by Gini Graham-Scott | Sep 17, 2015 | Marketing Tips, Marketing Tips - Books
Other common contract clauses deal with warranties, indemnity, and the grant of rights, many of which are basic boilerplate. It is best to just leave most of them as is, rather than trying to nitpick small points, which could lead a publisher to think of you as a difficult writer, which would kill the deal. Just ask for changes in some of the more important terms, and you are likely to at least get some of them, or all of them in many cases. Here are details about dealing with warranties, indemnities, and the grant of rights.
–Warranties and Indemnity. This is a clause where you warrant that you (and any co-writers) are the sole author, originator, or owner of all of the copyrightable material in the work or that you have gotten the written permission for any material from someone else. You also agree that, if requested, you will show this written permission statement or letter to the publisher. Or alternatively, you agree that the publisher, if it wishes, can secure these rights at its own expense and charge those expenses against any sums due to you, including unpaid advances, or the publisher may require you to pay these fees, or it can reject the manuscript for a lack of permissions.
However, often there is no need for any permissions if you are relating your own experiences or are citing sources, such as articles, books, or websites, because of the fair use doctrine, whereby you can generally cite up to about 250 words from any source without needing to get permission.
You also warrant that you have the full power to enter into the agreement and there is nothing in the manuscript that is libelous or an invasion of privacy, and you further agree that any instruction or advice will not result in an injury to anyone. Or as necessary, you agree to include the appropriate warnings and safety precautions.
In addition, you agree to indemnify and hold the publisher harmless from any legal claims, suits, damages and related legal costs due to a breach of these warranties. Also, you agree that the publisher can remove or clarify any passages that its legal counsel deems actionable. Moreover, the publisher can extend your warranties to third parties, including the licensees of subsidiary rights, and these warranties and indemnities will survive even if the agreement is terminated. In some cases, this section indicates that the publisher will similarly indemnify you from any claims.
In general, consider this clause as boilerplate, and any legal action based on such causes outlined in this section is unlikely in the case of most books. So I generally accept this clause as is.
– Grant of Rights. In this section, you grant the publisher the right to produce, publish, license and sell the work, or any part of it, in various forms. Typically, this grant will include electronic rights, as well as audio rights, dramatization rights, film rights, TV rights, and commercial and merchandizing rights, usually on a sole and exclusive basis. In some contracts, these different rights are listed separately. This is where you might want to be more specific in what rights you are granting, based on the size and reach of the publisher, and what you can realistically do yourself in terms of marketing these other rights to potential buyers, such as film and TV producers.
In the royalties section of the contract, you might work out different percentage arrangements for the different rights, based on whether you make the connections and negotiations or the publisher does, though the basic split is 50-50 for the sale of subrights.
For example, if you are working with a small publisher and hope to reach out to the foreign markets yourself – or if you have a foreign agent you work with, you might only assign the publisher the English language rights, and you can even specify that these rights are only for certain countries, such as the UK, Canada, Australia, and New Zealand. Commonly, you need to give the publisher the electronic and print rights (although there are some companies that only want the e-book rights these days), but you can often reserve the audio rights, dramatization rights, film rights, TV rights, and commercial and merchandizing rights. However, in deciding what rights to seek for yourself, consider whether you are in a position to contact people in the film, TV, or other industries yourself.
If not, it may be better to leave these rights with the publisher. And often, a film or TV project based on the material in your book may turn out to be very different, so unless the book has sold well and you want to use the title, it may not be necessary to have the subrights to produce this new project.
This grant of rights section will also normally include a non-compete clause, or sometimes that clause is separated out as a separate section. However it is stated, much like in the non-compete clause, you agree not to create for anyone other than the publisher a work that is similar, covers essentially the same subject matter, or is likely to compete for sales with this work. Asking for these restrictions is certainly a reasonable request, if the publisher is investing in publishing and promoting your book. However, it is best to specify more clearly exactly what it means to say something is substantially similar, covers essentially the same subject matter or is likely to compete with the sales of this work.
