Monthly Archives: December 2011

Principles of Contracts: Everybody Knows Peggy Lee (or should)

28 December 2011

More details on the Peggy Lee case from J. Daniel Sawyer, who explains he’s not a lawyer, but does a good job of analyzing the legal issues:

If God had a lounge singer in the 40s, 50s, or 60s, I’d lay you even odds that it would have been Peggy Lee. Along with Etta James, Billie Holiday, and Rosemary Clooney, she had a glorious, smoky, rich alto that wrapped naturally around horns and clarinets to make sounds that were the aural equivalent of chocolate.

Peggy Lee had a good friend named Walter, and Walter need a singer/songwriter for his new project. Walter did good work, and he was a good friend, so Peggy gave him a good rate, and in 1955 the result of that project hit the country like Christmas. It was a little movie called Lady and the Tramp.

It was a great collaboration, and they had a good contract for the time (Peggy and her cowriter retained rights to “transcriptions” such as record albums and sheet music–a smart move). Everything might have been peachy for life, if Sony hadn’t screwed up the world with home video.

Videotapes have been around pretty much since the Big Bang (or at least since 1951) in broadcast, but nobody really expected that it would wind up being something people used at home any more than the early computer manufacturers thought that your phone would contain twice the computing power that sent men to the moon (which some of them now do). Even if it were technically possible, why would anyone want home video when they had, you know, lives? And television? A professional toy like video tape wouldn’t appeal to a mass market–or such was the thinking. Sony, by the 1970s the world leader in miniaturization, disagreed. In 1975 they introduced Betamax, the first home video format.

. . . .

Disney argued that the original license left them with an implicit right to sell the movie in any format, and that “transcriptions” didn’t cover home video because it was just another video format, like film and television. Peggy Lee argued that it was a transcription, and that she couldn’t have sold home video rights, because home video didn’t exist at the time that Lady and the Tramp was produced.

It took a long time for the lawsuits, contrafilings, and court case to run its course. At the end of it, in 1992, Peggy Lee won two important victories. First, she got a few million dollars for her troubles, which helped with her retirement even after her lawyers got their cut. Second, she got a precedent, known in entertainment circles as “The Peggy Lee Decision.” According to this decision, rendered in the California Supreme Court, an artist can’t sign over rights that do not yet exist.

Let me say that again. An artist can NOT license rights that do not yet exist. All those old movie contracts suddenly got complicated, as studio lawyers had to scramble to make sure their creatives (such as composers, songwriters, etc.) signed addendum allowing the use of their work in home video. At the time, Internet streaming didn’t exist except in experimental theory, so very few studios listed that in their addendum–that came later (this is, btw, one of the reasons that certain episodes of TV shows, and certain films, are not available on DVD and/or for streaming–studios would not meet artist’s asking prices for their music and other creative contributions in the new formats).

Link to the rest at The Worlds of J. Daniel Sawyer

The Lady and the Lawsuit

28 December 2011

In the earlier post today about HarperCollins, PG mentioned the granting of rights to publish using new technology by the holder of a copyright. One of the comments correctly pointed to a case PG was thinking about.

From the Los Angeles Times:

Sitting in her wheelchair, frail and with failing eyesight, singer Peggy Lee hardly fits the image of a Hollywood giant killer.

But when the 70-year-old Lee rolls her chair into Los Angeles Superior Court on Wednesday, she thinks she has a good chance of bringing the mammoth Walt Disney Company to its knees, or at least to its checkbook. Lee is suing Disney for $50 million, charging breach of contract and unlawful enrichment over the videocassette release of Lady and the Tramp.

Lee has already convinced the court that Disney violated their original 1952 contract by releasing the tape without her permission. Lee co-wrote six songs and performed the voices of four characters in the film, which has earned more than $140 million altogether – $90 million alone from the video sale, according to her attorney.

. . . .

In Lady and the Tramp, Lee provided the voices for the characters of the torch-singer dog Peg, the Siamese cats Si and Am, and Lady’s owner Darling – and was paid $3,500. She and her writing partner, Sonny Burke, earned another $1,000 for the use of six songs he and Lee collaborated on for the movie. The pair retained all rights for phonographic recordings and transcriptions, but their contract – like the contracts of most performers of the day – didn’t foresee the advent of video and the huge audience it would provide for their work.

According to attorneys on both sides, the case hangs on the court’s interpretation of the term transcription.

