Publishing agreements are important (for both authors and publishers) as they define the rights and obligations of both parties, covering everything from royalties to the distribution of the work.
In this article, our publishing lawyer discusses why having your publishing agreement reviewed by a lawyer is crucial before signing.
Key takeaways
- A lawyer ensures you fully understand the legal terms in a publishing agreement
- Protect your intellectual property by carefully defining the rights granted to the publisher
- Lawyers can help negotiate more favourable terms, including royalties and rights
- Identifying and amending unfavourable clauses prevents long-term issues
- A well-reviewed agreement considers future changes and protects your interests over time
Why is a publishing agreement review important?
Given the complexity and long-term implications of publishing agreements, it’s crucial to have them reviewed by a lawyer before signing. Here’s why:
Understanding Legal Jargon
Publishing law is a niche area of law. There are a number of legal terms, international and intellectual property considerations that get taken into account. By hiring a publishing lawyer to review a publishing contract, you can cut through the jargon and get a good understanding of what you are signing up to.
A review of a publishing contract can also bring to light any terms which are inconsistent with what has been discussed between the publisher and author.
For example, royalties are often calculated on the basis of ‘net’ receipts. However, many publishing agreements define net receipts differently. This can greatly impact the final royalty payment.
Further, in hybrid publishing agreements, both the author and the publisher financially contribute to the publication. Often, the author will pay an amount up front to start the publication process.
In this scenario, it’s important for the author to have a right to a refund if the publisher does not uphold their side of the bargain.
Avoiding Unfavourable Clauses
If an author or a publisher asks for unreasonable terms through the publishing agreement, this can be a red flag. A publishing agreement review will highlight if any terms are particularly unreasonable.
This is helpful if you have multiple options to decide between. If an author has multiple publishing offers on the table, a contract review can help the decision-making process. For publishers, if an author is requesting unreasonable terms then the publisher may want to go with alternative options.
Protecting Intellectual Property
As an author intellectual property is your most valuable asset. A publishing agreement often involves granting certain rights to the publisher, such as the right to reproduce, distribute, and sell your work.
A lawyer can ensure that you retain control over your intellectual property and that any rights granted to the publisher are clearly defined and limited in scope.
Ensuring Compliance with Laws
Publishing agreements may be covered by various laws, including copyright laws and consumer protection laws.
A lawyer can ensure that the agreement complies with all relevant legislation, protecting you from potential legal disputes in the future. They can also advise on the implications of international law if your work is to be published in multiple countries.
Planning for the Future
A lawyer can help you plan for the future by flagging provisions that might not offer protection for future circumstances.
For example, a lawyer can address changes likes the sale of the publisher’s business, changes in distribution methods, or the invention of new technologies that could impact the distribution of your work.
Check out our article on the 8 Things Authors Must Know About Publishing Contracts to learn more.
Consequences of signing without review
If you sign a publishing contract without having it reviewed first, you could be agreeing to terms that you don’t fully understand or which may have unintended consequences.
For example, some publishing contracts do not include the right for the author to terminate the contract. This may mean that the author has given copyright away for a significant period of time, with no right to take back full ownership if something goes wrong.
From the perspective of the publisher, the contract should appropriately protect your investment.
Given the investment of time and money from publishers and authors, it’s important for the arrangement not to fall over at the last hurdle. For the sake of a few hundred dollars, it’s important to get a publishing agreement review.
Frequently asked questions
What is a publishing agreement?
A publishing agreement is a legally binding contract between an author and a publisher that outlines the terms and conditions under which the publisher will distribute and sell the author’s work.
It covers aspects like royalties, rights, distribution, and more.
Can I negotiate the terms of a publishing agreement?
Yes, many aspects of a publishing agreement can be negotiated.
A lawyer can assist you in negotiating better terms, such as higher royalties, limited rights granted to the publisher, and more favourable conditions overall.
What rights should I retain as an author?
As an author, it’s important to retain rights to your intellectual property, including the ability to license or use your work in other formats or markets.
A lawyer can help ensure that you only grant the necessary rights to the publisher while retaining control over your work.
What should a publisher include in a publishing agreement?
Publishers should ensure that their agreements grant them the necessary rights to distribute and market the work.
Items to be included in the publishing contract might be a fair royalty structure, exclusivity, termination rights and clauses that protect them from potential liabilities.
A lawyer can help draft and review the contract to ensure all essential elements are covered.
