Lawyers

Scott Turow: Amazon is Killing Bookstores, Fair Use is a Serious Threat to Authors

20 October 2013

From The Digital Reader

Scott Turow, author, litigator, and head of the Authors Guild, was interviewed on CBS This Morning earlier this week when promoting his new novel.

He had a few choice words for Amazon in this 4 minute interview, and then he goes on ramble about the current threats to American authors.

***

He even makes an off-hand swipe at librarians, which I think referenced the infringement lawsuit that several publishers lost against Georgia State University last year. That case was decided for GSU because one, the publishers flubbed it, and two, the judge found that almost all of the possible infringements were covered by existing fair use rules.

Yes, Scott Turow believes that the current fair use exceptions to copyright law are a serious threat to authors. But that’s not all. He thinks, I kid you not, that Amazon still dominates ebooks and that they’re killing bookstores.

See the rest here.

From Guest Blogger Randall

Good Help

11 June 2013

From Kristine Kathryn Rusch:

There are many times in a writer’s career that she works with other creative artists—actual visual artists, screenwriters, comic book writers, translators, musicians, game developers and more—who develop derivative work based on the original property. These derivative works are governed by copyright law.

If someone wants to create a derivative work, that someone needs permission from the rights-holder for that work. The permission must be granted legally. There are different forms for the permission—a paper contract, an e-mail between the two parties, a user agreement on a website (fan fiction sites licensed by the copyright holder, like the ones for the Star Trek properties use this method) and so on.

Most sub rights sales are for derivative works. A translation of a novel into another language is a sub right sale, and it is also a derivative work because thewords are different, but the story is the same. The work is a translation of an existing work; it is not the existing work. It was derived from it.

. . . .

Once the derivative work exists, then the maker of that work needs the original copyright holder’s permission to do anything with the derivative work. If the Derivative Work Maker does not get the copyright holder’s permission, then the work of the Derivative Work Maker is dead.

. . . .

Long ago and far away, I worked with a creative artist’s representative who was also (briefly) my representative. I gave permission for a derivative work based on one of my works, to be used for six months only. My agreement was with the representative, not with the derivative work’s maker (DWM). I presumed that the representative had a separate agreement with the DWM, which also lasted for six months.

Nothing came of this, except that I made a great deal of money. Like so many things in the sub rights category, someone had a good idea, put some money into it, realized the project would not get off the ground, and went on to other things.

Fast forward several years. I get contacted by DWM’s new representative, who wants to send DWM’s old derivative work into the same marketplace again. I state that I will not permit this, unless we have a written agreement and money has changed hands.

The representative is shocked! Shocked! that I would demand funds and a legal agreement. Then I tell the representative that I have years of experience in all of the businesses this representative (whom we shall now call Frick) deals in, and if Frick wants any cooperation from me on this property, I need a legal agreement and money.

. . . .

The first letter, from the idiot lawyer, says that the representatives and DWM will remove all references to me or the title of my work on the derivative work, and will continue to market the derivative work.

My lawyer, appalled, tells me to remind them that this work is registered with the Copyright Office, and we will sue.

I do tell them this.

Frack contacts me, tells me that name removal is done all the time in their industry, and I shouldn’t worry my pretty little head about it.

I again in e-mail tell them they do not have the rights to this.

. . . .

But here’s the thing: for the last year or so, I’ve been dealing with other people’s representatives in one way or another. Sometimes it’s on my sub rights and derivative works. Sometimes it’s connected to other projects I’m doing that aren’t writing-related.

In most cases, when I have dealt with a representative of another creative person, that representative has cost the creative person money or has jeopardized a good deal. Or—and this is the most common—has negotiatedworse terms for their client than the terms being offered.

. . . .

People hire bad representation all the time. Let’s take this out of the realm of the creative for a moment. Every week, it seems, you see an article about some movie star or athlete who is suing their financial advisors for bad advice. Or you read in the paper about legal cases being appealed because of “ineffective assistance of counsel.” Yes, that’s a legal term based the Sixth Amendment to the Constitution. It means what it says—the case is being appealed because the lawyer for the defendant (usually) was stunningly, appallingly, provably bad.

. . . .

I have been in the same position as DWM almost every single time I’ve hired an agent (one exception only). I discovered only after firing some of them just how bad my representation was, and how much those people interfered with my career. None of them, to my knowledge, invited someone to make me party to a lawsuit like Idiot Lawyer just did, but note that I say “to my knowledge.” I’m pretty sure DWM doesn’t know that my lawyer and I now have a file on DWM that we are prepared to use when/if idiot lawyer actually makes good on its threat.

