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The first three articles, dealing with various phases of the writing craft, were written by Mike Farris and first published in the Dallas Screenwriters Association newsletter. The fourth article, written and Mike and Susan Farris, was first presented at the State Bar of Texas 13th Annual Entertainment Law Institute.
You just paid cash for, and are now the proud owner of, a new car. Will you bother to register your new pride and joy with the state of Texas? Of course you will. Why? In addition to the obvious reason that it’s required by law, you’ll register it because registration in your name is the proof that you own the car and it gives you certain rights and protections that you wouldn’t otherwise have. You’ve just finished that screenplay you’ve been breaking your back for the last six months to write. Will you bother to register your copyright with the Copyright Office at the Library of Congress? If you’re like most writers, you may register the screenplay with the Writer’s Guild, but you probably won’t register your copyright in the screenplay with the Copyright Office. And if you don’t, you will deprive yourself of certain rights and protections that you would otherwise have – and which registering with the WGA won’t give you. What is copyright? Copyright is a statutorily-created protection (found in Title 17 of the U.S. Code) available to authors of “original works of authorship” which gives the owner the exclusive right to reproduce the copyrighted work; to prepare derivative works based upon the copyrighted work; to distribute copies of the copyrighted work; to publicly perform the copyrighted work; and to publicly display the copyrighted work. The copyright is created automatically as soon as the work is “created in fixed form.” In layman’s terminology, that means it’s created as soon as you write words on paper. You don’t have to register it to create it – it’s created first, then is registered later. What works can be copyrighted? Among other things, copyright protects literary works, musical works, dramatic works, motion pictures and other audiovisual works, and sound recordings. It doesn’t protect ideas, titles, names, short phrases, and slogans. If you want to protect your ideas, fix them into some “tangible medium of expression.” In other words, develop them and write them down on paper, either in the form of a detailed synopsis, a treatment, or a completed screenplay. Protecting slogans and names is a trademark issue, not a copyright issue. Who owns the copyright? Unless the work is one made for hire, the author owns it. In the case of co-authors, both are co-owners of the copyright, unless they have made an agreement to the contrary. In the case of a work made for hire (e.g., a studio hired you to write a screenplay on assignment), the employer (i.e. the studio) owns the copyright. Only the owner of the copyright, or the agent of the owner, can register the copyright. How do I register the copyright? Send a properly completed application form, a nonrefundable filing fee of $45, and a nonreturnable copy of the work being registered in the same envelope or package to the Register of Copyrights, Copyright Office, Library of Congress, Washington D.C. 20559. (If your work is a completed motion picture, as opposed to simply a screenplay, you must provide one complete copy of the motion picture and a separate written description of its contents, such as a treatment or synopsis.) Your registration is effective the date the Copyright Office receives all of those things in acceptable form. Some time later, the Copyright Office will mail you a certificate of registration. You can obtain the application forms, or gain more information on the registration process, by calling 202/707-3000 or check out its website at www.loc.gov/copyright. What rights does registering my copyright afford me? (1) It establishes a public record of the copyright claim; (2) you can’t file suit for copyright infringement unless you have first registered the copyright; (3) if you register within five years of “publication” (which means offering the work for sale in the marketplace), the registration is prima facie evidence in court of the validity of the copyright; and (4) unless you register your copyright within three months of publication, or before the copyright is infringed, you cannot recover your attorneys’ fees in a court action. In contrast, registering your screenplay with the WGA only offers one protection – it provides a record of your claim of ownership as of the date of WGA registration. You can’t sue for copyright infringement if you have only registered your work with the WGA, nor can you recover your attorneys’ fees in a court action, nor does WGA registration validate your copyright in the screenplay. Do I need to put the copyright symbol on my screenplay? For works created after March 1, 1989, it’s not mandatory to provide copyright notice – but it is advisable. Proper notice informs the public that the work is copyright protected, identifies the copyright owner, and sets the date of publication. It eliminates the ability of someone to claim they “innocently infringed” on a copyright. In other words, if you have given notice, “I didn’t know I was stealing someone’s work” can’t be spoken in a courtroom. You give notice by using the copyright symbol (the letter C in a circle) or the word “Copyright” or the abbreviation “Copr.”; the year of first publication; and the name of the owner of the copyright. How long does my copyright registration last? While registration with the WGA is good for five years, your copyright registration will last for 70 years after you’re dead. In the case of co-authors, it lasts for 70 years after the last surviving author’s death. In the case of a work for hire, it lasts for 95 years from publication, or 120 years from creation, whichever is shorter. (Note: The Copyright Office recently issued a notice that all U.S. Postal Service and private carrier mail is being screened off-site prior to arrival at the Copyright Office. The Office estimates that this screening process can add 3 to 5 days to the delivery time for all mail to the Copyright Office. For more information on this screening process, go to the Copyright Office’s website at www.loc.gov/copyright.) THE DISEASE OF WRITING “Against the disease of writing one must make special precautions, since it is a dangerous and contagious disease.” Peter Abelard, 1079-1142 If you look at the current New York Times bestseller list, you’ll find James Lee Burke’s latest Dave Robicheaux novel, Purple Cane Road, resting comfortably in the top ten. Not his first to make it, and certainly not his last. But his start wasn’t so promising.
