Signing a Book Publishing Agreement

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DON’T SIGN THAT BOOK PUBLISHING AGREEMENT without reading and understanding between the lines.   The other day I got a new book client, and that’s the first thing I said to him—DO NOT, and I repeat, DO NOT sign the publishing agreement he received from the publisher before talking to me.  In fact, I told him not to even nod in the direction of the publisher, because even a nod can be perceived as an asset to a contract offer.  That’s right; did you know that oral agreements are enforceable, just like written agreements? And in some cases body language has been held to be an acceptance.

Here are a couple of things for you to know about publishing agreements and contracts in general:

  1. NEVER sign anything without reading AND understanding what’s in it. Contract language is so tricky and even the smartest folks sometimes get deceived.  You blink and before you know it, you have given always your valuable rights, and the key to your kid’s college fund and your retirement fund. That simple and innocent looking email “Deal Memo”, which you said “yes” to is as good as an enforceable agreement, so beware!
  2. All contracts are negotiable.  Some of you may be thinking, “Francine, you are lying, my contract wasn’t negotiable.”   But in fact, all contracts are negotiable, and your job is to know what makes them negotiable.  There are 4 things which will make a publisher give you more of what you want.  I’ll discuss them in this week’s Webinar.
  3. There are 6 REALLY important contract clauses in every book agreement, and believe it or not the “Royalty” provision is NOT one of them. Most new authors only care about the royalty payout and the advance.  Well hear this-while important, they are NOT the most provisions in your book contract.
  4. Boilerplate does not mean forge ahead with your eyes closed. Often authors think boilerplate means “there is nothing you can do about it.”  WRONG.  Boilerplate clauses are clause which generally go into an agreement, but you should read, understand, and delete or modify where appropriate for you.

That’s it for now. Do you have an opinion about this? Join my conversation on my Facebook Law PageGoogle+ pageTwitter feed, or in one of my LinkedIn group discussions.

 

6 Ways a Publisher Can Kill Your Success

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I recently came across an article in the Huffington Post titled “6 Ways a Publisher Can Kill Your Success.” The article lists some common things to watch out for when dealing with publishers, whether they are classic hard-copy publishers or eBook publishers.

6 Ways a Publisher Can Kill Your Success.

For instance:

  • It’s important to understand all internal or hidden costs when going to a publisher and to have a solid idea of how you want to price your work. Before signing a deal you must ask the publisher how they determine their costs. The wrong price can severely hamper your books sales.
  • Thoroughly explore your marketing options for your work. Closely examine the marketing programs that your publisher is offering you, some are effective, but some can be counterproductive. Don’t fall for the hype and don’t be pressured into something you are unsure of.
  • Be careful of publishers offering to create a website for your work. Often a website created by the publisher can give the publisher control over the site and leave you out in the cold. You may also be charged a hefty fee when the website requires updates.
  • Do you have access to your Amazon listings? Unless you are using a traditional publishing house, you should have access to and control of your listings. This is vital for making changes and updating descriptions, which is often necessary as time goes by.

To see the complete list and read the entire article click HERE.

Feel free to join my conversation on FacebookFacebook Esteemableacts Fan Page, or my Facebook Law Page, you can also interact with me on my Twitter Esteemable Acts pageTwitter Law Page, or on LinkedIn.

Key Elements of a Publishing Agreement

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Publishing. Author.

A typical book contract contains specific elements that will cover your relationship with the publisher over the long term. Keep in mind that there are many specific details under each of the elements, which your attorney should handle during the publishing agreement negotiation process.

