This is it. You’ve made it. You’ve gotten a call from an agent, or you’ve received a contract from a publisher, or you’re taking that step to put your books up for sale as an indie author. This is your moment to shine and take on the world!
But wait … let’s hit pause for a moment. If there’s one thing I’ve learned in this business, it’s that creative individuals allow our emotions to rule us sometimes. We ride the highs and lows, and with that come amazing stories and artwork. But with those emotional journeys, we often don’t have a strong voice in our head that tells us to wait and look both ways before we cross the street.
Here’s your moment to stop and think, to learn before you put your pen to paper and ink that contract or hit publish on your book. I’m about to share what I consider some crucial copyright and contract knowledge so you’ll feel better prepared. When you take that amazing leap in whatever wonderful direction it is, you’ll feel confidant you’ve made the right choice and done your best research.
The list below is what I, as an intellectual property attorney, consider crucial advice for any author at any stage in their career and for any path they choose to take, whether it’s traditional, indie, or hybrid. This list is not complete. There are many more issues I could discuss, but these are the ones that are most relevant to the current publishing world and recent industry changes. As with anything in life, if you come across a situation that feels uneasy or sends your stomach tumbling: stop, take a breath, reach out to fellow authors, and an intellectual property attorney. Don’t ignore your gut.
1. Hire an attorney to review any contract or license agreement.
- Even the clearest-headed authors who have legal degrees can still sign things too quickly. You need an outside person with experience to assess the contract. Don’t hire your local ambulance chaser to read your publishing or agent contract. The few hundred dollars for an hour or two of a contract review can save you thousands of dollars and years of your life being stuck in a bad situation.
2. Agents are great but … they are motivated by dollars.
- Too many authors let their agents tell them if a contract is a good deal or not. Agents look at the rights being licensed and they look at royalty percentages, which are important. But most agents are not lawyers and, oddly, the lawyers that are also agents tend to be the least impressive lawyers in my personal experience. I’ve seen deals inked that have deeply damaged authors’ careers because they’ve trusted an agent with a law degree. You want someone not motivated by a royalty percentage to look over the finer points of your contract.
3. Freelance editor contract clauses you should run away from
- We’re seeing a growing trend of freelance editors putting language in contracts that moves ownership of all relevant intellectual property rights of the author’s story in the editor’s hands until payment is rendered. I understand that editors are likely using such language because they have been burned by authors acting in bad faith and failing to pay for work the editor has done. But that is a contract matter to be resolved with a contract lawsuit. An editor claiming your work as his or her property until paid is entirely unethical. You might be thinking … but this editor is fantastic, and she works with big names. That may be true, but would you rather sleep at night knowing your rights in the book you wrote are safe, or would you roll the dice and risk losing your book?
4. Agent contract clauses you should run away from
- If an agent fails to sell your work to publishers and you then choose to self-publish it, the agent and/or agency will be entitled to 15% of your self-published profits. I never thought I’d see the day when someone would demand payment for failing to do their only job, which is to sell your book. But it’s starting to show up more frequently now that many publishers are failing to acquire books as often as they once did. Agencies are starving for royalties, and they’re willing to claw it out of your own royalties when you take your book and self-publish it. Think of it like this, if you sign a contract with a real estate agent to sell your house and at the end of the contract period they have failed to sell it, you are then free to end the contract and sell the house yourself. If you then successfully sell the house yourself, why would you pay the real estate agent a commission after they failed to sell the house?
- A complicated wrinkle in this situation is when an agent is a heavy-handed or a very involved editor in your books. My agents have never edited my books, but I know some agents can and do heavily influence how books turn out before they are shopped to publishers. Sometimes these agents will justify the demand for self-publishing royalties as “payment” for the services of editing the book. To me, this falls flat for any true legal argument. Even the best editors don’t charge royalties; they charge flat fees for their work. So don’t fall for this trap.
5. Publisher contract clauses you should run away from
- Term of Life or Term of Copyright. These few but powerful words can hold the key to your doom if you’re not careful. What does this mean? It means, depending on the wording surrounding this phrase, you could be surrendering your story to the publisher forever (well, not forever, but it will be beyond your lifespan plus an additional 70 years after your death). You’ll be lucky if your grandchildren can rescue your book back from the publisher, and by then it will head into the public domain. (Please note that anonymous works and work-for-hire have different coverage under copyright law).
- Why do publishers put this clause in their contracts? The simple answer is because they can. Most publishers will have a contract designed in their favor, not yours. All the more reason to follow my advice to hire an intellectual property attorney to review any contract you receive.
6. Artists own the copyright to their book covers.
- I’ve seen quite a few battles on the internet lately between authors and artists. Let me clear it up for anyone wondering what the issue is. An author hires an artist to create a cover or the author buys a premade cover, and the artist sends a contract with language stating ownership of the cover art remains with the artist. Yes, you read that right. And it absolutely is correct. When you purchase cover art, you’re purchasing a permanent license to the work (unless their contract says otherwise). That means they won’t sell it to anyone else. You’re the only one who can use it for your cover. At the end of the day, that art they’ve made is still the artist’s intellectual property, just as your book is still yours when you license it to a publisher. (Note: This is different from an editor adding edits to your book as I discussed above. Edits are usually minor changes to a work and they are not considered property of the editor under standard editing contracts.)
- You can and should ask your cover artist for clarification in the contract so that it states you are the only author who will be able to use the cover and it cannot be resold. Most artists will happily add this clause.
- Whatever your opinions are on full AI cover art, it is not currently protected by copyright and I will not be discussing AI cover art in this article.
These are only a handful of issues, but they are important enough that every author should be aware of them. No matter what path you’ve taken, contracts or licensing agreements will be a part of your life. Take the time to read the fine print. Call that attorney and ask for a contract review. You may have to play hardball when you push back on clauses or request changes, but stick to your guns. You as the author own the thing that everyone wants, the book itself. Use that power to your advantage.
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USA Today Bestselling Author Lauren Smith writes romance and is a fully licensed intellectual property attorney with two juris doctorates from the University of Detroit-Mercy and University of Windsor in Canada. She has published books traditionally with Grand Central and St. Martin’s before transitioning to an indie publishing career with multiple pen names and over 85 books published since 2014.