Saturday, August 04, 2007

The Players involved in selling your rights



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Copyright 2007 Tonya M. Evans-Walls (). Limited license granted to copy and distribute this post provided such copying and distributing is of the entire post, including author's copyright and contact information.
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DISCLAIMER: The author is not engaged in rendering legal or other professional services as a result of the information contained in this article, nor is this article meant to constitute legal or other professional advice. If legal or other professional assistance is required, the services of an attorney should be sought to discuss your individual needs since all legal issues are fact-specific.






[An excerpt from chapter 7 "The Players and the Process" of Contracts Companion for Writers, by Tonya M. Evans-Walls (Legal Write Publications 2007). To order visit https://literarylawguide.com/ or your favorite bookseller.]





The process of literary property acquisitions involves a number of professionals. This chapter identifies and explains the roles of the various parties and describes the acquisitions process itself.

The Agent

It is common to hear writers lament, regardless of their level within the industry, that it is more difficult to land an agent than it is to find a publisher willing to publish their books. There is some truth to this. Although writers do not need agents in all situations, they do need an agent when a publisher reviews manuscripts by invitation only or accepts manuscripts only from a literary agent or lawyer. So sending unagented, unsolicited manuscripts to publishers is pure folly in most cases. It's folly because publishers seek to communicate only with professionals they have relationships with, those who know the business and have demonstrated they can present literary properties with potential financial viability.

Great agents and agencies are in high demand because they have demonstrated success in providing the critical service in the literary representation process—access to decision makers—and parlaying that access into actual placement, also known as the sale. If you are in search of an agent, word of mouth and referrals are tried-and-true methods of landing the right one. Also, review the acknowledgement pages of books like yours or consult trade publications like the Writer's Digest. Another option is to check out books like Writer's Market and Literary Marketplace, and Web sites like http://www.publishersmarketplace.com/.

But as with most things, one size does not fit all in the world of literary agencies. So finding the right agent is key. That does not necessarily mean the most prestigious one or the one with an office near you. It means you must identify agents who specialize in your particular genre of writing.

A good literary agent generally does the following:

  • Enters into a written agreement with the writer.
  • Acts primarily as an intermediary between writer and editor to identify the writer's genre and target market and to query or submit the manuscript to a list of publishing houses that cater to that particular genre and market.
  • Constantly cultivates relationships within the industry to increase potential opportunities for her clients.
  • Knows and successfully negotiates the basic deal points.
  • Receives a writer's compensation, deducts his or her commission, and then pays the writer in a timely fashion.
  • Provides editorial guidance and light editing for the writer during the writing process.
  • Keeps the writer reasonably informed of submissions and responses.

    A good literary agent generally does not do the following:
  • Charge a fee up front (i.e., a reading fee). An agent's compensation comes in the form of a commission (usually 10 to 20 percent) if and when she sells a property. This caveat does not include extraordinary expenses (e.g., Fed Ex vs. regular USPS postage, travel, and the like). But these costs should be reasonable and documented; and after a certain dollar amount they should be preapproved by the writer. You should also consider a cap on costs, above which the agent must get authorization to incur charges.
  • Name-drop clients and recent sales unless already public knowledge or with the consent of the clients.
  • Offer his or her own fee-based editorial services or strongly recommend one editorial company in particular.
Because of the importance of the literary agent and the challenge in finding just the right fit, you will likely have to submit query letters to a number of agents before landing one willing to take you on.

The Literary Lawyer

A literary lawyer can serve as an agent to sell literary properties, as noted above. Another role of the literary lawyer is more limited, but often very valuable—that of a professional independent party to review the contract and advise the writer about the terms of the deal. In this capacity, the literary lawyer identifies what additional terms, if any, should be included and what terms should be revised or deleted. This role is complementary to the agent's role in "getting" the deal or is the key negotiation role when an author does not have an agent (e.g., in a sale to an independent publishing house). The value of a literary lawyer to a writer is that the writer receives an independent legal opinion from someone knowledgeable about publishing contracts (not all agents are lawyers); someone who, in most cases, is working for an hourly rate rather than for a percentage or commission and therefore, in theory, is not biased by the hopes of a piece of the deal or the author's career. Further, some agents (consciously or subconsciously) do not want to upset their existing relationships within the industry and therefore do not push for every last deal point that might benefit a writer.

