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Topic: Do I need a lawyer?
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| westsidestory | Posted – 5/1/2006 9:49:57 AM | show profile Nice assist: a poster on the board responded to a newbie by offering a sample contract that could be used for a ghostwriting gig, which was then traded off the board. This is a piecemeal approach to a common problem: a writer suddenly needs to draft a self-protecting legal agreement, or is handed a contract with ten pages of boilerplate that creates a fear of being screwed. Or a "fair use" or plagiarism question emerges on a popular blog ? or worse, in your published novel. You probably don't need a lawyer -- but you do need to know enough about contracts and copyright to protect yourself. Sadly, having an agent or even an editor in your corner won't protect you either -- most barely understand or even fully read what they ask an author to sign, and will give you a blank look if you ask about "digital audio rights" or "web rights." And if "your" lawyer doesn't specialize in media, you're just throwing that $200 per hour in the toilet. So, aside from the usual suspect sites that require membership (WGA, ASJA) where can a media person go for contract expertise? Back in the day, the National Writer's Union and Lawyers for the Arts were the go-to ? where are they now? Is NWU still useful now that Tasini has left to run for Hilary Clinton?s Senate seat? What books or sites or resources exist for contract self-help? Where can you go for contract review? To dig up contract templates that are up-to-date? Or do you have a favorite lawyer who really saved the day? Give it up, then -- this board serves up local recommendations for dentists and eyebrow salons, for goodness sake?s. Let's take the few slow weeks before BookExpo to archive something useful to all. Who wants to be first? Cyrus? BJ? Runner? C'mon, you pros -- How and where did you get your contracts savvy? |
| Cyrus | Posted – 5/1/2006 10:49:13 AM | show profile | email poster I do have someone who's a great contract lawyer. I have him review anything that is complicated and/or a document whenever there needs to be a change. I'd be happy to facilitate introductions to him if you'll contact me off board. |
| westsidestory | Posted – 5/1/2006 11:15:36 AM | show profile Thanks Cyrus -- but why not name names? If this community feels comfortable giving names and contact info for their dentists, their accountants, their bikini wax specialists -- why not their good IP attorney? |
| am470 | Posted – 5/1/2006 11:48:09 AM | show profile Lawyer Blank Rome in the city is great. Contact Dylan Mitchell at 212-885-5405. |
| westsidestory | Posted – 5/1/2006 11:56:09 AM | show profile That's the spirit, am. Score one for New York. What about Boston? |
| overthehillwriter | Posted – 5/1/2006 3:02:43 PM | show profile | email poster Author's Guild offers a phone seminar for members for $10 that's a great primer. Also, they have a service of looking over contracts (their staff attorney) for members. THe wait is a couple weeks, but it's wonderful. Highly recommend this organization. Huge help for me. Also, I did a google search for: collaboration contract and came up with some boilerplate starters. |
| westsidestory | Posted – 5/1/2006 5:13:56 PM | show profile Author's Guild Checking out the Author's Guild website (authorsguild.org) I see that membership is $90 a year -- comparable to the cost of an annual dental exam. That's a fair deal in exchange for being able to get a little booklet of "model" contracts and a lawyer's time for free when you need it. The downside is that to be eligible for membership, one must have published either a book or a three freelance articles in a "publication of general circulation." So a lot of web writers or zine publishers wouldn't qualify. Sites where you can download some boilerplate of your are helpful. Maybe we should stick a "portfolio" of boilerplate somewhere on mediabistro? Contracts are too long to post in forums. Can you pass on the links you found, overthehill? |
| overthehillwriter | Posted – 5/1/2006 7:21:48 PM | show profile | email poster links to samples -- check em out Quit calling me over the hill. Just kidding! Obviously I don't make any guarantees -- these are just sites I found on a quick browse. The scriptsales.com one looks interesting to me as I am trying to option theatrical rights to a book as we speak. Here are a few links: http://www.scriptsales.com/Collaboration.html http://www.scriptsales.com/Examples.html http://copylaw.com/new_articles/collab.html http://www.adlerbooks.com/collab.html http://www.pma-online.org/scripts/shownews.cfm?id=886 http://www.xdrive.com/partners/?p=pfforms&gcid=C10757x017 |
