What Does an Attorney for Authors Actually Do?
I love my job. I get to speak to writers every day writing in every genre. From speaking with picture book authors to memoirists, it's fascinating to get to meet so many talented people from all walks of life. However, what usually happens (and why they end up contacting me) is that somewhere along the way, they start to become a little hesitant about their work. Maybe an author friend or mentor tipped them off about using another person's work or saying something potentially libelous. That's when they start to ask questions:
Can I say this about my colleague or friend?
Can I use that brand name?
Can I use those song lyrics?
This is where attorneys come in. In law school, we're trained to "issue spot." Yur failure or success on an exam may depend on just how many issues you can potentially see. So from day one, we are taught to take an issue and look at both sides of the argument. We essentially assess risk and try to give you a practical solution.
Being a publishing attorney, my issue spotting comes in the form of manuscripts and contracts.
When you write a book, there are generally a few types of laws that writer attorneys review:
Intellectual property (copyright, trademark, patent)
First Amendment (libel)
Right of privacy
Right of publicity
There may be other areas of the law depending on your book, but generally lawyers will analyze these four when reviewing your manuscript. For example, when reviewing whether your manuscript violates a copyrighted work, attorneys will look at what is considered copyright infringement and whether your use is what is called "fair use." They'll look at the four statutory fair use factors, case law, and apply that to your specific factors to see if you have a good fair use argument. A similar analysis will be completed for the other three areas of federal and state law. Prepublication review is a laborious process, given that attorneys need to review the entire manuscript and perform legal research. However, the intensive research and analysis will be worth it to find any potential legal issues.
In addition to manuscript review, attorneys for writers also negotiate your book contracts. A book contract is a very specialized type of agreement. Yes, there are general elements present in every type of agreement, but you need a professional to understand the industry "idiosyncrasies" (for example, a "reserve against returns" in a publisher's accounting practices) and industry standards (for example, the typical royalty rates for hardcovers or paperbacks). Not only are publishing attorneys adept at negotiating the so called "traditional" author agreement, but their industry know-how allows them to help you draft and negotiate all types of agreements like:
Collaboration agreements (between multiple writers or between writers/illustrators)
Literary agent agreements
Freelance editor agreements
Option/attachment agreements (book-to-film)
Licenses (for example, permission to use photographs, songs, etc.)
Another area that publishing attorneys can help writers is in registering their intellectual property. By correctly registering your intellectual property, you can breathe a sigh of relief that the copyright to your work, for example, is protected. You can register your copyright at the US Copyright Office, and you can register your trademark at the United States Patent & Trademark Office. Registering your trademark is a much more involved process than registering your copyright. That's because it may go through a multi-stage process and perhaps even result in litigation before the Trademark Trial and Appeal Board or even in federal court. Copyright registrations can also end up in court, but the trademark process is more akin to litigation. I am a transaction attorney, so I do not register trademarks. Trademark attorneys can help you with that.
Why Should You Hire an Author Attorney?
It's simple. The upfront cost you'll endure may pale in comparison to the potential tens of thousands of dollars you may have to pay in litigation costs. By doing the right thing at the beginning and making sure your book complies with the law, you can avoid a mountain of potential headaches down the line.
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