The Yellow Light Reversion Clause or A Minimum Wage for Authors

20 April 2014

From Hugh Howey:

The economics of book publishing have shifted and will never be the same. Both the physical book, with print-on-demand, and the e-bo0k, with its infinite supply, have created a world where the written word is forever available for commercial transaction. Hundreds of years from now, anything written today will still be available for sale. At that point, of course, the works will be in the public domain. But what to do until then?

The current book contract in all its lovely boilerplate no longer makes sense in light of a work’s permanence. Such contracts are an outdated mechanism. New contracts are needed. Authors will still care about their works decades down the road in ways that publishers most likely won’t. Many publishers view backlist as competition to frontlist. Dusty tomes do battle with the shiny and new. If the purpose of publishing is to blow out the release and hit the grail of lists—The New York Times—then lowering the cost or in any way promoting a decades-old story can only harm this goal. The beloved author today becomes the pariah of tomorrow.

Reversion clauses are meant to protect the author’s interest by assuring the work will return to them once it has sufficiently withered on the vine. But these terms are ludicrous and growing more so. I’ve seen contracts where a work remains with the publisher so long as it sells 100 copies in two reporting periods. That’s 100 copies in a full calendar year. A publisher could order that many e-books for themselves at the last moment and retain rights to a work until the author dies, and then another 70 years after.

Again, these injustices meant little when a book had a three-month lifespan on a bookstore shelf before going out of print. The same terms are a slap across the face today.

. . . .

[A] Yellow Light reversion period . . . might go something like this (with added legalese, of course):

  • If the work in question does not sell 1,000 copies in a single reporting period of six months, the author is granted the right to set the price of the work and to request and approve of a change in cover art. If the work does not sell 1,000 copies in the following reporting period of six months, the rights revert completely to the author.

. . . .

The point of the clause is to give the publisher a chance to revamp the work or invest in its promotion. Any publisher confident of its ability to increase sales should be willing to sign a contract containing such a clause.

Link to the rest at Hugh Howey and thanks to Sandra for the tip.

PG agrees with Hugh that standard reversion clauses (sometimes referred to as out-of-print clauses) are no longer appropriate for a much-changed book world.

PG will further criticize most of such clauses as designed to make sure a book never reverts unless the publisher wants it to do so. Many of these clauses are anything but simple and require much more than the failure to sell a minimum number of copies to trigger reversion.

Additionally, in a world of 99-cent ebooks, the number of copies sold doesn’t necessarily translate into a meaningful royalty check for an author.

PG first wrote about about a Minimum Wage for Authors reversion clause about three years ago and that post generated a lot of comments. Here’s a reprise of his former post:

The purpose of a traditional reversion of rights clause in a publishing contract is to return all rights to a book to the author when sales of the book have tailed off or, for whatever reason, the publisher is no longer interested in publishing the book.

Often, reversion of rights is connected to an ambiguous Out of Print clause. Under some contracts, a book goes out of print when the publisher declares it to be out of print. Under others, a book goes out of print when the number of printed copies in the publisher’s inventory drops below a specified number. Under one OOP clause PG heard about recently, if the publisher had fewer than 100 printed copies of the book and the author was willing to purchase those copies, the book would go out of print.

A reversion of rights clause without a definite trigger is nothing but an invitation for an author to go begging to his publisher from time to time.

Again, to protect the relationship of the author with the publisher, following isn’t the exact reversion of rights language in any contract PG helped with, but it will give you some ideas about how such a provision might be constructed. All capitalized words or terms are Defined Terms described elsewhere in the Publishing Agreement.

The major components of the provision are:

  • It can’t be exercised until royalties earned equal or exceed 150% of the advance. So the demonstration provisions didn’t become too complex, I didn’t include termination provisions for situations where royalties earned were less than 150% because the equities between author and publisher differ if the advance isn’t earned out.
  • If any semi-annual royalty report provides for payment of less than $3,000, the author can give notice of intent to cause rights to revert
  • The publisher can pay the difference between actual royalties and $3,000 and continue the contract. This gives the publisher a second shot at promoting sales of the book.
  • If the publisher doesn’t cure the shortfall or a subsequent royalty report provides for less than $3,000 in royalties, the author can terminate the contract and publisher can’t stop this from happening

Here’s the language

Reversion of Rights

A. If, after the Royalties earned by Author under this Agreement total 150% or more of the Author Advance paid by Publisher hereunder, the Royalties for the Work are less than $3,000 on a semi-annual Statement of Royalties, and Author owes Publisher no other unpaid sums under this Agreement, Author may give Publisher written notice that Author desires to exercise the Reversion of Rights to the Work under this Paragraph.