After publishing three novels by the early 1970s, Burke went through a thirteen-year dry spell in which he could get nothing published. Then, in the mid-1980s, he sold a collection of short stories and his novel The Lost Get-Back Boogie, which had been rejected by 93 editors over an almost ten-year span. When published, it earned Burke a Pulitzer nomination. A string of best sellers has followed. But if Burke had gone the way of many frustrated novelists and screenwriters, he would never have made it. I’m talking about the ones who quit writing when things don’t go their way. And if ever anyone had reason to quit, it was James Lee Burke. Ninety-three rejections on one novel? Believe me, that probably represents just about all the publishers at that time. But he never stopped writing. Nor should you. Discouragement for screenwriters often comes in two fashions: (1) you’ve finished your script after months of pouring your heart and soul onto the printed page, and now no one seems to want it; and (2) you’ve hit an obstacle while writing and now you can’t even seem to finish. The response to these discouragements always seems to be the same: you quit writing. What a shame! So how do you deal with the disappointment of rejection letters from agents and passes from production companies? You start by learning to measure success, not in dollars and cents, but by satisfaction in a good story well told. How do you deal with the urge to quit, to never finish what you started? By learning to love the process. If you love the process – if you love the turn of a phrase, putting a visual image onto paper, creating characters and their dialogue in a world of your own making – then you will persevere. We all have stories to tell, each in our own unique voice. Learn from the rejection, but don’t allow your voice to be stifled just because you haven’t achieved commercial success. Tell your stories! Tell them even if you never receive a dime. Tell them even if nobody listens. Eventually you will find your audience, even if it is only yourself. The success comes from telling the story. And the world will be a richer place for it. “Achilles exists only through Homer. Take away the art of writing from this world, and you will probably take away its glory.” Francois Rene de Chateaubriand, 1768-1848. This is likely different than anything you’ve ever done before. It’s different than what most people have done before. As has been said many times, everyone wants to have written something, but very few want to write. If it were easy, anybody could do it. But only writers write! So, as Samuel Morison said, “First and foremost, get writing.” It’s contagious. Master the Art – An Interview With Robert McKee Don’t try to tell Robert McKee, fabled “Story” guru, that Hollywood is placing stumbling blocks in the way of your success. I raised that at the beginning of what turned out to be a nearly two-hour telephone conversation with him in preparation for this article and quickly learned that he is a man of strong opinions. Did I forget to mention that he’s not afraid of expressing them, either? “That’s all just a bunch of whining,” he said. “It just means you haven’t written a story of surpassing quality.” Moi? Not written a story of surpassing quality? Surely you jest. And what about the legendary “reader,” who stands guard at the gates of Hollywood success like the mythological three-headed dog Cerberus? The reader is the short-sighted jerk who wouldn’t recognize talent if it bit him in the rear-end and who tosses your script, surpassing quality or not, into the “reject” pile simply because it has no inciting incident by page 10, or plot point at page 30, or because your hero’s name is Corky. “If the story is compelling,” McKee said, “[readers] don’t think like that. If they’re swept along by the characters and the story you’re telling, they’ll keep reading whether the plot points and inciting incidents are in the ‘proper’ places or not. It’s when they get bored that they start looking for excuses to reject a script.” Makes sense, I thought. Puts the blame back on me – that part I don’t like – but it still makes sense. And then I found out that if you really want to get McKee exercised, just mention your belief, sincere or otherwise, that the “system” is designed to keep us amateurs out of the ranks of the professionals. “There is no system!” he exploded when I made that mistake. “Look at what’s going on out there and I defy you to find anything systematic about it. It’s all chaos.” Well, yeah, I stammered, defending myself less than brilliantly. But there are people out there in Hollywood making livings as screenwriters and we want to count ourselves among their number. How do we do that if we can’t break into the sys – uh, group of people in Hollywood making livings as screenwriters? “There’s too much tendency for writers to blame their failures on the ‘system.’” McKee said. “If Hollywood rejects your script, then take it to the independent world. If you think it’s good, even if ten out of ten studios reject it, stick with it.” He then intrigued me with this question: “Would you rather get paid $25,000 to have your story on the screen exactly as you wrote it, or get paid $1,000,000 by a studio and have your script butchered by development executives?” Wow! Tough question. I’ll have to admit I was leaning one way, but dared not say which after those stupid “system” questions I’d asked earlier. Fortunately McKee spoke again before I had to commit. “Nine out of ten want the latter,” he said. Yeah, that sounded pretty good to me, too, I thought as