Wednesday, July 12, 2006

Attorney Interview: Aimée Bissonette on Law and Publishing

Aimée Bissonette is a lawyer, teacher, and writer. She has written extensively for trade publications and conducted training sessions for corporate, educational, and non-profit groups (nationally and internationally) on the topics of copyright, "best practices" for businesses, and contract negotiation. She has negotiated numerous book contracts on behalf of her clients, including children's book contracts with publishers Clarion, Boyd's Mill Press, Sleeping Bear Press, and others.

You're a lawyer and a writer. How do wear each--or both?--of these hats?

Lately, I've been a dutiful lawyer and a rather neglectful writer! As is the case with many writers, I suspect, I tend to let my writing take a back seat to my "real" work. Thankfully, I have a number of writing friends who don't let me get away with this too long.

What sorts of special concerns do writers bring to lawyers?

Writers produce "intellectual property." Ownership of intellectual property can be a tricky thing. This is especially true when writers contract with others to sell the rights to their work. Much of my work on behalf of writers involves negotiating sales of rights and obtaining reversions of rights.

What should a writer consider in hiring an attorney to represent their interests?

From the standpoint of skills and knowledge, writers should hire lawyers who understand intellectual property and have specific experience with literary rights contracts. Writing guilds and state bar associations often have lists of lawyers who work in these areas. Writer friends can also be a great source of referrals.

Whenever possible, writers should interview lawyers before deciding whether to hire them. Ask about the lawyer's experience, fees, timetable for completing your work, etc. Get a sense of the lawyer's style and whether you think you can work together.

Is it ill advised for an author to represent his or her own interests in, say, contract negotiation? Why or why not?

In general, none of us does as well negotiating on our own behalf as we do negotiating on behalf of others. This may be truer for writers because writers are so personally invested in their work. Publishing houses have no problem asking for terms that are favorable to them. So, writers need to assess whether they feel comfortable pushing back and asking for more favorable terms, whether that means the amount of an advance, a greater share of subsidiary rights sales, more complimentary copies of the book--whatever.

The real issue, though, is not whether writers have the gumption to represent their own interests, but rather, do they understand the legal implications of the clauses in their publishing contracts? Do they understand what rights they are selling and when they can recover those rights? Do they understand the obligations they are assuming and their potential financial exposure when they "warrant" their work and agree to "defend and indemnify" their publisher? Can they assess the fairness of the contract's "out-of-print" clause? Is there a provision for a reversion of rights in the event the publishing house goes bankrupt? There are countless legal issues embedded in publishing contracts that may not be apparent to a non-lawyer.

What do you wish every writer knew about that process?

Writers (even first timers!) need to understand that they have bargaining power and that publishing houses expect them to negotiate contract terms. There is no reason to sign a contract as soon as (and in the exact form) it is presented to you. In fact, it is risky to do so.

What is the difference between working with an attorney and working with an agent who specializes in children's/YA publishing (with the caveat that some agents have attorneys on call/staff)?

In my mind, lawyers and agents perform different duties.

In the context of contract negotiation, lawyers review contracts, help their clients understand the legal implications of their contracts, negotiate on behalf of their clients, and draft alternative or additional language for inclusion in the contract. Writers pay lawyers directly for these services.

Agents, on the other hand, assist their clients by using their connections in the industry to identify the house or houses likely to purchase their clients' manuscripts. They use their knowledge of the market to achieve favorable payment terms for their clients. In addition, agents are well positioned in the industry to identify potential buyers of subsidiary rights. Writers pay their agents a commission on all revenues (i.e. advances, royalties, subsidiary rights sales, etc.) for as long as their books earn money.

Although agents often have lawyers on call or on staff, writers need to understand that those lawyers represent the agents. The advice the lawyers give may benefit the writers, but there is no attorney-client relationship formed between these agency lawyers and the writers.

There is much talk right now about plagiarism and copyright infringement. These terms are often used interchangeably. Is that correct? If not, would you explain the difference?

Plagiarism is the false presentation of someone else's work as your own. It may involve an infringement of someone else's copyright, but it can also involve work that is not protected by copyright. For example, ideas and concepts cannot be copyrighted, but they can be plagiarized. The way to avoid claims of plagiarism is to give full attribution to others when referencing or incorporating their work.

Copyright law protects "original works of authorship" that are fixed in tangible form. These original works include literary works, musical works, dramatic works, audio works, and motion pictures. If a work is copyrighted, the owner of the copyright has the exclusive right to copy, distribute, display, and perform the work. The owner is also the only person who can create other works based on the copyrighted work (e.g. a screenplay based on a book).