Description: This section should clearly describe what the publishing agreement is for and include the details of the publication as well as the identification of both parties.
Grant of Rights and Territory: In this section, you’ll likely find details about the rights you have giving the publisher, such as English worldwide, English in the US and its territories, and foreign rights. Here you’ll also find general information as to which derivative rights and other ancillary rights you’re giving up.
Subsidiary Rights: For an entrepreneur-author, this is one of the most important sections in the entire publishing agreement. It determines what rights you keep and what rights you give away, such as merchandising, serial, dramatic, audio, video, movie, television, and/or foreign rights, etc. Often overlooked until it’s too late, many an author who wanted to create derivative and re-purposed products, based on their book, discovered after the fact that they could not, because they signed away those rights to the publisher.
Manuscript Delivery: This section of the publishing agreement defines all of the delivery requirements in detail, as well as the terms for acceptance of the manuscript, such as when it’s due, in what form, how many pages or words, and if time is of the essence.
Copyright Ownership: This is one of the many sections, in the publishing agreement, where your intellectual property rights are triggered. Who owns the rights to your creative work, for how long, is there a requirement that the publisher register your work in the US or must you, is there a requirement that your publisher register your copyright in other countries or must you?
Author Warranty: By far, this is one of the most important contract provisions in a publishing agreement, and, it is one taken most for granted. This section essentially says that anything you claim to be true—is in fact true. And if it is determined that you lied or misrepresented a material fact, you can pay dearly for that misrepresentation, especially if someone sues the publisher for an act of commission or omission on your part. This is a declaration that the author’s work is entirely their own and that they did not violate the rights of any third party.
Insurance Provisions: The terms of insurance are defined in this segment which includes who is covered under the publisher’s insurance and the authority of the publisher to settle any claims without the presence of the author.
Publication: The entire details of the publishing process are defined in these segments. The details include such descriptions as the right to use the author’s name, style and manner of publication, and any other details associated with publishing the book. This “right of publicity” states that no one has the right to exploit another person’s likeness, image, and/or identity without their permission. By signing a publishing agreement with this clause, you give the publisher permission to exploit your image through advertisements, displays, and promotions.
Financial Issues: This segment contains many details that cover the financial obligations of both parties throughout the agreement. It is very important to have your attorney review and carefully discuss this portion of the agreement, which includes a dialogue about an advance, when you get paid the advance, royalties, and upon what the royalties will be based.
Accounting: There are approximately a dozen steps to this segment alone which include all of the accounting statements, audit rights, and legal issues. This section defines your rights regarding when you’ll be paid, how often, what information you’ll receive in the statement, and how you go about challenging an accounting statement.
Revised Edition: This segment describes the terms under which a revised edition of the book may be published.
Out of Print: Out of Print defines the authors’ rights in the event the publication is out of print. This is an important section, as it determines when your work is out of print, and what you can do to get your rights back.
Termination: This section spells out the terms on which both parties can terminate the publishing agreement.
Other: In this section any information that does not belong under the categories of the publishing agreement can be defined in this section, such as jurisdiction, choice of law, and dispute resolution.

 

Until next time, I’m Attorney Francine Ward helping you protect what’s yours. Join my conversation on FacebookTwitter, or in one of my LinkedIn groupsGoogle+ Circles. Feel free to subscribe to my newsletter.

Female Empowerment. Intellectual Property. IP Lawyers.

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Female Empowerment.

Empowering and mitigating the next generation of female IP lawyers

On January 21st, women from all parts of the United States participated in the “Women’s March.” The march was a direct response to the inauguration of Donald Trump a day earlier and drew about 500,000 people to Washington D.C. Other marches followed throughout the country in cites including New York, Los Angeles, San Francisco, as well as London, Paris, Barcelona, and Brussels, just to name a few.

The purpose of the Woman’s March was to rally for women’s issues, as well as issues like the environment and immigration – to empower women to have a voice and let their concerns be heard.

Being a female attorney specializing in IP (intellectual property) law, I have a personal goal to inspire and mentor women who want to become attorneys to pursue careers in IP law.

Why does it matter—you may ask?

With technology progressing at a breathtaking pace, the need for IP attorneys is exploding. Furthermore, I believe that women should be leaders and players in this global field. It took women far too long to establish themselves in other areas of the law, such as criminal law. I don’t want to see women playing this type of catch-up when it comes to IP law.

Yes, it’s true that women have made great strides in the law over the past couple of decades. According to the legal blog, Associate’s Mind, women could be the majority of law students in 2017. While that’s great news for women, and for the law profession in general, women are lagging when it comes to IP law. And I, for one, believe that women have much to offer in this vital field.

So, what can women practicing IP law do to help fellow women who are interested in getting into the field?
Mentoring, mentoring, and more mentoring. That’s how I see it. We can tremendously by focusing on the following four points:

1. When asked, take the time to answer their questions;,
2. Encourage them, but at the same time tell them the truth about your experiences, good and bad;,
3. Teach and encourage them to be responsible and explain the hard truth, regarding what will be expected of them, and
4. Of course, let them know they always have choices.

Yes, now more than ever, it’s important that women feel empowered to pursue the life and careers they truly want. We cannot slip backwards after all the hard-fought progress we have made over the last few decades. I can and will do my part when it comes to practicing IP law. What can and will you do to help women be the leaders and innovators of the future?

Difference Between a Trademark & Copyright

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Copyright

Copyright

Many online business owners confuse trademark registration with copyright registration. Trademark registration refers to protecting the brand name, color, design, and/or logo of your business, and provides a means to distinguish your product from others in the marketplace. Copyright registration refers to protecting original creative content, such books, articles, blog posts, photos, website content, videos, music, plays, movies, cartoons, and a number of other items. While both are forms of intellectual property, they are handled differently. Understand the difference.

If you need someone to perform a trademark search or if you need help with filing a trademark application with the U.S. Patent and Trademark Office, CLICK HERE NOW.