. . . .

I am now making a lot more money on foreign rights than I did with any agent. I am making 100% more money for my Hollywood rights than I did with any agent, because the agents screwed up the deals. I am making 100% more money in audio and in a dozen other sub rights because I’m actually negotiating and making those deals as well.

Just this last week, I spoke to a writer friend, a New York Times  bestseller, whose agent just sold audio rights to a company I’ve worked with. The agent got this writer the exact same deal that I got without an agent (and without a New York Times bestselling series), and will now take 15% of that same deal in perpetuity.

Link to the rest at Kristine Kathryn Rusch

PG has absolutely no knowledge of the facts of the matter Kris describes, but the inept lawyer she writes about reminds PG a lot of the last Hollywood lawyer he dealt with.

 

Outside of a Dog

4 December 2011
Comments Off

IP, publishing and entertainment attorney Lloyd J. Jassin starts a new series of posts:

“Outside of a Dog”is a collection of publishing wisdom from a variety of classic and contemporary sources.  As a lawyer, I’m fascinated by the economics and entrapments of publishing contracts from both the author and publisher’s point of view.  So, my search into publishing history focuses on both shabby and successful business practices.  Using the actual words of authors and publishers, this collection is about the things that Alfred Knopf. Sonny Mehta, Truman Capote, Dante and Dickens didn’t know when started out, but later found out.

I borrowed the title from Groucho Marx, who famously said, “Outside of a dog, a book is man’s best friend. Inside a dog, it’s too dark to read.”

. . . .

This collection highlights the  successes, as well as failures and foibles of poets, novelists, dramatists, editors and publishers.   The ghosts of publishing are watching over us.  What they said can inspire us.

. . . .

No. 2.  RETAINED RIGHTS.   Professional authors have to guard against success.  A badly negotiated contract for a successful book is a trap that can give rise to frustrated hopes and diminished financial returns, whereas a badly negotiated contract for an unsuccessful book is a memento of a more hopeful time.  Of course, even an unsuccessful book author can  be snared by and frustrated by a badly negotiated out-of-print or reversion of rights clause.  Cautioning against indifference, George Bernard Shaw once said, “An author who gives a manager or publisher any rights in his work except those immediately and specifically required for its publication or performance is for business purposes an imbecile.”

Link to the rest at Copylaw

Lawyers enjoy a little mystery

23 November 2011

Lawyers enjoy a little mystery, you know. Why, if everybody came forward and told the truth, the whole truth, and nothing but the truth straight out, we should all retire to the workhouse.

Dorothy L. Sayers

What Not to Overlook When Reviewing Your Book Contract

17 November 2011

Book publishing and entertainment attorney Lloyd J. Jassin talks about what to look for in a publishing agreement:

Drafting and negotiating contracts is viewed by some publishers as wasteful and time consuming. “It gets in the way of the fun stuff.” “Attorneys cost money.” “Most books don’t earn back their advance.” These are three common (and potentially devastating) justifications that owners of publishing companies give for not paying attention to their boilerplate contacts. Similarly, many authors lack the courage that Oliver Twist exhibited when he rose from the table and said, “Please sir, I want some more.”

Standardized contracts are powerful negotiation tools. Many authors will simply sign them. However, whether an author or publisher, a “one size fits all” book contract may have unexpected and unfair consequences. Problems often arise when publishers borrow entire agreements and fail to conform the “borrowed” agreement to their business model (or their author’s legitimate needs). Sometimes, lacking the necessary business acumen, a start-up publisher may delete important provisions that they do not fully understand.

. . . .

[Following is part of a contract checklist Lloyd includes in his article]

V. Money Issues

     1. Advance against future royalties

     2. When payable? (in halves,thirds, etc.)

     3. Royalties and subsidiaryrights:

         a) Primary rights

                -Hardcover royalties

                -Trade paperbackroyalties

                -Mass market royalties

                -Ebook royalties

                -Royalty escalation(s)

                -Bestseller bonus

                -Royalty reductions

                 1) deep discount and special sales

                 2) mail order sales

                 3) premium sales

                 4) small printing

                 5) slow moving inventory

         b) Secondary (subsidiary) rights royalty splits

                -Book club (sales from publisher’s inventory v. licensing rights)

                -Serialization (first serial, second serial)

                -Anthologies, selection rights

                -Large print editions

                -Hardcover

                -Trade paperback

                -Mass market

                -Foreign translation

                -British Commonwealth

                -Future (i.e., new) technology rights

                     Is the right to intermingle with third party content included?

