Copyright Issues, Book Packaging, and Misadventures in Publishing

Who owns what?

The below text is reproduced from Jane Friedman’s excellent industry newsletter for publishing insiders and working authors, The Hot Sheet, and an article from the November 20th, 2024 issue, titled, “The Crave Series Copyright Case: Interesting for Many Reasons Except Copyright.” (Love a good snarky Jane-ism!). She interviewed yours truly for insights into book packaging, and I have permission to reprint the text of the article here. I’ve lightly edited it for length while maintaining its substance:

I can think of few undertakings as expensive for an author as launching a copyright lawsuit without the benefit of a publisher. … Moreover, copyright infringement can be difficult to prove unless it’s a matter of straightforward piracy or copying. (And some cases of infringement are in fact issues of plagiarism, which is an ethical error, not a legal one.) …

Profitable fiction today—romance and romantasy—relies on popular tropes, and some copyright cases now raise questions about what, exactly, gets protection. Copyright law in the US doesn’t protect ideas (or tropes), only tangible expression of ideas, and for writers that means written words on the page or screen. … A similar case is playing out now, although this time it involves a much higher-profile publisher, a literary agent, and Universal City Studios.

In March 2022, author Lynne Freeman filed a lawsuit against author Tracy Wolff, agent Emily Sylvan Kim, and Entangled Publishing, among others, alleging that Wolff’s Crave series infringes upon her unpublished manuscript. Freeman claims that her work, submitted to Kim in 2010, shares significant similarities with Wolff’s series, published in 2020. Notably, Kim is also Wolff’s literary agent. … Here we come to areas of the lawsuit unrelated to copyright infringement: claims of breach of contract and breach of fiduciary duty by the literary agent, as well as allegations of fraud and deceit and fraudulent concealment. … Here’s how things played out, according to the complaint …

• Author Lynne Freeman signs with Kim in 2010 …

• Freeman spends three years working on the project under Kim’s direction, revising and creating new material, producing chapter outlines, chapter summaries, synopses, query letters, etc. Freeman produces, in all, 45 versions of the manuscript. [emphasis Mary’s]

• At various points in the process, Kim says encouraging things to Freeman … Kim introduces Freeman to author Tracy Wolff at the Romance Writers of America conference in 2012.

• By late 2013, Kim tells Freeman they are at the end of the road because there are no further publishers to whom she can send the book. Kim does suggest Freeman consider writing contemporary romance or erotica, but Freeman is not interested and the relationship ends.

In 2013, Freeman sent her unpublished manuscript to Entangled, the publisher of the Crave series. In a response to the original complaint, Entangled admits to receiving it but denies the infringement claims made by Freeman. Entangled says the idea for the Crave series, which started releasing in 2020, came from publisher Liz Pelletier: She wondered what would happen if you crossed Hogwarts with Twilight and created a school for vampires. More specifically, according to Entangled: “Crave book series was a collaborative project with Pelletier providing to Wolff in writing the main plot, location, characters, and scenes, and actively participating in the editing and writing process.”

Such an arrangement is typically called book packaging. In a nutshell, book packagers originate concepts they believe are marketable, then work with writers and other professionals to execute proposals or manuscripts based on those ideas, creating intellectual property. That IP is usually owned by the book packager but could belong to the publisher or to a variety of players involved in the process.

Sometimes publishers come up with ideas, then enlist book packagers to get the projects done; sometimes packagers pitch publishers on their own ideas; sometimes employees of publishing houses are tasked with creating projects based on original IP or for existing licenses and assigning them to writers on a work-for-hire basis. Packagers work in all genres and categories, everything from cookbooks to children’s books to genre series to high-profile franchises (like Marvel). A frequently cited example of a book packager is Alloy Entertainment, run by Warner Brothers. Another is Electric Postcard Entertainment.

To gain clarity on what is normal (or not normal) in the world of book packaging, I spoke to editor and book packager Mary Kole of the Good Story Company and Bittersweet Books. She is also a former agent.

Kole explains that agents can be involved in book packaging in a number of ways: They can help publishers find writing talent for an in-house owned series (think: Nancy Drew, Sweet Valley High), they can help match their authors with opportunities from book packagers or publishers, or they can even do some book packaging themselves. As it turns out, Kim owns et al Creative, “a literary production company with a vision to package breakout, front list print titles targeted to film and new media.” According to New Jersey state records, the firm was established in 2016, after Kim and Freeman parted ways.

