You have written a book and want to get it published. Exciting! But before signing a publishing agreement, it is important to consider a number of legal issues. In this blog, we explain some of the key points to keep in mind.
As soon as you create an original text, you automatically become the author of that work. This means that you have certain rights in your book. These rights consist of two components. First, you have the right to decide who may reproduce, publish and distribute your work. Second, as the author, you have the right to be recognised as the creator of the book and to object to any distortion or alteration of your work.
You can never lose the second category of rights. You will always remain the author of your book. The first category, however – the right to determine who may publish and exploit your work – can be assigned or licensed to a publisher. This is precisely what happens when you enter into a publishing agreement. It is therefore important to understand exactly what rights you are giving up.
A publishing agreement is the contract between you and the publisher. It sets out what the publisher may do with your book, for how long, and what you will receive in return. When reviewing such an agreement, you should in any event consider the following points.
1. Assignment or licence?
There is an important difference between assigning your rights and granting a licence. With an assignment, you transfer your rights in full to the publisher. The publisher then becomes the new rights holder and, in principle, you no longer have control over the exploitation of your book. With a licence, you give the publisher permission to publish and exploit your book while you remain the rights holder. A licence can be exclusive (only this publisher may publish the book) or non-exclusive (you may also offer the book to others). If you want to retain greater control over your work, granting a licence rather than assigning your rights outright is often the better option.
2. Which rights are you actually giving away?
A book can be exploited in many different ways. Think of a printed book, an e-book or an audiobook, but also, for example, film or television rights. It is important to carefully consider which forms of exploitation are covered by the agreement. The general advice is not to grant more rights than necessary. If a publisher is only publishing your printed book and e-book, for example, there is no reason to also assign the film and television rights.
3. For how long?
Pay close attention to the term of the agreement. Some agreements apply for a limited number of years, while others cover the entire duration of the copyright. Copyright generally lasts until 70 years after the author's death. The shorter the term, the sooner you regain the freedom to decide what happens to your book. Also check whether, and under what circumstances, you can terminate the agreement early if the relationship does not work out as expected.
4. What do you receive in return?
Most publishing agreements contain provisions on remuneration. This may be a one-off payment, but more commonly it is a percentage of the sales price for each copy sold. This is known as a royalty. Pay attention to the percentage, what the percentage is calculated on (the recommended retail price or the net proceeds), and how and when payments are settled. Also ask whether an advance is paid and what happens if the book does not generate sufficient revenue to recoup that advance.
5. What if you write the book with someone else?
If you write a book together with a co-author, you will in principle jointly hold the rights in the work. This means that both of you must consent to its publication. It is advisable to agree clear arrangements in advance: who can make which decisions, how will the income be divided, and what happens if you disagree? We recommend putting these arrangements in writing to avoid disputes. Ideally, this should be done before the book is completed.
6. Using someone else's work
If you include quotations, illustrations, photographs or other material created by someone else in your book, you will generally need permission from the creator (or the relevant rights holder). There are exceptions, such as the right to quote material in support of your argument, but these exceptions are more limited than many people realise. Do not assume that you can simply reproduce anything you find. Check the position in advance and seek permission if in doubt.
7. Non-compete clause
Some publishing agreements contain a provision prohibiting you from publishing a similar book with another publisher for a certain period. Such a clause can significantly restrict your freedom as an author, particularly if you intend to write more books. Check whether the agreement contains such a clause, how broadly it is worded and how long the restriction applies.
8. What if things go wrong?
A publisher may fail to comply with its contractual obligations. For example, the book may not be published within the agreed timeframe, payments may not be made, or the publisher may become insolvent. It is therefore important to carefully review what the agreement provides for such situations. Can you terminate the agreement if the publisher fails to perform? Do your rights revert to you? And does the agreement address what happens to physical stock or the e-book when the agreement ends?
A publishing agreement is a legal document that can have far-reaching consequences. We generally recommend having the agreement reviewed by a legal professional with expertise in copyright and contract law. This will help ensure that you enter into a fair deal and that your rights are adequately protected.
Do you have any questions? Please feel free to contact one of our specialists within our IT, Privacy & Cybersecurity team.
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