                -Audio rights

                -Motion picture/TV

                -Merchandising

 

Link to the rest at CopyLaw

What Happens When an Author Dies?

8 September 2011

Dean Wesley Smith and Kristine Kathryn Rusch have recently written about the passing of their friend, Bill Trojan. Dean is handling his friend’s estate.

Passive Guy has received a couple of private emails from authors who suggested he write about the legal aspects of what happens when an author dies.

Since we have a lot of international visitors, PG will note this is all US law. PG will also note the rules relating to probate and the estates of deceased persons are governed by state law and each state has some of its own wrinkles and terminology. However, while legal terms, time limits, etc., vary, the general structure of what goes on after someone dies will be similar from state to state.

When a person dies, heirs are identified by one of two means:

  1. If the deceased person has a will, the heirs are named in the will.
  2. If the deceased doesn’t have a will, heirs are determined according to state law. Generally, this means a spouse receives a percentage of the estate and children receive a percentage of the estate. If neither of those exist, a hunt for brothers, sisters, uncles, aunts and cousins begins.

All the property, including real estate, personal property, bank accounts and contract rights, owned by the deceased goes into what is usually called the estate of the decedent.

Absent specific actions taken to avoid probate (discussed later), whether or not there is a will, the deceased’s estate goes through a court-supervised process called probate.

Fundamentally, probate is designed to identify property owned by the deceased, pay creditors of the deceased and distribute remaining property to the proper recipients after payment of court costs and attorneys fees.

Traditionally, probate has been a time-consuming and expensive process (Think Jarndyce and Jarndyce in Bleak House). In at least some states, attorneys fees for handling probate may be set as a percentage of the value of the estate, so handling the probate for a bazillionaire can be profitable, particular if lots of probate court hearings are involved. On the other hand, for a typical author, probate attorneys won’t be lining up around the block.

If the deceased had a will, an individual traditionally called an executor is named in the will. The executor organizes the estate, identifies and collects property, locates creditors and confirms the amounts of their bills and generally serves as the business manager of the estate. Unless the executor is an attorney or extremely self-reliant, he/she will typically hire an attorney for the estate to help with the legal stuff.

If there is not a will, the probate court will appoint someone, usually the first family member to show up, to perform those same functions.

Different states have different titles for these people – administrator, personal representative, etc. PG will generically refer to this person as an executor.

In recent years, many states have taken steps to make probate go faster and cost less, particularly for smaller estates as defined by state law. Small estates can skip some of the steps required for big estates. PG’s impression is some estates move faster than they formerly did, but others do not.

After a period of time, all the property is inventoried and reported to the court, the creditors are identified and paid and the heirs are located.

Property is distributed to the appropriate heirs either in kind (“I bequeath my diamond bracelet to my son, Robert, and my AK-47 to my daughter, Ann.”) and/or property is sold and the proceeds distributed to the heirs (“I direct that all remaining property be divided equally between my children.”) Once the property is parceled out and all the paperwork filed, the court enters an order closing the estate.

PG won’t ruminate on the shortcomings (or longcomings) of probate but will, in passing, note that a long time ago, he gained some local notoriety in his former law practice by engineering the settlement of a will contest that had lasted for 17 years and involved over a dozen different attorneys.

In United States, there are two classifications of death taxes:

  1. Federal estate taxes
  2. State inheritance taxes

The Federal Estate Tax is a tax on your right to transfer property at your death. It consists of an accounting of everything you own or have certain interests in at the date of death. The fair market value of these items is used, not necessarily what you paid for them or what their values were when you acquired them. The includible property may consist of cash and securities, real estate, insurance, trusts, annuities, business interests and other assets.

The value of the copyrights a deceased author owns will be included in the author’s taxable estate.

The fair market value of copyrights is based upon their income producing potential, discounted to present worth. A general rule of thumb used by estate tax experts for computing fair market value of a copyright is to calculate the average annual earnings of the copyright over a 5 year period then multiply that annual amount by a number usually falling between 3 and 7.

For example, if a copyright earned an average of $100,000 in each year during the 5 years prior to the author’s death, the fair market value of that copyright for estate tax purposes would range between $300,000 and $700,000 depending on factors such as the length of the remaining copyright term, the prior uses to which the copyright was put, and the likelihood that income from those uses would either increase or decrease in the future.