I twirled my car insurance premium, which is due the first week of January, and my Sunnyvale property tax statement, which I need to pay before the end of the year. “These people are not artists,” McKee continued, affirming my judgment in keeping my mouth shut. “They have no integrity and they get what they deserve – to have their names associated with bad films.” Then McKee shifted gears, letting me know who was really in charge of this interview. “These are all questions about marketing, not screenwriting. If all you do is try to anticipate the market, it will smell insincere. Only amateurs think about things like that.” Then he gave an example of an amateur who made the transition to professional. Andrew Kevin Walker spent three years working at Tower Records in Los Angeles to feed himself while he wrote Seven. He called the Writers Guild with a list of writers who had written scripts in his genre and found out the names of their agents. Armed with this list, he called the first one, whose assistant, the gatekeeper, told him they didn’t take unsolicited screenplays. Walker then pitched his script to the assistant – “It’s about a serial killer who kills according to the seven deadly sins” – and the assistant immediately requested the script. The rest is history, including subsequent film credits such as 8 MM and Sleepy Hollow. The key, says McKee, is that Walker “wrote a screenplay of surpassing quality in a genre he loved.” So what lessons can we, as aspiring screenwriters, learn from this? First of all, “Don’t worry about questions of readers and high concept and the ‘system.’ That’s all crap. Put your energy and creativity into writing a screenplay of surpassing quality.” There’s that phrase again – “surpassing quality.” But how does one write that story of “surpassing quality”? That question brought us to a theme McKee would hammer for the next hour. “Screenwriting is an art form,” he said. “Master it. You can’t for a moment think you know how to tell stories just because you’ve gone to the movies your whole life. I lay out the form and the principals of what beautiful storytelling for the screen is, but that doesn’t mean you know it. It must move from the head to the heart. But the first step is the intellectual understanding.” Any practical tips for achieving that understanding? “Read screenplays in the genre you like. You want the actual screenplay, not just transcriptions of the film. Get multiple drafts if you can. Then watch films with the screenplays in front of you and analyze them applying the principles you’ve learned. It really doesn’t matter which films. In fact, you can learn more from bad films and screenplays than from good ones. “Then persevere – and really write well. Master the art.” What I began to grasp from our conversation is that McKee is a man who sincerely believes that screenwriting is more than just a craft – that it is, indeed, an art. Sure, he had used the word over and over, but maybe it just took a little time for it to really sink in – he means it! “People today don’t respect screenwriting as an art,” he said. “People didn’t think this way back in the 1930s, 40s and 50s. But it takes real genius to do it beautifully.” The really good writing today, he says, is in television. “If I were thirty-five today and trying to write, I’d write for television. You have the power to get it the way you want it in t.v. You’re the producer and the rewards are brilliant, watching characters come to life the way you envisioned it.” So if the really good writing today is in television, what does that say about features today? I’m glad you asked, because, believe it or not, McKee had an opinion on that, too. “For years, I’ve been a voice crying in the wilderness about the emphasis on box office in the United States. Europeans already know their film culture is in the toilet, so they’re ahead of us. But since we make so much money making crap, we haven’t figured this out. And what’s disturbing about some of these films is that they’re heartless. It’s almost as if the directors are trying to hurt the audience. “Storytelling is the primary civilizing instrument in culture,” he said. He then quoted Aristotle: “‘When the storytelling goes bad in society, the result is decadence.’ “The way out,” he continued, “is through great storytelling. It sensitizes society to the humanity in other people. Writers of the 21st Century will have to work harder. They can’t sell out. And if they don’t sell out, they’ll have the potential to do something of beauty and value.” As our time dwindled, just before our conversation ended, I asked McKee for any last pearls of wisdom he could share. Lest I should think he was all talked out, he offered this: “You have to think like an artist. If you know you’re in over your head, and that doesn’t intimidate you, you might just make it. The hard part is getting in the chair and writing. It takes tremendous will power and discipline and the only way to defeat the fear is to gain the self-confidence that comes from knowing you’ve mastered the art form. “My job,” he said, “is to give writers an understanding of the art form so they’ll have the courage to write something and put it out in front of the world. If they understand the art form, then they can learn from criticism and move forward. “The solution,” he said, “begins with mastery of the art.”