Disney is arguing that the term, as it was used in the 1952 contract between Lee and the studio, was not intended to cover future technology, such as video.

“Our position… is that the term referred to audio recording discs, primarily used in radio broadcasting,” Clair said. Disney, he said, retained the right to use Lee’s voice for radio, television, and according to the contract, “all other improvements and devices which are now or hereafter may be used.”

But Deborah Nesset, Lee’s attorney, argues that Lee retained the rights to transcriptions in order to protect herself against just such a claim by Disney. Nesset insists, and the court has agreed, that a “transcription” is simply a copy of Lee’s work – in any form.

. . . .

Lady and the Tramp was a theatrical success in the mid-50s, and was re-released several times. It was a major hit on video, outstripping Top Gun as the hottest video seller of 1987. More than 3 million copies were sold.

“When they came out with the cassette, I thought I would look at my contract,” said Lee. She did, and after consulting with an attorney, determined that the portion that forbade Disney to make and sell transcriptions could be applied to videotapes.

. . . .

“People are coming out of the woodwork and suing about this,” said Nesset, Lee’s attorney, but it’d a difficult road. “A lot of these people are quite elderly. A lot of people are dead. When the estate brings a lawsuit, it’s not going to be as effective as the actual performer.”

According to Thomas White, an entertainment industry consultant who is chief adviser to the estate of Fred Astaire, the performers tend to win, but they must be willing to put up a fight.

“The film companies, by virtue of the fact that they are controlling the print [of the film], think they can do whatever they want,” said White. “And they continue to do that until the artists assert their rights.”

Link to the rest at PeggyLee.com

Peggy won her case against Disney and received a $3.8 million judgement.

 

Legal Battles Over E-Book Rights to Older Books

28 December 2011

From the New York Times in December, 2009:

William Styron may have been one of the leading literary lions of recent decades, but his books are not selling much these days. Now his family has a plan to lure digital-age readers with e-book versions of titles like “Sophie’s Choice,” “The Confessions of Nat Turner” and Mr. Styron’s memoir of depression, “Darkness Visible.”

But the question of exactly who owns the electronic rights to such older titles is in dispute, making it a rising source of conflict in one of the publishing industry’s last remaining areas of growth.

Mr. Styron’s family believes it retains the rights, since the books were first published before e-books existed. Random House, Mr. Styron’s longtime publisher, says it owns those rights, and it is determined to secure its place — and continuing profits — in the Kindle era.

The discussions about the digital fate of Mr. Styron’s work are similar to the negotiations playing out across the book industry as publishers hustle to capture the rights to release e-book versions of so-called backlist books. Indeed, the same new e-book venture Mr. Styron’s family hopes to use has run into similar resistance from the print publisher of “Catch-22” by Joseph Heller.

. . . .

Backlist titles, which continue to be reprinted long after their initial release, are crucial to publishing houses because of their promise of lucrative revenue year after year. But authors and agents are particularly concerned that traditional publishers are not offering sufficient royalties on e-book editions, which they point out are cheaper for publishers to produce. Some are considering taking their digital rights elsewhere, which could deal a financial blow to the hobbled publishing industry.

. . . .

“This is a wide open frontier right now,” said Maja Thomas, senior vice president for digital and audio publishing at the Hachette Book Group.

While most traditional publishers have included e-book rights in new author contracts for 15 years, many titles were originally published before e-books were explicitly included in contracts.

. . . .

In the case of Mr. Styron, who died in 2006 at age 81, the eight titles his family wants to re-release as e-books were published in print before 1994. This fall, Mr. Styron’s estate reached an agreement with a new company, Open Road Integrated Media, founded byJane Friedman, the former chief executive of HarperCollins Publishers Worldwide, and Jeffrey Sharp, a film producer.

. . . .

Ms. Styron said her family was happy with the job Random House, and their father’s editor, Robert Loomis, had done for Mr. Styron’s work. But with e-books, she said, “we didn’t feel that we were getting any similar kind of full-court press.”

In his letter on Friday, Mr. Dohle said that authors were precluded “from granting publishing rights to third parties.” Stuart Applebaum, a spokesman for Random House, said the company expected to “continue to publish the Styron books we own in all formats, including e-books.”

Mr. Sharp, president of Open Road, said in an e-mailed statement: “We are confident in our agreements and only make deals with parties who represent to us that they own the rights.”

