PUBLISHED SEPTEMBER 2016
by Lynn Rosen, IBPA Independent consulting editor
Three legal mavens give us a perspective on the important issues independent book publishers should be aware of.
 Jonathan Kirsch
What are some of the important legal issues at play in the book publishing industry today?
The single most important legal issue in the publishing industry today is the proliferation of publishing media and markets. Not long ago, “book publishing rights” meant print publishing rights. Today, the publisher must be able to publish in various forms of both print (including both offset and print-on-demand editions), various digital formats, and both audio and audio-visual formats. What used to be called “interactive and multimedia” rights—and treated in contracts as a separate subsidiary right—are now necessary in order to produce an “enhanced” e-book, which has become a standard form of e-book publishing. Out-of-print clauses can be as obsolete as the phrase itself implies, and reversion of rights should be based on “unavailability for purchase.” Even a term as basic as “the book trade,” which once referred to brick-and-mortar bookstores, is a moving target because books (and book-related products and services) are sold in new and ever-changing channels of trade. Old contract forms are always treacherous to use, but never more so than today. What’s more, publishers need to be vigilant that their existing contracts cover the rights they need to compete effectively in the book industry. Sometimes it will be necessary to go back to authors (as well as photographers, illustrators, cover designers, etc.) to secure additional rights.
From a legal standpoint, what are some of the key issues a new independent publisher needs to know and be ready to address?
I always recommend that publishers ask themselves the following question: “How did I get the right to use any particular item of content in my publishing business?” The question applies not only to the text of a book, but everything in, on, and around it: cover art, jacket copy, blurbs, photographs, illustrations, catalogue copy, press releases, and so on. The answers may vary. Sometimes no permission is needed because the content is in the public domain or is useable under the Fair Use Doctrine. More often, however, the publisher should be sure that permission has been obtained from all content providers and service providers who may be able to make a plausible claim of ownership of work product. As another example, a publisher can and should secure the rights they own by registering copyrights and trademarks and recording documents by which these rights were acquired. Most publishers routinely file copyright registrations but ignore trademark registrations, and yet trademark rights in titles, cover designs, key phrases, and characters is an often-overlooked issue in publishing contracts even though these rights can be valuable and sometimes essential to the success of a book series.
What about a more established independent publisher: what issues tend to arise, or what categories of issues?
The question that arises often among established publishers than start-up publishers is whether a publisher can take advantage of an offer from another (and usually larger) publisher to buy the publishing business. Such an opportunity can be the pay-off for a publisher who has spent years or decades building up his or her business. To take advantage of these opportunities, however, it is necessary to go back through all contracts and make sure they are still in full force and effect and, crucially, to make sure that the contracts can be assigned to the buyer. This kind of due diligence is best done before there is an offer on the table. Once the author knows that his or her consent is required to close a deal, the author enjoys an advantage in negotiation. It is more advantageous to publishers to address these issues when there is less at stake.
How would you recommend independent publishers can best situate themselves to deal with any legal challenges that might arise?
The best practice, at least as I see it, is for the publisher to work with an experienced publishing attorney on an ongoing basis. Once the publisher has secured a serviceable set of contract forms and set up standard operating procedures with the assistance of an attorney, it should only be necessary to consult the lawyer when a new issue comes up. Investing in legal services during the start-up phase, however, is a sound investment.
 Michael Gross
What are some of the important legal issues at play in the book publishing industry today?
Reversion of rights. In light of the proliferation of print-on-demand and e-book technology, authors need to be vigilant when negotiating their out-of-print provisions. When a book is only available via POD or e-book, we recommend inserting a monetary threshold that would allow for a reversion of rights if a certain amount of income solely generated through POD and e-book sales is not met.
 Stacy Grossman
What are some of the important legal issues at play in the book publishing industry today?
One legal issue in publishing that is interesting to me is the ownership of rights in data. In traditional print publishing, most of the information to be had related to book sales and returns. With the rise of electronic publishing, much more data is available—data that is extremely important to publishers. With e-books, it is possible to know not only how many books are being sold, but data about the purchasers (e.g., age, gender, location), the dates and times of consumer purchases, and even detailed information about how much of a book has been read, and when! All of this information can be harnessed and might direct which books get published, when they will be published, and how they will be marketed. All parties are interested in this data. Publishers should ensure they acquire the broadest rights possible in it.
From a legal standpoint, what are some of the key issues a new independent publisher needs to know and be ready to address?
A new publisher has a great opportunity to set itself up well and adopt best practices from the start. This includes having a solid publishing agreement to use with its authors, complying with privacy regulations, adopting appropriate bookkeeping and record keeping systems, and obtaining sufficient insurance. With respect to the publishing agreement, new independent publishers should be sure to acquire a broad grant of rights so that it can exploit and even sublicense them, and should get from authors proper representations, warranties, and indemnifications to avoid being liable for certain author errors.
Lynn Rosen is co-owner of the indie Open Book Bookstore in Elkins Park, Pennsylvania. Rosen was previously editorial director of Book Business magazine and director of Graduate Publishing Programs at Rosemont College. She is the author of ELEMENTS OF THE TABLE: A SIMPLE GUIDE FOR HOSTS AND GUESTS and currently serves as editorial consultant for the IBPA INDEPENDENT magazine.
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