AUTHORS, AGENTS, AND PUBLISHERS: WHO, WHAT, WHEN, WHERE, AND HOW I. INTRODUCTION History, law, and popular culture are full of world-changing tripartite relationships: The United States, Great Britain, and Russia saved us from the Nazi scourge during World War II; the Owner, Contractor, and Surety dot our landscapes with new structures in the exciting world of construction; and Moe, Larry, and Curly – well, you get the picture. By the way, those last three also served as the punchline to a “compliment” once paid to Mike during his years of law practice: “You do the work of three men – Moe, etc.” To those triumphant trios, let us add one more: Author, Agent, and Publisher. But what exactly is this particular relationship all about? You know, generally, it’s about the world of books, but how exactly do these parties function together to get a story or idea out of an author’s head and onto a printed page in a bookstore? What is the relationship of each to the others, and what does that mean for you as a writer (doesn’t every attorney have at least one novel inside screaming to get out?) or as an attorney representing a client who is looking to get his book published? The roles of the three are really quite simple and distinct. The author writes the book, the agent gets the book into the hands of potential publishers, and the publisher prints the book and gets it out there on bookshelves in bookstores. The difficult part (after writing the book – but there’s not much we can do to help you there) is connecting the author with the agent, and then the agent connecting the author with the publisher. So let’s start with the author/agent relationship. II. GETTING AN AGENT Unless he’s a celebrity, it is extremely difficult for a writer to find a publisher on his own. Most major publishing houses won’t consider “over the transom” or unsolicited manuscripts from unknown writers. There’s a reason for that, of course. There are a whole lot more people who consider themselves writers than who can actually write well. Consequently, acquisition editors at publishing houses need a screening device to weed out the bad stuff before it reaches them. For that, they rely on literary agents. So, the first thing an aspiring author needs (besides a book) is an agent. There is no shortage of sources for finding them, either. For starters, there are publications such as The Literary Marketplace (the Martindale-Hubbell for literary agents); Writers Guide to Book Editors, Publishers and Literary Agents by Jeff Herman, and Guide to Literary Agents by Writers Digest Books, which list agents along with their areas of interest. In recent years, a number of websites have sprung up on the Internet that also provide listings of literary agencies. Those include www.writers.net, www.literaryagents.org, www.writingcorner.com, www.absolutewrite.com, www.authorlink.com, to name just a few. Once the writer has found some agents to target, the fun begins. A. Writing the Query Letter The first step is what’s known as the query letter, or letter of inquiry. This letter tells the agent what the writer has written and inquires whether the agent is interested in seeing more. You get only one chance to make a first impression with the query letter, so how do you make that first impression a good one? How do you let the prospective agent know that you have a good concept and that you can write it well? After all, every agent is ultimately looking for a good story well-told. For the agent, the clues to whether you hold such a treasure can be found in how you make your first impression. The following suggestions apply whether you are sending your query by snail mail or e-mail. Don’t think that just because you’re using e-mail, it’s not a business letter. The first part of first impressions is appearance. Is your hair brushed or combed? Are you wearing clothes suitable for the occasion? Is there spinach in your teeth? Never discount the importance of appearance. So how does this translate to your query? Well, it should, on its face, appear professional and well done. For starters, it should not be more than one page. After all, as Shakespeare said, “Brevity is the soul of wit.” It’s also at the heart of concise writing. The query should be typed, not hand-written, on clean stationery. Letterhead is not necessary but does help with appearances. The margins should be clear and distinct, and there should be plenty of white space on the page. Make it easy on the reader’s eye. Address it to the agent by name, not “Dear Sir or Madam,” or the damnable “To whom it may concern.” That salutation is almost certain to turn an agent into an unconcerned whom. Let the agent know you’ve done your research and that you know specifically to whom you are making your pitch. There should be no mistakes or typographical errors. Seems obvious, doesn’t it? But darned if that bit of advice doesn’t seem to elude more writers than not. Don’t rely merely on spell check for this. Spell check doesn’t know if “here” or “hear” is the right word, or “there” or “their” – let’s face it, spell check really isn’t all that bright. Use your own eyes and a dictionary. If you can’t spell, have a friend proof read it for you. Or, better yet, choose another avocation. Once you’ve taken care of appearances, you’ve got to concern yourself with the substance of the letter. Just as in personal meetings where even the best of appearance can lose its luster if you have nothing worthwhile to say, the same is true of your query letter. Start by briefly telling the agent the title and, if fiction, the word count and genre of the work. If non-fiction, let the reader know what kind of non-fiction it is, such as how-to, self help, political, biography, and so on. Next, give a brief description – and by brief, we mean no more than two paragraphs (and preferably one) of four or five sentences each – of what the story is about. For fiction, this means identify the central character, tell what his or her dilemma or goal is, what the obstacles are to getting out of that dilemma or achieving that goal, and how is it resolved. For non-fiction, follow the two-paragraph rule, but tell the reader what your central thesis is, how you’re going to prove the thesis, and how you reach your conclusions. Be very straightforward, without including your own rave assessment of the book. Let the agents decide that for themselves. In a final paragraph, tell a little about yourself. Show how you are qualified to write this book. If you’re in the medical field and you’ve written a medical thriller or scholarly work, tell the agent that. If it’s simply a subject you are interested in and have done research about, say so. If you’ve written or published before, or if you’ve won awards or accolades for your writing, include that information, as well. Conclude by asking if you may submit your work for consideration. And be sure to include a self-addressed, stamped envelope – the infamous SASE. Then sign your name and