Since the release of Amazon’s Kindle in 2008, e-publishing has slowly transformed from an indie alternative into a viable mainstream distribution outlet for both new and established authors.According to Fortune 500, e-book sales increased by a remarkable 1,260% between 2008 and 2010. With the emergence of this new market, multiple new e-publishing companies have materialized, allowing authors to self-publish their novels online and quickly share their work with the public. Although e-publishing completely bypasses many traditional aspects of book distribution, it is still smart for potential authors to consider consulting with lawyers regarding negotiation of their e-publishing contracts. In fact, most e-publishers will refuse to finalize a deal unless legal counsel is involved.
When negotiating contracts with e-publishers, it is imperative that lawyers and authors be wary of subsidiary rights. E-publishers typically request the authority to create book clubs and adopt an author’s work into foreign language translations. Although these rights can help increase an author’s target audience, they typically don’t benefit clients monetarily and should be reasonably limited. Additionally, when bargaining, it is essential that legal counsel be considerate of miscellaneous legal provisions, such as arbitration and matters of jurisdiction, which are mechanical in nature but practically important in the event dispute resolution becomes necessary.
When working with authors, it is imperative that counsel educates clients about the publishing laws that affect their business. For example, before pitching to e-publishers, it is essential that an author’s work contains no copyrighted quotations, song lyrics, or images. Unless the author obtains a license, the exclusion of these elements may lead to an expensive and time-consuming lawsuit. It is also important for authors to understand that e-publishers almost never sign a multi-book deal. Instead, contracts usually state that renewals are completely contingent on a first book’s sale performance.
In the e-publishing industry, lawyers typically act as an author’s agent. As such, it is the attorney’s job to make sure that authors recognize the differences between each major e-publishing company. For example, Amazon Kindle Direct Publishing (KDP) offers a 35% royalty rate on their standard contract, while BookBaby advertises an 85% royalty rate for their free agreement. Additionally, each e-publishing company will offer different packages of services. Continuing with the previous example, Amazon KDP Select allows authors to earn royalties every time their book is borrowed from the Kindle Owner’s Library. In exchange, the author must agree to distribute their piece exclusively through Amazon for 90 days. In contrast, BookBaby’s package will transfer an author’s novel into an e-pub file and give authors access to a social media marketing guide, coupons for book trailer productions companies, and guaranteed book reviews. Additionally, different companies allow authors to set their own prices while others limit who an author can publish under. Understanding the difference between each e-publisher’s services and package terms determines how an author gets paid for his/her work and what he/she gets in return for allowing a given e-publisher to take royalties. When searching for the correct e-publishing company, all of these considerations are paramount in determining which option is best for a given author.
As the e-publishing market becomes more expansive, it will become even more important for authors to appreciate the publishing industry’s complexity. With a strong knowledge base regarding the legal and practical implications of e-publishing, lawyers can help their clients find the right distributer while assuring that their work is well-protected.
Matt Wagner is a law clerk at Berenzweig Leonard, LLP who is currently studying Music Business and Songwriting at Belmont University.