What’s the difference between a literary lawyer, a literary attorney, or a literary agent who might be one of the Best Literary Agents working at one of the Top Literary Agencies? Should authors ever hire a literary attorney or literary lawyer? And, if so, what are some of the more common reasons an author might hire a literary lawyer or literary attorney?
If you’re a creative type like me, this type of article probably makes your toes curl. Reading about lawyers is like reading about taxes. But this is an important topic that a lot of authors ask me about, so I’ve done my best to make this article insightful and interesting.
The Difference Between Literary Agents, Literary Lawyers or Attorneys, and Entertainment Lawyers or Attorneys
Most authors published with major publishing houses like Random House have literary agents, but they don’t usually have literary lawyers or literary attorneys, and they don’t usually have entertainment lawyers or entertainment attorneys.
Literary agents are primarily responsible for developing and managing the careers of writers. Click here (no cost) to see my detailed Guide to Literary Agents along with my information about how to Get a Literary Agent and Finding a Literary Agent. In short, literary agents advise their clients on a wide range of topics including, at times, contracts and other legal topics. However, most literary agents aren’t lawyers or attorneys. Therefore, if an author needs “legal advice,” he or she may need to pay for the services of a literary lawyer or literary attorney to augment the efforts and abilities of his or her literary agent.
Literary lawyers or literary attorneys serve authors in a different capacity than literary agents, a strictly legal one. In other words, literary lawyers or literary attorneys don’t advise their clients about their writing, nor do they try to get them book deals. They simply give advice about legal matters and, in some cases, represent their authors’ interests in arbitration, court cases, or other types of situations and proceedings. You’ll see examples of some scenarios below. There’s also not much difference between the words “lawyer” and “attorney.” The definitions vary a bit by location, but they overlap a lot. Basically, all attorneys are lawyers but not all lawyers are attorneys. If you want to know more about that topic, just Google “The difference between lawyers and attorneys.”
Entertainment lawyers or entertainment attorneys serve authors and other types of talent such as actors and actresses in a similar capacity to literary lawyers and literary attorneys. The main difference is they’re not focused solely on writers. And, in some cases, entertainment lawyers or entertainment attorneys pitch projects to publishing companies, movie studios, etc. However, if you’re an author seeking a book deal with a major publisher, a literary agent who’s solely focused on developing and managing the careers of writers is typically more likely to do a thorough job in this regard.
10 Reasons to Hire a Literary Lawyer or Literary Attorney
Should you hire a literary attorney or literary lawyer?
Here are some reasons to consider it…
1. Review your literary agent contract
Most successful literary agents have relatively standard author/agent agreements. Click here to see two articles I have about what to expect (and NOT expect) in a Literary Agent Contract or Literary Agency Contract. If you’re not extremely knowledgeable about such agreements, or you don’t have a publishing insider willing or able to review your author/agent agreement, you might want to hire a literary attorney or lawyer to do so.
Here’s an example…
Most agents propose a one-year term that automatically renews each year for another year unless the author or agent decides to terminate the agreement. However, some agents propose a two-year or even a five-year term. But what would happen if you signed a contract like that and your agent became unresponsive a short time later?
You’d be stuck.
That’s the type of thing you need to know about before you sign an author/agent agreement. A literary attorney or lawyer can help. Just make sure it’s a good one who isn’t going to nit-pick unimportant issues to look smart or to bill you for extra time. For example, when I was an agent, I had a simple/standard author/agent agreement, but one author I wanted to work with got his lawyer to review my agreement.
That lawyer was so ridiculous I withdrew my offer for representation from the author, since the author didn’t understand that his lawyer was blowing it for him.
The lawyer had something like 27 things he wanted to talk about in my simple, two-page contract. One or two things or even a few would have been okay. But I started thinking about how that lawyer would react if I worked hard to sell the author’s book and got him a contract from Random House–a much more intricate contract, closer to 20-30 pages. I imagined the lawyer making everything complicated and blowing that deal.
No thank you.
2. Review your publisher contract
The same advice mentioned above applies here.
It’s a good idea to have a literary attorney or literary lawyer review any publisher contract you’re offered. Just make sure it’s someone good who isn’t going to create more problems than they solve.
You might also find this interesting: Some literary agents hire a literary attorney or literary lawyer if they get in over their head with a contract they’re negotiating on an author’s behalf, and they believe they need additional support. If that happens, the agent will usually tell the author about it in advance because the legal fee will usually have to be paid by the author (out of pocket or deducted from the author’s royalties). You’ll likely see language about this scenario in your author/agent agreement.
3. Your book includes content that might require permissions
I always tell authors not to worry about this—at least not prior to getting a literary agent or publisher interested in their work. That’s because literary agents and publishers have very different opinions about what permissions are required in different situations, and they have very different opinions about when they should be obtained.
So, my view is that it’s best, in most cases, to wait and see if you get an agent. If you do, you can raise the issue with the agent, who might say something similar, such as, “Let’s wait and see if we can get a publisher interested; if so, we can ask them what they think.”
This is smart because some publishers might say you don’t have to worry about something you might have spent a lot of time, worry, and money on. Or, they might have their lawyer spend the time, worry, and money for you!
4. Your book includes content that someone might consider defamatory or libelous
This is usually a concern for authors writing memoirs about their family members, whistleblowers writing about companies they’ve worked for, etc. and the advice I gave in the previous section applies here.