mail it or click “send.” You’re through. B. Making the Submission Let say you’ve fired off your brilliant query letter and, lo and behold, an agent is interested in what you’ve written. The agent has even asked you to make a submission. Now what? Well, what you submit may depend on what the agent has asked for. It may also depend on whether your book is a novel or a work of non-fiction. If fiction, the agent may ask to see a sample, such as the first 50 pages or so, or may even ask to see the entire novel. Which brings up another point – it’s best to have a completed, polished novel before you even start looking for an agent. There are several reasons for this, not the least being that if an agent asks to see your entire novel, it’d kinda be a good idea to have an entire novel ready to send. Wait one or two or three months to finish writing it before you send it and there’s a good chance the agent will have lost interest by then. Secondly, you want the material you submit to be in the best shape possible before sending it out. That means a polished, final product – not a preliminary draft. Thirdly, and more practically, you may find that, as you write, your characters will take on lives of their own, taking your story in a different direction than you had originally planned. That may mean you have to go back and rewrite earlier portions of the novel to be consistent with your new ending – which leaves you in a bind if you’ve already sent out that earlier portion not knowing it was going to change radically. Bummer! C. The Non-fiction Book Proposal In the world of non-fiction, however, it’s perfectly acceptable to query agents without a completed book. In fact, most non-fiction is sold on the basis of a “book proposal” and two or three sample chapters, rather than on a completed manuscript. Publishers may even pay an advance to a writer to complete a non-fiction book based on the proposal. An exception to this may be in the area of narrative non-fiction in which the true story is told in narrative fashion, almost like a novel. So how does one write a non-fiction book proposal? Well, it’s not as hard as you might think – provided you’ve got a good idea and what it takes to actually follow through on writing the book. Start with a title page, which should include the title (how clever), your name, and contact information. Follow that with a one to three page overview of the project. The overview should explain the thesis of the book and how you will prove your thesis. Follow that with a biographical section, explaining who you are and what your credentials are for writing the book. Include past writing, past publishing experience, honors and awards – this is where you sell yourself as the writer. Be truthful about yourself, but this is not the place for modesty. Now that you’re marketed yourself, the next section deals with marketing the book. Include a marketing analysis for your work. What is the target audience and why will they buy this book? Convince the publisher, who is in the business to make turn a profit, that he can make money with your book. If you can convince him of that, the deal is as good as done. Follow the market analysis with a “competition” section. Here, you’ll list other works that are comparable to yours, at least in tone or subject matter. Publishers say they want something new and different, but they also want the security blanket of knowing that your “new and different” book will sell – and they get this by seeing how other similar projects have succeeded. But then you must take the next step and show how your book is different, better, or bigger than the competition. This can be tricky, but you’re a writer. Use your creativity. After all, if it’s not different, better, or bigger, why are you writing it in the first place? Next comes a chapter-by-chapter outline of the book. This is the real heart of the proposal. Let the publisher know exactly what you’re going to include in concise, succinct summaries of each chapter. Even though you don’t have to have written the book yet, you do have to know what you're going to write. Essentially, this becomes your working outline for actually writing the book. Lastly, you should attach sample chapters. Although sample chapters are optional for some publishers, we believe they should always be included. After all, this is your best writing sample in the whole proposal. Let the publisher know you can actually write the book – not just talk about it III. THE AGENCY AGREEMENT Okay, you’ve sent out your query letter, received an invitation to submit your book, and now the agent says he’d like to represent you. Congratulations! Job well done – but not job completely done. Now you’ve got to decide if you actually want this particular agency to represent you after all. It may seem odd to query an agent and then later decide you’d rather look elsewhere for representation, but it actually makes perfect sense. Although you can do some preliminary research on agents before sending your query, utilizing some of the resources we’ve cited above, there may be other information you’d now like to find out about the agent before making your final decision. Some agents might be offended at getting the third degree from an unknown writer at the query stage when there’s probably a ninety-nine percent chance that the agent is going to end up rejecting the writer’s work in the first place. But once an offer of representation has been made, no agent should be offended at answering certain basic questions and providing some basic information. These questions may come out in the initial discussions about the offer of representation or may come out in considering a written contract from the agent. We’ll discuss them here in the context of a written contract. We believe that a written contract is preferable to an oral agreement because it makes it clear to everybody what is expected from the parties to the relationship. Keep in mind, though, that many of the provisions may, and should, be negotiable. If they’re not, the bottom line question becomes “How badly do you want to sign with this particular agent?” Here are some points to consider in discussing