The Importance of Lawyers & Agents in Publishing Contracts

Years ago, authors wanting to publish novels really had only one viable option: find a literary agent and sign with a traditional publishing house.

Self-publishing “existed” many years ago, but it didn’t have the legitimacy that it has for many authors today. The publishing world has opened up in many exciting ways, offering authors and readers more options than ever before. Unfortunately, publishing’s widening options also provide new opportunities for scammers, & the “well-meaning inexperienced.”

The changes in publishing also mean the industry standards are in a state of flux. Some contract terms agents and attorneys accepted even two years ago are changing (often, in the author’s favor).

With the rising number of independent authors and the increasing number of small and medium-sized presses willing to work with unrepresented writers, it’s becoming common for writers to encounter their first publishing contract before obtaining either an agent or an attorney. While it’s great that authors can obtain offers without an agent (I’m in favor of anything that increases authors’ options for reaching readers), it’s also a dangerous situation.

Many new (and some veteran) authors make the mistake of signing a publishing contract without obtaining professional review. Some make the decision for financial reasons–a few hundred dollars (or 15%) seems “too expensive.” Don’t be penny-wise and dollar foolish. Once you sign a contract, you’re legally bound, even if you later realize it was a bad decision. Unless the publisher actually breaches the contract, you’re stuck – and even if the publisher breaches, forcing termination can be expensive.

The takeaway? ALWAYS obtain professional review of a publishing contract before you sign it.

Even small publishers or specialty publishers (like educational publishers) who don’t require or work with agents will let an author get an attorney’s opinion about the contract. Beware anyone who tells you otherwise. If a press won’t let you have the contract reviewed by an agent or attorney, you absolutely should not sign. It’s a huge red flag.

Authors don’t need both an attorney and an agent, though some do feel more comfortable with both. Authors whose careers focus on traditional publishing normally do better with an agent (as opposed to an attorney), while author-publishers and authors whose careers are heavily hybrid (meaning, they do a lot of self-publishing and also traditionally publish) may need both an agent or an attorney. If you do decide to work with both an agent and an attorney, make sure both professionals are comfortable with that arrangement and that they work well together.

Even if the publishing contract “looks straightforward” or “doesn’t seem complicated”–there may be non-standard terms (or missing terms) an author might not recognize. Professionals like agents and publishing lawyers see many contracts; we know how to read the language and what to look for. Don’t risk your rights, your work, and your career by signing a contract without professional review by someone hired to represent your interests. Always hire an agent or a lawyer to look over (and help you negotiate) your contract before you sign.

Don’t forget, if you have questions about this or other publishing legal issues, the comments are open and the #PubLaw hashtag is available every day!

4 thoughts on “The Importance of Lawyers & Agents in Publishing Contracts

  • June 2, 2016 at 12:53 pm

    Hi Susan,
    I appreciate your advice. Wish I had read it several years ago. I am currently working to terminate a contract with my publisher (their breach). I didn’t think to have a lawyer review the contract prior to signing because a trusted friend who had a contract with them had her agent look hers over and it seemed to check out. Since my contract was the same, I went ahead and signed. My issue, payment, is a common one among this company’s former authors (close to a dozen that I now know of). Just spoke with my local attorney and he referred me elsewhere since they don’t handle this kind of thing. Not sure what my plan B is. Based on the experience with this company’s former authors, a letter from a lawyer is enough to motivate this company to terminate the contract in writing. So if you happen to have any advice, I am all ears! Thanks again for the info and your insight. Enjoy your weekend!

    • June 4, 2016 at 11:35 am

      Hi Karen, I’m sorry to hear you’re having troubles – though I hear similar stories from authors far too frequently. It saddens me every time, though. I do happen to know a number of lawyers who handle this kind of letter, and I’d be glad to refer you (I’m strictly transactional and don’t normally handle contested matters, but I have some good referrals who do.) Feel free to email me – Susan (at) SusanSpann (dot) com.

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