| overthehillwriter | Posted – 5/1/2006 7:27:06 PM | show profile | email poster What can I say -- I'm putting myself through an MFA at the Poor Writer's School -- Google U. |
| westsidestory | Posted – 5/1/2006 7:54:41 PM | show profile Collaboration links That's a pretty nice assortment if someone needs to write up their own agreement for a book or film collaboration, prior to making an agreement with a publisher or studio. I'd add it my "clause file box" for sure. Folks note that the forms viewable on these websites have been copyrighted by their owners, so caveat lector as they say down in the courthouse. Copylaw.com has some interesting articles on understanding IP, including one that tells publishers how to grab all electronic rights in a book or article contract. Mr. Jassin, Esq., and alas, plumps for the "all rights contract" with that pesky phrasing to cover all media "now in existence or to be invented in the future." Next it would be nice to see an article about how authors can retain digitral rights. What's up over there at the NWU or CLA? Anybody there on the West Coast? |
| Cyrus | Posted – 5/2/2006 10:50:36 AM | show profile Hi Westside, I'll be happy to pass along his name. It's Paul Wilson and his company is P.H. Wilson Law & Consulting. He does contracts pretty much exclusively, including business agreements, employment agreements, etc. His phone is (212) 371-9100 and e-mail is pwilson@phwc.net. Cyrus |
| westsidestory | Posted – 5/2/2006 11:01:25 AM | show profile But what about the Red states? Thanks Cyrus -- New York scores again. Not surprising to find so many IP lawyers here -- this is working up into a nice list of GOOD lawyers for New Yorkers. Anybody care to recommend an Esq. west of the Hudson? |
| Cyrus | Posted – 5/2/2006 1:34:33 PM | show profile To those in other areas Those looking for referrals to attorneys in other areas can always call the state bar association, or in the case of large cities, the city bar association, and get a list of attorneys who practice a particular specialty. No, it's not the same thing as a personal recommendation, but often it's a good place to start. ------ Cyrus Afzali Astoria Communications www.astoriacomm.com |
| westsidestory | Posted – 5/2/2006 3:02:17 PM | show profile I'd have to disagree Buckets of tears have been cried by writers who spent hundreds of dollars on lawyers who just weren't there for them, took weeks to get back on a simple document, or didn't really have a media background. We want the GOOD lawyers archived here. Any punter can call up a bar association. Self-help, I feel, may be the better choice. In many cases it doesn't make sense to hire a lawyer, when it's an agreement for article rights paying in the low four figures (or even lower) or the kind of low-ball job beginners must take. There must be books and more websites out there in "Google University." |
| clairezulkey | Posted – 5/2/2006 3:09:53 PM | show profile I have no idea how helpful this it but I just came across this site. It seems a little sparse but who knows, it might be helpful to someone: http://www.literarylawguide.com/resources.htm#top |
| df | Posted – 5/2/2006 5:23:10 PM | show profile I had a very good attorney draft one standard contract for me years ago ? it was $1200 but I am still using it. If I amortize it over the years used so far it has cost me $200 a year and it is still working. I was amazed to discover that if I provide a standard contract most of my counterparts are willing to sign my contract, which is very beneficial for me ? it has e.g. arbitration clause in it which is located in NYC ? so I would have almost no litigation costs if it ever came to that point. Some corporate lawyers have made amendments to my contract, but always in a way that I felt very comfortable with it. Overall the creating of my personal boilerplate contract has not only helped me in knowing I always get a fair deal when I sign it, the process of creating it has also given me a basic understanding of the meanings of the different points in the contract. I know it seems like a lot of money ? but if you look at it long term, it is really not. It protects you and your investments (your work) in many ways. My attorney thought me the very important quote: ? You are to poor to be able to afford a bad contract?. And he was right. I am hesitating to recommend a law firm, I think law firms are like doctors, just because I like mine, doesn?t mean it will work for you. A few tips for selecting your law firm: get references who else in the industry they handle and which line of work. A book deal is not the same as PR work or film rights. Music rights require different knowledge. I have different law firms for each of these subjects. (Example: your divorce attorney might not be the right person to bail you out of drunken driving?) But mainly make sure you feel comfortable with the person you talk to. Plus make sure you do get leagl advise before signing anything. Hope this helps. |
