News on Regnery Publishing and a Contract Tip

The following comes, with permission, from the newsletter that publishing attorney Anthony Elia has started. Five writers had brought suit against Regnery Publishing, a conservative publisher, alleging that the parent company:

...entered below market value deals with other wholly owned subsidiaries of Eagle Publishing - in some cases transferring the books at or below cost. Because the authors' royalties were based on a percentage of funds received by Regnery and not on sales by the subsidiary, the authors lost royalties as a result of the shuffle.

In addition, the suit claimed that the company was diverting sales from retail markets to its own subsidiaries, again lowering the royalty payments. The suit was dismissed. Why? Because the contract obligated any dispute to work through arbitration.

Folks, this is not the first time writers have alleged such things, nor will it be the last. I remember a case a few years ago when a book publisher was selling at a steep discount to the distributor that it owned, again artificially reducing the royalty amount. You've got to read your contracts and, in the case of something as complex as a book contract, preferably get a lawyer to go over them.

Anthony's current issue (you can sign up for the newsletter at his site, linked to his name above) also has a tip on language to include to find out more about what happens in subsidiary rights deals.

Get That Publishing Lawyer

Over the years I've heard a number of experienced writers and authors saying that they trust their agents to tell them if there are problems with a book contract. In my experience dealing with contracts and agents, this is a big mistake. Here are the common rationales I've heard:

• Agents deal with contracts all the time. Writers deal with contracts all the time, and how many of them are capable of providng a thorough review of a contract? Of the many hundreds of writers I've met over the years, there has been just a few that I think would be able to find most (though possibly not all) the potential probelms in a contract, and most of them have either been lawyers, paralegals, or corporate contract negotiators. The logic doesn't hold up. Yes, agents are likely more sensitive to contract language than authors, and they will spot many problem areas. But not all. I've seen too many writers who had used agents and ended up with problems in contracts to assume otherwise. Unless your agent is a trained publishing lawyer, he or she will be unlikely to catch every potential problem in a contract.


• I trust my agent. It's good that you trust your agent. But why put your agent into the box of having to know what a lawyer knows? If something does go wrong, you will no longer be able to simply say that the agent didn't catch a particular issue. Now the person will have let you down and your working relationship will go into the dumpster. A good many agent contracts also specifically state that they're not lawyers and that if you need one you should hire one. They don't include the language just for fun.


• A good agent will know the business and the potential problems of a contract. I agree that a good agent will know the business, but contracts change constantly and a slight difference in wording can make a big difference in interpretation. Also, agents will know the area - publishing - in which they usually work. But what if there's a problem with some other set of rights? An attorney familiar with licensing deals brings a broader perspective.


• Contracts is why I had an agent to begin with. I beg to differ. An agent is a salesperson. You have the agent to sell the book to an editor for more money than you'd be able to get on your own, assuming that the editor was willing to talk to you. To expect the agent to be a lawyer as well is to demand extra work that the person is not qualified to give.


• Why should I have to spend the extra money? If you ever have a problem and find yourself having problems with the publisher that could have been avoided, you'll know why you spend the money. Most of the time there won't be a problem. For the times that there are and the stakes are high, the cost of the lawyer (who, charging by the hour, will cost far less than the agent) becomes inconsequential. The cost of fixing a problem after the contract is signed can be orders of magnitude (as in 10, 100, or 1000 times more) than the review would have been. If the book is important and the contract amount significant, then you should make that much of an investment in your business.

I think the underlying factor is a combination of not wanting to part with any money and, more importantly, fear of the legal process. All that's really involved, though, is doing some research to get a lawyer experienced in the field, submit the document, and get the review. This should cost far under $1,000 - possibly under $500. If you're looking at even a low five figure advance, you're talking about a relatively small percentage, and a lot of peace of mind.