Question for FilmTVLaw.com:
I see that you also answer questions pertaining to writers. I am hoping to start a small press, collaborating with a number of other authors to put out our own books as well as those we acquire from others. This is in the early planning stages, and I am just now realizing how much there is to do, but I wondered how much literary law differs from what you do. What is the best source for finding the kind of legal help I will need?
Answer by Brandon Blake, Entertainment Lawyer:
Yes, I have worked with authors and graphic novelists, as well as publishers for literary works and comic books, not to mention the estates of several famous authors. Understanding the law of publishing is critical to setting up a successful publishing company. Below I have set out the basic steps for running and organizing a literary publishing company. Please also see my Entertainment Lawyer Question and Answer Forum at www.filmtvlaw.com, for more in depth and money saving advice that I publish twice a month.
When you are getting started with a literary publishing company, the first agreement you need will be the contract with the author. The publishing business is quite a bit different than the film and television business in that unlike a film or television production company, the publisher does not normally obtain any ownership of the literary project. The only exception would be sometimes with comic books or children’s books where the publisher was also actively getting artwork produced for the work.
So then in the publishing business the publisher must be very careful to license each of the rights needed for the edition intended to be published. Moreover, the publisher needs to decide how to deal with the sublicensing of international sales, and whether the publisher will get a revenue share from ancillary uses such as film and television projects that might arise due to the success of the edition that is published.
The term of a publishing agreement is also unusual in the entertainment business, because rather than being for a term of years, the term is set by the period in which a book stays in print, and usually includes a provision by which an author can request a second printing of the work.
Much like a film or music distributor, a publisher will typically determine a retail and wholesale price target for the book, and then provide the author with a particular participation. However, that would not be practical for foreign distribution, so foreign distribution is usually dealt with as a percentage of revenue. Finally, given that online download revenue is now sometimes exceeding the revenue from traditional unit sales, there also must be a revenue division for digital sales.
Second, you need to sign a contract with your editors, unless this is going to be a one-person operation. The editing process could easily lead to copyrightable contributions by the editor, and the copyrights to those notes, ideas and revisions need to be transferred back to the publishing company, so that the company can comply with the deal being defined by the author agreement. If an editor were to try to claim a copyright in work being edited, it would create a huge legal problem for both the publishing company and the author.
Third, if you intend on using a distributor that will be handling in-store sales, shipping and printing, then you need to make sure that you do have a binding contract with that distributor. Particularly important will be the revenue provisions, because you cannot pass on profits to your authors if your publishing company cannot collect from the distributor. Most often foreign publishing deals will be handled as one-off agreements, so that will be negotiated on a project-by-project basis.
Fourth, you might want to consider whether talent management will also be part of what you are offering to authors. While every publishing deal is beneficial to the author, management service would involve representation of the author outside of the publishing of one work, and outside of the term of the publishing agreement. Management would include work such as shopping an author’s book to film or television production companies, or finding the author other writing work.
Fifth, it is usually the responsibility of the publishing company to file copyrights, if they have not been filed yet, in the name of the author, and to obtain an International Standard Book Number (ISBN) for the book.
Sixth, for the benefit of the publisher, a publishing company should be filed with the Secretary of State of the State where the publishing business is doing business. The company has a couple of benefits, including sharing ownership and control of the business between the owners, getting preferential tax treatment and avoiding self-employment and partnership taxes, and protecting the company from liability arising from contract law suits or copyright claims.
As with any entertainment matter, please do not make a decision about complex issues without consulting an experienced entertainment lawyer first. Feel free to contact my office at www.filmtvlaw.com about a quote.
- By Brandon Blake, Entertainment Lawyer