B. After receiving such written notification, if Publisher desires to continue to exercise its rights to the Work under all the terms and conditions of this Agreement and Publisher is not in material default under any provision of this Agreement, Publisher may, within 30 days of receipt of such notice from Author, pay to Author the difference between the actual Royalties paid with respect to the Work on the preceding Statement of Royalties and the sum of $3,000. If Publisher makes said payment in a timely manner, this Agreement shall continue until later terminated under this Paragraph or another Paragraph of this Agreement.

1. By way of illustration and not limitation, if Publisher pays Author the sum of $2,000 with a Statement of Royalties and Author gives notice as provided above, Publisher may cause this Agreement to continue by paying Author the additional sum of $1,000 within 30 days of said notice.

C. If

A. Publisher fails to make the payment described in sub-paragraph B. above or

B. Publisher has made one such payment and, thereafter Royalties for the Work are less than $3,000 on any subsequent semi-annual Statement of Royalties and Author has given a second written notification of intention to exercise Reversion of Rights as provided in sub-paragraph A. above,

all rights to the Work shall revert to Author on the Effective Date set forth hereafter, and Publisher shall have no further rights to the Work, subject only to the provisions of sub-paragraph F. hereof.

D. The Effective Date upon which all rights to the Work revert to Author shall be 30 days following receipt of the last notice from Author as provided in sub-paragraphs A. and/or C. above.

E. On and after the Effective Date, Author may exercise all of the rights of the owner of the copyright to the Work free and clear of any claim whatsoever by Publisher.

F. For a period of one year following the Effective Date, Publisher shall have the right to liquidate any remaining inventory of hard copy books in its possession on the Effective Date, subject to its obligation to pay Royalties to Author therefor and all other obligations of Publisher under this Agreement. In the event that Publisher has any remaining hard copy books in its possession on the first anniversary of the Effective Date, Publisher shall cause such books to be destroyed at Publisher’s expense.

G. Any other provision of this Agreement notwithstanding, after receipt of any notice from Author under sub-paragraphs A. and/or C. above, Publisher shall not enter into any agreement with any third party assigning, transferring, selling or licensing any rights to the Work in whole or in part without the express written consent of Author to the specific transaction and any such purported assignment, transfer, sale and/or license without the express written consent of Author shall be void ab initio.

Looking back at this language, PG was going out of his way explicitly cover all the bases and use it as an opportunity to help authors to understand not only what a Minimum Wage reversion clause might look like, but also understand how to read a typical publishing contract reversion clause. It would certainly be possible to squeeze the concept into a shorter provision. For simplicity purposes, referring only to a specific minimum dollar amount for royalties and eliminating any reference to a percentage of the advance would be one way of shortening and simplifying the language.

As mentioned earlier, several experienced authors commented favorably about the Minimum Wage concept when PG first posted about it.

However, PG has not seen or been informed that any traditional publisher has picked up on the idea. During the intervening years, if anything, many reversion clauses have become even more complex and purposely impenetrable.

If an author signs a typical traditional publishing contract today without major revisions to the reversion or out-of-print clause, he/she is probably going to be bound by that contract, regardless of book sales, for the life of the copyright to the book, which is the rest of the author’s life plus 70 years in the U.S.

Obligatory Disclaimer: PG hasn’t put a disclaimer into a post for a long time, but because he has included some specific contract language, he thinks it’s a good idea.

Passive Guy is an attorney, but he does not provide legal advice on this blog. He is most definitely not your attorney unless you and he both sign a retainer agreement. Only then will he give you legal advice and it will be delivered privately, not in a blog post.

Passive Guy’s rants, examples of contract language, discussions of litigation issues, etc., are for discussion purposes only. What PG says may not be appropriate for your circumstances and may make your problems worse instead of better. PG’s ideas may ruin your life, cause bolts of lightning to strike you dead or trigger premature balding. Talk to your lawyer before you use any legal ideas, contract language, etc., etc., etc. that are discussed on this blog. You obtain legal advice from an attorney you hire, not a blog.

What’s Barnes & Noble’s Survival Plan?

20 April 2014

From The Wall Street Journal:

In mid-January, Daniel Fidler worked his final day at what was Barnes & Noble Inc. ‘s store in Chestnut Hill, Mass., putting in a few extra weeks stripping out books and bookcases after the store closed at the end of the year.