the contract: A. What Rights Does the Agent Represent? The answer to that question may seem obvious, but it's really not. First of all, is the agent demanding the exclusive right to represent you and all rights to your book? That's fine if you're not currently represented, but supposed you have already adapted your novel to a screenplay and already have a WGA signatory agency representing that screenplay. That means you either have to carve out movie rights from your agency agreement with the book agent, or allow the book agent only the non-exclusive right to represent movie rights - and whether you can do the latter, of course, depends on what your arrangement is with your screenplay agent. If he's got exclusivity on the movie rights - well, you can figure out what that means. There are other rights to consider, as well. Will this book agent also be representing electronic rights? How about foreign rights? Is it a one-book deal – does the contract just call for representation of this specific book – or does it provide representation for “all literary works”? One is not necessarily better than the other is; it’s just that the writer needs to be real clear what terms he’s agreeing to. Some agency contracts also allow the agent to engage the services of a co-agent for the sale of certain rights – such as foreign rights or movie rights – and to charge an enhanced commission, which will then be split between the two agents. Nothing wrong with that, either. In fact, it may work to the writer’s advantage to have a regular screen agent brought in to help sell movie rights. Consider asking for the right to approve the selection of the co-agent, however. B. Commissions, Fees, and Expenses 1. Commissions. The magic question: How much commission will the agent charge? Make sure there’s no dispute about the commission amount; put it in writing. Ten to fifteen percent is standard, with fifteen actually becoming more and more the norm. If the agent engages a co-agent for movie or foreign rights, the standard is twenty percent. And all that is from gross revenues – the agent always takes his off the top. Furthermore, the agent’s commission is vested for life. As long as the writer earns a royalty for a book sold by the agent, the agent continues to draw his commission even though the agency relationship may have long been terminated. 2. Expenses and Fees. Nothing causes more consternation among new writers than the issue of expenses – not to be confused with reading or consultation fees. Newer writers are counseled to avoid agencies that charge reading fees, then promptly freak out when an agency offers representation and tells them they (the writers) are expected to pay for the agency’s expenses in marketing the writers’ work. So what’s the difference between expenses and fees? The Association of Author’s Representatives (“AAR”) forbids its member agencies to charge reading or consultation fees but permits its members to charge a client for expenses associated with marketing the client’s work. Of course, non-members of the AAR are not required to follow its guidelines, but reputable agencies will whether they are members or not. Paragraph 8 of the AAR Canon of Ethics states: The AAR believes that the practice of literary agents charging clients or potential clients for reading and evaluating literary works (including outlines, proposals, and partial or complete manuscripts) is subject to serious abuse that reflects adversely on our profession. For that reason, members may not charge clients or potential clients for reading and evaluating literary works and may not benefit, directly or indirectly, from the charging for such services by any other person or entity. The term “charge” in the previous sentence includes any request for payment other than to cover the actual cost of returning materials. This paragraph makes clear that the AAR frowns on the practice, followed by many non-member agencies, of charging fees just to read submissions from writers, or offering the writer a consultation or providing editing services for a fee, or referring the writer to editing or consulting services that charge fees – and that pay referral fees to the referring agency. Can you say “conflict of interest”? When your client is confronted with an offer from an agency charging those kinds of fees, our advice is simple: Run like the wind. At the same time, the AAR distinguishes expenses from these kinds of fees. Paragraph 3 of its Canon of Ethics provides: In addition to the compensation for agency services that is agreed upon between a member and a client, a member may, subject to the approval of the client, pass along charges incurred by the member on the client’s behalf, such as copyright fees, manuscript retyping, photocopies, copies of books for use in the sale of other rights, long distance calls, special messenger fees, etc. Such charges shall be made only if the client has agreed to reimburse such expenses. As a practical matter, the expenses typically involved are postage for sending the writer’s work to publishers and expenses associated with making copies of the work to submit. In today’s world of free long distance services, e-mail, and faxes, telephone and telecopying expenses should have become endangered species. Different agencies follow different approaches in dealing with expenses. Some, particularly larger, more established agencies, front the expenses, then recoup their outlay after making a sale, deducting the amount from any advance or royalty payment. If they don’t sell the writer’s work, then they never recoup the expense. Other agencies front the expenses, then bill the writer on a periodic basis, such as quarterly, for the costs. Still other agencies require the writer to pay a “retainer” which the agency draws against, keeping an accounting for the client. Many agencies will also require the writer to provide the actual copies for submission rather than the agency having to make those copies. Any of these methods are acceptable – provided the writer knows up front which method will be utilized and agrees to it. Make sure it is spelled out in the agency agreement and insist on an accounting