| westsidestory | Posted – 5/2/2006 5:49:43 PM | show profile df, what is your standard contract for? Book deals? Or magazine-type assignments? It would help to know. Your idea of "buy it once, use it forever, with a few tweaks" has a certain appeal..... |
| df | Posted – 5/3/2006 10:41:34 AM | show profile It?s labeled ?contract work/consulting ageement? which is essentially what we all do (legally spoken). The paragraph dealing with the actual work is rewritten every time (e.g. retainer for writing a newsletter, copy for magazine, writing packages). We do more PR/writing style work, but we also do a lot of corporate writing for annual reports and sometimes for trade magazines or regular magazines plus proofreading and translation or chapters for non-fiction books. But it is really simple ? e.g. the parties agree that x is writing a corporate newsletter on an annual basis - see annex A for terms. Annex A then shows the terms, e.g. 4 pages, x amount of words, hours to be worked by xyz or whatever it is in the specific case. In my experience the more precise you are ? the better for you, especially if you deal with complicated business partners. The amazing discovery I made was that it all is ? legally ? essentially the same. You want to make sure to obtain certain rights, accurate payment (I have a clause dealing with late payments and occurring late fees), confidentiality, obligations, and as mentioned before ? litigation/arbitration. Everyone has to discuss with their lawyer what is important to them. I also discovered that I was taken more seriously because I showed up with a real contract. I have almost no collection problems any more and very few discussion about the scope of my work (that?s all in Annex A). The approach might not work for everyone, but it is certainly worth looking into. Especially if you are working on lager, long term projects or long term with the same publisher. |
| westsidestory | Posted – 5/4/2006 9:12:18 AM | show profile claire, a thought does the new mediabistro book, Get a (Freelance) Life cover contracts? Does it have any contract templates in it? |
| clairezulkey | Posted – 5/4/2006 12:54:26 PM | show profile | email poster Not sure, Mia--I'll check. I haven't received it in my sweaty little hands yet. ------ Editor of MBToolBox |
| clairezulkey | Posted – 5/4/2006 1:50:25 PM | show profile | email poster Carmen sez "Yes, there's a section on contracts." ------ Editor of MBToolBox |
| westsidestory | Posted – 5/6/2006 9:07:38 AM | show profile Red States Lose That's good, since the board never did come up with some lawyers in states other than NY. For all you Red State writers, here's one more bit of self-help: Useful Clauses for Author Contracts 1. If it's a freelance agreement, make sure it stipulates WHEN you will be paid. On acceptance, on publication? Add in a "late fee" for invoices that go more than 30 days. 2. If it's a book contract, get a mutual indemnification - which Kaavya V. hopefully has with her Alloy deal. Typically, if an author screws up and somebody sues, the publisher hangs them out to dry. If the publisher (or packager) screws up, mutual indemnification at least spreads the lawsuit blame. 3. If you're going to give away "all rights" in a book deal, at least negotiate a royalty percentage for them. Digital audio, foreign serial, foreign digital -- aim for a 50/50 split. |
| eriksherman | Posted – 5/7/2006 7:14:44 AM | show profile | email poster >> So, aside from the usual suspect sites that require membership (WGA, ASJA) where can a media person go for contract expertise? << I'm the chair of ASJA's contracts committee and we review contracts from any writer - you don't have to be a member. We also have Contracts Watch - now in blog form (so new millennium of us) also available as an RSS feed - providing contract news and information. Anyone interested might check out http://www.asja.org/cw/cw.php. Bottom of the page is the information for submitting a contract - all we require is that the writer *thoroughly* read it and provide detailed questions/observations. No money or membership required. As for some other points brought up in the discussion, boilerplate contracts can be dangerous because they often miss important areas. For example, for my collaboration contract, I started with a boilerplate, marked it up enormously and added a lot of areas I considered important. (For example, what happens if the expert collaborator drops out? What are the options if the expert isn't doing his/her end of the work?) Then I took it to a publishing attorney I know and *he* worked it over. Then we discussed the changes and I finally had something I was comfortable with. Having your own contract