“I was depressed but I kept a smile on my face because I didn’t want to think about what would happen,” said the 24-year-old, who is still looking for a new job. “We had a party at a restaurant, and everybody who left came back, but it was bittersweet.”

Barnes & Noble is making its last stand in towns just like Chestnut Hill. Its 663 stores still stretch across all 50 states, but there are 63 fewer than five years ago. Stores in Georgetown and the heart of Greenwich Village have closed. Gone, too, is the rambling college store in Manhattan’s Flatiron district that was the sole Barnes & Noble retail property when Leonard Riggio bought that business in 1971.

A franchise built on cappuccino, children’s story time, and tables stacked with the latest from Stephen King, Neil Gaiman and Doris Kearns Goodwin is retrenching. A shrinking market for print books, competition from Inc., and the costs of investing in its own e-reader and tablets had led to three straight years of losses.

. . . .

Speaking of the consumer stores business that accounts for most of Barnes & Noble’s revenue, Mr. Riggio said in a recent interview, “This is not a growth company.” He is already looking ahead to what he describes as a “really, really critical” Christmas shopping season “in terms of casting a die for the future.”

Barnes & Noble shares dropped 12% on Thursday on news of Mr. Riggio’s sale.

. . . .

The 73-year-old Mr. Riggio remains bullish on the company. In the extended interview a few weeks ago, he said, “In my mind, the story isn’t yet written as to where this is all going. There’s promise to it.” He reiterated that sentiment on Thursday.

But the tide of history may be flowing against the retailer. In recent years the rise of e-commerce has killed some well-known brick-and-mortar stores, including Circuit City and Borders Group Inc.

Forrester Research analyst James McQuivey said he is hard-pressed to name any traditional companies selling physical media that have shown revenue growth since consumers warmed to digital books, movies, and music.

“If Barnes & Noble is in its current form by the end of 2015, I’ll be very surprised,” he said.

Link to the rest at The Wall Street Journal (Link may expire)

In the Spring

20 April 2014

In the Spring, I have counted 136 different kinds of weather inside of 24 hours.

Mark Twain

“The Periodic Table of Storytelling” Reveals the Elements of Telling a Good Story

20 April 2014

From Open Culture:

Dmitri Mendeleev might have designed the original periodic table – a graphic representation of all the basic building blocks of the universe – but artist James Harris has done something way cool with that template — the Periodic Table of Storytelling.

That’s right. Harris has taken all the tropes, archetypes and clichés found in movies (not to mention TV, comic books, literature, video and even professional wrestling) and synthesized them into an elegantly realized chart. Instead of grouping the elements by noble gases or metals, Harris has organized them by story elements — structure, plot devices, hero archetypes. Each element is linked to a vast wiki that gives definitions and examples. For instance, if you click on the element Chk, you’ll go to a page explaining the trope of Chekhov’s Gun. And if you click on Neo, you’ll go to the page for, of course, the Chosen One.

Link to the rest at Open Culture and thanks to Randall for the tip.

From Moby Dick to The Great Gatsby: Classic Lit Dishes Brought to Life

20 April 2014

From The Daily Beast:

There is nothing like reading a description of a meal that is so vivid you can almost taste it. For one photographer, imaging the iconic delights wasn’t enough. For a design project that turned into a book, Fictitious Dishes, Dinah Fried decided to create and photograph the food described in her favorite books. After some epic cooking challenges, she landed with 50 dishes ranging from the classic to the modern.

. . . .

Alice’s Adventures in Wonderland
Lewis Carroll, 1865

The table was a large one, but the three were all croded together at one corner of it:

“No room! No room!” they cried out when they saw Alice coming.

“There’s plenty of room!” said Alice indignantly, and she sat down in a large arm-chair at one end of the table.

“Have some wine,” the March Hare said in an encouraging tone.

Alice looked all round the table, but there was nothing on it but tea. “I don’t see any wine,” she remarked.

“There isn’t any,” said the March Hare.

“Then it wasn’t very civil of you to offer it,” said Alice angrily.

“It wasn’t very civil of you to sit down without being invited,” said the March Hare.

. . . .

The Bell Jar
Sylvia Plath, 1963

Then I tackled the avocado and crabmeat salad. Avocados are my favorite fruit. Every Sunday my grandfather used to bring me an avocado pear hidden at the bottom of his briefcase under six soiled shirts and the Sunday comics. He taught me how to eat avocados by melting grape jelly and french dressing together in a saucepan and filling the cup of the pear with the garnet sauce. I felt homesick for that sauce. The crabmeat tasted bland in comparison.