For example, spell out what the book is about, so you limit the claims of what’s similar, the same subject matter, or what’s directly competitive. To illustrate, if your book is about caring for dogs, state this, so you are free to write books about other pets or animals generally or even write a humor book with a cartoon dog character. Or say you are writing a serious book about the criminal justice or political system. You might clarify what your content covers, so you might be free to do a true crime book or memoir of a criminal or politician. In other words, consider what you want to write about in the future, so you can specify in this clause the particular nature of your book, so any restrictions only applies to that.
In some cases, this section may also specify that you have to give the publisher a first option on any related books, or a first option generally. In this case, where you are writing about a related topic, you might agree to submit the book, with the understanding that within 30 days, the publisher will either publish on the same terms as the first book, but then you have the right to pitch the book elsewhere. Another variation on this first option clause is that the publisher has the right to match any bona fide offer which you get from another publisher.
It seems reasonable to include such an option when the book is related or a follow-up book to the one the publisher is publishing. But ideally, request that any first option clause be deleted from the contract, because it can be a hassle to have to submit books to the publisher on other subjects, particularly if these are books that wouldn’t be of interest to the publisher. Moreover, if your book is being published by a small or medium sized publisher, you want to be able to find a larger publisher for subsequent books.
In any case, publishers will normally agree to delete any first option clause, and if not, this could be a deal breaker. For example, I publish books on a wide variety of topics, and I would not want to limit myself with a right of first refusal or option clause, and as long as the book is not directly competitive with the book they are publishing, I have found that publishers readily agree to delete the clause.
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GINI GRAHAM SCOTT, Ph.D., is a nationally known writer, consultant, speaker, and seminar/workshop leader, who has published over 50 books on diverse subjects, including business and work relationships, professional and personal development, and social trends. She also writes books, proposals, scripts, articles, blogs, website copy, press releases, and marketing materials for clients as the founder and director of Changemakers Publishing and Writing and is the Creative Director of Publishers, Agents, and Films (www.publishersagentsandfilms.com). She has been a featured expert guest on hundreds of TV and radio programs, including Good Morning America, Oprah, and CNN, talking about the topics in her books.
by Gini Graham-Scott | Sep 11, 2015 | Marketing Tips, Marketing Tips - Books
If you have an agent, he or she will normally handle the contract arrangements in consultation with you and make recommendations on how to present your material and the best publishers to contact. Agents are typically familiar with the usual contract provisions and what they can ask for and negotiate to get you the best deal.
If you don’t have an agent and have a good offer from a big publisher – say a $10,000 advance or more, it can be worth working with a lawyer who has handled book contracts with publishers, though don’t work with a lawyer not familiar with the publishing industry, since they can make demands that are more excessive than usual and kill a deal. You can either hire the lawyer to negotiate for you if the offer is high enough, or obtain the lawyer’s advice on whether this is a good contract and what you can ask for if you negotiate the deal yourself.
But what if, like many authors, you don’t have an agent and have an offer from a publisher — usually a small or medium sized publisher – who is offering a small advance – commonly from about $1000-3000, or even no advance. What should you do, since bringing in a lawyer will commonly cost about $500-1500, and this will be a substantial portion of the advance, or even more than it? Following are some things to consider, though this is not legal advice. If in doubt, consult with a law book or get second opinions from books on book contracts or other writers who have signed books.
– The contract should include a statement that the copyright will be in the author’s name. Usually, the publisher will agree to register the copyright in your name, but if not, you can easily do this with the copyright office — $35 for an individual copyright; $55 if there are more than two parties on the copyrighted work. In some cases, a contract may state that the publisher will obtain the copyright in the publisher’s name. If so, seek to have this changed to registering the copyright in the author’s name, since the registration in your name will make it easier, if the work goes out of print or you get back the rights, to find another publisher for the work or publish it yourself, because you still own the copyright – you just licensed its use to the publisher.
