Contract Q&A with attorney Michael Lennie

Q: If an author is transitioning from a contributing author role to the role of a lead author, do they have to accept the same contract conditions/stipulations that were negotiated by the original authors?

A: Michael Lennie, Attorney and Literary Agent, Lennie Literary Agency & Author’s Attorney:

“I see at least a couple of meanings to your use of the term ‘a contributing author’, each of which results in a different answer. If you have been ‘contributing’ only to certain elements (e.g., chapter summaries, or a particular supplement to the main text), but not to the overall book, you may have entered into what is designated a “work-made-for-hire” (‘WMFH’) agreement with your publisher. A WMFH agreement requires the agreement be in writing clearly stating that it is in fact a ‘work-made-for-hire’ agreement. A WMFH agreement is quite different from an author/publisher agreement (ah, but that’s another tale).

Not knowing the facts in this case, I set out two possible scenarios to discuss issues that may arise. The first assumes you have an existing WMFH agreement, while the second assumes you are subject to an existing author/publisher agreement.

First, if your existing agreement is a WMFH agreement, you would not also be legally bound by the author/publisher agreement signed by the authors other than you. Legally you would be starting from scratch regarding an author/publisher agreement. The publisher might well want you to become a signatory to the same author/publisher agreement previously signed by the co-authors, but you are not obliged to do so. While you don’t want to overplay your hand, the fact you are not bound by the existing author/publisher agreement affords an opportunity for you to negotiate better terms.

In the second scenario, the designation ‘contributing author’ is used to mean said author is an existing ‘co-author’ (not a WMFH) and is transitioning into the lead author position, and will thereafter continue to write new editions with the remaining co-authors. In this set of assumed facts you would already be a signatory to an existing contract with the publisher, and possibly an agreement with the co-authors known as a ‘collaboration agreement’. The collaboration agreement at a minimum will set forth the respective duties of all authors and specify their respective shares of the royalty. If that split of duties and/or the royalty split is to be modified, all coauthors must sign an amendment to the collaboration agreement. This is in addition to the amendment to the author/publisher agreement.

In this instance, the existing contract with the publisher is still in force, and changes to that existing agreement will involve a contract amendment negotiated between the new lead author, the remaining co-authors and the publisher. The new lead author should consult with the remaining coauthors so all coauthors (including you) can approach the publisher with one voice. In fact, part of what you want to decide is who will be that one voice – one of the authors or a professional representative. If all authors do not decide on this ahead of time, the publisher’s representative will use a ‘divide and conquer’ approach that will result in an amendment much less favorable to the authors. At the least, in negotiating an amendment, the new lead author and the remaining co-authors will need to come to agreement as to how the royalty pie is to be divided.

The publisher’s primary concern in these negotiations to amend the author/publisher agreement is to get the next edition out at a cost that allows the project to make economic sense to the publisher. Although there can be exceptions, the publisher has a certain amount of money to spend on the authors, and does not particularly care how the authors (both present and past) agree to divide it up. The retiring author(s) are likely to have a provision in their contract that specifies the amount of their contractual royalty they will receive once they stop contributing. That amount is often 50% of their pre-retirement royalty for the first such edition in which they do not participate; 25 % of their pre-retirement royalty for the second such edition in which they do not participate; and nothing for the third and subsequent editions in which they do not participate, but they may have negotiated a higher phase out royalty percent than this.

If you know these existing terms, you can easily figure out how much royalty is available to the remaining coauthors for redistribution. For example, if the current lead author was receiving 50% of the total author royalty and each of two coauthors was receiving 25% (50% + 2x 25%=100%). Let’s assume the retiring lead author’s agreement provides that upon the lead author no longer participating in the next edition, (s)he will receive 50% of the royalty (s)he received when fully participating and in the second such edition in which the former lead author is not participating, (s)he will receive 25% of the royalty (s)he received when fully participating and nothing thereafter. Further assuming the total royalty paid by the publisher is to remain the same, the royalty freed up by the lead author’s retirement is 25% of the total royalty for the first such edition, 37 ½ % for the second such edition, and 50% of the total royalty for the third such edition and thereafter.

The remaining authors need to know what the existing contractual provisions are for the retiring author(s), and structure their amendment with the publisher such that their collective royalties increase as the retiring author’s royalty decreases.

This comment focusses only on the royalty distribution when one or more authors retire, and assumes the total royalty paid by the publisher will remain constant. The remaining authors may want to try to increase the total royalty and/or may also want to try to negotiate changes to other terms. Like all author/publisher negotiations, this should only be approached after careful planning and an evaluation of the circumstances that may afford the authors leverage."

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Consequences of not following third party photo usage restrictions

Q: What happens if, notwithstanding your best intentions, a 3rd party photo usage restriction escapes your notice and your lapse is detected by the photographer or stock agency?

