The Hollywood LitMingle Gets Legal

SCBWI member, Bonnie Berry LaMon, author and entertainment lawyer, sheds some light on an area most writers shy away from...the legal aspect of publishing.
The Topic:
"EVERY THING YOU NEED TO KNOW ABOUT GETTING PUBLISHED, WHETHER OR NOT YOU HAVE AN AGENT." 
It was so useful. Thank you, Bonnie!

Bonnie's main point: be careful what you sign. Do not sign away your rights without knowing what you are doing. If you need a lawyer to interpret a contract, consult one. Your agent should not object. Bonnie provides a special service to writers and consultants on contracts.

It's wonderful if you have found representation with an agent, Congrats! But do your homework. Do not rely on an agent for the same knowledge as a lawyer. Though agents are helpful in brokering deals, they do not necessarily have the training to school you in the fine points of your contract.

Here are a few terms:

1) "STANDARD" -- is used to make you believe that a term can not be changed, but in fact it can be modified, negotiated or deleted.

2)  GRANT OF RIGHTS -- the list of rights that the author conveys to the publisher. Rights may be exclusive, non-exclusive, perpetual or for a designated period of time.

3) TERM -- the period of time that the writer gives the publisher for exclusive rights to the material. The maximum time period is the full length of copyright, which in the U.S. is the life of the author plus seventy years. After that, literary works go into the "public domain" and are the property of all, unless the estate of author extends the copyright and exerts ownership that way. (This may be an issue if you are wish to write a biography.)

4) TERRITORY -- the contract will specify which territories the book will be sold in. "Worldwide rights" means the publisher will control all territories and markets in the world. Typical contracts limit the territories to the U.S. and Canada. If the publisher does not specify any territory other than the U.S. and Canada, then an agent or author is free to make a separate deal with another publisher for another country, territory or language.

5) FORMAT -- can be print or ebooks, hardback or paperback. "Primary book publishing rights" is commonly defined as hardcover, trade paperback, mass market and direct mail, though electronic and audio books may be included. Often eBooks and audio rights are granted as subsidiary rights. The area of eBooks is in flux right now and needs special attention; make sure you are fairly compensated in the event of eBook publication.

6) SUBSIDIARY RIGHTS -- any rights in addition to the print and/or eBook publication: 
Foreign Rights Translation, Periodical Rights, Book Club, Electronic Audio and other New Media; Stage, Motion Picture, Video and Animation; TV, merchandising and commercial tie-ins. These can be licensed by your publisher to another party; proceeds are usually split with the author.

7) RESERVATION OF RIGHTS -- a provision that says all rights not expressly granted are reserved to the author. The language is useful for avoiding ambiguity in a contract, especially as new technologies emerge.

8) FILM AND VIDEO OPTIONS -- Important terms: option price, option period, any extended option period, approval rights of screenplay, credit, purchase price and back-end participation. There isn't space to define them all here. If your book is being optioned for film, I would definitely consult a lawyer! 

9) MULTI-MEDIA LICENSES -- ei. video games, websites, apps, hyperlinks. Video companies bear cost of developing the game, licensing the characters from the author and paying royalties. This is why it is important for authors to retain ownership of the rights of trademark. You have the right to the characters you create, unless you sign them away. So, be careful!

10) MERCHANDISING AGREEMENT -- important provisions include term, scope of license, sell-off periods, approvals and limitation on product, advances and royalty rates.
  
SOURCES FOR FURTHER INFORMATION:
1) The Author's Guild, Inc. "Model Trade Book Contract and Guide"
2) Tad Crawford's Business and Legal Forms for Authors and Self-Publishers
3) Entertainment Industry Contracts, Book Publishing, Vol. 1
4) Ivan Hoffman's "Children's Book Publishing: Some Issues" (www,ivanhoffman,com)
5) Mark Levine's Negotiating a Book Contract: A Guide For Authors, Agents and Lawyers.
6) SCBWI Sample Children's Book Contract (scbwi.org/rescources/documents/10-sampleChildrensBookContract)
7) Harold Underdown's "Contracts from Children's Book Publishers:What to Expect"

Hollywood Schmooze Welcomes Entertainment Lawyer Bonnie Berry LaMon

SCBWI member and entertainment lawyer Bonnie Berry LaMon, shared her expertise with Hollywood Schmooze attendees on March 20^th.

Her topic: Key Contract Phrases and Their Meanings.

“First time authors are generally so happy to get a contract that they sign first and deal with the details later,” LaMon said. A graduate of Princeton University and Harvard Law School, LaMon also has an MFA in Creative Writing for Children and Young Adults from Vermont College of Fine Arts. Like many schmoozers, she is an aspiring author. But she has practiced entertainment law for over twenty years.

LaMon distributed a handout of important contract terms which she discussed in detail.  Some of the

examples were:

“Be aware of terms such as ‘Standard”, LaMon stated.  “It is often designed to convince the reader that the terms contained are typical to all contracts.  It doesn’t mean that some of those terms cannot be modified, negotiated or even deleted.”

Grant of Rights: “This is the list of rights that author conveys to the publisher,” she said. “The rights

may be exclusive, non-exclusive, perpetual or for a designated period of time.”

Term: “Pay attention to phrases such as in perpetuity, any and all media, and life of copyright,” she suggested.  “Life of copyright means your life plus seventy years.  Any and all media may include new media that hasn’t been created yet. You can’t always anticipate how your creative project will end up. Most emerging authors don’t envision their book as a Wii game or an IPad app.”

Territory: LaMon noted that typical contracts limit the territory to the United States and Canada but

“some publishers want worldwide rights, meaning that the writer cannot make separate deals to see

the book anywhere else in the world.”

Format:  LaMon noted that “the definition of book has changed because of technological and distribution methods. A grant of primary book publishing rights is generally defined as hardcover, trade paperback, mass market and direct mail.  Traditionally, electronic books and audio books were considered subsidiary rights but now many publishers include them in the primary rights definition.

Subsidiary Rights (aka secondary rights):  LaMon explained that these are rights the publisher may want from the author in addition to the primary rights described above. These rights include: Book Clubs, Stage, Motion Picture, Television, Merchandising, Foreign Translation, Periodical Rights and other commercial platforms.  Usually the publisher licenses them to a third party and splits the revenue in pre-negotiated percentages with the author.  LaMon spoke at length about why some of these rights should not automatically be given to the publisher, and if they are, why the splits should favor the author, and what kind of approval rights and other controls the author should request.   

            “The agent’s job is to get a good deal,” she said. “My job is to look for the pitfalls in the

contract, and to do my best to eliminate them.”

~~ Post writen by Jean Perry

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Hope this gives you a taste of the outstanding learning that goes on at the Hollywood Schmooze.

We meet the third Thursday of every month near Hollywood and we welcome new members.

See you at the Schmooze,

Deborah Fletcher Blum and Jean Perry