Legal Issues in the Digital Era

Are you writing a book? Or thinking about writing a book? I recently attended a writer’s conference with many informative lectures, including one by Dana Newman, an attorney and literary agent with her own company Dana Newman Literary, LLC. http://about.me/dananewman

This is what Dana had to say about Legal Issues in the Digital Era.

1. The basic contract the Author (you) will have to deal with is a Copyright License. By signing a Copyright License, you are granting a Publisher the license to the copyright of your material for the purposes of preparing it for publication, publishing and promoting it.

2. The Term of the license can be either the life of the copyright OR a shorter term, like 2-3 years (preferable).

3. When negotiating the License, it’s important that you understand what rights you’re licensing away, including but not limited to:

First Rights – The right to be the first to publish your material in either a particular medium or a particular location. For example, First North American Serial Rights (FNASR) is the right to be the first in North America to publish the material once.

One-time Rights – Allows the publisher to print a piece once, but not necessarily first.

Reprint Rights, or Second Serial Rights – The right to print the piece a second time. Many publications consider self-published material, or material posted to an author’s web site, as previously published (and reprint rights often pay less than first rights). Check with the publication before offering a piece that has been posted on your website.

Electronic Rights – The right to publish the piece via e-mail, as a downloadable file or program, on CD or tape, etc. (E-Books)

Reversion Rights – When the various rights revert back to you the Author.

To remember when negotiating rights:

Electronic Rights are separate from FNASR and need to be negotiated separately.

Electronic Rights are also different than Internet or Online Rights, so if the publication doesn’t make that distinction, ask for it in your contract.

Never negotiate away ALL the rights because then the material no longer belongs to you.

4. The publisher usually gets 70% of total sales, and the Author gets 30%. The literary agent makes 15% of Author’s earnings. If the agent also negotiates Performance Rights (i.e. television and/or film rights) he/she could ask for 20-25% of Author’s earnings.

5. To get the best rates from publications, ask your agent to get you the following:

- The right to renegotiate the contract every couple of years

- Escalators – after publication recoups its costs, author rates increase

- E-book royalty floor

- Right of refusal, reversion or unexploited rights

-Digital royalty accounting – publication must show you record of ALL sales, including digital

6. If the publication wants to include an option for your next book, they should pay you an advance. If no advance, then you should tie up the future rights and limit the option as much as possible.

7. Regarding non-compete clause (which limits Author’s ability to go to other publications within the term of the License), it’s best to define narrowly/specifically, and look at carefully.

8. Keep in mind that traditional book tours are becoming more rare and being replaced by Virtual Book Tours, where authors interact with their readers online.

9. Last but not least, if you’re writing a “cancer story,” be aware that there are lots of them out there so it’s really all about the writing.

10. For more information, consider contacting the Author’s Guild www.authorsguild.org. They offer free book contract reviews to members and can be a great resource for non-members as well.

Happy creating!