Remember that everything a decedent owns, not just copyrights, goes into the estate tax basket, so it’s copyrights plus real estate plus autos plus those gold bars you bought after you saw a commercial on TV.

Most estate planning attorneys prefer stability on the tax front. Unfortunately for them, the estate tax has been subject to a lot of changes in recent years. At the present time, the first $5 million of an estate is excluded from taxes, so most authors don’t pay it unless they have another way to make money. (PG hopes many of his visitors will have to pay estate tax because of what they learned here, but not for a very, very long time.)

Once you get into estate tax territory, things get expensive. The current top rate is 35%. To give you an idea of how the estate tax has changed, in 2001, the exclusion amount was $675,000, so the tax caught many more people then.

The general rule is that an estate tax return must be filed within nine months of an author’s death. Absent an extension of time to pay, the tax is payable with the return. There are some tax provisions that can extend the deadline for tax payment for an author’s estate, but it will require a tax lawyer or accountant to access them.

State death taxes, often called inheritance taxes, vary widely from state to state. Some states have none and others have relatively stiff taxes and do not provide for an exemption nearly as large as the current federal exclusion. A state inheritance tax may be payable even if there is no federal estate tax.

As an example, here is the current inheritance tax for Ohio:

Over $338,333 but not over $500,000 – $13,900 plus 6% of the excess over $338,333

Over $500,000 – $23,600 plus 7% of the excess over $500,000

The problem with any death taxes for an author is there is no ready market for copyrights, so if an author spent all the royalties on high living and fast women (or fast men), the heirs may have problems raising the money for taxes. You can’t sell a copyright like you can ten thousand shares of Apple stock.

Enough of taxes.

One of the items of property in an author’s estate will be copyrights.

If the author has publishing contracts, an author’s heirs will inherit his/her contract rights under those contracts, including the right to any royalties, subject to the limitations and obligations included in the publishing agreements. If the author granted only exclusive limited publishing rights, e.g. English language world-wide rights for print and ebooks, the heirs are free to sell other rights, e.g. French and German translations.

You’ve probably heard of authors who appoint a literary executor, someone who manages their books and copyrights. This person is probably not an executor in the legal sense, because the executor of someone’s estate has no continuing power after the probate court closes the estate. A literary executor will be working much longer.

One of the reasons is that an author’s copyright lasts for 70 years after he or she dies. Another reason is that many publishing and agency contracts today are for the life of the copyright. PG doesn’t like it, but it’s reality. Somebody’s going to be dealing with royalties, out of print clauses, etc., long after all the other items of property are long gone. If some of the original heirs die, leaving heirs of their own, royalty checks may be split into more and more small pieces.

One way of handling the management of an author’s copyrights, publishing contracts, etc., after death would be to establish a trust for the benefit of the author’s heirs. The trust could be established while the author was still alive (a living trust) or under the terms of the author’s will (a testamentary trust). Copyrights, contract rights, etc., would be transferred to the trust.

A trust has one or more trustees who manage the assets of the trust for the trust beneficiaries. If an author created a trust while she was alive, she could be the trustee and handle contracts, royalties, etc., in the same way she would without a trust. She could also be the beneficiary so long as she was alive. When she dies, the trust would get a new trustee, someone she selected, and the new trustee would handle the business end of her writing.

The trustee would have full power to enforce the contracts, negotiate new contracts for books that had not been sold, renegotiate contracts where possible, exercise termination rights, etc. The royalties from the deceased author’s books would be paid into the trust and distributed to the heirs according to the author’s directions included in the trust.

The trust could hold more than copyrights, of course. It is common for people to put most or all of their assets into a trust, either to avoid probate or for circumstances such as to provide for the care of small children. Should the parents die prematurely, a trustee will handle the money for the children’s benefit. The same theory is sometimes applied to adult heirs who still act like children.

The only catch for an author is that the type of people who are experienced in managing real estate or investments in stocks and bonds might not be well suited to deal with publishers and agents.

One additional point to make with any attorney setting up such a trust – The provisions concerning the selection of a replacement trustee are important because the trust will last longer than most estate-planning trusts.

What are Passive Guy’s basic rules for authors who may die some day?

1. Make sure you have a will.

2. Make sure you have copies of all of your publishing and agency contracts (even old ones) where they can be easily located if you don’t make it through your next set of revisions.

3. If you have paid for cover art or cover design, keep those contracts as well so there is no question that you have licensed the design. (You do have contracts with your artists, don’t you?)