– Specify the approximate length of the manuscript and the delivery date. These arrangements will commonly be discussed before the publisher draws up a contract. Be sure the manuscript length is a reasonable goal for your manuscript. While there is some flexibility from the length specified in the contract, give or take about 10,000 words, publishers will ask you to edit down a manuscript that is too long – and usually you need to do it rather than the publisher’s copy editor, unless it is over the expected word count by a small amount and the cuts are obvious, such as cutting down long quotes. If your manuscript is too short, the publisher is likely to ask you to add more information, or could possibly reject the manuscript entirely, whereupon you may have to pay back any advance.
You also need a realistic delivery date based on the length of the manuscript, how much research you need to do, and how long it will take you to write any chapters not completed in addition to those in the proposal to sell the book. While the delivery date can sometimes be extended, check in advance to determine how flexible this date is, because if you don’t deliver the manuscript by the agreed upon date, your publisher may be delayed in meeting the planned publication date, which could reduce PR efforts. The publisher could also cancel the contract for the lack of a timely delivery, obligating you to return any advance. Commonly, these clauses also specify the time the publisher has to publish the accepted work – usually 12 to 18 months, and if not, you can request back the rights.
– Submitting the manuscript. Normally, a contract will specify how you should submit the manuscript and any additional components, such as illustrations, photos, or table of contents, and an index, by the specified delivery date. At one time, publishers expected hard copies, but now, many publishers are fine with an electronic copy, though some may ask for a hard copy, too.
Commonly, the author is responsible for preparing the index, though some publishers will do this and deduct the cost from the last half of the advance or future royalties. Indexes aren’t always necessary, but if they are, figure on them costing about $500, with index costs from professional indexers of about $2.50-$3.50 a page (based on the page count in the published book). One way to cut down the cost is if you go through the manuscript and pick out the key words and provide a list of them to the indexer, figuring on about 300-500 words on your list, which can bring down your costs to about $150.
– Accepting and Publishing the Manuscript. This clause provides the publisher a way out of the agreement if the publisher finds the manuscript unacceptable. Commonly, the publisher will advise the author what to do to fix it, but if the author can’t or doesn’t want to do so, the publisher can reject the manuscript. Generally, the author can keep any advance already paid, since the assumption is that the author has been working in good faith on writing the manuscript, though some publishers will ask for the advance back. Alternatively, some publishers will only ask that the author repay them if he or she finds another publisher. If the publisher doesn’t publish the manuscript within a certain time, rights in the manuscript revert to the author, along with any discs or copies of the manuscript given to the publisher. In this case, the author does not have to return any advance.
While these clauses are fairly standard in laying out the length of the manuscript the author is expected to deliver, when, and what happens if the author doesn’t deliver or the publisher doesn’t publish within the time specified, there is some room for negotiation. In particular, you might ask to only deliver the manuscript by email attachment or on a disc, which will cut down your time and costs for the delivery. You might also ask the publisher to cover the costs of any index if required or at least not charge you until future payments are due rather than taking the cost out of any remaining payments on the advance.
Another strategy is to state that the index is unnecessary, so there are no costs for either the author or publisher. Still another point you might negotiate is the length of time for the publisher to publish the work, such as requiring publication within 12 months rather than 18, or even 6 months, if the publisher has a short turn-around time.
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GINI GRAHAM SCOTT, Ph.D., is a nationally known writer, consultant, speaker, and seminar/workshop leader, who has published over 50 books on diverse subjects, including business and work relationships, professional and personal development, and social trends. She also writes books, proposals, scripts, articles, blogs, website copy, press releases, and marketing materials for clients as the founder and director of Changemakers Publishing and Writing and as a writer and consultant for The Publishing Connection (www.thepublishingconnection.com). She has been a featured expert guest on hundreds of TV and radio programs, including Good Morning America, Oprah, and CNN, talking about the topics in her books.
by Gini Graham-Scott | Jun 30, 2015 | Marketing Tips, Marketing Tips - Books
While you may have certain prices and policies that are the usual way you work with clients, at times clients will ask you to make certain changes or exceptions, and it can be hard to decide whether or not to agree to these changes. Following are some common scenarios and how to deal with them. You have to judge whether you want to accept a proposed arrangement, or come back with an alternative proposal, and then any agreement can be like a negotiation.
