Ownership question

Well. that's how my lawyer explained it to me, so if you have an issue with it, you should take it up with him.

 

Interesting. I didn't know this. Can paralegals go the other way around? That is, can I say, "Please write an agreement by which I sell my copyright on X to Joe," and can they do that?

 

Not prepare the agreement. Though maybe if there was a simple for for it—paralegals are allowed to help fill out forms so long as they’re not giving legal advice, and an assignment of copyright is a very simple agreement. If you came in with a fill in the blank copyright assignment and wanted to know what information to put where, that would probably be ok. The paralegals I know err on the side of caution. A lot of them have been practicing a long time, are smart, and could do a lot of the work that requires giving legal advice, but they also know they’re not allowed to do so and in my experience err on the side of not crossing the line.

 

My lawyer has no problem letting his paralegal prepare drafts of agreements, and has gotten them to prepare documents for while I was meeting with him. He always gave it his seal of approval before it went anywhere, but that may be either a difference between the legal systems of our respective countries or if there's something else going on there.

 

I assume that the “seal of approval” is the difference.

Edited to add: The model I'm understanding this with is the Professional Engineer model. My father had decades of experience as a mechanical engineer, but when he wanted to go into business for himself he had to get his PE, because a PE had to sign the work.

 

In the U.S., a paralegal can do a certain amount of that work if they're under the supervision of a lawyer. Thus, some money will be saved because you're only paying for paralegal time to do a lot of the rote drafting, but you still have at least some lawyer time involved. If a paralegal is working independently of any lawyer, they'd be taking a risk by drafting anything.

 

This thread was started on the subject of intellectual property law. There, attorney client privilege is very important because it prevents certain statutory bar dates from being triggered by disclosure of intellectual property (i.e. disclosing it to an attorney doesn't trigger the bar because it's privileged; disclosing to a non-attorney would absent a written confidentiality agreement). Further, in civil matters, privilege is important when it comes to something like document disclosure in discovery. I just had a 2 1/2 month long trial where we benefited precisely from that privilege when it came to documents we would rather not have produced. The privilege is important well outside of the criminal law area, and in intellectual property (and particularly patents) it is quite important for protecting oneself.

 

See, I've only ever came into contact with it in the arena of criminal law.

You said it benefited you in documents "you" didn't want produced. So, hypothetically in relation to a contract given to an author, then if there is something amiss about the contract, showing it to a non-attorney would be potentially trigger a bar date and thus prevent it from being produced as evidence later at trial? Wouldn't handing it over to the author, also a non-attorney, also have that effect?

 

Well, there are at least two people in this thread who have law degrees (and one who's practising in a related area of law), but I don't think either one of us is encouraging the OP to trust us or anyone else on the details of this contract.

I just think trusting a paralegal with no experience in publishing contracts would give the OP a false sense of security.

 

I am actually really enjoying this thread. It's very insightful and I hope it continues for some time.

 

It's kinda hard to say much more without concrete information from the OP.

In general, though--I'd rather have my agent review my contracts than have them reviewed by a lawyer. Contracts really aren't that hard to read, once you've gotten used to the language and learned to take your time, and I think my agent's industry knowledge is more important than a lawyer's legal knowledge would be.

There are certainly lawyers who specialize in publishing law who'd be able to add insight my agent doesn't have, but they'd be an unnecessary expense for most contracts. And a lawyer who doesn't know the market wouldn't know, for example, how likely a given publisher is to take advantage of subsidiary rights (because I don't want to sign rights away if the publisher isn't going to use them) or whether there's a move afoot in the Big Five to move royalties up by .5% and we should demand that same concession in this contract, or whatever else that an industry insider would know.

Obviously if you don't have an agent, this is all theoretical, but I think it illustrates the limitations of relying on lawyers?

 

Copyright protects your actual product, the writing. It does not protect the story concept or sequence of events. It desn't protect the names of fictional locations or characters. Character and place names can be protected by trademark, but that is not automatic like copyright, and it will cost you. Wholesale ripoff of characters and settings will probably let you prevail in court, but it's not guaranteed.

Example: The fictional city of Santa Teresa, California is the creation of Ross MacDonald, but has been freely used by other authors, notably Sue Grafton. Graton's character Kinsey Millhone is based in Santa Teresa, and Grafton has said it was an homage to MacDonald.