4. Even better, give copies of your contracts to the person who will be your executor or trustee. You might want to provide a short description of each of the contracts as a roadmap. Your executor or trustee will need to contact your publishers and agents after your death, so give them that information so they don’t have to dig through contracts to find it.

5. If you have unpublished manuscripts you expect to publish in the future, make certain your executor or trustee knows about those as well.

6. It is always easier for an executor to work with an accountant rather than digging through all of your jumbled up financial records and royalty reports.

7. There are lots of non-author general rules for making it easier on those you leave behind, but PG will let you hunt those down on the web.

Where do you go for help with all of this?

If you might have a taxable estate, you will want to go to an attorney who specializes in estate planning. (PG used to do some of this, but his knowledge is way out of date.)

If you do not have a taxable estate, quite a few attorneys are able to prepare wills or trusts that don’t involve sophisticated tax planning.

PG tends to like trusts because he’s already been to probate court a bunch of times, but watch out for “living trust” shysters. Any estate planning attorney and many regular attorneys who don’t appear on television every 5 minutes can handle a simple living or testamentary trust.

Don’t be afraid to ask how much everything will cost right up front. Any good attorney will be happy to give you an answer to that question after getting a general sense of your situation.

One more thing – A great many documents you might pay an attorney to prepare will never get used. You’ll never receive any benefit from them. A will is a different story. Sooner or later, everybody uses their will.

If you’ve been involved in handling the business and legal details of the estate of a family member or friend, don’t hesitate to share your experiences in the comments. We have a number of attorneys who stop by regularly and PG invites them to chime in with suggestions and corrections.

Suit filed against Apple and publishers for price fixing under the agency model

10 August 2011

A little antitrust litigation against big publishing and Apple to brighten up your morning:

Hagens Berman has filed a nationwide class-action lawsuit claiming that Apple Inc. and five of the nation’s top publishers, including HarperCollins Publishers, Hachette Book Group, Macmillan Publishers, Penguin Group Inc. and Simon & Schuster Inc. illegally fix prices of electronic books, also known as e-books.

. . . .

According to the suit, publishers believed that Amazon’s wildly popular Kindle e-reader device and the company’s discounted pricing for e-books would increase the adoption of e-books, and feared Amazon’s discounted pricing structure would permanently set consumer expectations for lower prices, even for other e-reader devices.

The firm believes that Apple was involved in the scheme. The complaint alleges that Apple believed that it needed to neutralize the Kindle when it entered the e-book market with its own e-reader, the iPad, and feared that one day the Kindle might challenge the iPad by digitally distributing other media like music and movies.

The complaint claims that the five publishing houses forced Amazon to abandon its discount pricing and adhere to a new agency model, in which publishers set prices. This would prevent retailers such as Amazon from offering lower prices on e-books.

. . . .

If Amazon defied the publishers and tried to sell e-books below the publisher-set levels, the publishers would simply deny Amazon access to the title, the complaint details. The defendant publishers control 85 percent of the most popular fiction and non-fiction titles.

The complaint notes that Apple CEO Steve Jobs foreshadowed the simultaneous switch to agency pricing and the demise of discount pricing in an interview with The Wall Street Journal in early 2010. In the interview, he was asked why consumers would buy books through Apple at $14.99 while Amazon was selling the same book for $9.99. “The prices will be the same,” he stated.

While free market forces would dictate that e-books would be cheaper than their hard-copy counterparts, considering lower production and distribution costs, the complaint shows that as a result of the agency model and alleged collusion, many e-books are more expensive than their hard-copy counterparts.

According to the complaint, the prices of e-books have risen as much as 50 percent since the switch to an agency model.

The lawsuit claims Apple and the publishers are in violation of a variety of federal and state antitrust laws, the Sherman Act, the Cartwright Act and the Unfair Competition Act.

Link to the rest of the law firm’s press release at Hagens Berman

It’s too early to tell whether this suit will go anywhere, but many years ago, Passive Guy received the top grade in his law school antitrust class, so if he says it’s legit, it might be.

Possibly.

Depending on how much the law has changed since 1868.

How to Hire an IP Lawyer

1 August 2011

Two good blog posts about hiring an IP lawyer popped up yesterday and today.

The first, from Dean Wesley Smith, clears up a few misconceptions about lawyers:

First off, unlike agents, they are bound by rules, very tight rules of behavior. I know lawyers have been made fun of in this area, but they are bound and insured, where agents have no rules they follow, even though agency law puts some rules on them. They ignore them completely and writers have been afraid to take them to court. All of this is becoming even more clear with the trend toward agents become publishers.