In general, it is best not to change your usual policies, since you have been following them with most or all of your other clients and you have found these policies work. Still, there are times when it is reasonable to accommodate a client’s request.
– A long-time client – or a new client – claims financial difficulties. He or she claims to have run into financial problems or has had upheavals in life, so he or she hopes to pay less or pay on a deferred basis. As a first step, decide if you trust this person’s claim. If it’s a long-time client, this is probably the case, but with a new client, the claim may or may not be. As some writer associates have found, sometimes people will plead poverty or hard times to get you to reduce your prices, while they may have no difficulties paying for other products and services. If you don’t trust the person’s claims, explain that these are your prices, and you have your own financial commitments and make your living doing this, so you can’t reduce your prices, but you will be glad to help them when they are ready.
However, assuming you trust that the person is having difficulties, it makes sense to work out an arrangement you both feel comfortable with. One simple approach is to offer a discount to help out – such as less 20-40%, which can help the client and leave him or her favorably impressed to want to work with you again, or perhaps give a testimonial for your product or service.
Another approach is to get at least a percentage down – say 10-20%, defer the rest, and work out a payment plan, such as 10-20% of the total each month until paid in full. In this case, get a signed agreement form, so it is clear the person still owes you the money and how much.
Still another strategy is to consider barter, if the client has services or products you can use. In this case, arrange the barter based on the value of the other person’s products or services if you were to buy them, and value your own services in the same way.
– A prospective client says that he/she thinks your prices are too high or that others have said this. Here I think the best strategy is to stress the value of what you are offering and point out the level of experience you have had that makes your service valuable. You can also point to testimonials you have gotten and indicate that you have had these prices and arrangements for many years. This strategy can be especially effective if you are offering a unique product or service which is hard to duplicate. This approach may not always work if the prospect is determined to pay a lower price or not get your product or service, but it is often better to stick to your guns rather than undercut your own income, since you have other clients who are paying the full price, so you don’t need to work with clients who don’t see the value in your work.
This scenario is like someone going to a store and asking to pay less for a Rolex watch because they can get other watches for less money. If you are in the business of selling Rolex watches, you don’t want clients who think that the Rolex costs too much money; you don’t want to undermine your value proposition to sell for less. Likewise, as a writer, once you determine how to value and price what you are writing, look for clients who will value what you do.
– A prospective client offers to write a testimonial in return for a special deal from you. Unless you are starting out as a writer and need some testimonials and recommendations, this is generally not a good arrangement. It is a variation on the prospective client claiming your prices are too high, but now the prospect is offering you a carrot – a testimonial – in return for paying less – or even trying to get you to do something for free. In this case, your strategy would be much like the way to respond in the “prices are too high” claim. Stress the value of your services or product, and at the same time point out that you don’t need any more testimonials; you already have them from people who have previously bought your service or product. If the strategy works, great. You convinced the client to pay full price for your services. If not, you have turned down a client you don’t need who doesn’t value what you are offering.
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GINI GRAHAM SCOTT, Ph.D., is a nationally known writer, consultant, speaker, and seminar/workshop leader, who has published over 50 books on diverse subjects, including business and work relationships, professional and personal development, and social trends. She also writes books, proposals, scripts, articles, blogs, website copy, press releases, and marketing materials for clients as the founder and director of Changemakers Publishing and Writing and as a writer and consultant for The Publishing Connection (www.thepublishingconnection.com). She has been a featured expert guest on hundreds of TV and radio programs, including Good Morning America, Oprah, and CNN, talking about the topics in her books.
by Gini Graham-Scott | Jun 16, 2015 | Marketing Tips, Marketing Tips - Books
One of the great things about being a freelancer, is that you can freely choose what projects you work on, what clients you agree to work for, and what your terms and prices will be. You can also freely adjust your writing and payment arrangements to changes in the marketplace and your own ebbs and flows of business.
But at times this freedom can create some problems when prospective clients ask you to make changes in how you usually work with clients or in your usual prices for the different services you provide.
