Professional Documents
Culture Documents
ENTERTAINMENT LAW
Chapter 8- Publishing
Literary Authors
o Literary work: all forms of publication that are specifically created to be read in a
traditional book format
Technical books: texts that are designed for a specific market or industry and
not meant for general circulation—ex: text book
Trade books: all nontechnical works- all forms of books that are intended for
dissemination to the general public—can be derived from other sources
Variety press: applied to works that do not fall into the above categories and
for which a commercial publisher cant be found- derogatory
o Publishing agreement begins with the author acquiring a literary agent
Literary agent: a person who, for a commission, will negotiate the sale of the
author’s work to a publisher—need to be licensed
Commission: percentage of the royalties or fees that the author receives for
the work—15% for domestic sales, 20% for foreign sales
Typically the agent will receive commissions for all exploitations of the work
even if the author eventually employs the services of a new agent
o Services an agent provides:
Assisting the writer in revising the manuscript to a publishable form
Marketing the work to potential publishers to which the writer might not have
access
Negotiating the publishing contract to provide the author with a greater
percentage of royalties than the author may be able to negotiate himself
Continuing to market the work to secure agreements to exploit the work in
different media
Encouraging and assisting the author in creating new works
o Types of publishing contracts:
General contracts for new works for which the author receives a royalty
Works for hire for which the author is hired to create a specific work for a set
fee with all the rights to the work belonging to the publisher
o In determining when the author should be paid and whether or not the contract was a
work for hire the court looks at:
Who has control over the material
Who owns the copyright
Who initiated the idea
o Greater degree of control by publisher, more likely that it will be considered a work for
hire—rights of the author are limited to the those agreed upon and once the work is
published he loses all rights
o Typical clauses that appear in a publishing contract:
Description of name and work
Grant of rights
Trade paperback: softbound version of a hardbound book that is
published faithfully to the original but in a less expensive form
Mass market paperback: softbound book that may be substantially
edited from its hardbound version to attract a greater audience
Advances
A payment made to the author prior to publication—author retains it
even if the book doesn’t do well
Royalties
The set percentage of the sales price the author is entitled to receive
as compensation
Percentage depends on whether the work is a trade or technical work
and the estimated potential market for the work
Technical works- grater royalty percentage because sales are more
limited and the selling price is greater
Subsidiary rights- rights to exploit the work in different media
Pass through clause
Allocates subsidiary rights so that the publisher and the author share
such income until a certain amount is realized
Audit rights
Permits the author to audit the financial sales records of the publisher
to substantiate that the publisher has paid the author the appropriate
royalty
Delivery
Date on which the final manuscript must be delivered to the publisher
Specifies times for drafts to be delivered for review and revision
Rare for authors to actually meet these deadlines
When time is of the essence the author’s failure to deliver the work on
the due date may be treated as a contractual breach
Warranties and permissions
Author guarantees that the work produced is an original work
If the author uses material from another source he needs to provide
releases from the holders of the copyrights for such uses
Rejection
Reserve the right for the publisher to reject a work deemed
unpublishable
Editing
Grammar, spelling, deletions, rearrangements, and additions to the
submitted work
Usually final editorial decisions lie with the publisher unless the author
has a tremendous amount of clout
Non-competition
Author and publisher cant [produce works that are in direct
competition with the subject publication
Music Publishing
o Music publishers obtain the copyrights to original music and then license some of these
rights to other entities who produce CDs for retail and performing rights societies
o Performing rights societies act as clearing houses to broadcasters and retailers who
obtain performing licenses directly from these performing rights societies
o Music publishers receive commission that greatly exceeds the commissions permitted to
literary agents
o Functions of a music publisher:
Introduces the composer to producers
Finds an artist to perform the work
Manages the business of promoting the music
Oversees the composer’s work
Helps market the music
Advances money to the composer
Provides the composer with work
o Typically the composer transfers all of his copyrights to the publisher in a music
publishing contract—right to the work’s title, words, and music—songwriter basically
gives up worldwide control of his work to the publisher
Public performance rights- enable the holder (the publisher) to license the right
to permit a performance of the work on radio, TV or any other medium
License is effectuated by the performance society granting a license to
broadcast the music as it wishes—the performance society monitors
the licensee to determine the amount of performance royalties it is
entitled to collect on behalf of the publisher and artist
Creative rights- enable the publisher to make any changes to the work that it
deems warranted
Mechanical and synchronization rights
Mechanical rights: the legal ability to permit the work to be
reproduced in a mechanical format
Synchronization rights: the legal ability to permit the work to be
reproduced on a soundtrack in synchronization to the visual action
National Music Publishers Association: represents music publishers in
negotiating and collecting mechanical and synchronization rights
Print publication rights- permit the publisher to authorize reproduction of the
music as sheet music, orchestrations, and in other printed formats
Photographers and Visual Artists
o If the work involves the taking of photographs the photographer must be sure to obtain
appropriate releases from the subjects so photographed unless the object of the
photograph is in a public forum with no expectation of privacy
o Publisher can permit the artist to retain the copyright in the original photograph
o Contract should specify who bears the risk of loss of the original artwork if its lost or
damaged during the production process
o Artist usually has the right to have the work returned to him if the publisher hasn’t
published it after a period of time
o One of the most important considerations concerns the nature of the credit that will be
allocated among all of the artists who contribute to the finished work
o Labels: method of indicating the degree of contribution each artist has made to the
publication
Co authors- each person contributed equally to the end product
Based upon- the publisher indicates that the publication was not an original
idea but was derived from another source
Adapted from- an original work created from a preexisting work
Electronic Publishing
o Easy access to vanity presses
Companies provide access for writer to have their works published online
Provide editorial services, arrange an ISBN for the work, format the material
and sell it over the internet
o Greater profits for the author
o Copyright protection
SPORTS LAW