. . . .

Third, you can have a lawyer help you as much or as little as you would like. They can actually do the negotiating for you, or just advise you on what the contract says and what to ask for. You are in control. You do not give that control to a stranger.

Link to the rest at Dean Wesley Smith

The second is from scifi and mystery author Annie Reed, titled, “Lawyers Are Just People, Too.” As a former current paralegal, Annie would know.

Excerpts:

I’m here to tell you that hiring an attorney doesn’t have to be a stressful experience. Sure, lawyers happen to have expertise in a subject matter that a lot of writers don’t, and that can be intimidating. You can cut down on the intimidation factor if you keep a few things in mind when you decide to hire a lawyer.

1. You can shop around for an attorney just like you would for any other consultant you’d hire for your business. Hourly rates differ, same with amounts of retainers. Some attorneys don’t ask for a retainer at all. Some attorneys offer a flat, set amount based on the type of work instead of number of hours worked. If the attorney you talk to gets miffed because you tell him you’re going to talk to a couple of other people before you decide who to hire, chances are that’s an attorney you don’t want to hire.

2. Likewise, you don’t want someone who talks down to you or whose office staff is rude to you. A lot of people are used to rude behavior from legal and medical professionals, but you don’t have to put up with it. There are more and more intellectual property attorneys out there to choose from. Hire one you feel you can get along with.

Link to the rest at Scribblings, the Writing of Annie Reed

The only addition Passive Guy would make to the excerpts above is that most lawyers are insured for professional liability AKA legal malpractice.

Rules on insurance vary by state (and PG doesn’t know about all 50 states). Some states require the attorney to automatically disclose his/her insurance status to clients, but PG doesn’t think most do.

For example, California (which tends to have the most detailed rules about everything) doesn’t require professional liability insurance for attorneys. However, if an attorney anticipates representation will take more than four hours, California requires the attorney to disclose if he/she is not covered by professional liability insurance.

So, for California attorneys, if the attorney says nothing, they do have insurance. If they don’t have insurance and if they perform more than four hours of work, they’ll tell you. (PG senses eyes rolling back in heads all over the world.)

The reality is that most IP attorneys will have insurance. Attorneys who handle drunk driving and small-time criminal cases may not have insurance.

As with anything else, if insurance is a concern, ask. PG would have been happy to tell anyone but doesn’t remember anyone asking. As Annie tells us, since lawyers are human, some lawyers might see a red flag if a prospective client comes in and the first question they ask is about malpractice coverage.

Professional liability insurance is going to cover serious errors by an attorney that cost a client serious money. Judgment calls that could go either way won’t generate a malpractice case even if they do cost the client money.

Serious money is usually a prerequisite for a legal malpractice claim because attorneys specializing in malpractice litigation of any type work on a contingency fee basis – they collect a percentage of any money received, but if no money is received the client owes no attorneys fees.

Contingency fees mean lawyers are able to represent clients who can’t afford to pay attorneys fees out of pocket, but these attorneys won’t take a case without serious losses because litigation is almost always necessary. Malpractice litigation takes a lot of time and requires high out-of-pocket litigation costs, which the attorney will advance.

PG once spent a long time trying to help a client locate a medical malpractice attorney where the doctor’s error was obvious, but the injury – a crooked finger – was not serious, given what the client did for a living. As he thinks about it, this injury would have been much more disabling for a professional author because it would have taken one typing finger out of action.

If an attorney engaged in the sorts of misbehavior some agents do – not following the author’s instructions, not making proper payments or accounting for royalties, never returning phone calls – an author’s most effective remedy would probably be a formal complaint with the professional ethics committee of the state bar. Such a complaint captures any attorney’s attention because the ethics committee can revoke or limit his/her ability to practice law.

One other point Passive Guy hasn’t seen anyone make in agent vs IP lawyer discussions: You can always fire your lawyer for any reason or no reason. A phone call, letter or email will do it. You will be obligated to pay legal fees incurred prior to firing, but there will be no ongoing entanglements.

PG recently looked at an agency agreement he’ll be blogging about soon. This agreement not only gives the agent life-of-copyright agency fees, payable through the agency, for the books the agent sells, but also gives the agent life-of-copyright rights to negotiate sales of subsidiary rights even after the author terminates the agency agreement.

No lawyer is perfect and, like agents and authors, a few are jerks or dopes, but if you choose the wrong lawyer, you’re not stuck with them forever.

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