One of the tropes that is running rampant right now is, “Don’t get an agent; just get a lawyer to vet your contracts!” There are a number of reasons advanced for this–one is the notion that an agent will take 15% forever, while you pay a lawyer a flat fee–but while people often put this forward, they very rarely talk about how to pick a good lawyer for the job. The advice I do see on that front varies from middling to startlingly bad.
Here’s the truth: a bad lawyer is like a bad agent. I’m kind of shocked that people in the indie community are now treating lawyers as if they are all brilliant, ethical specimens who will look out for your interests, whereas agents will not. Are we talking about the same profession? I am a lawyer. I know lawyers. Many of them are good, honest, and ethical. Some of them are not. Lawyers are just like agents–they can be crappy, stupid, and unethical. And, like agents, because they have a lot of power, it sucks mightily when you hire one who is crappy, stupid, and unethical. Also like agents, a good lawyer is a great thing to have.
You’re better off with no representation at all then picking someone who doesn’t know what they’re talking about. Here’s another truth: any time you’re picking someone to represent you because that person has superior skills/knowledge in a particular area, you are picking someone who you are particularly ill-suited to judge.
But there are a few things you can use as a general rule of thumb.
- I see people saying, “Get an IP lawyer!” This is bunk. “IP lawyers” do a broad range of things. They draft patents. They litigate trademark disputes. They send DMCA takedown notifications and cease and desists to people who violate trade secret. Each of those lawyers that I’ve mentioned above are distinct people, and in point of fact you probably wouldn’t find one “IP lawyer” who does all of those things, because the branches of IP are very specialized. It’s very, very rare that you’ll find someone who both litigates patents and who also drafts complicated trademark licensing agreements. It’s so rare that I can’t think of a single practitioner who does all those things. I’m sure such a person exists.
- You need someone who is versed in transactions, and specifically in the law of contracts.
- But a contracts lawyer who happens to have some passing familiarity with IP is not enough. Anyone who remembers a damned thing about contracts can tell you that when you’re interpreting a contract, one of the things that you look to to determine the meaning of a particular term in a contract is trade usage. Thus, for instance, my contracts with Harlequin set out different royalty rates for “mass market” versus “trade paperback.” Someone unfamiliar with the publishing industry might get bent out of shape and say, “But what if they say your mass market is a trade paperback? They are, after all, sold in the trade, and have paper covers! How do you protect yourself from the claim that they only owe you 7.5% royalties on it instead of 8%?”That’s a claim that would make anyone in the industry roll their eyes, because everyone knows what the difference between a mass market and a trade paperback is. It doesn’t need to be defined in the contract because the industry has agreed upon standards.
Attorneys do not magically know what trade usage is. That stuff is not tested on the bar. It is not taught in law school. It is learned by experience, and if your attorney does not have experience in the field of publishing, your attorney is basically taking your money without giving you any piece of mind. The attorneys who do know are the ones who have experience in the trade of publishing. If you want to hire someone to vet your publishing contract, you want a literary attorney.
- So how do you tell if someone is a literary attorney? Answer: Because they have negotiated publishing contracts before. Many of them–not just yours. And, because this is a business that actually takes a good amount of time to learn, anyone who is a good literary attorney will have this as their primary bread and butter.Someone who has primarily worked on divorce cases is unlikely to be a good literary attorney. They’ll miss on two marks: They won’t have the requisite transactional drafting experience (at best, they’ll be drafting settlement agreements, but agreements regarding the dissolution of marriage are entirely different beasts than agreements that govern the creation of a relationship), and they won’t have regular, sustained experience in negotiating this particular type of contract. That means they won’t know what they can ask for and get, and they won’t know what there’s no point in asking for, and they won’t know what particular language means, and so they might get you in more trouble than you recognize.
- A side note: I know more about the substance of contract law and intellectual property law than my agent–by a wide, wide margin. I feel confident saying that, and since my agent knows what I do in my day job, I feel fairly confident that she would agree. But my agent knows much, much more about the language of the trade of publishing than I do. That’s why my agent negotiates my contracts. I read them. I ask her questions. But I specialize in contract law and intellectual property, and I have an agent.
- A good attorney doesn’t have any agenda except zealously representing your interests. An attorney who holds publishers in distaste and who approaches every contract assuming bad faith from the other party may not adequately represent your interests–they are more likely to scotch the deal entirely. If that’s what you want to happen, you can tell your potential publisher “no” without spending any money at all on an attorney.
- There are people who are cited regularly for legal commentary in the indie community who, quite frankly, have shown an appalling grasp of basic contract law and have never studied intellectual property. I think some of these people are a malpractice suit waiting to happen. Ask hard questions of anyone you consider hiring. How many contracts have you negotiated with publishers? Which publishers? How did the negotiation turn out? How long have you been practicing? What sort of work have you done? What kind of transactional contract work have you done?
- A good literary attorney is, in fact, very expensive. Keep in mind that many books do not earn out their advances, and so “15% of forever” often means “15% of your advance.”
This is a very, very brief list of things to look for. If you find a potential attorney to look over your work, and they fail on one of the points above, think very very hard before hiring them. If you find a potential attorney to look over your work and they fail on all of the points above…run away!