Writers: Do You Need A Lawyer?

Like death and taxes, lawyers are one of those unpleasant necessities in life.

At some stage, whether it’s buying a house, writing your will, starting your own business, or getting into a dispute, you will probably need the help of a lawyer. And it’s not the lawyers themselves that are unpleasant (can I admit to a little bit of an ironic laugh whilst typing that?), it’s just that the fees they charge aren’t something your average American can afford.

So, as an author, will you need a lawyer?

Like any question involving the law and lawyers, the frustrating answer always is: it depends on your circumstances. In the case of authors, it’s easiest to break these circumstances down into what type of author you are: Are you a self-published author? An independently published author? An author with an agent? Or perhaps you’re a hybrid author who has an agent and also self-publishes.

Self Published

As a self-published author, there are two main circumstances where you may need a lawyer:

  • where you’re concerned about liability in relation to specific aspects of your manuscript  that may be contentious when it comes to copyright and/or defamation; and
  • where you intend on entering into agreements or contracts with professionals in the creative industry to assist with your manuscript – editors, proof readers, publicity agents, etc.

If these two circumstances don’t arise, it’s unlikely you’ll need any legal assistance to publish your manuscript.

At the very least, have a second set of eyes look at any contracts you intend on signing – it’s always good to have a second opinion...

If you can’t afford a lawyer, you can always look around for lawyers who do pro-bono work in the publishing industry. And if that doesn’t turn out to be an option, at the very least, have a second set of eyes look at any contracts you intend on signing – it’s always good to have a second opinion and a person to bounce ideas off if something doesn’t seem right.

And you can always discuss copyright and defamation concerns with your author friends, of course, but be hesitant of any advice from people who are not industry experts. For the gazillionth time on social media, I recently saw an author swear black and blue that you can use two lines of lyrics in your novel — which is untrue, as mentioned previously in this column. American copyright law looks to quality, not quantity. If those two lyrics are integral to the song, you could be in trouble.

Indie Published

In my opinion, this is the situation where you are most likely to need a lawyer. You’re definitely going to have a contract (and I would run like the hounds of hell were on my feet if an independent publisher did not offer a contract!), and you don’t have the benefit of an agent to explain the clauses or to negotiate the clauses on your behalf.

Naturally, the need for a lawyer also depends on whether it’s your first novel being published. If you’ve previously negotiated a deal on your own, you’re probably familiar with how publishing clauses operate and you know what to expect from a contract and what to ask for. And it can also depend on the relationship you have with your publisher. If you have close contact with your publisher, you may be comfortable listening to their interpretation of clauses and taking their advice. If you don’t have this sort of relationship with them, you may need the advice of an independent expert in the area.

Agent Represented

Aside from selling the rights to publish your manuscript, agents also have a thorough understanding of publishing contracts.

They’ll explain clauses to you, and if your agent is a junior agent, they always consult with more senior agents on contract interpretation and negotiation. They understand issues that may not be obvious to an author, like which clauses can be crappy for you further down the track (such as giving away certain rights for film and television) and they also understand the practical effect of clauses, so they know how clauses should be structured for royalties statements.

If you have an agent, you may need a lawyer for a dispute, but it’s unlikely you’ll need a lawyer’s assistance for your contracts.

Hybrid Authors

Hybrid authors are usually commercial savvy. They’ve got an agent, they’ve seen publishing contracts, they know what royalties statements are and how they should be audited, and what normal rights clauses look like. And they’re savvy enough to know what to self-publish outside of traditional publishing deals. It’s unlikely they’ll need a lawyer — a weird clause in a contract would stick out like a red thumb to them, and they probably have a close enough relationship with their agent to run any odd clauses past them.

What's your experience? Are there any other circumstances where you think you might need a lawyer? 

Jessica Meddows

Column by Jessica Meddows

In a previous life, Jessica worked for 12 years in the legal industry, with her last purely legal role being the corporate counsel for a property management company in Australia. Since then, she’s been the editor for an online literary journal and currently manages a music/tech start-up. She also freelancers as a contract lawyer and content producer, and writes regular columns for Litreactor and Gypsy Girl.

Jessica’s fiction and poetry has appeared in or is upcoming in Andromeda Spaceways Inflight Magazine (Aus), Beware the Dark (UK), Kaleidotrope, Plasma Frequency Magazine, and Pantheon Magazine.

She loves swimming, and like Peter Singer, considers herself a flexible vegan and focuses on the welfarist approach to animal rights.

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Comments

Tom1960's picture
Tom1960 from Athens, Georgia is reading Blindness by Jose Saramago April 30, 2014 - 10:00am

Thanks for the info. 

voodoo_em's picture
voodoo_em from England is reading All the books by Tana French! May 1, 2014 - 7:51am

As usual, Jess, another excellent article.

*favorites*

thanks :)

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce May 2, 2014 - 8:27am

Thanks, guys! I think it shows just how valuable a good agent can be, too. 

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading absolutely nothing May 3, 2014 - 9:51am

An additional contact with a lawyer occurs when your book is being published by a major or even minor publisher, in particular when you're writing nonfiction. Your manuscript will be vetted by the publisher's lawyer, who will likely be your adversary. S/he will find things in the ms and demand that they be cut - sometimes correctly, sometimes not. My own biggest battles in publishing have been with these lawyers, not my editors. The lawyers are much more concerned with protecting their client than in helping you, the writer. So my advice is, fight back!

Example: in one of the biographies I wrote, I had a director on the record describing a fairly well-known actress as "a bundle of neuroses." The lawyer insisted I delete it; he thought it might be considered defamatory. I argued and argued and argued, and finally he relented and let it stay.

In what WackyWorld could "a bundle of neuroses" be considered defamatory? The legal whiz was far too sensitive, and a good quote would have been tossed out if I'd just gone along with his demands. I fought hard for this simple phrase, and I won the battle. A lot of energy was spent for no reason at all.

--Ed

Mess_Jess's picture
Mess_Jess from Sydney, Australia, living in Toronto, Canada is reading Perfect by Rachael Joyce May 6, 2014 - 2:27pm

Ed, I think I recall you mentioning this when Scarlett Johannson threatened to sue over being mentioned in a novel. I can see how it could be potentially litigious in America, but it would have been something I, as a writer, would have been happy to run the gauntlet on!

You gave me a good idea for a column. Me: How Lawyers Protect You. You: How Lawyers Try To Scew You. Both sides of the coin!

edsikov's picture
edsikov from New York by way of Natrona Hts PA is reading absolutely nothing May 7, 2014 - 12:06pm

I'm up for it! You want to pitch it? Send me a PM!

--Ed