Generally, set your terms based on the market for what you are doing, taking into consideration the going range of prices and your level of experience. If you are new or relatively new to freelance writing, to be more competitive, set your price below the common standard, say 50-90% what others charge. Then, as you get more experience and have testimonials from clients, you can gradually raise your rates. If you have more experience than most other writers in your field, you generally can charge more than the going rate, and you might test out different rates to figure out the best rate to charge. If you repeatedly lose out on jobs because your charges are too much, consider lowering them by about 10-20% or offer a special discount to new clients or during a certain time period when things are slow.
This occasional special is a time-tested strategy that is often used by retail or online marketers pitching a new program. They tell prospective clients: If you act now or within a few hours or days of getting the offer, you can save money. Another variation on this promotional approach is to provide a series of offers with varying terms, such as setting the lowest price for an advance sale or early bird rate, a slightly higher rate for the next time period, an even higher rate after that, and finally a late bird or at the door rate. Some common graduated steps are from free to $5 to $10 to $15 to $20 for events, such as if you are putting on a workshop. Or you might offer an hourly rate of $75, $85, $100, or $125, depending on how much advance notice clients give you to work on their project.
However, be careful in how often you offer a discount off your regular price, since offering too many discounts will undermine your current regular price, and it will seem like the discounted price is your new one. But assuming you are careful in offering a reduced price, a good time to offer this is when things are slow or you are new to an area or organization. For example, if the economy slows down so there are fewer customers or if this is a slow season for your writing business, which often occurs in August and November to December, a reduction in price might help to bring in some clients. Even if they aren’t ready to follow-through with the material for you to work on at the time, give them the reduction if they pay now for a future service.
Another consideration is whether to charge an front retainer, use a pay-as-you-go system with a credit card or PayPal account, or bill after the work is done. Ideally, when you start a project, especially with a new client, get a percentage down. If it’s a small amount and you are writing something as a work for hire, which is common for writing articles, blogs, website copy, marketing materials, and like, get a down-payment upfront or get the whole thing in advance. This way you know the prospective client is serious, and you won’t get stiffed for a small amount that is almost impossible to collect if the client doesn’t pay. Then, it’s ideal to contain with an advance payment you work against or a pay-as-you-go arrangement, where you have a client’s credit card and charge after you complete each segment of the work.
This retainer arrangement is also ideal if you have a longer project, where a contract is common, and then the payments are typically spread out with 10-25% down, a 20-33% payment after you complete the next segment of the work; get paid another amount to reach 67-75% at the next payment point; and you get a further payment to reach 90% to 100% for sending the client the final project, with the final 10% reserved for acceptance. When you sell a book to a publisher, a two payment arrangement is common, such as getting 50% on signing the contract, and the remainder on acceptance (which is better) or publication, although sometimes, there will be a payment when you are half-way through the manuscript.
While larger companies typically send checks in payment, individual clients commonly use credit cards or PayPal. In this case, either a retainer or pay-as-you-go arrangement works well, so you get paid before or immediately after completing the work.
The billing after completing the work arrangement is best when you are working with a larger established company that only pays this way after receiving an invoice, or with an individual client or small organization, where you have already started working together. Otherwise, with individual clients you don’t know, it can be risky to start with a bill and pay arrangement, since you can bill, but the client can easily not pay. If possible, persuade the client to work on a retainer or pay as you go arrangement. If the client is insistent on a bill and pay arrangement or will walk away, assess if you feel this person or company can be trusted. Then, if you feel this is the case, do only a small part of a larger project to make sure the individual or company likes what you are doing and pays you, before you go on. This way you cut down on your losses in case the client decides not to pay – sometimes due to the client’s own business problems because of a slowdown of customers.
In short, you can be flexible in what you charge and how you expect clients to pay you.
