ways your deal can go sideways, and help you avoid them.

And there’s more to a publishing contract than just the publishing stuff.  An agent can guide you on the intricacies of subsidiary rights and royalties.  But your agent is probably not going to be quite as adept at explaining what the term “indemnify, defend and hold harmless” means.  Think of the agent as the substantive editor and the lawyer as the line editor.  They bring different eyes to the project and will help you in different ways.

What if approached by publishers in other countries who want to negotiate for foreign rights on our books? Agent? Lawyer? Do it ourselves?

Well, I’m kind of biased but I think you should always have a lawyer involved when you’re entering into a deal to sell any of your rights whether you have an agent or not.  Not necessarily for the negotiation stage but to review the contract.

If you want to seek out buyers for your foreign rights, then an agent experienced in that area can be a big help.  If you already have an agent, you need to look at your agent agreement and see what it says about negotiating foreign rights.   Have your lawyer review whatever contract the purchaser provides or have your lawyer draft the contract if the purchaser doesn’t provide one.

If you don’t have an agent and you receive a foreign rights offer, or know how to shop for one yourself, then you don’t need to go out and find an agent.  A knowledgeable copyright attorney can help you negotiate the terms of the deal and prepare or review the paperwork.

Thanks, Laura!

If you guys have any more lawyer-esque questions, please leave them below, and I’ll try to get Laura to pop in and respond.