Writing a Book

October, 2012

So, I wrote a book.  A fiction book.  But what does that have to do with a law journal?  Well, the writing part was just the beginning.  Now comes the negotiation through possible agency agreements with literary agents and publishing agreements with publishers.  That’s all assuming my book gets published.

I’ve been fortunate to guide clients through the publishing process several times.  We dealt with the business and intellectual property issues that arose.  Agents chime in concerning what the typical business terms are.  They’re on the forefront of those issues as they deal often with many different publishers.  They know what wiggle room there is to negotiate a better deal for authors.

I aim to write now and then about how the process is going.  The purpose is to shed light on the process.  But more importantly, I’d like to discuss the intellectual property law issues and the most relevant terms of agency agreements and publishing agreements.  I’ll talk about what the offers and counter offers were and what was ultimately decided.  (It’ll be like the NHL lockout negotiations except compromises will be made.)

Some critical areas of negotiation with the agent will be how many books does the agency agreement encompass and the percentage of the royalties the agents will receive for domestic and foreign sales.  For the publishing agreement, there is sure to be some time spent on who owns what rights in the book.  As copyright rights in a book may span simply publishing the book, to licensing the characters in the book, to creating games based on the book, to developing new media using the world envisioned by the book, everything will have to be spelled out and dealt with.

All this is assuming a publisher or agent will take my manuscript out of their slush pile and not cast it away.  It will be a long uphill battle to get the attention of those two parties.

Of course, before I submit the manuscript I’ll mark it with the copyright notice like this: “© Ryan Smith 2012”.  This format is required by the Universal Copyright Convention, 1952.  It says generally at Article III that if you set out the copyright symbol, the name of the owner of the work, and the year of first publication of the copyrighted work, then where any country, outside of the country where the work was first published or for which the author has nationality, requires certain formalities to take place to gain copyright protection i.e. registration, such marking shall deem those requirements as satisfied.

Canada still has a system under which you can register your copyright.  For a $50 fee, I will certainly register mine.  Copyright registration isn’t required to gain protection for the copyrighted works you create, but it does confer advantages.  Those advantages may preclude a copyright infringer from pleading innocent infringement and they create a rebuttable presumption that copyright exists in the book and that I’m the owner of the book.

I also have some clients who ask me about the efficacy of mailing something to yourself to prove when you made it.  I guess the answer to that is another question: how much can you rely on a sealed and stamped parcel to prove anything?  I put little or no weight on sealed parcels containing new copyrighted works mailed to the author as a way to prove when something was created.  I think most judges would regard such evidence as having very little probative value.  That said, there’s no harm in doing it.  I simply wouldn’t rely on it for anything.

In submitting copyrighted works to prospective agents and publishers, you might be worried about making the ideas from your manuscript public.  Well, that’s the risk you take.  You may recall a dustup that played itself out in the media concerning Yann Martel and his book the Life of Pi.  The book concerned a boy adrift on a raft in the middle of the Pacific Ocean with a tiger.  (I just saw that Life of Pi has been made into a major motion picture coming to a theatre near you.)  This story bore similarities to an earlier published novella called Max and the Cats written by Moacyr Scliar about a refugee crossing the Atlantic Ocean on a boat with a jaguar.  Yann Martel even admits he was inspired by the Brazilian author’s book.  Upon hearing about the Life of Pi and where Mr. Martel received his inspiration, Moacyr Scliar was upset.  Mr. Scliar even considered a lawsuit.  But he must have received good counsel that copyright doesn’t protect ideas.  It protects how the ideas are fixated in a book.  Mr. Scliar abandoned any thought of advancing a lawsuit against Mr. Martel.  Although Mr. Martel used the person, raft, dangerous animal idea, it wasn’t enough to base any action for copyright infringement on.

So, an agent or publisher could use some or more of the plot twists and design elements I have in my story.  But more than that I have to hope that they like how I’ve used those ideas to create an engaging story.  If they do, it’ll move me that much closer to getting this story published.

And I wouldn’t bother sending publishers or agents a non-disclosure agreement.  Published authors with followings might be able to get an NDA signed.  But I expect even those authors who consistently appear on the New York Times best seller list probably have such great relationships with their publishers and agents, an NDA never comes to mind.

Agents and publishers are pretty ruthless when it comes to submission guidelines.  You have to review their websites and follow to the letter their manuscript submission guidelines or your hard work could end up being used as a coffee coaster.  Many require so many chapters, synopses, even a one page summary meant to mimic what a prospective book purchaser would read on the back cover.

So, I completed the first draft of the book.  I haven’t finished the first edit yet.  Once that’s done, I’ll do a second.  Then, I’ll insert my copyright notices and register my copyright.  Next, I’ll try and get someone to read it.  I’ll keep you posted.

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Ryan K. Smith is a lawyer and trade-mark agent at Feltmate Delibato Heagle LLP. He specializes in corporate and commercial law with expertise in intellectual property matters including trade-marks, copyrights, privacy, information technology, and confidential information.  You can reach Ryan at rsmith@fdhlawyers.com and (905) 287-2215