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GINI GRAHAM SCOTT, Ph.D., is a nationally known writer, consultant, speaker, and seminar/workshop leader, who has published over 50 books on diverse subjects, including business and work relationships, professional and personal development, and social trends. She also writes books, proposals, scripts, articles, blogs, website copy, press releases, and marketing materials for clients as the founder and director of Changemakers Publishing and Writing and as a writer and consultant for The Publishing Connection (www.thepublishingconnection.com). She has been a featured expert guest on hundreds of TV and radio programs, including Good Morning America, Oprah, and CNN, talking about the topics in her books.
by Gini Graham-Scott | Jun 8, 2015 | Marketing Tips, Marketing Tips - Books, Marketing Tips - Films
Today, if you are seeking to pitch a book, script, or yourself to get published by a mainstream publisher, sell film rights for a book or a script, find an agent or manager, or get paid speaking engagements, it’s all about platform.
That means you need a solid track record in your field, expert credentials in what you write or speak about, a high-profile in the print and broadcast media, and a large social media following. In short, in today’s media and celebrity driven world, you need to do something to stand out. That typically means doing your own publicity and social media campaign to create a brand for yourself, whether you write books, scripts, or films, or conduct workshops on some topics.
This platform has become especially important to sell both nonfiction and fiction books to mainstream publishers, though these guidelines are equally applicable to any field where you are creating creative content. At one time, publishers would build campaigns around new authors to establish them in the media firmament. But now, with rare exceptions, that is no more. New authors have to bring to the table their own marketing and publicity campaign, and already have key elements of this campaign in place, such as 50,000 or more Twitter followers.
Occasionally, once unknown people break through the media clutter, when they are discovered through a human interest story that goes viral. Then, agents come knocking on their doors to represent them, and they get offers of publishing and films deals based on their life story, as well as requests to speak at big events. They may even get merchandising offers to feature them in a line of products based on their story. But mostly, the already famous, such as Hillary Clinton, Bill Clinton, Angela Jolie, Kim Kardashian, and other household names are the ones who get the deals.
Thus, to stand out yourself, you need to create a powerful platform to get a deal. As Carole Jelen and Michael McAllister write in their book: Build Your Author Platform: The New Rules: A Literary Agent’s Guide to Growing Your Audience in 14 Steps, “An author’s platform is the most powerful key to success in today’s saturated market, and increasingly publishers are demanding that new authors come to them with an existing audience of interested followers. Authors who are self-publishing have an even bigger need to build an engaged audience.” The same might be said for authors who want to sell scripts or film rights to a book, or for speakers seeking to get booked on the paying speaker circuit.
So what are these elements that make a platform today? They include the following:
1) a personal website which features you and your books or other creative endeavors; and today your website should be optimized to be viewed on mobile platforms;
2) a blog to build a community with your readers;
3) a Twitter account and following, which you should build up to the many thousands; preferably 50,000 or more;
4) a presence on Facebook with both a personal page for your personal brand and a page for your book, film, or speaking topics;
5) an author’s profile and following on LinkedIn;
6) speaking engagements, featuring your live personal appearances at organizations and events;
7) articles published through various publications and websites, including on article aggregator sites, such as Huffington Post;
8) radio podcasts and guest appearances;
9) book or script trailers and video blogs on YouTube;
10) a website for each of your books or creative endeavors;
11) an author page on Amazon;
12) book reviews of your books;
13) a celebration launch of your book, film, workshop, or other creative projects.
You should also send out or post regular press releases, such as through one of the PR services, like PRBuzz, PRWeb, PRWire, BusinessWire, Cision, or ExpertClick. Additionally, make yourself available to promote what you have written or created, and let the media know you are an expert in certain areas, so you get called to comment on recent developments in your field. For example, when I wrote a series of books about crime, I was frequently asked to comment on the latest criminal cases in the news; when I wrote several books about relationships in the workplace, I was often called to comment on work issues, such as complaints about bad bosses and office shootings.
If you write a book proposal, feature what you have accomplished in the areas related to your topic and indicate where you already have a following. For example, in my proposals, I note that I am the organizer and assistant organizer of 10 Meetup Groups in L.A. and San Francisco dealing with writing and films that have nearly 10,000 members. Note any business groups you belong to such as a local Chamber of Commerce. Indicate if you have a speaker’s video and provide a link. As relevant, point up your academic credentials, such as if you are writing or speaking about mental illness and have a PhD in psychology or have worked with hundreds of clients. Highlight the most influential media attention you have already gotten from newspapers, magazines, the Internet media, and radio and TV guest appearances and interviews. Also, consider self-publishing a book in your field to help you gain additional credibility and speaker’s engagements.
