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Writers and the law

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Writers and the Law

As a writer, knowing a little about the legal side of your craft can save you a lot of aggravation. The following topics are particularly important:

Copyright
Plagiarism
Fair use/fair dealing
Libel
Contracts
Publishing contracts
Screenplay contracts
Option agreements
Shopping agreements
Script purchases

Please note that this chapter is intended only as an introduction to the subject. It is not definitive advice and will not cover every area of concern. For proper legal advice consult an expert.

Copyright

In the UK and USA writers have automatic copyright over anything they produce. This means that you own anything you write and, with some exceptions, someone else cannot use your work without your permission. In both countries copyright lasts from the moment a work is created to seventy years after the writer’s death.

Typically a copyright notice comprises the word ‘Copyright’, the copyright symbol, the name of the author and date of publication. For example:

Copyright © 2015 Arnold Riter.

You’ll sometimes see the words ‘all rights reserved’ added to works published in North and South America in order to fulfil the requirements of the Buenos Aires Copyright Convention 1910. However, this convention has largely been superseded by the Universal Copyright Convention 1971 (which requires the © symbol, copyright proprietor’s name and date) and the Berne Copyright Convention 1971 which makes no demands for a notice.

Some copyright holders use longer more elaborate copyright notices detailing permitted activities, or how someone might go about contacting them for various permissions.

For detailed advice on UK copyright law consult the Intellectual Property Office (http://www.ipo.gov.uk/types/copy.htm).

Information on copyright law in the USA can be found at the US Copyright Office (http://www.copyright.gov/title17/).

Plagiarism and fair use

Plagiarism is the act of passing off someone else’s work as your own. Technically plagiarism is not a crime but if you do plagiarise the work of another you may be prosecuted for copyright infringement.

It’s acceptable to copy a small amount of material for your own use (known as fair use or fair dealing) but you must give ‘sufficient acknowledgement’ that clearly states the origin of the text and you must not use a substantial part of the work. For example, if you took a 1,000 word chunk out of a short story that was only 2,000 words long the copyright owner would be justifiably annoyed and might demand compensation. It can be difficult to say what constitutes a substantial part, so err on the side of caution and seek advice if in doubt.

In the USA copied material can be used for almost any purpose, but in the UK only certain defined uses qualify as ‘fair’; these include review, criticism, private study and reporting of current events.

Libel

If you libel someone you’ve made defamatory remarks about them in print or in any form of recorded media (slander is defamation purely through the spoken word). The threat of libel is the reason you see disclaimers along the lines of “Names and characters are fictitious. Any resemblance to actual persons, living or dead, is purely coincidental…”.

In the UK libellous remarks don’t have to be directed at a specific person to be actionable, anyone who feels they’ve been injured by them can take you to court. Let’s say you write a story about a mad butcher called Gilbertine Throgmorton who makes his victims into sausages. You might have invented this name but if turned out there really was a butcher called Gilbertine Throgmorton he might sue you for libel. Gilbertine needn’t have to prove he’s been materially damaged by your work (his sausage sales needn’t have plummeted) just show that his reputation has suffered as a result; in the words of the law, to have caused a “reasonable person to have thought worse of him”.

US law is broadly similar, but it’s generally harder to sue for libel in the USA. The situation is complicated by some State laws that have different definitions of what constitutes libel.

Check your names

As you can imagine cases like the mad butcher are rare, but it pays to be careful when thinking up character names. If there’s an unpleasant woman in your novel called Mindy Zwikes it would pay to do an internet search and find out if such a surname actually exists (you should also check similar-sounding names like Swikes).

Common names aren’t usually so much of a problem. If you write a story about a car thief called John Smith it’s doubtful you’ll get angry letters from thousands of John Smiths. If, however, you write about a car thief called John Smith who lives in London at 34 Crab Lane, then you might be in trouble if this is a real London address and a John Smith actually lives there. As a rule, if you have to include a specific address in your writing make sure it’s a fictional one, for example, there is no Crab Lane in London, the closest name is Crab Hill.

Contracts

There is no standard contract. Many contracts contain similar standard clauses (known as the boilerplate) but in other particulars they can vary widely, even within the same organisation, with established, bankable talent often getting more favourable terms than the newbie.

