Legalese

These words don't mean what you think they mean.

Contracts are hard for laymen to understand not just because the language is well, you know, complicated (even though it usually is), but because legal language utilizes the words many of us employ every day in ways that are markedly different from what we understand those words to mean.

It's like saying black, but it means white every time this group says it, but green every time someone in another group says it.

Different disciplines of law have their own language. Real estate law language is different from maritime law language.

The phrase for this phenom is "term of art". A term of art is a "precise word or phrase that has specific meaning within a particular field or profession".

Term of art to most people will mean something like, well, a frame or the name for a type of painting.

One of the worst mistakes I see creators make is they employ lawyers and/or get legal advice from people who have no expertise in publishing, and no knowledge of publishing standards and practices.

Just because your friend the real estate lawyer had courses in business contract law, that does not mean that lawyer will be qualified to represent you to vet your new publishing contract. And a lawyer who might be just fine negotiating your agreement for a novel will be clueless negotiating your comic book industry contract. And neither of them may have the expertise to negotiate a film/TV rights agreement, or foreign licenses.

This goes double for agents, BTW.

The comic book industry has different standards and practices from book publishing, often including complex rights assignments and licensing terms which may not be an issue in a contract for a novel. Your novel lawyer will have no idea what kind of money or percentages to expect, or even if the film and TV licensing arrangements will work in your favor. 

Your real estate lawyer is going to be completely at sea in these matters, so you might as well hire a maritime lawyer: they'll both be pretty useless. All they can do is look at the contract and determine if the language is legal.

They can't tell you if the contract is good for you.

Consider the word "print". What does it mean?

"Print" not only has different meanings in law, it has different meanings in different areas of publishing.

For example, if you are selling prints of a work of art in California, then your print has to conform to industry standards and practices re: authentication. Many's the time people have paid top dollar for prints when what they really got was a copy run off someone's home computer.

"In print", a term we've all heard, is a minefield phrase, because many contracts assign publishing rights to a client for the duration of "in print". 

But what does "in print" mean? What does it mean in the era of digital publishing when almost nothing ever goes out of “print"?

In print means different things for periodicals and books, too. For example, an “in print” book can keep a contract in force based solely on the fact that there are unsold copies remaining in a warehouse.

If your contract allows for rights reversion when a book goes out of print, and your publisher has been sitting on 75 unsold copies for the last three years, that's not such a good deal, is it?

You want to pin down the definition of in print, and make sure your publisher simply doesn't hang on to rights they are not using for longer than they need to. But your clueless lawyer may not know to tell a publisher to limit that term, say, to three years after publication, or if the number of unsold copies drops below 250, because that real estate attorney doesn’t have any idea what industry pitfalls are.

In print means another thing for periodicals. If a periodical has a publication date on the cover, the publication date expires after about 90 days, and the book goes off the newsstands. Even if the book remains in the warehouse, technically, it is no longer “in print”. 

However, some publishers refused to release rights to comics that should have reverted when the appropriate time after newsstand on sale dates expired. The publishers tried to intimidate the creators by saying the work remained in print because there were copies available for sale.

But in print for periodicals and in print for books are two completely different matters!

If the publisher has 1000 copies of a 3 year old comic in a warehouse, the comic is out of print. But the same number of copies of a book in a warehouse could render a book “in print” and keep that contract running.

Publishers may want to hang on to rights to try to force creators to continue working under a disadvantageous arrangement, to penalize them for leaving for other publishers, or to try to hire other creators to take over a project after you walk. Comics companies are notorious for keeping comics running long after the original creators have gone, and the results are often…not good.

Publishers may lie about the definition of “in print” and dare you to sue them over it - rough for freelancers to do across state or country lines.

The publisher may even want to hang on to properties to enhance their financial portfolio even if they are not utilizing those properties. 

It happens more often than you may think.

If your lawyer is not familiar with the publishing minefield, you will step on a live one, eventually.

Get the right lawyer for the job.