While the large majority of books published today are created in the traditional manner—an author writes a book, the agent represents it, the book sells (or doesn’t)—agents are also on the front lines of the market, seeing what publishers want or don’t want and noticing what ideas are salable if they could only find the right talent to execute them. This is one reason why, Kole tells us, she left agenting and started her editorial services firm and book packaging company. “A certain kind of publishing professional enjoys waiting for the perfect project, conceptualized and executed entirely by one writer, to come in on submission. I am not that kind of person. I wanted to play a direct role in turning my understanding of the market into book concepts and collaborating with writers to make these a reality. Bittersweet went out with five projects in 2024 and sold all five. That’s a hit rate most agents can’t beat, as they’re taking educated guesses and entirely reliant on random stuff that comes in.”

So, some agents are collaborating and matchmaking in the book packaging ecosystem to assemble projects with high sales potential. And here we come to some of my questions about this case: Was Freeman aware that the three-year revision process in which she engaged with Kim was not representative of a typical author-agent dynamic? That the materials she prepared for Kim can be part of the book packaging process? Did she and Kim ever discuss book packaging? Did Kim ask for those materials with book packaging potential in mind?

To be clear, agents aren’t sifting through their submissions piles, unbeknownst to writers, looking for ideas to package. Ideas are more likely to originate from publisher discussions or from studying the marketplace. And agents actively involved in packaging create hard divisions between author work on packaged projects versus traditional deals where the author owns all rights. Kole tells me, “Book packaging and IP work isn’t for everyone. A writer who submits their portfolio to a book packager must be absolutely clear on the arrangement. They must understand that someone else owns the rights and originated the concept, that they are creating work product on a for-hire basis (a legal designation), and that their manuscript is subject to more rigorous feedback and sometimes outright revision. Even though all of this is codified in a collaboration agreement with our writers, we at Bittersweet still explain what we’re doing, why, and ask for permission (especially when it comes to hands-on revision) at every turn. Everyone’s role must be very clearly defined or the process doesn’t work.”

Still, could an agent take your idea and turn it into a packaging deal, using other talent? As with all aspects of the writing and publishing industry, there are good actors, bad actors, and everything in between. Kole doesn’t think this is a big risk, and neither do I, but this particular case does raise concerning questions. Kole said the conflict of interest for agents who also work as book packagers may be similar to when agents charge clients for editing. “I left agenting because I found my passion for editing and couldn’t figure out how to morally and ethically offer freelance editorial services on the side while actively screening submissions,” Kole says. “Writers are trusting agents and editors with their ideas and creative output. To abuse that trust—or to go behind a creator’s back in any way—undermines the very spirit of publishing.”

Bottom line: … While Freeman’s copyright claim depends on just how similar her work is, word for word, to the published series, [what’s worth] watching is how the court rules on claims related to the author-agent relationship. But will the case even get that far? The court has been encouraging the parties to consider a settlement, which seems wise.

If you stuck through all of Jane’s excellent reporting, thank you so much. I love this topic and want to add a few more insights that didn’t make it into print. Of course, I need to preface anything I say with the requisite “I am not a lawyer and am not professionally trained to comment on the merits of the case.” Also “I am a principal at Bittersweet Books, a packaging company, and Good Story Company, an editorial and writing resource provider, but all views are my own.”

With all this in mind, I have been a literary agent, an author, a ghostwriter, and a book packager. All of these skills and ways of working can result in a published book, but the question of who owns what and who’s compensated and how for a successful book sale or project makes a key difference in all of these scenarios.

Ways to Be Published

The “one writer gets an idea, writes it, submits it, gets a book deal, is published, owns the copyright” path is the most common and familiar way a book gets to market. This is what the literary agents are depending on when submissions come in—that they’ll find the perfect thing to be excited about which also matches their a) personal taste, and b) understanding of the market. This is the kismet and gamble of agenting. And for most people in the industry, this is the only way they work, and they’re happy with it. Fine and good!

That said, there are other routes to market, which writers, agents, publishers, and packagers sometimes participate in. I’ll detail them below:

• Ghostwriter: This is a work for hire arrangement that’s either credited on the cover or not (cover credit usually offers different splits, and various levels of credit include “by Named Author with Ghostwriter,” “by Named Author and Ghostwriter” and “by Named Author as told to Ghostwriter.” The ghostwriter doesn’t own the copyright. They can be brought on before the sale of the project, or inserted into the process later (if the Named Author has issues completing or delivering an acceptable manuscript, as defined by their publishing contract). The Named Author generally pays them a flat fee, regardless of the book’s eventual sale or performance. Ghostwriters with a lot of clout or experience, working on notable projects, can have more leverage about credit and remuneration, but it’s still a “work for hire” assignment.