. . . .

The Great Gatsby
F. Scott Fitzgerald, 1925

At least once a fortnight a corps of caterers came down with several hundred feet of canvas and enough colored lights to make a Christmas tree of Gatsby’s enormous garden. On buffet tables, garnished with glistening hors-d’oeuvre, spiced baked hams crowded against salads of harlequin designs and pastry pigs and turkeys bewitched to a dark gold. In the main hall a bar with a real brass rail was set up, and stocked with gins and liquors and with cordials so long forgotten that most of his female guests were too young to know one from another.

Link to the rest, including photos, at The Daily Beast and thanks to Matthew for the tip.

Firm That Helps Authors Buy Their Way Onto Bestseller Lists Goes Into Stealth Mode

20 April 2014

From Forbes:

For years, it was an open secret in the book publishing industry that any author willing to spend enough money could nab a spot on the major bestseller by engaging the services of a company called Result Source Inc. Now that secret is a little less open.

A few weeks ago, the San Diego-based firm quietly scrubbed most evidence of its existence from the web. Its website, which previously contained numerous case studies describing the many campaigns it has executed for authors, has been reduced to a bare-bones landing page with a logo and a contact form.

. . . .

Curiously, all this comes more than a year after an expose in the Wall Street Journal revealed Result Source’s business model for what it is: Basically, the company requires authors to make bulk purchases of their own books, then breaks those orders up into small increments to make them look like organic retail sales. For this service, authors or their publishers pay tens of thousands of dollars, on top of the cost of the books whose purchases Result Source launders. The total price tag can approach $250,000.

WSJ’s reporting prompted a strong response from Amazon, which declared that it would no longer do business with Result Source. Yet according to the Wayback Machine, which takes historical snapshots of websites, Result Source’s full website was still online as recently as Feb. 3, 2014.

. . . .

The timing suggests it has to do with a scandal that’s been unfolding in the evangelical community over the past six months. Result Source started out as a marketing firm catering to Christian authors, and they still make up a large part of its client roster. Several well-known pastors, including Steven Furtick, Mark Driscoll and Perry Noble, have recently been accused of using their congregations’ funds to pay for bestseller campaigns.

. . . .

Duncan and others have floated the idea that the IRS should get involved, arguing that the pastors in question have been exploiting their churches’ nonprofit status for personal enrichment.

. . . .

All of this seems to have led Result Source to the belated realization that everything it does makes everyone involved look pretty bad.

Link to the rest at Forbes and thanks to Randall for the tip.

Here’s a link to what Result Source looks like today and what it looked like in February of this year (sort of).

Americans Who Read More Electronically Read More, Period

19 April 2014

From Harris Polls:

As with just about every other aspect of our lives, the ways in which we can read books have undergone radical shifts over the past few years. Not long ago hardcover and paperback were the main options available to readers, but then e-readers hit the scene, followed by tablet computers. With the additional options of reading on your computer or your phone, these days it seems as though just about the only thing standing between Americans and a good read is setting aside the time. Americans seem to be embracing their broader options, as the majority (54%) currently read e-books, including two-thirds of Millennials (66%).

. . . .

When asked to consider any format – not just hardcovers and paperbacks, but electronic formats as well – a strong majority of Americans (84%) say they read at least one book in an average year, with over a third (36%) saying they read more than ten. On average, Americans report reading roughly 17 books per year. Looking at demographics, Baby Boomers and Matures (whose readerships average roughly 19 and 25 books per year, respectively) both read more in a typical year than Millennials (13). Women, meanwhile, (23) read twice as many books as men (11).

. . . .

Those who read either more or exclusively in the e-book format are more likely to read over 20 books in an average year (30%) than either those who read more/only in hard copy (18%) or those who read in both formats equally (21%). They also report a higher average readership per year than either hard copy hardliners or equal-opportunity readers (22.5 books vs. 16 and 15, respectively).

Looking at the number of books purchased in the past year, with a reported average of 14 books, those favoring e-books purchased roughly twice as many as those preferring hard copies, who purchased an average of less than seven.

Link to the rest at Harris Polls

Hand grenades of ideas

19 April 2014

Short fiction seems more targeted – hand grenades of ideas, if you will. When they work, they hit, they explode, and you never forget them. Long fiction feels more like atmosphere: it’s a lot smokier and less defined.

Paolo Bacigalupi

Are You Really a Writer … Or Just a Copyist?