of expenses. There may, of course, be other expenses that crop up from time to time. It’s a good idea to include language in the contract requiring the agent to get the writer’s consent prior to incurring any unusual expenses. No reputable agent would object to this. C. Termination of the Contract Six-month or one year terms are fairly common in agency agreements, and usually incorporate rollover provisions allowing the parties to extend the contract. Watch out that the rollover provision doesn’t give the agent the unilateral right to extend the contract – both parties should be in agreement on any extensions. Some contracts may, instead, be open-ended with no set term. In that case, insist that a termination provision be included. In fact, it’s a good idea to incorporate a termination provision in the agreement in any event, either for cause or at will, with a written notice requirement. We believe termination at will is preferable – neither party should have to be in business with the other if they don’t want to be. The agent will probably insist on a recapture provision on commissions, which provides that the agent receives commissions upon sale of the author’s work even if the contract has already been terminated provided that the sale was due to the agent’s efforts during the term of the contract. In other words, if the agent submitted the writer’s manuscript to a publisher, the writer subsequently terminated the contract, but the publisher then offers to buy the book, the agent is still entitled to a commission. The writer should insist on some time limitations here. If a sale hasn’t been consummated by six months or so after the contract has been terminated, the recapture provision shouldn’t apply. D. Other Considerations Other things to consider when choosing an agent, which may not be incorporated into a written contract, include making sure the agent maintains separate bank accounts for his operating funds and client funds. You might also want to consider whether the agency is incorporated as opposed to a sole proprietorship or simply an individual. It may never become an issue, but it’s at least possible that an advance check paid by a publisher that gets deposited into the individual agent’s bank account could get caught up in the agent’s estate should he die before paying the advance to the writer. Corporate status and separate bank accounts is simply a safeguard against that unfortunate possibility. IV. YOU’VE GOT YOUR AGENT – NOW WHAT? Good question, with a very simple answer: Start on your next book and let your agent do his job. A good agent will keep you posted on what submissions he is making – in fact, a good agent will provide you with copies of all correspondence with any potential publishers. Be patient – this can be a slow and frustrating process. For every story you hear of instant sales and instant success, there are a thousand tales of books that take months and years to sell – and some that never sell. But now is time for you to leave the agent alone and let him work. The agent will target publishers that publish books like yours and with whom the agent hopefully has contacts. If the agent can successfully pitch your book, either by phone or e-mail, to an acquisition editor, he’ll then send the book to the publisher to consider. Some agents make only one submission at a time; others will make three or four, or even more. We prefer to make no more than three or four at one time for a very practical reason: If an agent has a good relationship with the editors to whom submissions are made, those editors will usually provide feedback if they pass on a book. If an agent hears the same reasons espoused for passing from two or more editors, the writer now has a chance to rewrite before the agent makes more submissions. But if the agent has already made ten submissions before learning there is a problem that everybody seems to have with the book, you’ve lost your chance to cure the problem before submitting to a large number of publishers. A. The Publishing Contract The big day has arrived. Your client’s agent calls and says, “We’ve got an offer from a publisher. I’m sending along a contract for you to look at.” After the client peels himself off the ceiling, it hits him: Contract? What do I know about publishing contracts? Well, that’s what lawyers are for, right? But there’s no reason why your client can’t have a basic understanding of what’s in the publishing contract in his own right. 1. The Bundle of Rights First, and foremost, the contract addresses the basic deal points of publishing: grant of rights, territory, advance, payout schedule, and royalty percentage. The contract will usually provide for an outright transfer of rights, so that the publisher becomes the actual owner of the transferred rights, but with provisions that allow those rights to revert to the writer under certain circumstances. Although the publisher becomes the actual owner of the copyright, the standard practice in the industry is for the publisher to register that copyright in the author’s name. So what, exactly, are these rights we’re talking about? Well, they break down into primary and subsidiary rights. The primary rights are the print publication rights. That makes sense, since we’re talking about publishing books. The print publication rights include the right to publish in hardback, trade paperback, and mass market paperback. Those go to the publisher under the publishing contract. Then come the subsidiary rights, and this is where there’s some room to negotiate. These include:
