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“The lawyer as agent” by Julian Turton

Why do lawyers get involved in book deals? It doesn’t happen very often for the simple reason that lawyers don’t come cheap. Neither do agents, of course, if the books they represent do very well. But by working on commission agents are taking a risk in a way lawyers aren’t. On a commercially successful book agents will be rewarded with a hefty percentage of large revenues rather than a lawyer’s comparatively small but certain fee, based on an hourly rate. Since the commercial reality of the book world is that publishers usually pay modest advances for books unless they are likely bestsellers, such advances would cover no more than a few hours of a lawyer’s time. In most cases, if authors used a lawyer they’d have little if anything left over after they’d paid their solicitor’s fee.

This means that lawyers tend only to be involved in deals which offer sufficiently large advances to cover professional fees. Who are these clients? Well, unlike agents (who often publish lists of their authors on their websites) lawyers don’t divulge names, but the writers for whom I have negotiated book deals are usually celebrated for skills other than literary ones. They include sports stars (particularly footballers), comedians, lifestyle gurus, chefs, glamour models, pop stars, actors, presenters, doctors, even a famous wife and a war victim. I also occasionally work for fiction and non-fiction authors, both literary and with more mass market appeal.

When doing this work for celebrities, I mostly take instructions from the celebrities’ managers, who in my experience are reluctant to involve specialist literary agents. I’ve tried to bring in literary agents on numerous occasions but without success. I assume this is because the manager would then have to split the commission with the literary agent. With full-time writers, I tend to work alongside authors’ agents rather than supplant them, since few writers are happy to dispense with the services of a literary agent altogether. Authors’ agents are part of the fabric of the book publishing business and perform essential functions other than simply negotiating deals, which is why writers tend to have long-term relationships with their literary agents.

With celebrities, however, most publishing deals are one-offs. That means that lawyers more often have scope for challenging the commercial assumptions and contractual terms than do authors’ agents. Agents have to take account of the fact that the same publisher may be a customer for the works of another of the agent’s clients; which means that agents have to tread rather more delicately than lawyers, who are not so reliant on such continuing relationships and may not deal with the particular publisher ever again.

Similarly, large advance deals more often involve competition between publishing houses eager to get the book in question – everybody would like a Jamie Oliver or Peter Kay. But most writers aren’t the subject of competitive auctions, which means the literary agent representing these more modest properties has less leverage in any negotiation.

It’s worth mentioning that certain aspects of one-off book deals with celebrities do not arise with mainstream authors’ contracts. A particularly high level of vigilance needs to be exercised when dealing with contracts for writers who undertake many different non-literary activities. And entertainment lawyers may be best suited to this task since they are used to ensuring that their client’s obligations do not conflict with one another. For instance, in the contract for a recent biography of a comedian the standard publishing warranty required that the work had not been previously published or distributed. This needed qualification because much of the material had previously featured in comedy routines. Also, particular attention needs to be paid to the publicity aspects. Any obligation to undertake publicity must always be made subject to prior professional commitments.

An obvious further distinction between authors’ agents and lawyers is that with the exception of a couple of large agencies that employ in-house lawyers, agents approach the publishing deal without the legal training and experience of a publishing lawyer. Because of this, and because of agents’ sensitivity about their relationships with publishers, a certain stasis can set in when the detailed contractual terms are negotiated. Indeed, many literary agencies develop standard-form contracts with publishers, which tend to be recycled for every deal whether it be for a very successful or an unknown author. Sometimes the only variation can be the advances. The effect is that significant commercial and rights provisions are more likely to be waved through and not questioned particularly rigorously. I have yet to experience a response to my amendments to any leading publisher’s contract which does not include at some point comments such as ‘we always do things this way’, ‘these are standard terms which I can’t change’ and ‘these provisions are never questioned’. But they often are changed when some pressure is applied.

Specialist publishing lawyers are trained to approach the small print of book contracts in a way that many in the publishing world don’t (that applies to those negotiating rights in publishing houses as well as to agents). When negotiating one-off book deals, moreover, publishers may take a more relaxed attitude about breaking precedent, especially when confronted by a specialist media and entertainment lawyer who will usually have experience that extends across different areas of the creative sector and not just book publishing – something only true of agents working in general agencies that also operate in other areas of entertainment.

The book world’s practices are a far cry from the music business, where I also practise. There lawyers negotiate all the deals; the contracts departments of the major record companies and publishers are staffed by lawyers who are quite used to having their drafts challenged (including their so-called ‘boiler-plate’ provisions). In my experience, music businesses’ contracts departments are much more ready to agree variations than publishers’ contract departments. As a result their agreements are rather more dynamic and diverse.

Contractual detail can be very important, and a lawyer’s focus very useful. For example, an important aspect of ebook royalties is often overlooked by agents. This is the model for calculating royalties on ebooks based on the ‘receipts’ of the Publisher – usually 25% in UK deals. This is not how royalties payable on physical books sold through normal retail channels are calculated – physical book royalties are still mostly (for the most sought-after works) calculated by reference to a ‘retail price’ with reductions for discounts applied to the publisher. The amount of a retail price is much easier to identify than a receipt since the latter begs the question of whose receipt is intended.

To ensure that there can be no monkey-business by royalty departments, it is desirable from an author’s point of view to ensure that the ‘receipt’ by any subsidiary or affiliate or division of the publisher (many of which are multinational conglomerates) is defined as the receipt for the purpose of calculating the royalty. Otherwise there’s a danger of drifting into the territory of the film and record businesses. There opaque accounting practices can channel income from different forms of exploitation through different arms of the same conglomerate.

Administration or so-called ‘handling’ charges are then levied along the way, at least partly intended to dilute the actual ‘receipts’ of the contracting party. It was common practice amongst music publishers to dilute in this way; it only ceased when lawyers representing songwriters brought effective legal and commercial pressure to bear, and it is now rarely encountered.

Another example of where a commercial lawyer can be helpful is the provisions defining rights granted and reserved. In one particular case I encountered, they included the grant of audiobook rights throughout Europe to the UK-based English language publisher on an exclusive basis. The drafting was such that the grant would (until amended) have covered all translations too. If the German-language publisher had decided to publish a German language audiobook, this would have been conditional on the consent of the UK-based English language publisher. This would have put the author in breach of the German language licence that had been entered into, and could have caused considerable embarrassment.

There are many other nooks and crannies of standard book publishing contracts (audit provisions, ebook royalty review language, ebook definitions etc) where in my view inroads should and can be made on behalf of authors. Whole swathes of the contract, such as those dealing with warranties and indemnities, are grist to a lawyer’s mill, but may just be thought of by an agent as small print which is best left well alone. An example is the author indemnities which a lawyer might try to ensure only came into play when losses or damages were first awarded by a court or agreed with the author’s prior approval. An experienced entertainment lawyer’s expertise can add value to the contribution made by an agent in these more legalistic areas.

Authors’ agents have a major role in chipping away at some of the positions adopted by publishers, but they are not the only forces that can be marshalled. Specialist book publishing lawyers can also play their part by bringing their particular skill set to the increasingly complicated contracts of the book world.

This article was first published in the winter 2012 issue of The Author, the journal of the Society of Authors.