Congratulations, you have a publisher's contract in your hot little hands. For many people, this is a sign that you've "made it" as an author. You trust your agent to look out for your best interest and he/she has not disappointed you yet. So why should you consider involving an attorney in this process? Good question. You may have heard horror stories of authors who did not get what they expected or tried to get out of their contracts. This can definitely be the exception and we certainly believe it will not happen to us.
I recently spoke with Denise Gibbon, literary attorney and author, who shared her professional opinion on the subject.
Arielle: Denise, what has been your experience while helping authors navigate their publisher's contract?
Denise: As an attorney and a writer, I've often been confronted by published authors who are upset with something their publisher has done or not done. The dispute can have to do with royalties, reversion of rights, proofreading, and digital rights or cover art. But no matter what the dispute is about, after I review the publishing contract, I often discover that the publisher had the right to do what it did or the particular provision the author questions is ambiguous. When I share this information with the author, I usually discover two things. First, that the author didn't know the particular provision was in the contract and, second, she didn't retain an attorney to review the contract.
Arielle: If the contract is written by an attorney, and the author's agent reviews the contract, shouldn't that be enough?
Denise: Though publishers use lawyers to write the publishing contracts that authors sign, authors don't seem to realize they, too, need a lawyer to understand those same contracts. Authors naively or carelessly tend to believe that having an agent levels the publishing playing field and banishes the need for any other professional advice.
This is a mistake. Agents have expertise and lawyers have expertise. Though their knowledge about contracts might overlap, their training does not.
As professional, well-connected and nurturing as an agent might be, if he is not a lawyer, he should not be expected to understand the minute contractual details that an attorney has been trained to question and explain.
Arielle: Many authors have spent a lot of time and money to get to the point that they have an agent and publisher's contract pending. They may not feel it is worth hiring an attorney for this type of legal review process. What are your thoughts on making this investment?
Denise: The devil is indeed in the details and good contract attorneys wrestle with the devil daily. The cost of retaining a literary attorney to review and explain a publishing contract is a minor expense. Compare that to an author who, months or years after signing an unexamined contract, has to oppose a publisher's legal team in court or angrily end an otherwise good relationship with an agent.
Having an attorney is no guarantee that the author, lawyer or agent can successfully negotiate for everything the author wants, but it does make it very likely that the author knows whether to sign and, if she does sign, what to expect from her contract. There are few moments in an author's life that are more important.
Thank you, Denise. As you say, this is an important part of an author's earnings and rights to the use of content in the future.
Denise Gibbon is an attorney, published author and poet. She reviews and analyzes publishing, agency, ghost and co-writing contracts, fielding questions about copyright, libel, invasion of privacy, electronic publishing, warranties, and trademark. Author of a legal column dubbed "The Legal Weapon," Denise took the mystery out of publishing contracts for published and unpublished members of the Los Angeles chapter of Sisters in Crime as well as negotiating two publishing contracts for the organization. You can reach Denise at firstname.lastname@example.org
Arielle Ford has launched the careers of many NY Times bestselling authors including Deepak Chopra, Jack Canfield, Mark Victor Hansen, Neale Donald Walsch & Debbie Ford. She is a former book publicist, literary agent and the author of seven books. www.everythingyoushouldknow.com