In short, think of yourself as a celebrity in the making as you create your author’s brand and platform. If you need assistance with any phase of this process, from writing your book or script to getting published, produced, or promoting yourself, Changemakers Publishing and Writing (www.changemakerspublishingandwriting.com) and Publishers Agents and Films (www.publishersagentsandfilms.com) can help.
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Gini Graham Scott, PhD, is the author of over 50 books with major publishers, including two on writing and publishing books: FIND PUBLISHERS AND AGENTS AND GET PUBLISHED and SELL YOUR BOOK, SCRIPT, OR COLUMN. She has written and produced over 50 short films, has written 15 scripts for features, and one feature SUICIDE PARTY: SAVE DAVE, which she wrote and executive produced, is scheduled for release in February 2015. She also writes scripts for clients, is Creative Director for Publishers Agents & Films (www.publishersagentsandfilms.com), and has several book and film industry Meetup groups which have meetings to discuss members’ books and films and help them get published or produced.
by Gini Graham-Scott | Jun 2, 2015 | Marketing Tips, Marketing Tips - Books, Marketing Tips - Films
One issue that frequently comes up in workshops or online forums is whether you need a copyright for your film or book. Occasionally people ask if they can use what is sometimes called the “poor man’s copyright,” where you send yourself your material in a sealed envelope, so you can later prove that you wrote it when you did.
First, the “poor man’s copyright” is perfectly useless. It is a myth that makes the rounds from time to time, usually because someone has just heard about it from someone else and wants to find out if it is true. Well, it isn’t. At best it might establish a date of mailing. But there are so many loopholes in that mailing to make a proof of anything problematic. A big problem is that one can easily steam open an envelope or mail an unsealed or empty envelope to oneself, and then put the document in the envelope and seal it up after the unsealed or empty envelope comes back in the mail.
Another misconception is that you need to formally register a copyright with the U.S. Copyright Office in order to have a copyright. You actually have a copyright from the date of creation once you write your book, script, article, proposal, or anything else. You are similarly covered by a copyright when you draw something, compose music, record a song, or other creative work and record it in written, visual, or aural form, though you can’t copyright an idea or title. A title might be covered by trademark, if you are using it or intend to use it; but that’s a more complex subject, since you can choose from several dozen categories in which to register a trademark, and you can run into complications when you use a trademark in one geographic area and another person creates the same or similar mark in a different geographic area, depending on what categories you each are claiming. But for all practical purposes, if you write a book, book proposal, script or other written materials, you are dealing with copyright law and the Copyright Office in Washington, D.C.
So essentially the question you are really asking is: “Should you ‘register’ a copyright?” with the U.S. copyright office. If you are writing a script, there is also a possibility of registering it with the WGA (Writers Guild of America), either in Los Angeles or New York, though most register it in Los Angeles, and some producers and agents/managers may ask you to do this. However, that’s not the same as registering a copyright with the government; a WGA registration is more like just putting it on a list that establishes your date of conception, and then you have to renew the WGA registration every 5 years if you register it in L.A., every 10 years if you register in New York.
By contrast, registering a work with the Copyright Office gives you a registered copyright as of the day of registration. The most efficient and economical way to do this is to register online, which is currently only $35 for an individual copyright, meaning just one item is being copyrighted by one author. If there are more authors or this is a combined registration of different properties, it is $55 to register online. It costs more to go the old fashioned postal mail route — $85 — and it will take 2 months or more to get your registration. Ideally, go through the online system, where you are walked through a step by step process to answer each question about the name of the author, date of registration, and other data. Next, you are directed to pay and upload a file with your material (although you can mail it in instead). Then, your answers are entered into the copyright form which is sent to you in a few months.
