Non-fiction authors have legal exposure in at least 13 areas of the law, if not more. We routinely review non-fiction books/manuscripts for legal risks using a questionnaire and checklist developed over many years. It includes using copyright-protected materials such as text and photos, using names and places, and laws relating to copyright, trademark, rights of publicity, libel & defamation, public persons and officials, entity formation, pen names, and many more.
Your project will likely require you to obtain agreements from others to keep you out of legal hot water. A few of these agreements may include:
- Permission to use art, photos, graphics, or illustrations in your book
- Author- Ghostwriter Agreement
- Author - Agent Agreement
- Interview releases
- Permission to use letters or journals
- Joint Authorship and collaboration Agreements
- Illustrator/Author Agreements
- Life Story Rights Agreement
Do I Really Need a Literary Attorney for my Non-Fiction Book?
Congratulations, you have completed your non-fiction manuscript! As a non-fiction author, you are faced with unique issues that are not relevant to fiction projects. As a non-fiction author, you deal in the real, the facts, the actually-happened, and perhaps science. Your mindset really dictates that you make sure your manuscript will not expose you to very real liability and that you are fully aware of the real impact of the contracts you may sign along the way (ghostwriting, agent, publishing, permissions, etc.).
There are many reasons why you want to engage the services of a literary attorney who focuses on non-fiction authors and non-fiction projects before you self-publish or submit your manuscript to publishers and/or after you have a ghostwriting, agent, or publishing contract in hand. Why?
The very real risk that you may have tripped over the law without knowing it, exposing yourself to legal liability and being forced to retain legal counsel and paying damages.
If you self-publish without attorney review, you expose yourself to legal threats, lawsuits, and claims against you for thousands or even millions of dollars.
If you publish with any publisher, the publisher will expect you to have vetted and resolved all issues – the publisher’s attorney will not do this for you. So, assuming the publisher allows your book to be published without attorney review, you expose yourself and the publisher to legal threats, lawsuits, and claims, both you and the publisher may be sued, and your publishing contract will require you to repay your publisher for any claims made against them. This means you will pay for your attorney fees and damages, and your publisher’s attorneys’ fees and damages (a double hit).
This is a problem for non-fiction authors in all genres and formats. Books, workbooks, true crime, memoirs, course-packs, academic publishing and textbooks, on-line educational programs, and even historical fiction all present unique issues.
There are at least 30 separate bodies of law and legal issues that may apply to your non-fiction manuscript. This means exposure for liability in potentially all of these areas.
I am not exaggerating when I say there are at least 30 areas of potential liability. You need to be made aware of what areas apply to your manuscript and collaborate with your attorney now to find options and edit your manuscript as may be necessary to mitigate your legal exposure. In some cases, there are very simple fixes and in others, not so simple. But, it behooves you to be aware of the risks of your current manuscript and for your future manuscripts.
Forming a LLC or corporation will not necessarily eliminate your personal exposure for liability.
If you have tripped over any law in your manuscript, you will still be named personally (as well as your LLC or corporation) in any lawsuit. There are many good reasons to form an LLC or corporation for your project, but this will not prevent you from being sued personally and your personal assets may still be at risk.
An agent does not represent your interests to the fullest degree.
Agents and lawyers have different areas of expertise. Although their knowledge of publishing contracts may overlap, their training and experience do not.
If you have an agent, your agent does not have a duty to exclusively represent your interests – he or she can and usually will continue to represent his or her interests (primarily in the commission) when it comes to the publishing contract. An attorney will look at the monetary terms (advance, royalties, recoup), but will also look at the even more important non-monetary clauses. These are the clauses that could put your book on ice forever, assign all your rights, the out of print clauses, reversion rights, options that bind you to the publisher, and other clauses the agent does not care about. These are clauses that you should know about before you sign the contract, not after when you have no chance to make any changes and are stuck.
Publishers have stock forms of contracts that favor the publisher and it is up to the author to make any changes. These contracts have been drafted by lawyers for the publishers and you should have a lawyer on your side to even the playing field.
It is less expensive to retain an attorney now, rather than after there is a problem.
The cost of retaining a non-fiction literary attorney to review your legal exposure from your manuscript in the over 30 areas of law, and to review with you and explain the detailed workings of your publishing contract is a smaller (and usually more reasonable) expense. Compare that to an author who, months or years after publishing their book is faced with a legal demand that will not go away until an attorney is retained and damages are paid. Or, an author who has signed a publishing contract without examination by an attorney, is faced fighting with the publisher or opposing a publisher’s legal team in court to get the author’s rights back or to account for or pay royalties, all of which will most certainly result in the agent and the publisher blacklisting the author.
You have worked hard to finish your manuscript, so make sure you are in the clear and understand the contracts you are signing.
Retaining an attorney before you publish or submit your manuscript to a publisher can give you reasonable assurance that your legal liability is minimized and you can sleep at night. Retaining an attorney to review your agent agreement and your publishing agreement will inform you as to the specific mechanics of the particular agreement, giving you an opportunity to negotiate changes and understand what you are signing. Retaining an attorney is no guarantee that you, your agent, or your lawyer can successfully negotiate for everything you want, but it will make your decision whether or not to sign the deal much easier and you will know what to expect from the agreement.
Give us a call. I will gladly quote you a reasonable fee to assist you. Connie at 602-277-8100 or firstname.lastname@example.org.