By all means, you should discuss legal fine points of your manuscript with a literary attorney before publishing. In any event, it's worthwhile to understand the basics of copyright and trademark laws, including what elements vary internationally.

 

On the other hand, if you don't need an agent, an attorney is a one-time expense (or per-project expense, I suppose) and isn't going to be taking a percentage from you going forward.

 

I'm going to go out on a limb here, but I would think that if you had an offer from a respectable publishing house, if you found an agent that was accepting clients, then they wouldn't be too upset about reading your contract and taking 15 percent and taking a pretty much given 15%. I don't know what IP or entertainment lawyers charge, but any lawyer I've dealt with charged around 150-200$ an hour (or higher). Say a lawyer charged you a full hour at 150$/h, that means that your agent would have to get you an advance of 1000$ to match rates, not counting any royalties if the book pays off. So if the publisher is offering more than 1000$ advance, then it could be cheaper to speak to a lawyer than an agent but dealing with an agent could potentially get you an agent, which could be a pretty valuable resource if you plan on publishing anything else.

I'm hoping someone else will verify these numbers. Like I said I dont' know the going rate of most legal fees and I'm pretty bad at maths.

 

I think it might well be cheaper to speak to a lawyer. I'm saying it would probably be better to speak to an agent.

ETA: There may well be lawyers who are tuned-in enough to the publishing business that they're able to essentially do at least part of the job of agents (advising, etc.). In that case, I guess it would just be a question of what sort of relationship you're looking for and what kind of deal you've got on the table. I don't think most reputable agents are going to be interested in a deal with an advance as low as $1K, so if all you want from an agent is someone to review your contract, I agree that it would probably suit your needs to go with a reputable lawyer with lots of experience in publishing.

(We're obviously making a lot of assumptions, here. In the case of the OP, who doesn't seem to have an agent and doesn't seem to have the money to pay a lawyer, none of our "if"s really seem to apply.)

 

Also, (given a fair amount of ifs) another benefit of an agent is that if you don't have a lot of money, there really isn't any money up front. When the "sell" your book, the money gets sent to them, they take their cut, and they send the rest to you. At least that's how it happened with me, I'm not 100% if that's the industry standard.

 

Sometimes the publisher will do the splitting and send you your 85% directly, but the "no money up front" part is definitely industry standard.

 

That’s standard practice. Where I’m at, you’re not going to find a lawyer who does this sort of thing for $150/hr. My firm bills my time at $350/hr and I’m in a relatively small market. In L.A. or S.F. you’d be looking at around $500/hr and up, at least for experienced lawyers at the well-known firms. Maybe be some solo or small firm practicioners that are less.

One advantage an agent offers is that they’ll also negotiate the deal, try to get you more money, better terms or what have you. An attorney hired just to review a contract won’t do that.

But here’s the real catch: if you get an agent you will have a separate agreement with them, and contracts with agents can also have terms bad for writers. You should at least have an attorney look that agreement over, because the agent has a conflict of interest in advising you on that contract.

 

Yes. If an agent or publisher is asking you to front money, generally you’re going to want to avoid them.

 

Here's something I've read on the subject (and it's just that, what I've read): You never want to sell any of the rights to your work, only to license them. And that is for a limited time only, after which all rights will revert to you, the author.

Check out this series by Kris Rusch: https://kriswrites.com/business-musings/contracts-and-dealbreakers/

also, https://kriswrites.com/2017/09/20/business-musings-i-spent-decades-developing-my-ip-contractsdealbreakers/

 

That’s pretty cheap. I do flat fees as well, but firm management doesn’t like to take on new cases that are going to be less than $1000 or so in fees I still do the one-off short projects from time to time, though, and also pro bono work.

I work with counsel in the UK as well, but it seems like they’re more expensive than what you’re quoting above. I’d have to check to be sure.

 

That seems expensive. I once hired a lawyer who got a possession charge against me dropped and the total of his fees came to less than that and included a day at court for pre-trial.

 

Criminal attorneys are often less (though there are some that are more). $350 isn’t expensive in the Los Angeles market, which is the closest big market to me.

But yes, we are probably the most expensive firm in our market, and we have at least one attorney who is over $600.