• Book Doctor: Sort of like a ghostwriter but this professional is most likely involved in ghost revision. They’re brought in to fix a manuscript in progress (whether before a sale or, most frequently, after it has already sold to a publisher and the Named Author is having issues delivering an acceptable draft). A book doctor might overhaul the whole thing or do a less intensive revision on a certain section, “punch up” dialogue or humor, tighten the voice, add a subplot, etc. They can specialize in a certain skill—like adding accurate historical detail—or do a general pass to accomplish specific editorial goals. They are usually uncredited, don’t own the copyright, and are paid a flat fee by the Named Author. (If a book is very prominent, a literary agent or publisher might negotiate who shoulders the expense, especially if the publisher is insisting on a book doctor’s involvement in the first place, but getting them to cough up is rare.)

• Beta/Sensitivity Reader: Similar to a book doctor, described above, a beta reader or sensitivity reader can be brought in at any point of the writing and publishing process, except they’re offering general overview feedback or feedback on a certain element of the project (lived experience from a specific demographic perspective, a review of technical details, etc.). Some sectors of publishing run manuscripts through beta readers and sensitivity readers as a regular practice. Publishers often pay for sensitivity reads, especially because they want to shield their projects from glaring errors, prejudices, blind spots, and any potential legal liability. (Though authors are responsible for defending themselves and sometimes even paying a publisher’s legal defense bills if they’re found guilty of willful or even unintended errors!) Writers can and do hire beta and sensitivity readers before a project goes out on submission, just as they would a developmental editor or proofreader. Beta and sensitivity readers are generally paid a flat fee, get no cover credit, and have no claim to the copyright.

• Writer for Hire: Writers are woven throughout the publishing industry at all levels—a dumb statement, but one which intends to showcase that original creators aren’t the only writers getting paid to write. Let’s take the world of early readers as an example. Random House owns the Dora the Explorer license for their stepped/leveled readers, which are very specific books designed for progressing newly independent readers through literacy skill acquisition. In the case of this particular arrangement, the text was likely written by a writer for hire who was paid a flat fee. They did not receive cover credit and Viacom International—the developer of the original IP—owns the copyright. (Oddly, Viacom used to own Simon & Schuster but licensed Dora to Random House instead.) Now, if you look at the My First Little Readers series published by Scholastic, they do feature a named author on the cover. But Scholastic, the publisher, owns the copyright, because these books were likely developed in-house and given to a writer for hire to produce the text. This means the named author is a contributor but did not originate the concept. These projects pay on a flat-fee basis. You may see some of these series or individual volumes sell tons of copies, and while that’s technically a feather in the writer’s cap, they are not enjoying many of the perks of being a bestselling writer of original material, like royalties.

The Connective Tissue of This Process: Writers for Hire

The “gold standard” for being published that many authors aspire to is not any of the above. It’s coming up with a premise, writing it, selling it, getting your name on the cover, and owning the copyright. But this is not the only way to be a working writer. There are tons of other options, but they depend on your network and connections. Most writers who get ghostwriting, book doctoring, work for hire, or book packaging work have agents or have previously published before and maintain editorial relationships with publishers. The above options don’t represent the best way to start a career in publishing, because an acquisitions or managing editor’s the three main considerations for a potential work-for-hire writer are:

• Do they know what they’re doing? (Read: Have they successfully pulled this kind of work off before?)

• Are they easy to work with? (Read: Has previous publishing experience already shaped their expectations and robbed them of their illusions? (Jk jk jk, but also serious.))

• Can they get ‘er done without complaint? (Read: Most of the above roles exist because the project has gone off the rails, and only a low-maintenance, low-ego professional can fix the project in time to meet an approaching deadline.)

That said, sometimes these various lines get crossed, as you can tell from the Freeman/Kim/Entangled, ahem, entanglement. 