A: Steve Gillen, lawyer and partner in the intellectual property firm of Wood Herron & Evans:

“Well, about the best you could expect is that you will be deemed in breach of your contractual commitment and held to account for what you should have paid for the uses you actually made. More likely, however, is a claim that you have made an unauthorized and infringing use of a copyrighted work outside the scope of any license you might have had. In this event, the copyright owner has some very potent strategic advantages and remedies at his/her disposal:

Actual damages – They may elect to recover the profits you made from the unauthorized use of the profits they lost from your failure to take and pay for a license.

Statutory damages – In lieu of actual damages, they may elect to ask the court for an award of statutory damages of up to $150,000 per work infringed in cases of willful infringement or up to $30,000 per work infringed where the infringement was not willful.

Attorneys’ fees and costs – On top of actual or statutory damages, they make ask the court to award reimbursement of their attorneys’ fees and costs (this can be quite substantial – a lawyers professional association reports that the national average cost to try a small copyright infringement case was $350,000).

Injunctive relief – They may ask the court to order that you stop the infringing use and that you surrender all infringing inventory and reproductive materials for destruction.

Takedowns – If your infringement is on-line, they may serve a takedown demand on your service provider, which will likely result in all or a portion of your website being disabled.

Indemnification obligations – Since copyright infringement is a ‘no-fault’ offense that reaches virtually every party who participates in the reproduction, distribution, adaptation, or public display of the infringing work, it is also likely that your publisher, the printer, and/or ISP will be named as additional defendants, increasing your cost and exposure.

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Learning as we go: Establishing a writing community
By Alexandria Wolochuk, Ph.D., Professor of Education, Molloy College

In 2011 Pat Mason and I set out to establish a TAA chapter writing community at Molloy College. Making the time to come together during a semester to share our work is an awesome task for many of us, but we try to make it interesting for our colleagues by providing writing sessions, newly published books, and refreshments. In addition, we have adopted various useful mottoes—the best being “Less surfing and more writing!”

Pat and I seek to provide opportunities to the writing group that would be the most beneficial to our members. Recently what worked for us was to offer a 50-minute workshop on "Strategies to Improve Your Writing." We got off to a really great start with a group of faculty representing nursing, theology and communication who seemed eager to learn. The workshop was very interactive and the time was well spent.

We later asked ourselves, "what made it so successful that participants asked for more time on the evaluations?” After reflection we concluded that one of the keys was that it was a fixed amount of time (50 minutes) held in the morning before people could change their minds about attending. It also succeeded because we provided some quick and easy tips that the faculty saw as doable. Doable strategies that could be inserted immediately into their work provided the participants a glimmer of hope which is all anyone needs besides time to undertake the arduous task of writing.

Pat was reenergized by the workshop as well, noting: “I believe the conversation with the participants supported my efforts to continue writing. Reviewing the notes from TAA’s conference sessions as well as the writing books invigorated my thoughts.”

One strategy that our group found particularly helpful was the use of thesis templates to give their writing projects a jump start. We learned this tip from attending Dannelle Stevens’ session at TAA’s Albuquerque, New Mexico conference, where she provided attendees with several useful writing prompts. Stevens’ also emphasized the value of journal writing to aid the writing process, a point that is also well illustrated by Bruce Springsteen’s journal which developed into many of his well-known hits!

Sometimes we all need a little push. We were encouraged by the faculty to present again and to keep up the good work!

Click here for information on starting a TAA chapter at your institution.

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6 tips for a productive summer break
by Dionne Soares Palmer

Summer vacation can be a great time for academic writers to get ahead on their writing projects, but all too often professors and graduate students find themselves scrambling to get something—anything—finished as summer comes to a close, and wondering how the summer slipped away from them.

Your summer vacation doesn’t have to end that way. Noah Shusterman, assistant professor at Temple University and author of the Chronicle of Higher Education article “Planning a Productive Summer,” and Tanya Golash-Boza, associate professor at the University of California, Merced and author of the blog post “How to Have a Productive Summer by Working Four Hours a Day,” offer the following six tips for maximizing your writing productivity over summer break:

1. Plan your writing projects ahead of time. Golash-Boza suggests making a list of all the writing projects you want to complete over the summer and then estimating how much time each project will take. If you find yourself in the common dilemma of having allocated yourself more tasks than you will have time for, prioritize your projects and tackle the most important work first.
   
   As part of the planning process, Shusterman recommends spending some time in the spring to set goals that are achievable, meaning that they are within your control to accomplish, in order to maximize your effectiveness over the summer break. For example, a goal of writing a set number of words per week or a goal of finishing an article for submission to a journal are achievable goals since they depend only on you. In contrast, a goal to have your article published in a particular journal is not under your control since you do not have power over the timeline of the review process or the selection of articles for publication.
   
   
2. Finish off your school year as soon as possible. Before you can start your summer writing regimen, you need to wrap up any lingering tasks from the school year, such as grading. If you’re feeling burned out from the spring term, Golash- Boza suggests taking a brief break from academic work to recuperate, so you can leave the previous term behind you and start in on your summer writing goals as fresh as possible.
   