Standard practice in the industry is for the publisher to keep all reprint, or paperback, rights, book club rights, and second serial rights. The author keeps performance and commercial/merchandising rights. The others are negotiable. On those subsidiary rights that the publisher obtains, the percentage split for exploiting those rights is also negotiable. You’ll find that publishers are generally the most generous with those rights that it considers to be the least valuable. 2. The Territory The contract will also spell out the geographic territory the writer is granting to the publisher. For American publishing, the primary territory that typically goes to the publisher is the United States, its territories, the Philippine Islands, and Canada. In addition, if the publisher reserves “world rights in the English language,” it also gets the United Kingdom and members of the British Commonwealth of Nations, such as Australia, New Zealand, and South Africa. The rest of the world is your oyster. 3. The Term How long does the grant of rights last? Well, the publisher typically wants the rights it acquires for the full term of the copyright and is not likely to budge on that. However, the contract should provide the circumstances under which rights may revert to the author. Those circumstances usually include the publisher’s failure to keep the book in print or failure to publish within a specified time, or even if the publisher fails to publish a mass market paperback after an initial hardback run. The contract should spell out the conditions for reversion and the steps the author must take to claim that reversion. Typically the author will be required to make written demand that the publisher do the very thing it failed to do that set up the reversion condition in the first place. For instance, if the book has gone out of print, the author will demand that the publisher issue a new printing within a specified time or the rights will revert. 4. Advance and Royalties Of all the terms in a publishing contract, this might be the most interesting to the writer. Contrary to popular opinion, the amount of the advance paid is not measured by the clout or negotiating skill of your agent. Rather, it reflects the publisher's opinion of the commercial value of the book. And many publishers, particularly smaller presses, pay only a small, or no, advance. An advance is actually an interest-free loan against future royalties the writer might earn on the sale of the book. In the world of fiction, many – if not most – novelists never earn more than the initial advance, and often fail to even earn that much in royalties. Fortunately, the common practice is not to require writers to pay back the unearned portion of the advance. Sometimes the timing of the advance payment is subject to negotiation. Typically, the advance will be paid in thirds – one third upon signing the contract, one third upon delivery and acceptance of the manuscript, and one-third upon publication, or in halves – one-half upon signing and the other half upon delivery and acceptance of the manuscript. Royalty rates may or may not be subject to negotiation, depending upon the publisher. The way the royalty is calculated may also be subject to negotiation. It can be calculated as a percentage of the book’s retail price or as a percentage of the publisher’s net revenues, and consideration can even be given to the fact that many books are sold through discount outlets. With larger publishers, fairly standard rates may be 10% on the first 5,000 copies sold, 12 ½ % on the next 5,000, and 15% on anything over 10,000. The rates may vary depending upon such variables as the prestige and prior sales record of the author, the size and financial strength of the publisher, the format of the book (different rates typically apply to paperback than to hardback), and the extent and duration of the rights granted. 5. Manuscript Delivery and Publisher’s Right to Terminate The contract should specify the date by which the writer must deliver a completed manuscript in an acceptable form to the publisher. If the writer fails to meet the deadline, the publisher typically has the right to cancel the publishing contract. The contract will also typically give the publisher the right to terminate the contract even if the deadline is met if the manuscript is not in a form or of a content that is acceptable to the publisher. Lest that sound like a too subjective standard – after all, what really is “acceptable” – the courts have established some protections for writers. A series of cases establishes a publisher’s implied obligation to explain why a manuscript is not acceptable and to give the writer a reasonable opportunity to rewrite and meet those objections. Harcourt Brace Jovanovich v. Goldwater, 532 F. Supp. 619 (SD__, 1982); Dell Publishing Co. v. Whedon, 577 F. Supp. 1459 (SDNY 1984). 6. What About that Next Book? You remember we said that, once you had signed with your agent, it was time to start working on your next book? Well, what obligation does the writer have to the current publisher for that next one? In typical lawyerly fashion, the answer is that “it depends.” Most publishing contracts include an option clause giving the publisher at least some form of option on the writer’s next work. That option, however, can take one of several forms – or even combinations of forms. The most common is the basic option, or right of first refusal. Under this clause, the current publisher gets first look at the new work for a specified period with the absolute right to acquire that work on the terms and conditions of the existing contract. Until the publisher has passed, or the time period has lapsed, the writer may not show the work to other publishers. Another common approach is the right of first negotiation, which allows the publisher to take a first look and negotiate for a new deal. If the writer isn’t satisfied with the deal offered, he can approach other publishers and seek a better deal. However, he can sell the book to a different publisher only if he can obtain a better deal than that offered by the original publisher. A final approach is the right of last refusal, which allows an author to shop his new work wherever he pleases, but gives his current publisher the right to match or top any offer. V. CONCLUSION This is certainly not intended as an exhaustive discussion of the author/agent/publisher relationship, but instead provides an overview and some issues that should be considered in each phase of the relationship. There are other resources that provide a far more in-depth analysis than this, but hopefully this will at least get you started on the road to your (or your client’s) publishing career.
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