Protecting Your Author Rights: Intellectual Property in Book Publishing

Tips on contract negotiation in the book publication process

By Benjy Schirm, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on December 28, 2023 Featuring practical insights from contributing attorney Robert C. Cumbow

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The number of authors choosing to self-publish instead of signing a book contract with a publishing house continues to rise. Other than the medium in which a book appears, the big difference between getting a traditional publisher and self-publishing is in the book publishing contracts involved, says Robert Cumbow, an intellectual property lawyer at Miller Nash in Seattle, Washington.

How Do I Negotiate a Publishing Contract with a Traditional Publishing House?

With a traditional publisher’s publishing agreement, “Many of the terms are negotiable, many of the terms can be eliminated, and authors come to me with a contract in hand,” Cumbow says. “I answer their questions and tell them what each of the clauses means, and I tell them what points they can change to better protect themselves from the publisher.”

From there, an author can go and negotiate the book deal on their own. It’s important for new authors to understand their subsidiary rights, exclusive rights, and publishing rights clauses, along with all contract terms.

“The situation you don’t want to get into is the publisher’s lawyer and the author’s lawyer negotiating this agreement because there will be a lot of push and shove, and by the time the book is published, the author won’t make as much money as they have had to pay their lawyer,” Cumbow adds. “I always advise my clients and have them negotiate for themselves. Over the years, I have developed [a strategy on] how to get the best agreement while not alienating or upsetting the publisher, while making all of the author’s claims reasonable.”

[In self-publishing, the publishing service] asserts their rights under the agreement, and you’re stuck with that if you want to use their service. It’s called a contract of adhesion, and all of us live with many of these agreements every day. You can publish a book this way, and it may be a quick and easy—and satisfying and inexpensive—way of getting your book in front of a particular public.

Robert C. Cumbow

How Do Contracts Work in Self-Publishing?

On the other hand, if an author decides to self-publish, the contractual agreements are non-negotiable.

“[The publishing service] asserts their rights under the agreement, and you’re stuck with that if you want to use their service,” Cumbow says. “It’s called a contract of adhesion, and all of us live with many of these agreements every day. You can publish a book this way, and it may be a quick and easy—and satisfying and inexpensive—way of getting your book in front of a particular public.”

A contract of adhesion is often compared to the little contract on the back of a ticket to a concert, ballgame, or even parking lot.

When Should I Start Searching For a Publisher?

Cumbow recommends finding a publisher before you do all of the heavy lifting of writing a completed manuscript if you want to go the traditional publishing route. You can do this with or without a literary agent, but having one is often better.

What agents and publishers want to see upfront is not a finished book but “usually an outline, a statement of what is special and different about this book, and why you think it’s marketable, to whom you think it is marketable,” Cumbow adds. Regardless of the type of book, “be it young adult or science fiction, they have to get an idea of what you have in mind, and they will want to see the outline and two sample chapters that are not contiguous.”

Agents will likewise come with contracts that should be reviewed by a lawyer to make sure they’re fair and consistent. “Big red flags are read-fees,” Cumbow notes. “If they are charging you to read your book, that’s not an agent you want to work with. You want to work with an agent who is happy to read your book so that they can sell it for you.”

Find an Experienced Intellectual Property Lawyer

Whether you’re looking for a publisher or agent, “Be prepared for a lot of disappointments,” Cumbow says, and be certain to contact a reputable and experienced attorney for legal advice.

For more information on this area of law, including protections for creative works and copyright infringement, see our intellectual property overview.

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