   
3. Schedule your time—and stick to your schedule. Golash-Boza recommends scheduling no more than four working hours each day during the summer to better maintain your focus and mental acuity while you’re working. “Limit your working hours,” she urged. “Find out what your limits are and then stick to them. I don’t feel bad working four hours a day when I know that’s the limit of my intellectual activity on a daily basis.”
   
   Another aspect of sticking to your schedule is accepting that some days will end up being more productive than others. If you have an unproductive day, Shusterman cautions academic writers against trying to make up for that lost productivity the next day—if you keep trying to make up for previous days, your goals will become a moving target that become more and more difficult to achieve.
   
   
4. Have something to show early on. To avoid a panicky feeling come August or September, Shusterman strongly recommends that writers focus on completing something in the early days. “Have something to show for May and June,” he said. “That is the best piece of advice I could give.”
   
   Being productive early requires focusing on high-priority projects rather than pursuing other intellectual interests and not relying on catching up on everything later in the summer.
   
   
5. Stay motivated. To stay inspired, Shusterman advocates choosing summer projects that interest you as much as possible; another strategy is to rotate through different motivational tactics, such as setting short-term goals to reach each day or week, to find out what works best for you and keep things fresh.
   
   For Golash-Boza, focusing on rewards works well. “If my summer is focused on writing, what keeps me going is the knowledge that once I get done with my 4 hours of work, I can do something fun,” she said. “I make sure to do something enjoyable every day and not to work on the weekends. The relaxation time serves as a reward.”
   
   
6. Protect your vacation time. Both Shusterman and Golash-Boza are adamant that academic writers must take vacation time during summer break to stay productive and avoid burn-out. “A major pitfall for academic writers is to not take any break at all,” Golash-Boza said. “If you’re feeling stuck during the summer, take a real vacation, even if it’s a short one and even if you just stay at home, because it’s very important for your long term success.”
   
   Sushterman advises academics to have a clear distinction between work time and relaxation time. “The important thing,” he said, “is that when you do take vacation time, you actually have a vacation. If you take a vacation and you spend it with a pile of books that you’re barely reading, you’re not getting work done, and you’re not completely relaxing either.”
   

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Maximizing the traffic on your blog

Publishers are increasingly expecting authors to blog in connection with their books. These blogs can be a highly effective marketing tool—if you can successfully attract readers. In order for your blog to thrive, you need large numbers of engaged readers who follow, comment on, and repost your content, which means you need to know how to maximize your traffic.

In a recent TAA audio conference entitled “Author Blogging: How to Attract Readers”, Joel Friedlander, author of the highly successful blog, The Book Designer.com, and an expert in maximizing blog traffic, shared the following advice:

• Offer compelling content. Readers browsing the blogosphere want content that solves real problems and offers expert knowledge and advice. Writing how-to articles, reviews of books or products related to your field, and tutorials on relevant skills are great ways to lure readers in. Writing in an engaging, accessible, and personable style will keep readers coming back for more.
  
  
  
• Create memorable headlines. Blog headlines tend to be weak, but it is vital that they hook potential readers’ attention. “Headlines can make all the difference,” Friedlander said. “My message is that the headline is worth as much as the article itself because if nobody is drawn in by the headline, they’re never going to read your great content.”
  
  
  
• Exploit SEO. In order to make your blog easier for people to find, learn at least the basics of search engine optimization (SEO). This will include knowing and using the important key words for your niche and utilizing SEO tools such as Google’s keyword tool, which will tell you the most effective keywords to include, and the Scribe content optimizer, which helps you ensure that your headline, description, and content has been optimized for your particular keywords.
  
  
  
• Get to know other bloggers. Networking with other bloggers is a key strategy for building a successful blog. Once you have developed relationships with other bloggers in your niche, you may have the option of writing guest posts on their blogs, which introduces a new audience of interested readers to your work and can lead to increased traffic on your own blog. You can also collaborate with other bloggers to host events to increase readership.
  
  
  
• Post frequently. Friedlander suggests posting a minimum of once or twice a week to grow a successful blog: “Most successful blogs do not post any less frequently than once a week. The more you post, the more traffic you will attract. Find a schedule of at least once per week that is comfortable for you.”
  
  
  
• Listen to your readers. Pay close attention to the comments your readers leave on your blog in order to get a feel for what kinds of posts will be the biggest hit. “If you get readers engaged, you start an endless conversation, and from this conversation you get incredible market intelligence because people will tell you every day what they’re getting stuck on, where their problems are and what they don’t understand. If you ask them, they will tell you. You can become more and more successful as a blogger as you listen to the people who are reading your blog.”
  
  

Leveraging the tips Friedlander shared can help you grow your blog into a successful marketing tool and ultimately share your ideas and your work with a larger readership. For more in-depth information, please listen to Friedlander’s podcast.

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