THE BOOK PUBLISHER’S LEGAL CHECK LIST

IVAN HOFFMAN, B.A., J.D.


          When you, as a publisher, contemplate acquiring and publishing a book, there are large number of complex legal issues you must face in order to put the project on a solid legal foundation.  Without this foundation, in an attempt to either "save money" or through lack of knowledge, you run the substantial risk of not acquiring all the appropriate rights in the book that you will need to fully exploit that book and in turn earn money from such exploitation.  And this applies to even self-written books since even if there are no author problems presented, there are often issues to be faced with regard to cover artists and illustrators, editors, distributors and others as indicated in this article.

            Keep in mind that in the business of intellectual property rights, legally appropriate contracts are *not* add-ons to the publisher’s business, something you do *if* you have any money left over; legally appropriate contracts *are* the publisher’s business.  If you do not have these agreements, then what you have is nothing but an illusion.  It only *appears* you are in business but in reality, you are not because without a thorough and valid contract, whether with a third party author, cover artist or illustrator, editor or other third party, given any controversy between you and such other party, you risk losing rights and the money that goes along with those rights.   This is so because under the United States copyright act, if the creator is an independent contractor, the creator of any work owns all rights to that work unless there is a valid, written agreement, signed by the creator, transferring some or all of those rights to the publisher.  There may also be other legal problems presented by state laws that may affect your rights if you do not have a written agreement.

            Without a written agreement, you can only lose.  Given the already difficult odds of having a successful book, it is totally unclear to me the reason any publisher would want to increase the odds against success by not establishing their rights correctly.  Accordingly, as part of your budgeting of what it will cost to publish the book, the cost of an attorney to prepare these agreements must be an integral part of that budget otherwise all the other costs you expend are put at substantial risk.  This is part of the entrepreneurial sensibility that you must have if you are going to be in business.

            Instead of seeing yourself as a book publisher, see yourself as an acquirer of intellectual property rights.  With this wider lens of who you are and what you do, you may come to see that *that* is your business even though it currently takes the form of publishing books.

            The agreements listed below are the *minimum* kinds of agreements you should have if you anticipate any success with your project.  There may be others depending upon the nature of the project.  If you do not anticipate such success, what can be the reason to publish the book in the first place?  Of course, if the project is a total failure, much of this *may* not matter since there is less chance that someone is going to sue you for violating their rights in an unsuccessful project, although such failure does not mean that you are not subject to suit and liability, because you still are liable whether or not the project was a success.  On the other hand, without these agreements, then the *worst* thing that can happen to you as a publisher is that your project is a huge success and then you cannot count the number of people that may come out and make claims against you.  And in such event, not only do you run the risk of losing all the money you did make on the project but many more dollars in addition due to attorneys fees, court costs, damages, etc.   By the wise expenditure of small dollars, you may avoid the unwise expenditure of large dollars since help me is almost always cheaper than fix me.  Preventive law is far less expensive than remedial law.

            Thus, you should go over this check list of necessary agreements and rights questions both before making the decision to publish and during the negotiation process as it moves through the entire acquisition of rights issues.  There are many, many other issues presented than this article lists since this article is intended merely as a summary in check list form.  Some of the other issues are further explained in the appropriate article or articles on my site dealing with the same or similar topics.

The Author Agreement

            What rights are being acquired from the author?  Territories?  Languages?  Electronic rights?  Merchandising?

            Has the author provided the publisher with the appropriate third party permissions for all quotes and other such materials?  If so, what rights has the publisher acquired from those third parties?

The Cover Artist/Illustrator Agreement

            What rights are being acquired from the artist/illustrator?  Is it on a work made for hire basis and is there a valid written agreement signed by the artist/illustrator to that effect?

            If you intend to pay a royalty, make certain that you can afford to do so since you probably have a royalty commitment to the author so add the royalties together to see what your total is.  This may seem self-evident but it is often overlooked.

The Editor Agreement

            If the editor is doing more than merely making grammatical corrections and such and is doing any amount of original writing, what rights are being acquired from the editor?  Is it on a work made for hire basis and is there a valid written agreement signed by the editor to that effect?

            Same advice regarding payment of a royalty as with the cover artist/illustrator, although frankly a royalty to an editor seems like a bad deal to me.  If you have enough work for an editor to do that might justify paying a royalty, then you definitely need a written agreement with that editor since it is very likely the editor is doing a substantial amount of original writing.  This may involve other issues such as joint authorship etc.

The Distributor Agreement

            What rights is the publisher granting to the distributor?  This book only?  Other books?  Length of agreement?  Territories?  Markets?  Does the publisher have the rights from the author/artist/illustrator/editor to grant these rights to the distributor?  If you have not acquired these rights but are signing a distribution agreement without having it reviewed by an attorney, you may find yourself in breach of that agreement as well as in breach of those underlying agreements and a copyright infringer as well.

Foreign Rights and Other Licensing Agreements

        If the publisher is granting foreign rights (reprint or translation) or other licensing rights (book club, merchandising etc. etc.), does the publisher actually own those rights from all the above parties including the third parties whose materials are contained within the book? If you have not acquired these rights but are signing a licensing agreement without having it reviewed by an attorney, you may find yourself in breach of that agreement as well as in breach of those underlying agreements and a copyright infringer as well.

Conclusion

            The above check list, and even the full articles dealing with these and other issues, are certainly not the only issues involved in the decision to publish or otherwise exploit a book.  The publisher should *always* have the advice of a knowledgeable publishing attorney at each step in the process. Read "The Do It Yourself Publishing Lawyer."

            The publishing business is not merely about having a desire to publish books.  The publishing business requires a vision on the part of the publisher as to the potential future scope of the project and then a knowledge on the part of that publisher as to how to acquire, at the beginning, those rights necessary in order to give the project the best opportunity to be successful.  And if the publisher lacks either of those elements, then it is the wise publisher that recognizes that limitation and goes out to find those who do to advise the publisher.

© 1999 Ivan Hoffman

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This article is not intended as a substitute for legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  You should consult with an attorney familiar with the issues and the laws.
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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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