As a literary lawyer, I often browse the speaker lists for literary festivals and conferences. Published writers, agents, and indie publishers fill the agendas, promising wisdom about what it takes to attract the right agent, sign with a publisher, or achieve stardom as a self-publisher.
I can appreciate how tempting it is to think only of the bright shiny objects in the publishing firmament. But publishing success does not depend on the alignment of the planets.
Assuming the manuscript is well written and marketable, another key question will be whether the content is based solely on the author’s imagination or also relies on any third-party collaborations or copyrighted materials. If the latter is included, it will be the author’s timely use of prepublication contracts that will lay the foundation for the manuscript’s legal acceptability.
The Prepublication Contract
In this article, we will use the term “prepublication contract” to describe the agreements providing third-party services or content to the author when preparing the textual or visual aspects of a manuscript. Examples include work-for-hire agreements (e.g., with ghostwriters, editors, and illustrators), copyright assignments, releases, licenses, and permissions.
Prepublication Partnerships and Security
Authorship is a creative act, but completion of a creative work requires partnership and security. Prepublication contracts take the mystery out of a relationship by laying out the actions each party is to take, and by defining their rights and obligations. They also protect the parties from the unexpected, guaranteeing and assigning copyright ownership of services and contributions, and providing the conditions for dispute resolution and termination.
If the contract is fair and the parties act in what the law calls “good faith,” the parties become partners of sorts, playing a cooperative role in creating a work of authorship.
Prepublication Agreements Must Be Timely
But prepublication agreements must be timely to be effective. Unfortunately, the most common mistake authors make is to ignore or delay the formation of a prepublication contract.
• After two friends have joined forces to write a romance, one wants to end the arrangement and finish the work by herself, but the second author refuses. A joint author agreement negotiated and executed before the authors began working together could have prevented this deadlock.
• An author completes a work of fiction whose lead character is from a decades-old TV sitcom and the author now wants to self-publish. A lawyer points out that the character is trademarked and the author needs the written permission of the sitcom producer to use the character in a derivative work—permission that should have been sought prior to writing the work (unless you are only doing it for yourself).
• An editor bills an author several thousand dollars to substantially rewrite several chapters. When the editor accepts payment, he refuses to assign his copyright in the revisions to the author and demands co-authorship credit. This could have been avoided if the parties had negotiated a work-for-hire agreement before the editor performed the edits.
• An author records an interview with an expert for the author’s future non-fiction work. After the interview, the expert demands the right to approve of the passages where the expert is quoted or mentioned, and the author refuses. If the author had presented a written release to the expert before the interview occurred, the author would have had the opportunity to negotiate this point or interview another expert who was willing to forego approval.
Delay Disadvantages the Author
Did any of these authors benefit by delaying a consultation with a literary lawyer and the drafting of the necessary agreement? No. Instead, they wasted their negotiating leverage, credibility, and a great deal of time. And as trite as the saying may be, time is money.
When an author allows prepublication services to proceed before a contract is signed, the author has disadvantaged himself and empowered the other party. If the parties are unable to agree to terms prior to the delivery of services, then the author can seek another service provider.
Clear Your Intellectual Property Chain of Title
Finally, authors need to be aware that the lack of a prepublication agreement can delay or prevent publication. Just as chains of title exist for real estate, chains of title exist for intellectual property. Whether an author signs with a traditional or hybrid publisher or self-publishes, if the author has used third-party intellectual property in their manuscript, they must be prepared to provide the appropriate prepublication contracts to validate the author’s legal right to publication, i.e., documentary proof of copyright assignments, permissions, releases, or licenses.
Understand When to Use a Prepublication Contract
This is not to say that every interaction requires some type of written agreement, but it is to say that an author must be alert to when and how creative relationships and content should be captured in a prepublication contract. When in doubt, contact a literary lawyer or intellectual property attorney.
It’s fine to reach for the stars. But next time you do so, make sure your prepublication contracts are ready for review.