- by BlogMistress
Welcome Elaine P. English, Washington, D.C. attorney and literary agent. As an attorney, for more than twenty years she has focused her practice on literary, media and entertainment law, with a special emphasis on publishing. Her clients include writers and journalists and also a few small publishing companies, as well as some photographers, and television and video production companies. In addition, she represents authors of commercial fiction as a literary agent. For further information, see her website .
Tell us a little about yourself and how you got started.
Well, I guess really it all started when I was, I think, in sixth grade and read Jane Eyre. By the end I was crying so hard, I could barely read the words on the page. At that point, I knew I was hooked.
But frankly, at that time, I wasn’t aware of either literary agents or attorneys. It would take many years and starts at several other careers before I would get to that. I went to law school to prove to myself that I could, and upon graduation, I worked for several years for a public interest organization helping reporters. When an opportunity arose to join a small firm, I interviewed hoping to work with the partner who handled employment discrimination cases, but alas, it was the partner who was a literary agent and an attorney specializing in publishing matters who had the opening. My initial forays into agenting were less than successful, and I swore off that part of the business for a number of years. But about seven years ago, I had a change of heart and started representing commercial fiction – mainly women’s fiction, romance, and mysteries. So, here I am back looking for the perfect story with a hero like Mr. Rochester. For more than twenty years now, I’ve also been working with authors on publishing-related legal matters, contracts, copyrights, trademarks, pre-publication reviews and the like. I’ve practiced with a couple of firms and for over seven years had my firm with a partner; Graybill & English, at its peak, had three attorneys and 4 agents. Since 2006, I’ve been on my own, which gives me much more time to devote to my clients and authors. It’s a challenging balance, but I love the mix of work.
What kind of legal services do you typically provide to authors?
I do a lot of publishing contract reviews and negotiations, often for authors who don’t have agents, but sometimes for those who do. Sometimes represented authors want a second opinion or something comes up that has their agent puzzled. Occasionally, I work directly with the agent to improve a publishing contract. I also review and negotiate contracts between authors and agents and authors and collaborators of all sorts. I advise authors on trademark and copyright issues – both how to protect their own work and also how to determine what they can use from others. I advise authors (primarily those of non-fiction) on issues of libel and invasion of privacy and sometimes actually conduct pre-publication reviews of their manuscripts. I’ve written opinion letters for authors to present to publishers when disputes have arisen. In addition to negotiating and drafting collaboration agreements for co-writers or ghost writers/editors, I’ve also assisted in negotiating the termination of such joint enterprises. I generally don’t get involved in litigation, so most of my work is transactional.
How would your contract review be different as a lawyer versus as a literary agent?
In many respects my actual review of the contract would be exactly the same. I’m always looking at a publishing contract with an eye towards improving the situation and legal protections for the author. As we all know, these things are called publishing contracts because they are written by and for the publisher to primarily protect its interests. If the author wants to ensure he’s protected as fully as possible, it behooves him to negotiate for that. Most publishers don’t give anything away unless the author asks. When I negotiate contracts as a literary agent, I certainly rely upon my legal expertise and my years of experience with all kinds of contracts. Of course, if I’m negotiating the contract for an author I represent as a literary agent, I’m probably going to pay a bit more attention to the business details of the deal – particularly, the advance – than if I’m doing the review for a legal client. With legal clients, I often don’t get involved early enough in the process to help with obtaining a larger advance because that term is already set. Also, because, for my legal clients, I generally haven’t seen or read the manuscript or proposal or the book may be in a category I’m not as familiar with as genre or women’s fiction, I may not have a good handle on what the market value might be.
Are there any contract clauses you would immediately recommend your client should reject?
I would say the answer is “no.” I believe that everything is relative in contract negotiations. Authors have many, varied reasons for wanting to see their work published. And sometimes those reasons are strong enough to outweigh some of what I might consider the worst contract terms. In other cases, the publisher may be ideal for other reasons – its commitment to the book, its ability to market and promote the author, etc. – and again, those factors may outweigh any given contract clause. I do think it’s critical for authors to understand what they are signing. They need to be able to evaluate the relative merits of all of the terms and conditions of the contract and to realistically assess what could be the risks and liabilities associated with signing it. After that, they have to make their own decision. I see my role (whether as attorney or literary agent) as an educator to help in understanding the terms and assessing the risks, but the ultimate decision is always the author’s.
What makes a writer a good choice for you? What makes you a good choice for a writer?
I love to work with talented writers who are professionals, who are willing to understand the business, and who will work with me (as well as their editors, publishers, publicists, etc.) to do whatever it takes to be a success in today’s business. I also tend to like novels that are more character-driven than plot-driven, so writers of those kinds of stories are more likely to interest me.
The second question I can probably answer best in the negative. I’m not a good choice for a writer who wants to turn all responsibility over to an agent. I prefer to work with my authors as equal partners and I’m not going to make decisions for them. So, if a writer is looking to turn over that responsibility to an agent, I’m not that gal. Also, my background is not in editorial, so I’m probably not the best agent for someone who needs someone else to tell them what to write or how to write it. I approach editorial questions as a reader. I can say that something doesn’t work for me or that a character doesn’t come to life or that a plot has a gaping hole, but I may not be able to give instructions on how to fix it. My style involves direct and open communication and I focus in negotiations on fairness, so an author who’s comfortable with that approach would find me a good choice.