The costs can mount up if you have multiple items you want to register, so you might consider whether a copyright is really necessary. Take into consideration the fact that a copyright gives you the right to pursue your rights online or in court, but you have to take actions to enforce your copyright, which can be time consuming and expensive. For example, the most cost effective way of using a registered copyright is to prevent someone else using your material online, such as by sending this information to the offending website owner or to a web hosting company which is hosting a website with your copyrighted material. You just send a take-down notice with evidence of your copyright, and normally the hosting company will take it down if the website owner doesn’t.
However, it is very expensive to take any legal action in court to enforce a copyright, so a registration won’t be of much use if you are seeking compensation from someone who has improperly posted your material online and doesn’t have any money. But if you wait, maybe they will have money or they may arrange for someone else with money to use your material – at which time, you can inform them that you own the copyright and you aren’t giving your permission without a just compensation, whereupon you can negotiate the terms with them if they willing to do anything. Otherwise, you have the basis for taking them to court and claiming statutory damages, which may lead them to drop your material or seek an agreement from you.
In general, given the expense and limitations of a copyright, it is not necessary to register the copyright for a proposal or manuscript. The situation is different if you self-publish a book or if a traditional publisher publishes it and, as is usual, assigns the copyright to you. In this case, the publisher will generally file for the copyright in your name. If not, it is a good idea to file for copyright yourself, especially if you feel the book has a good commercial value for a general audience, since there is more risk of someone using your material or even filing a registration on a copy of your work.
Otherwise, if your work is unpublished, it may not be worth the time and expense, since publishers and agents are unlikely to use your material without you, since publishers generally want you as the author to be front and center to promote your book. And normally there isn’t the kind of money in a published book as there is in a produced film or recorded song. So with a book, unless it just makes you uncomfortable to not register a copyright, I feel it isn’t necessary – especially if you have written many books, because of the high cost involved. Even if you self-publish a book, it may not be necessary to register a copyright, especially if you have published multiple books, so the registration costs are high, since most self-published books average about 150 copies in sales.
So if someone pirates your book, it probably doesn’t matter whether your book’s copyright is registered or not, since it is unlikely you can do much more than send a take-down notice to the multiple sites offering free copies of your book and hope they take it down. If they don’t, it’s not normally cost-effective to try to pursue matters any further.
Likewise, if you write articles it is not necessary to copyright each one, especially when you are making the articles available for free. Just use them for promotional value, though if you combine the articles together into a book and self-publish it, you might get the copyright then.
By contrast, if you complete a script, treatment, or TV series or show proposal, it is a good idea to register a copyright, whether or not you get a WGA listing. Many producers for their own protection will want you to have a registered copyright, and often any NDA document they ask you to sign will have some language about your having only the protection in what you have copyrighted and not in any similar ideas they might have developed in house or obtained from another writer or other party.
Another reason for registering a copyright in the film world is because it is so competitive, and sometimes, if a script reader sees the potential in your idea, it could be shared with others, though it might undergo some further changes in the script. Then you could be out of the loop, although a registered copyright will make it more likely for you to be involved in the project going forward. Or it could lead to a payoff to get your copyrighted material signed over from you.
In sum, in the case of books and articles, it is generally not necessary to get a copyright unless you have high hopes for a large commercial sale or are willing to pursue take-down notices or a court case against someone who copies and sells your book and has the money to collect if you win. But if you write a script, TV show proposal, or treatment, get your material registered, since you will often need it to even get your script considered by producers, agents, managers, or others in the film industry.
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Gini Graham Scott, PhD, is the author of over 50 books with major publishers, including two on writing and publishing books: FIND PUBLISHERS AND AGENTS AND GET PUBLISHED and SELL YOUR BOOK, SCRIPT, OR COLUMN. She has written and produced over 50 short films, has written 15 scripts for features, and has one feature film SUICIDE PARTY: SAVE DAVE, which she wrote and executive produced, scheduled for release in February 2015. She also writes scripts for clients, is Creative Director for Publishers Agents & Films (www.publishersagentsandfilms.com), and has several book and film industry Meetup groups which have meetings to discuss members’ books and films and help them get published or produced.
