Publishing Attorney – California

Publishing agreements can be complicated, filled with provisions that outline certain rights and restrictions for both the author and the publisher. Understanding the key terms and talking through them with a publishing attorney will help you make the most informed decision about how to proceed in signing the contract.

• Grant of Rights

The grant of rights outlines what rights the authors transfers to the publishing company. This is perhaps the most important provision in the contract since it defines each party’s profit participation (including the author’s advance) and ability to control exploitation of the work, and thus it is important for an author to negotiate fair terms.

An author can either grant the publisher all-inclusive rights, meaning the publishing company obtains a wide array of exclusive rights and interests in the work, or they can grant narrower rights, which are specially outlined in the provision and are much more limited.

The grant of rights is also broken up into “primary” and “subsidiary” rights. Primary rights are those which the publisher intends to use for itself, such as the medium in which the work is published (i.e. types of print or electronic media). Subsidiary rights are those that go beyond the work’s publication. These can include translation rights, motion picture and television rights, merchandising rights, and serialization rights.

• Clearances/Permissions

If an author uses material in their book that is copyrighted or trademarked by a third-party (e.g., photos, artwork, text excerpts, etc.), that material needs to cleared before work is published. Generally, publishing companies require the author to obtain and front payment for any necessary clearances or permissions. However, this provision can be negotiated. 

• Manuscript Delivery

The publishing agreement will set forth when and how the author must deliver the manuscript. This provision includes the due date, format and length of the manuscript. Generally, the publisher has the right to reject a manuscript if it does not meet all the requirements outlined in the contract but may have to give the author prior written notice and an opportunity to cure the defect. Staying aware of deadlines and specifications for your work is important to build a strong relationship with your publisher and prevent any mishaps in the publishing process, in addition to ensuring your advance is paid on time. It is also essential to spell out the editorial process, including limits on how the work can be revised by the publisher.

• Warranties and Indemnities Clause

Warranties in publishing agreements include those ensuring that the work does not infringe any third-party rights, constitute libel or invade anyone’s privacy. If a warranty is breached, the author will have to indemnify the publisher, including the cost of defending an action against the publisher.

An experienced attorney is essential in negotiating warranties and indemnities. They can help limit your liability in various ways, including placing caps on financial liability, obtaining a reciprocal indemnity from the publisher, and adding you as an additional insured under the publisher’s insurance policy.

• Competing Works Clause

A competing works clause, like a non-compete clause in business contracts, explicitly prevents an author from creating a work that could compete with the work being published in the agreement. Publishers may also want an option to publish your next work. These clauses are designed to protect the publisher’s financial interests, but it is crucial you consult an attorney to ensure your professional opportunities are not being unfairly restricted.

• Out-of-Print Clause

In some cases, an author may terminate the publishing agreement if fewer than a certain number of copies are in print after a certain time period. In that instance, the author’s rights to their work will revert back to them if the publisher stops printing or selling the book. The specific number of copies and time period within the out-of-print clause will be mutually agreed upon at the time the agreement is drafted.

If you choose to publish your book on your own without a publishing company, there are various responsibilities and duties you must handle (e.g. editing, layout, printing, publishing, etc.). As a result, legal issues that the publisher would have addressed are now your responsibility. Seeking legal advice is highly recommended because there is the potential for significant liability or the loss of intellectual property right if you do not take adequate measures to protect yourself.

• Copyright and Fair Use

There are two types of copyright concerns in self-publishing. The first relates to the copyright of the author’s own work. While you have a copyright in your work the moment it is created, there are numerous benefits to registering a copyright with the U.S. Copyright Office. Further, once you own a copyright, you must continually police your rights to prevent infringement from third-parties.

The other type of copyright issue involves an author’s use of someone else’s copyrighted material. This includes the use of any images, graphics, text and lyrics in your book, regardless of the amount used. The author may need to secure a license to use such material; or the author may, in some limited circumstances, rely on the legal defense of fair use to use such material without a license. Fair use requires individual legal analyses of each use, and an experienced copyright attorney can determine the risks involved and help the author understand possible outcomes.

• Defamation, Privacy and Publicity Issues

An author can be liable for publishing information about a real person in certain cases. Typically, this arises in nonfiction works:

• Defamation is a false statement of fact about a person, that causes harm to the person’s reputation.
• The right to privacy may be infringed where an author publishes highly personal facts about a person, such as financial, medical or similar confidential records. California, this is governed under the California Constitutional Right to Privacy.
• The right of publicity protects people from having others commercially exploit their name and likeness without their express consent. This is protected both under statute in California, the Right of Publicity in the state’s code, and under common law.

If your book makes statements about real people, living or deceased, you may want to obtain a legal review of the content to check for possible liability.

• Trademarks

Authors may be liable for trademark infringement, dilution or disparagement if they use trademarked brand names, phrases or logos in their book. There are complex rules associated with trademark law, so it is necessary to consult an attorney.

• Author Claims

Authors must take care not to make false or misleading claims about their background, credentials or their book (including publishing false reviews) and must ensure that any instructions or advice in the book could not be considered unsafe.

• Insurance

Liability insurance may be a good idea for some authors, particularly if they run some of the risks mentioned above. Unlike working with a publishing company, where authors may be a part of their insurance policy, self-publishing authors may want to buy separate insurance to cover them for damage to their workspace or property or claims against their work.