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Foreign Publishing Deals: Profit or Peril? - Part 2
Once you've shown your book at the Frankfurt book fair (or for that matter after London or any other fair) and have received an inquiry from a foreign publisher, now what do you do?
The way these things usually go is that a foreign publisher or agent generally gets a glimpse of the book, its jacket, or some promotional materials at the event and will send you a letter asking for a "reading copy." This is the first instance where the American publisher must become a visionary, see down the road and not get carried away with emotions based upon this "interest." Keep in mind that often the foreign publisher or agent sends out this same request to many publishers whose books seemed even of remote interest at the fair. So this interest is definitely not to be interpreted as a deal on the horizon.Once your book is out of your hands, you lose control over it and run the risk that the foreign publisher or agent can publish or have published the book without your consent and without you being paid anything for those rights. It is a risk of doing business--but at the very least, if you deal with reputable foreign publishers or agents, you can attempt to minimize that risk. Thus, the American publisher should send the reading copy out with a cautionary cover letter advising the foreign publisher or agent that this is a reading copy only and that there is no agreement regarding any rights. This letter should be composed by an attorney.
The next step in the process is that if the foreign publisher or agent is interested in the book, the American publisher may get another correspondence asking for "your terms." Here again, the American publisher must act with vision and understand that although this is still not a contract, the terms must be composed by an expert who can advise the publisher what might be acceptable for that market based upon the nature of the book and other factors. Keep in mind that there are many, many points in a foreign publishing deal beyond the advance and royalty.
Additionally, preparing such an offer often requires that the American publisher examine its contracts with the authors, cover artists, editors, distributors and perhaps others to make certain that the American publisher actually owns the rights it is claiming to own in order to make the deal. When sending out the "terms," the reply must again expressly state that there is no contract on the basis of this correspondence, and that only when a formal agreement is signed and the advance is paid, will the deal be binding upon the American publisher.
Having then passed through the first two portals, the American publisher may then get a request to send a contract. You should never sign an agreement submitted to you by a foreign publisher or agent without having it reviewed by an attorney. Under the usual circumstances, the foreign publisher may ask that the American publisher submit a contract and of course, this contract should also be prepared by an attorney. Never use preprinted form contracts for any deal--this is especially true for a foreign publishing or representation deal.
In the foreign publishing world, resort to American courts is quite restricted as a practical matter and thus the thoroughness of the agreement may be all that the American publisher has to keep the book from being taken away. If an agreement is well prepared, it may serve as just the deterrent necessary to cause the foreign publisher or agent to act honorably. Trying to save a few dollars on legal fees by using a preprinted form may be among the most expensive decisions a publisher may ever make. Have vision.
The provisions of that foreign publishing or representation agreement must be carefully constructed so that the American publisher is protected as best that it can be under the circumstances. The American publisher should never sign the agreement until the foreign publisher or agent does and until the American publisher receives the advance in the American publisher's bank.
Finally, the American publisher should keep in mind that the failure to make a sound deal or to keep the book from being stolen away, may create legal liability for that publisher with the author and perhaps others based upon the publisher's duty to that author and others. Thus, it is not merely losing the money that is involved. There may be continuing issues presented by the failure to approach the deal making process in a prudent manner.
CONCLUSION
As in all dealings, the American publisher must act like a business person, and not allow the idea of having a foreign version of its book sway its sound business practices. To repeat: because resort to American courts is limited, the soundness of the written agreement and the approach the American publisher takes toward the making of the deal may be the only way that American publisher can protect its rights.
As I stated in Part 1 of this article, there are many other issues that may arise in such deals. This is an area filled with subtlety and nuance. Your rights and, more importantly your remedies are subject to severe geographical and, as a result, practical difficulties. As a further result, your contract must be as strong and protective as it can be. Seek professional advice, presumably from an attorney.
- - - - - - - - - - - This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.
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Ivan Hoffman is a publishing, copyright, Internet law, recording and music attorney as well as a published writer and author. He practices in the Los Angeles area. You may reach him on the Internet or via a real telephone at (310) 899-9641.
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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.
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Editor's note: To read Part 1 of "Foreign Publishing Deals: Profits or Peril," search archives under "hoffman."