19 April 2014

From Copyblogger:

It seems that no one really knows what it means to be a writer.

. . . .

The terminology trouble is creating problems for markets trying to find writers, and for writers trying to find jobs. “Writers Wanted” jobs are hoping to target writers who are:

  • Journalists
  • Storytellers
  • Researchers
  • Investigators
  • Industry experts
  • Bloggers
  • Copywriters
  • Authors

But far too often, those who apply aren’t any of these things. They aren’t writers. They are copyists.

A copyist can be defined as a person who:

  • Wants to be paid to write a certain number of words
  • Is drawn to writing as a job, not as a calling
  • Is not trained or highly experienced in any specific writing style
  • Doesn’t have any industry specializations
  • Doesn’t have a unique perspective to share
  • Isn’t expecting to be highly compensated as they don’t expect to provide high-quality work

Merriam-Webster defines a copyist as “a person who transcribes” or “an imitator.”

. . . .

So, the first step in clearing up the confusing definition of writer is identifying what the term is not: a writer is not a copyist.

The next step is identifying what the term is: a writer is an author or freelance commercial writer.

. . . .

It’s pretty easy to tell if you are a copyist.

  • You are not passionate about writing. If you were offered a new job in another industry, you would leave writing behind without a second thought.
  • You accept all types of work-from-home jobs. The work-from-home aspect of writing is what draws you to the industry, and you also work in other kinds of work-from-home jobs.
  • You don’t read for pleasure. You don’t regularly read books, magazines, or newspapers, and you don’t have any favorite blogs.
  • Your finish line is a word count. When you receive a 500-word writing assignment, you write exactly 500 words.
  • You are not proud of your writing. The thought of sharing your writing with loved ones never crosses your mind.
  • You don’t write in your free time. You think writing is work, and if no one is paying for it, there is no reason to do it.
  • You think your writing is good enough. You don’t spend any time working on improving your craft. You don’t seek out constructive feedback and you don’t make revisions.

. . . .

You are an author if:

  • You have original thoughts, perspectives, and opinions you want to share. Your writing doesn’t always rely on reiterating ideas from others. You use your own knowledge and thoughts to create original content.
  • You like to research and follow trends. To help you create your own thoughts, perspectives, and opinions, you are educated, engaged, and immersed in news that relates to your work.
  • You love reading. You frequently read books, magazines, and blogs. You are interested in the substance of the content, and also the delivery of the content. You read to see how other authors deliver their work.
  • You write in your free time. Even if you have no paid work in your queue, you are writing. Whether you are writing on your blog or an article that you hope to sell or even just jotting down ideas in a notebook, you are always writing and thinking about writing.
  • You have a portfolio. You have published samples of work (with bylines) that prove you are a powerful writer — even if the samples are self-published.

Link to the rest at Copyblogger and thanks to Felix for the tip.

Exploring the Genetics of Procrastination

19 April 2014

From The Association for Psychological Science:

 Procrastination and impulsivity are genetically linked, suggesting that the two traits stem from similar evolutionary origins, according to research published in Psychological Science.

. . . .

“Everyone procrastinates at least sometimes, but we wanted to explore why some people procrastinate more than others and why procrastinators seem more likely to make rash actions and act without thinking,” explains psychological scientist and study author Daniel Gustavson of the University of Colorado Boulder. “Answering why that’s the case would give us some interesting insights into what procrastination is, why it occurs, and how to minimize it.”

From an evolutionary standpoint, impulsivity makes sense: Our ancestors should have been inclined to seek immediate rewards when the next day was uncertain.

Procrastination, on the other hand, may have emerged more recently in human history. In the modern world, we have many distinct goals far in the future that we need to prepare for – when we’re impulsive and easily distracted from those long-term goals, we often procrastinate.

Thinking about the two traits in that context, it seems logical that people who are perpetual procrastinators would also be highly impulsive.

. . . .

[Researchers] found that procrastination is indeed heritable, just like impulsivity. Not only that, there seems to be a complete genetic overlap between procrastination and impulsivity — that is, there are no genetic influences that are unique to either trait alone.

That finding suggests that, genetically speaking, procrastination is an evolutionary byproduct of impulsivity — one that likely manifests itself more in the modern world than in the world of our ancestors.

In addition, the link between procrastination and impulsivity also overlapped genetically with the ability to manage goals, lending support to the idea that delaying, making rash decisions, and failing to achieve goals all stem from a shared genetic foundation.

Link to the rest at The Association for Psychological Science


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