How much input do you expect to have on a client’s work?
(I’m assuming here that you mean author and not legal client.) I like to have a lot of input. I want to read everything I represent. I feel I can contribute toward helping get materials polished before they are sent out to an editor. In today’s marketplace, editors don’t have time to wade through ideas that aren’t fully formed or read manuscripts that are rough or poorly copy-edited. And when a premium is placed on the commercial marketability of every project, it’s critical to have the input of someone whose job it is to focus on that aspect every day.
I also like to know what’s going on – what other ideas my authors are developing and even what they are doing with respect to marketing and promotion, both in terms of their books as well as their overall career. I try to be supportive of my authors’ careers in all possible ways and the more I know, the more I can do that. Whether it’s attending a book signing (and giving moral support) or whether it’s passing on ideas that I’ve learned from other authors or agents, I think it’s important that my authors and I have an open line of communication at all times.
How do you advise clients who want to venture into new genres or make a departure from their published works?
In today’s marketplace, it’s important for an author to establish herself, to begin to “brand” her books and to develop a strong base of readers. That should be every author’s first priority. And, for some that is a full-time commitment. But, I also believe strongly in the value of not having all one’s eggs in the same basket. So if an author can write multiple books in a year and can establish herself in more than one genre, that’s what I would recommend she do. It’s obviously important to think through what that means in terms of time commitments, marketing efforts, and in legal obligations and entanglements. The more that different types of books an author is writing for multiple houses can be distinguished from each other (i.e., totally different genres or subgenres), the easier it is to manage.
If an author wants to simply change to a new genre, then I think it’s important to assess all the factors of her particular situation and why she wants to change. The success of making that kind of change will depend upon such factors as her sell-through rates, volume of current sales (i.e., readership base) as well as why she wants/needs to change. It’s also important to consider whether or not it makes sense to, in effect, re-create the author in order to make that happen. These decisions are all very personal to each author and her situation.
What do you wish authors understood about your role?
I want authors to understand that I see the agent/author relationship as a partnership of equals, and that both of us have to work hard to make it a success. Often that means that the author must do much more than just write a good book. Also, I’m not a miracle worker. Authors should not be prima donnas. I can’t get publishers (or anyone else for that matter) to make commitments that the author’s work does not justify. Along with open communication, each of us must remain realistic about the marketplace and our goals.
Many authors worry about reading or critiquing unpublished works for fear of future lawsuits. How concerned should we be about this?
While we do live in what some call a most litigious society today where virtually anyone can sue anyone else over anything, I’d say authors shouldn’t stop joining critique groups or judging contests or reading other’s manuscripts. In actuality, U.S. law provides very little legal protection for mere facts, ideas or concepts. Certainly copyright laws do not protect those individual elements. Generally speaking, it’s only where there is an established relationship and a reasonable expectation of compensation that a claim would arise from the use of an idea or concept. Erring on the overly-cautious side is why film studios now refuse to accept submissions except through well-recognized agents. In that situation an author would be submitting his work with the clear expectation of compensation if it were used. Not so, when an author is being asked to read or critique another author’s work.
Certainly anyone asking an author to read or critique their work would also be well aware that that author is likewise in the business of developing and writing stories of their own. So, there is something of an assumption of the risk defense.
Finally, in the book business, it’s not really the ideas or concepts that are being sold – it’s the execution of those ideas in a finished product. What author, even if “stealing” an idea, would be able to elucidate that idea in precisely the same way as any other author? That’s what each person’s creative spark allows them to do uniquely. And if we’re talking about plagiarism or passing off something from someone else as your own, how or why is there any difference between an unpublished manuscript and a book you’ve bought from the bookstore? No author that I know is going to give up reading because they may at some point get inspired from something they’ve read!
E-piracy has recently been a hot topic, with many authors angry over their works being made available through pirate websites. On the other hand, some writers have been offering their work as free downloads, sometimes with a Creative Commons license, and finding that this actually spurs sales of the books. What’s your take?
Wow, what a great question and boy, do I wish I had the crystal ball that would reveal that answer! We are definitely at a cross-road in the publishing industry. The vast array of new technologies is challenging book publishing in a way never seen before. Even Guttenberg didn’t have to deal with special readers, cellphones and talking computer voices all at the same time! I don’t think anyone knows what the ultimate impact of all of this will be and exactly how and in what form the publishing business will survive. But survive it will! Until then, I think it makes sense to experiment with such things as free downloads, creative subscription services, ad revenue as a substitute for royalties, maybe even lending fees, and the like. The danger here, in my opinion, is in seizing upon something too quickly as “the answer” before it can be tested adequately in the marketplace. To me, it’s a critical time to continue thinking outside the box even though that leads to uncertainty, until things start to settle into some clearer patterns that everyone can view as a success. In the meantime, authors need to remain open-minded but not ignore direct threats to their rights.
Thanks to Chris Green for inviting Elaine to blog with us and to Elaine Isaak for preparing the questions.