is good - in some circumstances, like doing commercial work. But if you are dealing with a periodical or book publisher, the chances are virtually non-existent that you can get them to use your contract. Ragarding lawyers, you specifically want one with *publishing* experience. Yes, it's part of the general IP world, but it's important that the lawyer know prevailing conditions and the sticky issues that you won't find in licensing software or patenting. As for contract lawyers, they will know parts of the contract very well, but may not understand the ramifications of rights licensing. You retain rights by negotiation. There are many publications that will send over a WMFH (work made for hire) agreement, but that have one or two or even three other versions of their contract in a desk drawer. You don't ask, you can't get. For df, you might want to do more research into arbitration. (No, I'm not a lawyer trying to protect my turf.) A coleague of mine had used an arbitration clause in one contract for corporate business, found himself in a dispute, then was greatly surprised when that particularly arbitration group had a minimum size for financial disputes significantly higher than his case. Also, arbitration does not necessarily guarantee you the legal tools available in a lawsuit. For example, you may not have access to disclosure, or might only have it at the discretion of the arbitrator. For those who don't know, disclosure is a legal process by which you can force another party to turn over useful information that can prove your case. I can't think of a single book publsiher that would agree to "mutual indemnification." Indemnification says that one party to a contract will shoulder the financial burden faced by the other under specific circumstances. Without such a clause, you can still get sued. By the way, neither I nor others I know at ASJA nor people I've spoken with at the Authors Guild or the Media Law Resource Center or even the publishing lawyers I speak know of a single case where a publisher has enforced and used an indemnification clause. That doesn't mean that it's never happened, only that it's rare. It also doesn't mean to sign them blithely. The important thing with indemnification clauses is to have them phrased so that you actually have control over the circumstances that could trigger indemnification. That means you have to understand and correctly approach the warranties and representations clauses and then have indemnification only for the case of an actual breach of them. (continued) |
| eriksherman | Posted – 5/7/2006 7:15:17 AM | show profile | email poster Stating payment on acceptance is certainly a good first step, but then you also need to define what acceptance means. Some magazine publishers say acceptance is when the EIC goes over everything for the last time before the issue ships. That means your acceptance could theoretically take months. (I was actually just going over a related point with writers in a contract class I'm teaching - your piece is tied up waiting for publication, but you have a non-compete that says you can't write on the same subject until it appears, which means your rights are effectively tied up. Moral: you can't treat a contract clause as separate from everything else in the contract.) Book royalty rates and negotiations are pretty complex. In some areas, like serial rights, you might want to negotiate a 90/10 split between writer and publisher. Also, when specifying a split on something, be sure you specify whether it's the gross or net money. Publishers have often slipped in "net," which means some amount of "expense" comes out before the split is calculated. But what is the expense? Are you effectively underwriting a portion of the publisher's overhead? In general, when it comes to contracts, be wary of quick answers, because they can come around to bite you when you aren't looking. Erik Sherman |
| flipflap | Posted – 5/7/2006 12:04:03 PM | show profile I came across this link on a writing web site & am just now checking it out, specifically the clauses relating to when a book is "out of print." I'm trying to get my rights back from an elusive & uncooperative publisher. I'll probably ask the Authors Guild for help. Anyway, the web site belongs to an intellectual property attorney who has lots of articles posted on his site. Seems like a lot of info, anyway. http://www.ivanhoffman.com/ I've learned a LOT from the book The Writers Legal Guide by Tad Crawford and Authors Guild general counsel Kay Murray.The edition that I have (it's since been updated) had a sample book contract that they went through clause by clause. Chapters on copyright also helped me figure out an incredibly complex situation. When I consulted a lawyer afterwards to make sure, he basically said, yup that's right |
