Thursday, April 5, 2012


Today I'm going to let a friend of mine post about Publishing Law. Something I think all writers should be knowledgeable about.

Please welcome, Marion Browning-Baker w/a Ella Quinn.  

Thank you!  Enjoy!

Thank you for having me, Denise. I’ve been a practicing attorney for twenty years and have done everything from military prosecution to divorce law. But when I started to write, I became interested in the legal aspects of publishing.  For the past year, I’ve researched publishing and agent contracts. Studied entertainment business law books and taken a class or two.  What I’ve learned is that this area of law, in some respects, is an ever shifting platform.  Both publishing and agency contracts range from very user friendly to legal gobbley-gook. I like the ones that are simple but complete. And although is most definitely buyer beware time, most of us are so happy to have one offered, that we don’t really read or understand them.

When I received my agent’s offer I was so excited I couldn’t keep my heart from thudding and all I wanted to do was sign the contract and talk to her right away. But I did tell you I’m an attorney. So instead, I told her I couldn’t talk to her on Friday, but I was available on Monday. Downloaded the contract, reviewed it and made notes and sent it to one of my CPs who is also a lawyer. By Monday, even though my heart was still pounding every time I thought about it, I had my questions prepared and was able to sign the contract with no qualms. When she got her offer, I returned the favor. I’ve also reviewed publishing contracts, both new and previously signed for other CPs.  It was about then, that I realized very few attorneys were offering contract advice at a reasonable rate.

There are many clauses an author should beware of when preparing to sign a publishing contract. One of them most fundamental is any clause dealing with royalties.  Usually, an author is paid royalties based either on the publisher’s net or gross sales for the book. Gross is preferred. But lately I’ve seen a number of contracts that state “gross after expenses.”  That is problematic. Everyone knows what “net sales” are. But “gross after expenses” is no man’s land and you should make the publisher state with specificity in the contract which expenses they mean. 

Many agents use standards contracts, however, with the rise in indie-publishing, some of the contracts haven’t been revised, either through oversight or for another reason. Again, it’s your purse that can take the hit. Be very careful that you’re not signing a contract that allows your agent to be paid the standard 15% of a book you self-publish. Or at least, go into the contract with open eyes.

I could go on for a long time, but I’d prefer to answer your questions and I’ll be available for the next hour to do so.


Ally Broadfield said...

Hi Marion & Denise,

Thanks for the great advice and willingness to answer questions. My husband happens to be an intellectual property attorney, so if and when I have a contract to sign, hopefully I'll be in good hands! Publishing contracts, especailly with the plethora of new epublishers, definitely seem to be a minefield. Some of my crit partners recently learned that their copyrights were not registered by their publisher as they assumed. Buyer beware is right.


Sandy L. Rowland said...

All this time, and I didn't know you were an attorney.
Here's my question:

Can you put in a contract that if the publisher goes under, all the rights to your work revert back to you?
If so, how open are they to this and how does this affect an agent?

Thanks for the great interview and info.

Kathleen Rowland said...

Hi Marion and Denise!
Great question, Sandy Rowland, I wondered about contracts when a publisher goes under also.

My question is this: after receiving a copyright back from a 2007 book, I am rewriting it. After becoming a better writer, I still like the plot. Can I submit it to an editor-- it's an expanded version.
Thank you.

Tam Linsey said...

Thanks for pointing out "gross after expenses" versus "net." I have yet to be offered a contract, but I admit, I'm nervous about all the things that can go wrong.

Ana Morgan said...

Me, too. When I get'the call' and the contract, I'll want someone to look over the terms.

Gabriella Hewitt said...

This is a great post. Your comment about gross after expenses is something I will definitely keep in mind. So far I haven't had any issues with my contracts, either with my publisher or agent, but as you pointed out, the industry is changing and it's important to be aware and diligent. Thanks for that reminder.

Marion Browning-Baker said...

Hi Ladies,

First of all, I am so sorry I'm so late getting back to you. Both of my internet was off for most of the week. But now that I'm here, let me answer your questions.

Sandy - Yes, that is a provision that should be in your contract. Especially with the recent demise of some publishing houses.

Kathleen - If you received your rights back, you can submit it to an editor or self-publish. Whatever you want to do.

Maggie O'Malley said...

Wonderful post. Gross after expenses. I could have sworn that was net. Didn't know accounting had changed that much. Must be the new math coming around again.

Marion Browning-Baker said...

Absolutely new math.

Josie said...

Thank you, Denise. I received a contract this week and gross vs. net was the main subject. Thanks for an enlightening post.

Melissa Limoges said...

Very useful information. Thanks, Marion!

Scarlet Pumpernickel said...

I've yet to receive a contract, but will keep this info in mind when I do. Great post. Thanks for putting this info out for us.

Mona Risk said...

Thank you for the advice, Marion. I never went to an attorney before signing a contract. But my husband was a contract specialist at his company and he carefully reads all my contracts before I sign anything.