Many companies will, as a matter of routine, seek to gain as much as they can from a contract. A company might not fight tooth and nail to keep more favourable terms or assets such as subsidiary rights, but they won’t be handed to you on a plate — if you don’t ask; you won’t get.

Don’t rely on an agent to scour a contract on your behalf. Very often an agent will provide valuable advice, but ultimately it’s you who have to sign it so make sure you understand all a contract entails.

The Writers’ Guild of Great Britain (http://www.writersguild.org.uk/) offers a contract vetting service to its members.

In the USA the Writers Guild of America, East (http://www.wgaeast.org/) and West (http://www.wga.org/) branches offer a similar vetting service and also negotiate minimum rates for their members.

Publishing contracts

Things to look out for in the small print…

The time frame

Once you’ve submitted your manuscript the contract should stipulate the number of days your publisher has to inform you, in writing, if it’s acceptable or not. The contract should also include a timescale for a subsequent rewrite — perhaps 60 days to prepare a new draft. Once you submit the new draft the process begins again…except you don’t want to be trapped in rewrite limbo the rest of your life so there should be wording to the effect that, after a certain number of rewrites, both you and the publisher have the option to terminate your agreement. It’s also useful to specify that not receiving written notice from your publisher within an agreed time-frame constitutes their acceptance of a draft.

Publication date

Another time-frame. Ensure the contract stipulates a publication window, for example, that your book will be published within x months of the final draft being agreed on. If the book is not published within that time ensure all rights revert back to you. You should also negotiate to keep your advance.

Who has the last word?

Some contracts allow the publisher to alter the text of a manuscript. In most cases these changes are likely to be sensible and necessary, but even so you might want wording to ensure you have final approval.

Indemnification and warranty clauses

Many publishing contracts state that the author shall be liable for all losses, costs, claims, actions, demands, expenses, compensation and liabilities arising out of or in connection with your book — or words to that effect. A term often used is ‘indemnify and hold harmless’. What this essentially means is that you take on full responsibility for any claims of defamation, copyright infringement etc arising from your book. You’ll also reimburse the publisher for any damages suffered if your warranties  — your statements that the copyright of the work belongs to you and doesn’t defame or libel anyone — turn out to be false. For this reason it’s helpful to get the phrase ‘to the best of the author’s knowledge’ included in your warranties.

These clauses are heavy handed but there’s often little a new author can do about them. Most publishers are insured against claims and you might be able to include a clause in the contract that covers you under the same policy. In this case, if things went sour and someone did sue, you’d be liable only for the ‘deductible’ — the expenses paid before the insurance kicks in.

Unfortunately some people launch lawsuits for frivolous reasons and if you’ve agreed to fully indemnify the publisher you might face hefty legal bills even if a case is thrown out. For this reason some authors insist they’ll only indemnify the publisher for ‘damages finally sustained’ ie for damages finally decided upon by a court.

Options

Publishers will often ask for the option to make an offer on your next book, if so make sure that the length of time a publisher has to consider your new manuscript it acceptable (you don’t want to be waiting half a year for a decision if another publisher is interested). Also look out for any clause that allows the publisher to buy your next book on the same terms as the last one. You should retain the right to negotiate a better deal if your first book is a success.

Grant of rights

These include print rights and subsidiary rights. Most publishers consider some additional rights as their due (audio and electronic for example), but there’s no reason you should automatically sign away rights for performance (movie, theatre and television). You should also think twice about foreign rights. Unless your publisher is active in the international market you might be better off keeping them. Some contracts demand rights to ‘all formats and all media now in existence or hereafter known or devised’ and you’d be better off keeping those too.

Royalties

The percentages should be clear enough, but how are the royalties calculated? With normal bookstore sales authors get a percentage of the book’s official cover price, but special editions sold to book clubs and other outlets might attract a percentage based on the publisher’s net profit on the deal — which can be considerably less than you’d expect.

No compete clauses

This prevents you from publishing another book that will compete with the work under offer. A no compete clause should have an expiration date that you’re happy with.

