Florida Publishing Attorney

Publishing agreements can be dense, filled with many provisions that outline certain rights and restrictions for both the author and the publishing company. Understanding the key terms throughout the document will help you to make an informed decision about how to proceed in signing a publishing agreement.

• Grant of Rights

The grant of rights section outlines the rights that the author gives to the publishing company. This is perhaps the most important provision in the agreement since it defines who controls the majority of the work’s profits, and thus it is important for an author to negotiate fair terms.

An author can either grant the publisher all-inclusive rights, meaning the publisher gets all the exclusive rights and interests of the work, or they can grant narrower rights, which are specifically outlined in the provision and are much more limited.

Further, the grant of rights is broken up into “primary” and “subsidiary” rights. Generally, primary rights are only those that the publisher intends to use for itself, such as the medium in which the work is published (print, electronically, etc.). Subsidiary rights are those that, as the name suggests, go beyond the work’s publication. These can include motion picture and television rights, merchandising rights, and translation rights.

• Clearances/Permissions

Generally, authors are legally responsible for obtaining permissions to reprint any copyrighted or trademarked material that they use in their work. This provision is also up for negotiation, as publishing companies sometimes assist in getting clearance for the use of a third-party’s intellectual property. If the publishing company takes on this responsibility, any fees associated with obtaining permissions is usually deducted from the author’s royalties.

• Manuscript Delivery

The manuscript delivery provision of a publishing agreement outlines the timeline for when and how the author must deliver the work. Both parties generally agree to a date by which the author must submit the manuscript, as well as agreeing to the condition of the work (e.g. editorial format and length) to be submitted. The publishing company has the right to reject a manuscript if it fails to meet the agreed-upon requirements.

• Revision Clause

Publishers need a certain amount of freedom to edit a manuscript to prepare it for publication. On the other hand, writers must ensure that they are included in the revision process, so the work remains their own. A revision clause outlines the rights and responsibilities of each party if the manuscript needs to be changed in any way. If the author refuses to revise their work and does not retain creative control, the publishing company may have the right to hire a third party to do so and use their name in connection with the work.

• Warranties and Indemnities Clause

Upon submitting the manuscript, an author warrants that the work is original, accurate, and does not infringe on anyone’s rights. They also must ensure that the work is not plagiarized, defamatory, or has been previously published.

If, however, any of the author’s warranties are untrue, they must compensate the publisher for any losses should someone sue the publisher. Indemnity clauses save the publishing company from taking on any lawsuits or costs for the author’s error. Thus, it is essential that the author ensure that their warranties are valid and legally sound.

• Competing Works Clause

A competing works clause explicitly prevents an author from creating a work that could compete with the work being published in the agreement. Similar to a non-compete clause in an employment contract, a competing works clause ensures that the author-publisher relationship is exclusive in their respective subject matter. Publishers can set a time limit for competing works clauses to ensure their financial interests are protected.

If an author chooses to self-publish, they are responsible for all the duties outlined above. This means that they have the duties of editing, printing, and marketing the work all on their own. Further, any legal issues that the publishing company is hired to catch fall onto the author to address, which can lead to potential lawsuits. Thus, it is essential that an author not embark on this journey alone, and seek legal advice from a qualified Florida attorney.

• Copyright and Fair Use

When self-publishing, an author is responsible for obtaining copyright protection for their work. Though all original works of authorship in a tangible medium are copyrighted the moment they are created, it is still recommended that authors register with the U.S. Copyright Office. There are numerous benefits to registering your work, including having a record for potential infringement and any lawsuits that may arise from the work.

Copyright law is also important for authors using someone else’s copyrighted material. Whether an image, text, or lyrics, the use of someone else’s work can be subject to copyright’s fair use doctrine. Depending on the amount and type of material used, the author may need to license the right to use such material to avoid infringement lawsuits. However, sometimes the use of someone else’s work does not require a license as it is considered fair use. An experienced Florida copyright attorney can determine if fair use applies, and if not, how to seek a license to use such works.

• Defamation, Privacy, and Publicity Issues

Usually seen in non-fiction works, authors can be liable for publishing information about a real person in certain cases. For instance, an author can be sued for defamation if they are found to be at fault for making a false statement of fact about a person that causes harm to that person’s reputation. Further, the right to privacy is invoked when an author publishes highly personal facts about a person, such as medical, financial, or similar generally confidential records.

Florida law prohibits the unauthorized use of a person’s name, likeness, or photograph for commercial purposes without their consent. The statute does not apply in most cases when the use occurs in literary, musical, or artistic productions, or when the use is part of a news report or presentation with a legitimate public interest.

• Trademarks

Similar to violating someone’s copyright, authors may also be liable for the unlicensed use of someone else’s trademark. These can take the form of brand names, phrases, and logos. Governed by federal law, the use of someone’s trademark can be tricky, so it is important to consult with an attorney before doing so.

• Author Claims

Without a second set of eyes on a work when contracting with a publishing company, a self-publishing author must ensure that there are no false or misleading claims about their background, credentials, or their book. This includes making any false statements about reviews of the book.

• Insurance

Self-publishing authors should obtain professional liability insurance. This may cover an author for lawsuits involving plagiarism, providing incorrect information, or infringing on someone else’s intellectual property rights.