Agent versus Attorney: Who Can Help Me with my Publishing Contract?

Writers who don’t have and/or don’t want a literary agent might consider whether it’s worth using an attorney, or publishing contracts consultant, to help review and/or negotiate one or more publishing contracts. This can be a good option for contracts outside the scope of your agency representation or for writers who do not have or do not want an agent.

This column addresses some of the issues you might think about if you find yourself needing help with a publishing contract outside an author/agent relationship.

The first question is what an attorney can do for you in these situations. Well, that depends on their expertise and what you ask them to do. It’s important to make sure you are talking to an attorney who has some experience with publishing contracts. Many lawyers work with general commercial contracts, but publishing contracts can raise particular issues that are best served by someone who understands how the industry works, notably in terms of usual practices around copyright licensing, rights reversion, options, and non-compete clauses.

A lot of publishing attorneys and contracts consultants provide flat fee or hourly fee services for a simple contract review. Some authors’ organizations (like the Authors Guild) provide these services for members. A contract review is where the attorney or consultant reads through your contract and flags issues you may want to raise in negotiations with the publisher, maybe suggesting revised wording you might like to put forward in that context. An attorney or consultant providing a contract review for you should also be able to explain clauses that you don’t understand.

You can hire an attorney or consultant to actually negotiate a contract for you with the publisher, although this will be more expensive and may not give you much more than a detailed review (which ideally should arm you to do the negotiating yourself).

There are a lot of guides available in bookstores, libraries, and through authors’ organizations about the basics of publishing contract negotiations. Authors Guild members can avail themselves of the organization’s Model Trade Book Contract and Guide. The Authors Alliance has also released several resources on negotiating publishing contracts, including this free guide. A Google search will reveal a lot of affordable books on negotiating publishing contracts as well.

I admit I’m old-fashioned and highly risk-averse but I do tend to think an ounce of prevention is worth a pound of cure. If you can afford a contract review by an attorney or expert, at least the first time around, I might suggest this over and above learning it all from a book. At least you can ask questions from a real person!

One other thing to bear in mind on the agent versus attorney front, once you are a more established writer, is that a publishing lawyer or contracts consultants won’t necessarily keep track of all your contracts the way your agent will. This means that the attorney may not be in a strong position to weigh in on, say, whether a  particular contract is a good deal for you with respect to where you are in your career and/or making sure none of your other work interferes with a non-compete or option clause.

Once you’re working on a series of contracts, it may be wise to either have an agent in place, or make sure your attorney is appraised of the body of your work and how prior or planned future projects may impact the contract currently on the table. A good agent should automatically be keeping track of these longer term career issues, but a lawyer you’re paying on a case-by-case basis to help with individual contracts may not be in the best position to do that, depending on how regularly you work with the lawyer and how much information you give them about your career more generally.

Obviously these are all fairly general overview thoughts and every case is different. Also, of course, my usual disclaimer applies: nothing in this column is intended as formal legal advice, but hopefully it is helpful by way of background information.

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