Several publishers who say they retain e-book rights on old contracts are working to amend those agreements to insert digital royalty rates. A spokesman for Simon & Schuster, Adam Rothberg, said the company has amended many old contracts. “Our plan is to publish all our backlist in e-book form,” he said.

. . . .

There is some precedent for arguments over e-book versions of backlist titles. In 2001, Random House sued RosettaBooks, an e-book publisher, for copyright infringement when Rosetta signed contracts with authors — including Mr. Styron — to release digital versions of previously published novels.

In its suit, Random House relied on wording in its contracts that granted it all rights to publish the works “in book form.” In its letter to agents on Friday, Random House invoked the same wording to defend its right to publish e-books of backlist titles.

In 2001, a federal judge in Manhattan denied Random House’s request for a preliminary injunction against RosettaBooks, ruling that “in book form” did not automatically include e-books. An appellate court similarly denied Random House’s request.

The case never went to trial. In a settlement, Random House granted Rosetta a license to release e-book versions of 51 titles. Under a different agreement with Mr. Styron, Rosetta also published two of his books, though its license to do so has since expired.

Link to the rest at The New York Times

HarperCollins Sues Over Ebook Rights

28 December 2011

HarperCollins has filed a copyright infringement suit against Open Road Integrated Media over Open Road’s publication of an ebook version of  Julie of the Wolves by Jean Craighead George. The suit was filed in federal court in the Southern District of New York. Open Road was formed by former HarperCollins CEO Jane Friedman in 2009.

The lawsuit is based upon a 1971 publishing agreement that supposedly included ebooks with a clause granting Harper rights to publish the book in “computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”

This is 100% speculation on PG’s part, but he suspects the cited language is in a later amendment to the publishing agreement.

Passive Guy is still in the process of pulling together documents, but here is a link to the Harper – Open Road Complaint. PG is looking for a copy of any attachments to the complaint, which would presumably include the publishing agreement and any amendments thereto.

One interesting tidbit in the complaint is that Harper has sold 3.8 million copies of Julie of the Wolves in one form or another. Another interesting tidbit is that Harper has heretofore neglected to publish an ebook version of the book.

The most intriguing legal issue PG sees in the contract language cited by Harper is the “now known or hereafter invented” provision.

As a general proposition, unless an author specifically grants a right under the author’s copyright, that right is retained (although it’s always good practice to include a clause that explicitly states the author retains all rights not expressly granted to the publisher).

As another general proposition, if a technology is not known to the parties or reasonably contemplated by them at the time the contract is signed, it cannot be granted by the author.

If anyone finds a copy of the HC publishing contract involved in this litigation, please let PG know where it is via the Contact page.

A note on reading litigation documents: Filing a complaint is the way a federal court case is begun. It represents the case from HC’s perspective and the complaint is written in a manner to present the case in a manner most favorable to HC. It would be unusual for a complaint to concede any weaknesses in the plaintiff’s case.

Every attorney has his/her own style of writing complaints, but, to PG’s eye, several paragraphs sound like press release excerpts rather than the types of allegations that build a case for HC’s claims. PG has never practiced in New York City federal courts, but some of the paragraphs of the complaint would have been routinely stricken in courts where he did practice.

One of the fluff paragraphs, #11, reveals the rather astounding fact that HarperCollins only spent $70 million in promoting its books during its fiscal year ending in June, 2011. This seems very low for a company the size of HC.

One additional request – If anyone has a HarperCollins contract from the late 60’s or early 70’s, PG would love to have a copy for his Contract Collection. He is particularly interested in the strangely prescient ebooks clause HC references in its complaint.

 

Self-Publishing vs Sushi

27 December 2011

From author Emily Casey:

Picture a small town in Pennsylvania where the Amish ride horses through the streets and sell quilts at the market. A place where the locals have names for things most people in the country have never heard of. I went to a writer’s conference in this town and met aspiring writers, top agents, and best-selling authors.

On the first day of the conference, a New York agent asked the locals of this small Pennsylvania town where to get some good sushi.

The response from everyone was pretty much the same: Sushi?!

We all had a good laugh about it and the agent handled the faux pas with grace, but it got me thinking. This agent is wonderful at her job. I’d have loved to have her represent me (only she didn’t work in my genre). I don’t think she’s out of touch with readers. But I don’t think she’s in touch with every reader.

. . . .

. . . .

If you’re reading this, odds are you love to read. Odds are, you’ve read hundreds of great books and are searching for your next. Imagine all those books, the great ones that didn’t make the cut because a publisher didn’t think it had “mass appeal”.

