SHOULD YOU HIRE A LAWYER TO REVIEW YOUR BOOK CONTRACT?

WHENEVER AUTHORS ask me if they can show their publishing contract to an attorney, I feel a sharp pang in that part of my anatomy known in Yiddish as the kishkes.

I have nothing against lawyers, mind you. Most of them are sharp, earnest, reasonable, and no more (and certainly no less) venal than anyone else. It’s just that by the very nature of their profession, lawyers tend to be extremely literally-minded about the language of contracts. And some of the provisions of book contracts taken literally are enough to induce cardiac infarction in attorneys not conversant with publishing law, which one attorney I know called “The Wild West.” He may have been thinking, for instance, of the bankruptcy clause, which states that the author is entitled to recover rights to his or her book if the publisher filed for bankruptcy. As I have pointed out, that is completely false. In a bankruptcy, author contracts are assets like the firm’s tables and chairs and are retained by the publisher. Yet, against all reason, the clause remains immovably in the boilerplate of nearly every contract.

Lawyers are trained in orthodox legal concepts that may be germane to banking or real estate but not necessarily to publishing. Nevertheless, they have to do something to show results to their clients and income to their partners. It is unlikely that a lawyer will read a book contract and hand it back to their client saying, “Looks okay to me,” or, “Your agent did everything I would have done, so no charge.”

It is far more likely that they will raise hypothetical questions and will not be satisfied with an agent’s breezy assurances that That never happens, or if it does happen, “Don’t worry, I’ll take care of it.” While the odds are high that the agent will absolutely take care of it, they cannot guarantee that This or That or, even worse, The Other Thing, will not happen. Lawyers are very big on guarantees, and thus agents often find themselves compelled to add contractual modifications that are applicable only in the remotest regions of probability. Ironically and sadly, it’s likely the publisher will reject the changes anyway, requiring more costly hours of dickering.

Most literary agents don’t have law degrees, nor are they licensed (at least in New York State where most of them practice), so it’s likely that authors will place more credence in an attorney’s authority than an agent’s. And yet most experienced agents I know are experts in publishing law, have battle-tested every provision and held their own in skirmishes with lawyers. They understand that a great many factors balance the literal language of contracts. Custom and tradition, market conditions, a host of practical considerations and, above all, the power of the players affect how any given provision gets implemented or rejected.

Agents also know that some contractual stipulations are absolutely unshakeable even by a blustering attorney. For instance, your contract’s warranty clause states that the book contains no matter that is scandalous, libelous, or defamatory or violates any right of privacy or any other law. Practically speaking, it is impossible to guarantee that you have not broken some law somewhere, so it is not unreasonable for a lawyer to want to insert the phrase “To the best of my knowledge” into your warranty. But few publishers will permit it. Why? Because their insurance company will not indemnify them if they have vitiated the strictness of their Errors and Omissions policy.

One of the most important things that experienced agents know is precisely which issues publishers are prepared to fight and which ones they will back down on. Publishers are litigation-averse. Authors who owe refunds of advances to publishers because of undelivered or rejected manuscripts are often harassed but seldom sued by their publisher because it’s too expensive as well as bad public relations. As I described in a previous post, a publisher may well go to the mat to recover its advance but it’s got to be for a lot of money.

There aren’t too many offenses you can commit that will land you in court, and even these may be worked out through negotiation most of the time. The same is true, perhaps even more so, for breaches or perceived breaches of contract by publishers. I can think of few so flagrant as to be worth an author’s while to prosecute to the bitter end. The threat of a lawsuit, and its attendant bad publicity, may force a negotiated settlement that nets you as much as you would win in a full-blown lawsuit after you have paid legal costs. If you win, that is.

In short, if your publishing contract is fairly routine, you can rely on your agent to handle the legalities without bringing in lawyers. If you have questions, your agent should be able to answer them to your satisfaction. The Authors Guild provides an excellent sample contract and you don’t have to be a member to access it. But if you are still not satisfied, it might not hurt to reach out to an attorney, preferably one who has navigated the white waters of publishing contracts and lived to tell the tale.

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This piece was originally published in Locus Magazine and reprinted in Mastering the Business of Writing. It has been almost unrecognizably altered in the revision.

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Richard Curtis’s latest book, Digital Inc., Inside The Transformation of Publishing from Print to E-Books, is on sale.