5. Register or protect your copyright
You don’t need to hire a literary attorney or lawyer to do this. Read my article here about How to Copyright a Book. However, if you believe someone is using your work, in part or in whole, without permission, you should consider hiring a literary lawyer or literary attorney to look into it and, if needed, be an advocate for you.
For example, one of my author coaching clients recently sent me an email saying he found a website online selling his book without permission. I was skeptical since he hasn’t yet published his book. When I investigated online, it looked like the website wasn’t selling his book after all, though, at first, it seemed like it.
When I looked closely, I saw that the website was simply using his name, and the name of his book, to attract website traffic in search engines such as Google, but, when I clicked on the link, the book wasn’t there. Weird. If you see anything like that, you’ll want to consider having a literary lawyer or literary attorney send the company a cease and desist letter to make them stop.
6. Register or protect your trademark
Registering a trademark takes time and money, and if the only reason you’re doing it is to protect your book(s), it’s often not worth investing time and money until if/when you get an agent or publisher.
Authors often get attached (too attached) to a name they want to use for a book title or series, or some other name. As a result, they sometimes spend a lot of time and money buying domain names and trademarks, etc. and then their publisher wants them to use a different name. That’s why it can be best to wait and see what happens with your publisher first.
However, if you have more than “just a book,” let’s say a related business and/or a brand, and you want to protect those things, that’s a different story. Similarly, if you have an established trademark you believe is being violated, you should contact a literary lawyer or literary attorney immediately.
7. Register a company or DBA for tax purposes, etc.
If you’re spending any money whatsoever on your writing and/or you’re planning to try to get your writing published at some point, resulting in any payment whatsoever, you should consider claiming tax deductions. Even if you’re not making money as a writer (or, not yet), you still might be able to make deductions.
Read this article I wrote about Tax Deductions for Writers and talk with your tax person about it. You don’t need to set up an LLC or anything like that in most cases to do this, and you don’t need to hire a literary lawyer or literary attorney. But, if you want that support, you certainly can hire a literary agent or literary attorney.
8. Get out of a publisher contract
I talk with a lot of authors who’ve paid or worked with publishers they no longer want to be involved with. Most of the time, it’s fairly easy to get out of such arrangements or contracts. Especially if it’s a company that charged you something and you already paid them. At that point, unless they’re selling lots of copies of your book, they’ll usually let you out of the agreement if you ask. The company might charge you a few hundred bucks for the privilege, but you can usually get out if you want to.
If you’re in this situation, read the fine print of your contract before you contact them. And, if you feel the need, hire a literary attorney or literary lawyer to help you. And, if it’s a more complicated scenario in which you believe the publisher did something seriously wrong, consider speaking with them first to see if you can make it right and work it out. Sometimes disagreements and misunderstandings can be cleared up more easily than expected with kind communication and a concerted effort to do so.
9. Get out of a literary agent contract
Getting out of a literary agent agreement isn’t usually a problem if an author has had a falling out with his or her agent. The agent will usually agree to part ways with the author. However, I recently had a situation where one of my coaching clients stopped hearing from his agent completely. After advising the author to send several polite emails and voicemails trying to ascertain the status of his project, I finally advised him to send a more formal/firm letter indicating he’d have his lawyer follow up with the agent if he didn’t hear back within ten days about the status of his work.
The author and I had no idea if the agent had shopped his book around to publishers or not. Without knowing that, the author wouldn’t have been able to get another agent to represent his book instead of the agent who’d apparently dropped the ball. And, if the agent hadn’t yet shopped his book around to publishers, the author would have possibly been able to get another agent. In that sense, I perceived the lack of communication from the agent as potentially damaging the author’s prospects and literary career.
The letter worked.
A few days later, the author got a full report with a list of publishers the agent was in the process of sending the book to. Disaster averted.
10. Collaboration agreement or dispute
Maybe you’re working with, or planning to work with, one or more collaborators on a book. Sometimes authors work with co-authors, ghostwriters, illustrators, etc. It’s always wise to put your understanding of all parties’ obligations and responsibilities in writing. You’re less likely to have confusion or disagreements that way. And, of course, if you’re already having a disagreement or dispute, a literary lawyer or literary attorney might be able to calm things down and clear things up.
Conclusion – Should You Hire a Literary Attorney or Literary Lawyer?
I’m not a lawyer or attorney, so I always tell every author I speak with via coaching or through articles and advice on my websites, I’m not liable for anything an author does or doesn’t do. All I can do is speak about my experience and share what I might do in a similar situation. I suggest every author speak with a lawyer or attorney in any scenario in which the author feels it might wise to do so.
You can’t go wrong that way. Well, things can go sideways if you don’t have a good lawyer or attorney, but more educated eyes reviewing something is almost always better than less. It can scary at first if you’ve never worked with an attorney or lawyer, but, like everything else, if you take your time, do your homework, and try to find someone reputable, you’ll probably be happy in the end.
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Question or Comment About Literary Agents, Literary Attorneys, or Literary Lawyers?
Click here to see The 50 Questions Authors Ask Most (along with answers to the questions) and/or post your question or comment. Click here to see our Guide to Literary Agents. And, click here to see some of our best tips to help you Find a Literary Agent and/or Get a Literary Agent.
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Want help to make your pitch materials for literary agents as good as they can be? Click here to learn how you can get 1-on-1 feedback to improve your pitch material and/or first fifty pages during an Introductory Coaching Call.
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