With few exceptions, the way to avoid a claim of copyright infringement is to obtain permission from the copyright owner to use the copyrighted work (it is not enough to just give attribution to the original author--that only saves you from a claim of plagiarism). The copyright owner can put restrictions on your use of the work and can charge you a fee to use the work.

Why is copyright important to writers?

Copyright is a writer's stock in trade. It is the writer's "intellectual property." It provides economic and artistic security to writers by ensuring writers get credit for their work and control the revenues that are generated from their work.

Copyright is also important to us as a society. In exchange for the measure of security it provides to writers, the rest of us get to read and enjoy great articles and books--which is not a bad trade off!

Of late, many writers are expressing concern that they will subconsciously absorb another's text through their reading and employ it to everyone's detriment. Is this something to be really worried about? Why or why not?

Most of us are familiar with a certain young author who recently was accused of plagiarism. Her defense to the claim was that, like many writers, she was an avid reader and that books she had read in the past might have influenced her as she wrote her own book, but that any similarity between the material in her book and those books was unintentional. This makes a certain amount of sense, right? It could happen to any of us, couldn’t it?

Except that, as it turned out, this author's book contained dozens of passages that borrowed heavily from another author's books. The similarities were striking and numerous. The claim that she had "subconsciously absorbed" another author's text didn't seem plausible.

On the other hand, I've heard it bantered around the news that perhaps writers have too much legal protection. There seems to be the idea that once someone has written about an idea (say, dragons), it's no longer available to other fantasy writers. Is that true?

Writers cannot copyright ideas, titles, or even character names (although, in some rare instances, character names can be protected by trademark law), and with good reason. The truly creative work is what the writer produces as a result of the idea or title or character name. That is what is protected by copyright. I think the law does a good job of protecting writers' creative work, without allowing writers to control too great a portion of the creative field.

What emerging legal issues for writers are on the horizon and/or growing in importance?

The proposed "Orphan Works" legislation is something writers should monitor. Orphan works are copyrighted works whose owners may be impossible to identify and locate. Congress is investigating whether the Copyright Law needs to be amended to make it easier for others to use copyrighted orphan works by relaxing the standards relating to when and whether permission must be sought to use certain works. See, www.copyright.gov/orphan/ for a detailed report.

How can writers learn about and stay current with these issues?

Many writing organizations like SCBWI, Children's Literature Network, and the National Writers Union devote resources to covering these issues on behalf of their members. Writing publications like Publishers Weekly do a good job with this, too.

You write a monthly column for the Children's Literature Network. Could you tell us about that?

The column covers topics of a legal nature, most of which are prompted by questions from CLN members or writers attending my negotiating or copyright workshops. Because CLN has such a diverse membership group, the column may pertain to writers and illustrators one month and K-12 educators the next. My goal is to highlight legal issues for CLN members so members are more aware of their legal rights and duties as they interact with others in the children’s book world.

Could you also briefly describe the CLN for those not yet familiar with it?

Children's Literature Network (CLN) is a terrific organization for anyone interested in children's literature, education, and encouraging kids to read. It is a national organization. Its members include writers, illustrators, librarians, educators, editors, publishers, parents and grandparents. In addition to its monthly e-newsletter, the Network News, CLN sponsors conferences and book festivals, provides online book reviews, tracks and reports industry news, and compiles reading lists. Members can access specialized databases, including a grants database and databases of literary agents, editors, and art directors. Check out its many offerings at www.childrensliteraturenetwork.org.

Let's turn now to your writing self. You do web writing and promotional writing. Do you also write stories for young readers? If so, could you tell us a bit about your journey on that front?

I have written non-fiction articles for children and dabbled in poetry (my kids grew up listening to me read Shel Silverstein and Jack Prelutsky--they’ve moved on to Ogden Nash!), but my focus now is fiction.

For the past couple of years, I have been blessed with the opportunity to participate in a writing workshop run by Jane Resh Thomas. The group is full of these amazing writers and we meet for three or four hours at a time, reading, critiquing, rewriting...some nights it's grueling! I am rewriting a middle grade novel and have a very rough draft of another in the works. Anyway, I've come to the conclusion that I still have a lot to learn!

Is there anything you'd like to add?

Just that I appreciate the chance to discuss these issues with you and your readers. The more we can do as writers to share information and educate ourselves about the issues that affect our success as writers, the better. Thanks!

Cynsational Notes

See the Cynsations companion interview, Publicist Aimée Bissonette on Winding Oak.

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