Cross-collateralisation

Some publishers protect themselves against poor sales by having a cross-collateralisation clause in their contracts. If you have two novels with a publisher and one does very well and the other poorly, you might find your publisher recoups its losses from your dud novel by skimming royalties from the good one. For example, if you were paid advances of £20,000 for two novels (total £40,000) and one earned you £35,000 and the other £5,000, then cross-collateralisation would leave you with zero at the end of that accounting period: the publishers would have taken the £15,000 owed you from your good novel to make up for the £15,000 deficit from the bad. There might not be much you can do about such a clause but be aware of the consequences.

When does your book go out of print?

In most contracts your agreement with the publisher ends when your book goes out of print so it’s important this term is properly defined. In ye olde days a book was considered out of print when there were no copies left to distribute and no new ones were being printed. However, in today’s world of electronic publishing an eBook might be considered available for sale from now till the end of time. Make sure that all the rights associated with your book return to you when it goes out of print and that this term is tied to a meaningful measure.

PS

You might be surprised to learn that many publishing contracts don’t agree to pay you anything at all, they pay your agent — make sure you have a proper written agreement with them.

Screenplay contracts

The following advice relates to speculative scripts. Things will be different if you’ve been contracted to write a script to order.

Option agreements

Sometimes a producer will buy a speculative script outright, but more usually they’ll first buy an option giving them exclusive rights to your script for a limited amount of time (generally six to twelve months). It’s common to negotiate the full contract at the option stage; then, if the producer later decides to buy the script, it’s a question of paying the balance ie the agreed purchase price less any option money. Traditionally an option payment is 10% of the purchase price but a new writer might end up taking considerably less. (There’s more about options in Coming up with ideas). If a producer can’t get a movie deal set up within the option period the option either lapses or you negotiate a new one.

Shopping agreements

These are agreements where the producer pays no option money and submits your script it to an agreed list of financiers and production companies within a specified time frame. Sometimes you might agree a non-exclusive deal that allows you or another producer to take the script to a different set of financiers. If a backer is found some shopping agreements allow the writer to negotiate directly with the financiers to secure a more favourable deal for themselves.

Script purchases

If you get an offer to buy your script outright consider the following:

How is the purchase price being calculated? Typically this will be between 1.5 and 3% of the production budget with upper and lower limits in place.

Is there a set up bonus? This is a bonus paid when your producer sets up a deal with a production company. These are usually included only when the option fee was negligible.

Does the contract include any profit sharing? Profit participation entitles the writer to a percentage of net profits ie a share of the money left over after costs have been recouped Make sure the contract defines what these ‘costs’ will be, if they include grooming fees for the producer’s girlfriend’s sister’s poodle you might want to argue.

If a contract awards you points how much are they worth? Some contracts share profits through a points system. Points often equate to percentages, but not always. There might also be a hierarchy of investors with some investors being paid back on their points earlier than others. Where are you in the pecking order?

Do you have audit and accounting rights? These give you agreed access to the production’s books in case you want to query the figures.

Is there a box office bonus? High box office returns are sometimes rewarded with a bonus. Are you getting one?

Are rights separated? Are you selling all the rights associated with your script: novelisations (including sequels written as books) merchandising, stage rights etc? Try to retain as many as you can.

How will your name appear on the credits? There are strict rules governing credits so you should be protected, but check anyway.

Are you also being contracted to do rewrites or have first refusal? If so, what are the writing fees?

Are you being asked to waive your moral rights? Essentially this allows the producer to change the script in any way they want and they might hire another writer to do this for them. Would you be compensated for being excluded from the rewrite process?

Do the rights revert to you if the movie is not made? They should do and the contract should stipulate the time period within which principal photography must begin.

If the production doesn’t go ahead, which version of the script reverts to you? It might be that the script you sold changes dramatically through the re-drafting process. You should claim rights to all versions of your script.

Will your name and image be used to promote the movie? If so will you be given any say in how they’re used?

Sequel rights. Does the contract have a ‘passive payments’ clause? This entitles you to payment in the event of a sequel being made even if you aren’t involved in the production.

Errors and Omissions Insurance. The production should have insurance to cover itself in case the movie causes harm to a third party through ‘errors and omissions’. Does this insurance also protect you?

To repeat. The above is offered as a guide only. If you’re in any doubt about the terms of a contract seek professional advice.

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