Literary lawyers can also vet manuscripts for potential legal issues; assist in securing permissions or registering, licensing, and reclaiming your intellectual property rights; and prepare and negotiate other legal agreements you may enter into as a result of your manuscript, such as a licensing or collaboration agreement.

Lastly, literary lawyers can represent publishers and draft and negotiate a company's standard contract with authors.

A good literary lawyer generally does the following:

  • Reviews contracts and advises the writer on the terms.
  • Negotiates additional terms with the publisher, if appropriate.
  • Works actively with the existing professionals (agent, publicist, editor, contracts department) to understand the status of the deal, explain the terms and status to you, and add to rather than detract from the process.
  • Stays on top of current trends and deals in the industry.
  • Vigorously negotiates on behalf of the writer.
  • Maintains the ethical duties to the client of confidentiality and loyalty, thus at all times putting the best interests of the client ahead of his or her own.
  • Assists the writer in acquiring any necessary permissions to use third-party copyrighted materials and releases from interviewees and the like.
  • Drafts publishing, agency, collaboration, work-made-for-hire, options, licenses, and other contracts within the industry.
  • Vets manuscripts for potential legal issues and advises clients about how to avoid or minimize potential liability.

    A good literary lawyer generally does not do the following:
  • Steal a deal away from an agent who placed the work.
  • Blur the line between lawyer and agent. As noted above, all lawyers owe a professional duty of loyalty and confidentiality to the client, but an agent has only a fiduciary and contractual relationship with the client. Of course, ethical cannons may forbid a lawyer from participating financially in the outcome of a client's legal matter or at least substantially regulate a lawyer who has a fiduciary relationship with, and financial interest in, a client.


Editor

There are several types of editors in the publishing industry. For purposes of this discussion, "editor" refers to a decision maker employed by a publishing company to seek, review, and purchase manuscripts (or authors to create manuscripts) on behalf of the publisher. This process is known as acquisitions. The acquisitions editor (AE) may also facilitate the final editing process, and oversee the layout, design, production, and marketing of the book.

The AE relies on queries, proposals, and existing relationships with writers, agents, and others within the industry to learn about new properties and story ideas that might match the publisher's various book programs.

Once the AE identifies a potential purchase, he or she reviews the manuscript, evaluates the author's writing abilities, identifies the potential market and market penetration, and considers an appropriate publication schedule. The AE also pitches the manuscript internally to some or all of the editorial, marketing, sales, and upper management personnel within the company to evaluate the financial and overall merits of acquiring the manuscript. Finally, the AE is responsible for negotiating the contractual terms of the publishing agreement with the author or author's representative and overseeing the publication process (sometimes at the macro level and sometimes at the hands-on level of a development or production editor).

A good acquisitions editor generally does the following:



  • Maintains a broad range of relationships with authors, author representatives, and industry professionals.
  • Plans the best possible market penetration for the book.
  • Knows his or her company's publishing needs and schedule.
  • Knows the company's standard contract terms.
  • Facilitates a smooth, orderly, and efficient contract negotiation.
  • Understands all aspects of the prepress, marketing, and publication processes.
  • Facilitates the polishing of the manuscript and provides support to the author.
A good acquisitions editor generally does not do the following:



  • Fail to give the author a workable publication schedule.
  • Promise terms that are conveniently left out of the term sheet or contract.
  • Discourage an author from consulting with an agent or lawyer.
  • Fail to keep the author informed of changes to the manuscript or publication schedule and process.


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Contracts Companion for Writers





Table of Contents
1 Get It in Writing
2 Contracts Basics
3 When a Good Deal Goes Bad
4 Transferring Your Rights and Getting Them Back
5 What Freelancers Need to Know
6 CYA: Media Perils Insurance
7 The Players and the Process
8 The Collaboration Agreement
9 The Work-Made-for-Hire Agreement
10 The Agency Agreement
11 The Publishing Agreement
12 Songwriting and Publishing Agreements
13 The Licensing Agreement
14 Permissions and Releases
Appendix A Resources
Appendix B Forms
Glossary
Index

Order an autographed copy at https://literarylawguide.com/ or order copies at your favorite bookseller.

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