Ben W. Pesta, Attorney at Law

A writer needs an agent and a lawyer.

If you are a writer, unless your name is J. K. Rowling or John Grisham or Stephen King, you are in a position of extreme disadvantage every time you deal with a publisher, or even your agent. The gross discrepancy of economic resources between author and publisher makes almost any writer a minnow in a shark tank. And the media merger mania of the last decade has only made things worse. “Hardly a week goes by without a new takeover or amalgamation,” wrote André Schiffrin, director of The New Press and former managing director of Pantheon. The publishing trade, which previously comprised a number of medium- to larger-sized firms, is now an oligarchy dominated by not even a handful of mega-conglomerates. Those sharks that once were hammerheads are now Great Whites.

Ben W. Pesta is uniquely qualified to protect your economic and creative interests.

Many attorneys practice entertainment or intellectual property law. Very few have earned their living as an editor, publisher or freelance writer. Ben W. Pesta has done all three. The result is that he is not only sympathetic but empathetic to the extraordinary problems of the creative writer in an increasingly cutthroat commercial environment. At the same time, he knows the things editors look for in a book or article manuscript, and the economic factors that constrain publishers.

What can Ben W. Pesta do for me?

· EXPLANATION AND NEGOTIATION OF AGENTS’ AGREEMENTS.

o Why is your agent charging you $250 before she earns you a dime?

o Is this a “reading fee,” or simply cost recovery?

o What’s the difference, and what can that difference mean to you?

o How much authority should you give your agent to act on your behalf?

o Ben W. Pesta can advise you on establishing this all-important relationship.

· NEGOTIATING AND DRAFTING COLLABORATION AGREEMENTS.

o There is no sadder story than the one about the two writers who began to collaborate on a project, but didn’t put anything on paper because they were “such good friends, we don’t need a formal agreement.”

o Ben W. Pesta can handle the often-thorny problem of defining and getting down on paper who does what, who gets how much, and what happens if one of you gets sick -- or just gets sick of the project.

· VETTING OF PUBLISHERS’ CONTRACTS.

o What is cross-collateralization, and how can it cost you most of your advance?

o What about those inevitable “non-competition” clauses? You promise the publisher not to compete against your own book. Can your publisher still compete against you?

o Ben W. Pesta can help you understand what that contract really means

· MAKING SURE YOU RETAIN EVERY RIGHT THE PUBLISHER HASN’T PAID YOU FOR.

o Does your contract give the publisher the right to slap your material on a website and make it available to the public with no payment to you?

o Do you or your publisher own the rights to your characters?

o When your work goes out of print, do the rights revert to you? Or will you have to pay your publisher to get them back?

o Does your contract simply not mention any of these important contingencies?

o Ben W. Pesta can work with you to make sure that you, not anyone else, own the derivative rights that may become valuable in the future.

· SECURING RIGHTS AND PERMISSIONS TO QUOTE COPYRIGHTED MATERIAL.

o Every publisher’s contract tells you that this is your job. It’s a tedious and time-consuming one, and unless it’s handled properly, it can result in your committing an innocent infringement.

o Ben W. Pesta can perform this unrewarding task for you, leaving you time to write.

· ESTABLISHING AND PROTECTING YOUR COPYRIGHT.

o Just as you don’t want to infringe, you don’t want your own copyright infringed.

o Ben W. Pesta can help you to establish and, if necessary, defend your copyright.

· VETTING YOUR MANUSCRIPT FOR LIBEL.

o Publishing contracts specify that in case you defame someone’s character, you pay the publisher for whatever costs result.

o It may not even matter that your book is a novel, and that none of your characters are real people!

o Ben W. Pesta can examine your manuscript and help you avoid this headache ahead of time.

· PUTTING YOUR WRITING BUSINESS ON A SOUND BUSINESS FOOTING.

o The IRS scrutinizes writers the way they should have scrutinized Enron.

o Ben W. Pesta will work with accountants and business planners to help you avoid that dreaded taxes-due notice.

· COLLECTING YOUR MONEY.

o It’s absolutely incredible that some publishers will accept a writer’s work, publish it and then “explain” why they can’t pay for it. (They need your money so much more than you do …)

o Ben W. Pesta has a proven record of recovering writers’ fees from recalcitrant publishers. He honed this skill as a freelancer collecting his own fees. Now he wields it on behalf of his clients.

Ben W. Pesta can connect you to the professionals who can help you achieve your writing goals.

Ben W. Pesta works with agents and book consultants who know the market, and who know which publishers and individual editors are responsive to various types of manuscripts. His wife, MONIQUE RAPHEL HIGH, is a novelist, editor and writing coach (see her site, WriteHigh.com) who has students all over the world, and who has helped them develop their skills and find markets for their work.

For further information, contact Ben W. Pesta at literarylaw@aol.com