Misadventures in Packaging

It seems to me—and, again, I’m not a lawyer and have no firsthand experience with the situation—that, if infringement occurred, it’s because Freeman’s version of the concept wasn’t judged by the agent as strong enough to sell, even after 45 revisions. Perhaps, at some point, either Kim (the agent) or Entangled (the publisher) thought someone else would do a better job with the idea and didn’t want to let it go. To be clear, this is completely unethical. Especially if Freeman believed that her concept, executed by her, was the only option on the table for this book coming to market. In no way shape or form should the people responsible for evaluating her work have “run with it” behind her back.

What sticks out to me is that Freeman was asked to deliver a comprehensive synopsis and world bible (common in fantasy projects) toward the end of her process of working with Kim. These documents are common tools of the trade in book packaging (we include them in a proposal pitch to publishers) but it’s unusual for an agent to demand these things, then quickly let the client go instead of going on submission with said project.

To an outside observer who doesn’t mind making a few assumptions (meeee!), this could look like the agent and/or publisher using the writer for the concept and handing it to someone else. This sometimes happens—work for hire doesn’t work out, as you’ll see below. But in a book packaging scenario, there’s a very clear delineation between who owns the idea and who owns the manuscript.

Here, it doesn’t seem like Freeman knowingly participated in this package, if it was, indeed, a package. Of course, it’s true that you can’t copyright an idea, just the execution of it. But we also have an unspoken rule in publishing that a writer’s idea is sacred, as I said in Jane’s article. I’m not sure Freeman has the case she thinks she has (infringement is extremely tough to prove without, basically, identical text), but if her idea was taken, she was absolutely done dirty by people who should’ve upheld the integrity of her original creation and the agent/author and/or author/publisher relationship. 

The other night, I heard firsthand from a published author who had been hired to develop a YA concept for a packager. (Not Bittersweet, thank goodness!) The idea itself was hers, but the packager had pointed her in the direction of this particular concept and, therefore, owned it. The writer for hire didn’t end up working out so the packager asked the author who came up with the concept to ALSO write it. That’s fine. These things happen. 

However, my jaw dropped to hear that NO BETTER TERMS WERE OFFERED once this author came aboard as the writer for the project, in addition to developing the original premise. Not even when the project was sold to a publisher. Even though this author would now be writing two books in a series based on their own concept, they would just be getting paid a flat fee for the concept alone. But how? 

And what is the packager bringing to the table to justify keeping the majority of the revenue?! This looks very much like a single author/original concept/original manuscript scenario, and in most cases, that author gets to keep 100% of their net revenue, (less a 15% agent commission, if applicable).

This author should have at least doubled her stake in the project! Every packaging agreement should have a contingency clause that triggers renegotiation in good faith if there has been a substantial change to the scope of the collaboration (like swapping out the writer). Also, even though I work as a literal book packager, I’ll be the first to say that coming up with the idea is, indeed, hard work but it’s also often less involved than hammering out the associated manuscript. Not only is that common sense but anyone involved in packaging should be able to admit it. To not also compensate this author for the hard effort of delivering on the idea is unconscionable to me. I call shenanigans!  

Nothing’s Possible Without Writers

I don’t offer this anecdote to be a gossip, but to show the many ways in which this kind of multi-stakeholder relationship—where agents, authors, premise originators, writers for hire, and even publishers are involved—can go sideways. 

Long story long, there’s more than one way to make a book than “a writer and an idea love one another very much …” In a lot of cases, as long as everyone is clear on their roles and who owns and is responsible for what, great things happen and everyone is happy. Sometimes, this is not the case. If you’re a writer and getting into any kind of non-traditional relationship with an agent, publisher, or packager, ask them questions about copyright, credit, payments, etc. Ask who’s hiring you to delineate every relationship involved. If they skirt your questions or imply you’re being too bothersome, that’s a red flag.

The modern publishing landscape—at least the players who’ll end up mattering in the end—is author-led and author-forward. Those who take advantage might strike juicy deals and ride the trend highs in the meantime, but there might be a reckoning in the long run.

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About Mary Kole: Former literary agent Mary Kole founded Good Story Company as an educational, editorial, and community resource for writers. She provides consulting and developmental editing services to writers of all categories and genres, working on children’s book projects from picture book to young adult, and all kinds of trade market literature, including fantasy, sci-fi, romance, and memoir. She holds an MFA in Creative Writing and has worked at Chronicle Books, the Andrea Brown Literary Agency, and Movable Type Management. She has been blogging at Kidlit.com since 2009. Her book, Writing Irresistible Kidlit, a writing reference guide for middle grade and young adult writers, is available from Writer's Digest Books.

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