BY BOB LABATE
A few weeks ago I
participated in a seminar sponsored by the Chicago Bar Association on
"Representing Authors" where we discussed the business of getting
published. My co-panelists, Mark Devane (a published author and a trial
lawyer) and Kitty Kurth (a Chicago-based publicist and the president of
Kurth/Lampe), provided useful and, often, humorous insights on the publishing
industry.
For those who were unable to attend, what follows is a summary of my presentation. You will be able to view some of the seminar documents and outlines if you visit the McBride Baker & Coles Web site (mbc.com).
Research
While you write the great American novel, you should be accumulating information on the publishing industry and literary agents who may be able to help you to advance your career. One of the first stops is the Web site of the Association of Authors’ Representatives, Inc. (www.aar-online.org) a non-profit organization that assists literary agents in representing their author/clients and that posts a list of member agents and recommended internet links, such as the Writers Guild of America (www.wga.org) and the U.S. Copyright Office (www.loc.gov/copyright). The AAR Web site also provides a list of questions that you might want to review with a prospective literary agent who has offered to represent you.
For those who prefer a hard-copy sourcebook, one of the best is the "2002 Writer’s Market: 8000 Editors Who Buy What You Write" available at amazon.com and at the Writer’s Market Web site (www.writersmarket.com). Also available are similar sourcebooks for Novel & Short Story writers and for Children’s Writers and Illustrators.
Knowing your market won’t prevent you from receiving a drawer full of rejections, but it may give you the confidence to keep on trying.
Literary Agency Agreements
Most significant publishing deals come only with the help of a literary agent who should help you to prepare an appropriate query and synopsis and who will edit the first chapter or two of your work. But, finding the right agent is often difficult.
The Web site maintained by the Association of Authors’ Representatives (AAR) has a list of 12 questions that you may want to ask of your prospective agent, the answers to which may tell you whether you will work well together. Remember, you are looking for an agent not an agency, so you should be free to terminate the agency agreement should the agent you’ve selected change firms. You may also want the right to terminate if someone other than your original agent is assigned to work with you.
Agents who charge an up-front fee for their services are generally to be avoided unless the fee is fairly small (such as a few hundred dollars) or if the agent has some particular expertise or experience that make her valuable. In addition to the AAR list of questions, you might also want to consider the following: the duration of the agency agreement and the procedure for ending the relationship; the percentage charged by the agency (15 percent is normal) and, assuming that the agency collects your fees and royalties, you may want to review the collection procedure and when checks will be sent to you; and, the process by which you communicate with the agency and the normal time the agency takes to respond to your inquiries and comments and the simplicity of the language used in your agency agreement, that is, do you understand what the contract provides.
There are a number of warning signs that the agency may not be the right one for you. For instance, a requirement that you provide the agency with significant up-front payment is not normal, nor should you allow your agency agreement to be for an unlimited duration unless you are allowed to terminate it (at your sole discretion) on no more than 90 days notice.
Also, be careful of the powers granted to the agency in the agreement (never allow an agency to make substantive decisions for you) and do not grant an agency a "power of attorney" except for the power to collect amounts due to you. Make sure that you keep control of what expenses an agency may charge to you without your prior approval and limit your agency’s ability to assign your agreement except to a related company or to a company that may buy your entire agency.
Publishing Agreements
There is no standard form of agreement between an author and a publisher, but you will find two checklists of common author/publisher issues posted on the Entertainment Practice page of the McBride Baker & Coles Web site.
Often, once an advance amount (normally far below $10,000) and delivery date have been set, a publisher’s contract is a take-it-or-leave-it proposition. Margins in the publishing industry are thin and, unless you are likely to be a best selling author, publishers are loathe to change their basic form. But you and your agent can sometimes tailor non-monetary portions the agreement to fit your needs. The following are a few areas that you may want to consider.
1. Grant of Rights. Most publishers want all rights in areas that they can exploit profitably, such as hardcover, trade paperbacks and mass market paperbacks in the United States, Canada and Europe and in all media. They will also want "Subsidiary" rights, such as the right to publish in a periodical, in abridged form, as book-club selections, in audio format and in foreign languages. But you should be able to reserve certain "Ancillary" rights such as use of the Work in motion pictures, television, radio and live stage productions or transmission via the internet (except in book form). You may also obtain the right to approve any abridgement of the Work, provided such approval is not unreasonably withheld. You should also request that all dealings between the publisher and its affiliates be on an "arms-length" basis.
2. Acceptance of the Work. Usually your advance is paid in segments: half upon execution of the agreement and half upon "acceptance" of the work. Publishers will want time to review your work, have it vetted by counsel and suggest changes, all prior to formal acceptance. The critical issue is how long the review process may last and whether the publisher has unlimited time to suggest revisions of the work. Make sure that you know what happens to the Work if the publisher rejects it and whether the publisher may recover some of the previously paid advance upon rejection. You want all rights to the Work to remain with you upon rejection and you do not want to return any advance or be liable to the publisher for any expense or cost.
3. Accounting and Payment. Semi-annual accounting statements based on sales through June 30th and December 31st sales are normal, but each publisher has its own system. After you have "earned-out" (that is, have paid the publisher for your advance, and its costs, fees and expenses) the publisher will still want to withhold a portion of your royalty payment to maintain a reasonable reserve against returns. Reserves in excess of 15 percent are common, but you should request that the reserve be recalculated for each statement and that any prior unused reserve be paid to you. Look closely at how long you have to contest any accounting provided to you by the publisher.
4. Publication Dates, Marketing and Options. Few publishers will commit to a publication date, but you should discuss ranges of dates provided that all goes well with your writing. Publishers will usually not commit to specific marketing activity, but again, you should discuss how they will support your book and whether you can expect that your book will be available nation-wide for a reasonable period of time. Finally, any good publisher will want to have an option for your next work and you will want to review the publisher’s option language with your agent or attorney.
Finding a publisher or self—publishing is never easy, but if you know what is ahead, you may be able to avoid a few of the most common potholes and wrong turns.
© 2002 Robert J. Labate. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me through our firm’s Web site (mbc.com), via email at labate@mbc.com or, via mail, to Bob Labate, McBride Baker & Coles, 500 West Madison Street, Suite 4000, Chicago, Illinois, 60661 312/715-5700.