Are you an author preparing to publish your book and seeking clarity on the intricacies of publishing contracts, copyright and other intellectual property rights, and the best approach to safeguarding your work?
Our Managing Director and Intellectual Property lawyer, Benjamin Choi, provides concise and professional answers on the most common and pressing questions that Hong Kong writers encounter:
When an author finds a publisher for their book, what are the legal issues they should keep in mind?
The author should ensure that both parties have a clear understanding of the contractual agreement, including book’s title, delivery date, payment arrangement, the nature and scope of rights granted to the publisher, and any obligations the author has under the agreement.
The author should take steps to ensure that the publisher is provided with the necessary copyright permissions and protections for the book.
The author should determine the extent of the publisher’s liability for any legal issues that may arise from the book’s publication, such as defamation or libel.
The author should ensure that they are receiving a fair share of the book’s royalties. This includes verifying the agreed-upon royalty rates and considering any provisions for changes to those rates over time.
Marketing and promotion
The author should ascertain that the publisher has a solid marketing and promotion plan in place for the book’s release. This ensures that the book reaches its intended audience and maximizes its potential for success.
Termination and cancellation
The author should have a clear understanding of the terms governing the termination of the contract or cancellation of the project. This allows for a smooth exit strategy if circumstances change or if the partnership with the publisher becomes untenable.
Jurisdiction and venue
The author should ensure that the contract specifies the jurisdiction and venue for any disputes that may arise.
How can extensions to publishing contracts legally be made?
Extensions to publishing contracts can be achieved through:
- Including a provision for contract renewal in the initial agreement.
- Negotiating a new contract with revised terms based on changing circumstances.
- Introducing new terms to accommodate factors like translations or online subscriptions.
How about book titles and copyright and branding of book series?
This is subject to agreement between the author and the publisher. The party responsible for creating the book title or establishing the branding must ensure that there are no conflicts regarding the use and adoption of such elements. Failure to do so may result in potential consequences and liabilities for infringing upon someone else’s rights.
Similarly, when designing the book cover artwork, it is essential to ensure its originality and freedom from any potential claims of copyright or design infringement.
Under what circumstances does publisher has the right to sell author’s manuscript for translation and sale in other countries or for adaptation into TV shows and films?
Publishers generally have the right to sell an author’s manuscript for translation and sale in other countries, as well as for adaptation into TV shows or films, as outlined in book publishing contracts. Authors are typically entitled to proceeds from these sales or adaptations, subject to the terms specified in the contract. The scope of these rights may be limited by format, time period, or other conditions outlined in the contract. Authors should review their contracts to understand the extent of the publisher’s rights and their own entitlements regarding translation, adaptation, and subsequent sales or adaptations.
If the book doesn’t sell well or generate substantial royalties, can the author cancel the contract?
The right to cancel or terminate a publishing contract is typically included in the agreement, providing both the author and the publisher with this option. If the book’s sales are disappointing or royalties are not substantial, the author may have the right to cancel the contract. This right can be exercised through negotiation, allowing both parties to modify the original termination terms to accommodate unforeseen circumstances.
Do the same principles apply to the many literary competitions now offered online?
The same contractual and legal principles generally apply to both conventional and online literary competitions. When authors participate in a competition, it is crucial for them to thoroughly review and understand the terms and provisions. By entering the competition, authors are typically considered to have agreed to these terms and provisions, and they may not be able to dispute them later on.
What redress does an author have if things go wrong in Hong Kong or overseas?
In Hong Kong, an author typically has recourse to Common Law rights to exit a publishing agreement if the publisher breaches the contract, engages in wrongdoing, neglects their obligations, or if there are significant changes in circumstances that harm the author’s rights and cannot be remedied. When facing issues overseas, it is advisable for the author to seek legal advice from an attorney in the relevant jurisdiction to understand their rights and explore available options in similar situations.
What legal issues should authors be mindful of when choosing to self-publish their work?
Ensure that the work being published is original and not infringing upon someone else’s copyrighted material. Keep proper records of the creation or last edition of your work to establish copyright protection.
Avoid using names, logos, or branding materials that may violate someone else’s trademark rights. Conduct a thorough search to ensure you are not infringing on any existing trademarks.
Libel and defamation
Take care not to write anything that could defame or libel individuals, entities, or organizations, as this could result in legal consequences.
If you are writing about real people, make sure that you protect their privacy and obtain permission before using their names or personal details.
If you have previously signed a publishing agreement with a traditional publisher, make sure you understand their rights to the work and any obligations you have under that agreement.
Taxes and business structure
Familiarize yourself with the tax laws in your country to ensure compliance. Consider the most suitable business structure, such as forming a corporation or LLC, to protect your personal assets and manage tax liability effectively.
As a self-publisher, you bear the responsibility for any legal issues that may arise from your work. Be mindful of potential liabilities and take necessary precautions to mitigate risks.
Is it necessary to have an Intellectual Property lawyer review a book publishing contract, even if it is relatively simple?
Engaging an Intellectual Property lawyer to review a book publishing contract, regardless of its simplicity, can be highly beneficial. The lawyer’s expertise can help identify potential issues or inconsistencies in the contract, leading to better protection of the author’s interests. Additionally, they can provide guidance to avoid unintended or unforeseen consequences that may arise from the contractual terms.
How much does it typically cost to have a lawyer review a publishing contract? Are there reputable publishing-related agencies that offer the same service at a more affordable fee?
The cost of having a lawyer review a publishing contract can vary depending on factors such as the complexity of the contract and the lawyer’s hourly rates. Lawyers typically charge fees based on the actual time spent or may negotiate a fixed fee prior to undertaking the task. While reputable publishing-related agencies may offer contract review services, it is important to note that their interests often align with the publishing company. It is advisable to prioritize cooperation with leading and reputable publishing companies.
In all cases, it is important for both parties to engage in good-faith negotiations and reach a mutual agreement. Consulting with legal professionals experienced in intellectual property law can provide valuable guidance and ensure compliance with applicable laws and regulations.
If you do want to talk about a publishing contract or any other intellectual property issues, please contact us.