FAQs: Working With A Literary Lawyer
What do you mean by “literary lawyer?”
This means an attorney whose area of practice is or includes the publishing industry, and who regularly represents writers in contractual negotiations and in legal matters/problems in their writing careers.
Like many other forms of business, the publishing world is specialized. Do not retain a lawyer for your publishing business who is your well-intentioned brother-in-law or spouse, your family lawyer, someone who represents football players, or who deals in real estate law. That is no more intelligent than visiting a dentist because you need glasses. Retain an attorney whose regular professional practice actively focuses on or includes representing writers in the publishing world.
How do I know if I need a literary lawyer?
If you have a contract to negotiate in the publishing world (usually with a publisher; sometimes with another sort of media entity acquiring subsidiary or derivative rights to your work), it’s wise to have a lawyer advising you and negotiating on your behalf. These are business contracts which commit you and your work, usually for many years. Unless you know exactly what the contract says, completely understand its legal and fiscal ramifications, and are skillful in negotiating better contractual terms for yourself, you would be well-advised to retain a literary lawyer.
Every publishing company that puts a contract in front of you has a lawyer or a legal department advising them. So it makes no sense whatsoever for you, as the other party in that negotiation, not to have legal advice, too. (And since you’re always looking at a contract which their lawyers wrote, the boilerplate always favors them, not you, and it needs to be negotiated.)
You may well also need a literary lawyer if you have a legal problem arising from your writing career. For example: if you’re accused of copyright infringement; if your own copyright has been violated (ex. plagiarized or pirated); if a publisher has violated the terms of its contract with you, or if a publisher is claiming that you have violated those terms; if you and a literary agency have a serious dispute which you cannot resolve; if you want to make a will which includes disposition of your literary estate; and so on.
Can’t a literary agent do this?
Well, for one thing, you don’t want your agent advising you on any agreement he may be asking you to sign with him or his agency; that’s a clear conflict of interest. Also, a depressing number of literary agencies include egregious clauses in their agency agreements, and you don’t want to discover a year or two later that you really should have read the fine print before signing. So I would always recommend retaining a lawyer before signing any sort of legal agreement with an agent/agency.
In terms of negotiating publishing contracts, a lawyer has years of specialized education and professional practice in contracts, legal language, the laws that apply to contractual agreements, and contractual negotiations. But unless your agent also happens to be an attorney, none of that is true of a literary agent. Many agents are not skilled at negotiating legal documents and don’t fully understand the complex and legally binding clauses they’re advising their clients to sign with large corporations. Again, the companies you’re negotiating with have legal departments advising them, so how does it make any sense for you not to have an attorney advising you?
Finally, a literary agent isn’t qualified to advise you on legal problems, though he might offer an opinion. When a legal problem arises in your business, you need a lawyer to assist you, not someone with no legal qualifications whatsoever.
So I should have a literary lawyer and an agent?
No, I only have a lawyer, and (having previously been a client of four different agents) I advise against working with agents. But your mileage may vary.
In general, how does a literary lawyer function?
A lawyer works on the basis of hourly fees, rather than a commission on your earnings (a commission is how an agent works). You will be billed for any time the lawyer spends working on your behalf, and the bill you receive should itemize how the time was spent. The lawyer should clarify with you up front what his/her fees are, and you may be asked to pay a retainer fee (ex. one hour of billable time) in advance at the start of the association. The billable time will usually be divided into reasonable increments (such as 10 or 15 minutes) so that you’re paying for a few minutes, rather than a whole hour, if you and your lawyer exchange a couple of quick emails, for example.
(Remember: Any time the attorney spends on your business—emailing, talking by phone, reviewing documents, etc.—is billed to you. So interact wisely and use the time efficiently.)
You can and should discuss the parameters of what the lawyer’s duties will entail on any given matter. Also, keep in mind that a lawyer’s role is limited and specific. An attorney doesn’t market and sell your work, advise you about the marketplace, or strategize your next career move with you; he advises you about legal matters. (Note: I negotiate the advance sums in my contracts myself, and I only ask my lawyer to negotiate the contractual clauses. However, based on what you and your lawyer determine, s/he may also be willing to handle the monetary negotiations for you; it is not the attorney’s role, however, to advise you what your work is “worth” or how much money to ask for, expect, or settle on. You will be in charge of decisions about the sums involved, even if you pay the lawyer to communicate with the publisher about it.)
You should also discuss your financial parameters with your lawyer. If you’re working with limited funds and need to budget your use of the lawyer’s time, say so clearly.
For example, let’s say that paying a lawyer to negotiate the contract would eat your entire advance. In that case, perhaps you can arrange to pay one hour’s fee for the lawyer to review the contract and advise you about it, and then you can conduct the contractual negotiations yourself, armed with this information. This is perfectly feasible with many small-press or foreign-rights contracts, for example, which are usually short and simple. (The contracts at major houses are long and complicated, however, and it would be wise to scrape up the money to have the lawyer deal with it for you, since those negotiations can be complex.)
Also keep in mind: Once you have your own well-negotiated boilerplate at a publishing house, your subsequent negotiations at that same house will usually be much shorter and quicker (since you’ll typically be starting from the contract terms you all agreed on last time), and so your legal fees for those subsequent negotiations at the same house will be much lower.
Finally, a lawyer may sometimes be unable to work on your legal matter due to a conflict of interest. This is one reason it’s good to have a back-up plan; if my attorney couldn’t handle something for me due to a conflict of interest, I have a personal shortlist of which literary lawyers I’d contact next. (The lawyers on my own shortlist are all listed in this directory.)
How do I choose a literary lawyer?
Getting personal referrals/recommendations from other writers is a good way to start whittling down your choices.
You can consider everyone in my directory of lawyers a personal referral from me. This isn’t a list of every reputable literary lawyer out there; this is a list of lawyers whom I know personally or by reputation (i.e. they’ve worked with writers I know).
Next, take a look at their website profiles, and decide whose background or self-presentation seems to suit you best. Then approach one or more of them via phone or email; and choose the one whose response makes you feel the most confident or comfortable.
Then if you’re happy with the service you get, stick with the lawyer; if you’re not satisfied, move on to another one after your bill is paid. Retaining a lawyer (and dropping one) is much less complicated than hiring or firing an agent, since it’s a much simpler and more clear-cut type of business association. However, finding an attorney you’re generally happy with and choose to keep using over time is a good scenario, since that lawyer then becomes familiar with your business issues, with your way of doing business, and with the various players in your business dealings.