That’s why I want to self-publish. Because just like Georgia’s peaches, I have a story to tell that you can only get from me.

. . . .

I’m not trying to find readers that hate all the books ever published so far. That’s crazy. It’s like saying you couldn’t find a single decent thing to eat inNew York. I’m looking for hungry readers, the readers that might also like a book from a different source.

Link to the rest at Emily Casey

Writing is an adventure

27 December 2011
Comments Off on Writing is an adventure

Writing is an adventure. To begin with, it is a toy and an amusement. Then it becomes a mistress, then it becomes a master, then it becomes a tyrant. The last phase is that just as you are about to be reconciled to your servitude, you kill the monster and fling him to the public.

Winston Churchill

Ten Daring Predictions for 2012 from the Indie Author Trenches

27 December 2011

From author Bob Mayer:

2. Slow will also kill you.  I’d forgotten that “I’ll get back to you next week” in traditional publishing equals “I might get back to you in a few months, but likely never” in the real world.  That’s not going to cut it in the electronic age.  Five years ago, when describing publishing, I’d use two terms:  SLOW and TECHNOPHOBIC.  Both are killers today.  And they’re still damn slow. Tick-tock says the reaper.

. . . .

7. Pricing.  While I believe in the value of the .99 eBook for getting readers, and $2.99 is a nice price for an indie, I think the real value of a novel has to be around $4.99 in eBook format.  As a consultant, I’ve learned people don’t value what they get for free or for cheap.  I don’t see NY lowering it’s prices much except that they will start to see the eBook as replacing the mass market paperback and price accordingly as they cut back on the bloated print overhead they no longer need.

8. Royalty rates.  Going back to #2 above, the 25% rate is a no go.  Not with 70% lurking for indie publishing.  I think 50% of gross is fair.  Which brings up the dangerous term “net”.  Who the hell determines that?  Publishers can play games all they want with contracts and terms, but sooner or later someone is going to turn over all three of the cups instead of just one and find out they’re getting conned.  I see lawsuits pending over publisher accounting for eBooks.

Link to the rest at Write It Forward

Survey Shows Readers Will Shun Poorly Digitized eBooks

27 December 2011

From Data Conversion Laboratory, an electronic document conversion company:

Data Conversion Laboratory (DCL), a leading provider of digital publishing services, reports 70 percent of 411 respondents to a survey drawn from a cross section of the publishing industry cited ‘quality’ as the most important consideration when publishing an eBook. Another important finding is that 63 percent of the respondents plan to publish a digital book in 2012.

“Eighteen months ago, more publishers were concerned about getting their information onto an eBook platform and quality was not the overarching theme it is now,” said DCL President and CEO Mark Gross. “The survey demonstrates that the publishing industry realizes consumers will not tolerate typos and bad formatting on a $15 eBook,” predicted Gross.

In another shift from tradition, 64 percent of the respondents stated they were interested in publishing non-fiction and technical digital content. This statistic is indicative of an expansion in the use of e-readers from casual reading of novels to a myriad of business and technical applications

. . . .

The DCL survey also discovered 43 percent of publishers realized the importance of compatibility with all e-readers, including iPad, MOBI (Kindle), Nook and custom formats. Within the publishers group, the iPad edged out Kindle at 44 percent as an e-reader, versus 36 percent preferring a Kindle.

Link to the rest at DCL Press Releases

As a note, the title to this post was the title of the press release, but it appears that publishers, not readers, were the subjects of DCL’s survey.

Five Signs You’re Reading Too Much Young Adult Literature

27 December 2011

From Book Riot:

    1. You keep a spreadsheet to try to determine whether you exist in a utopia or a dystopia. (Corporate ownership of media? Dystopia. New Muppet movie on the horizon? Utopia.) You secretly hope it turns out to be a dystopia so you can demonstrate your awesomeness in some world-liberating way.
. . . .
    5. When a colleague suggests a round of charades before the end of a dinner party, you arm yourself with a steak knife and take refuge behind the largest armchair. You’re developing a reputation at baby showers.

Link to the rest at Book Riot

I want to wish all of those editors who rejected me a very Happy New Year

27 December 2011

From Joe Konrath:

Just went through some of my old rejection letters. As readers of this blog know, I garnered more than 500 rejections before getting published.

One of my unpublished books was The List.

. . . .

Book Description:

THE LIST is a bit of a departure for Konrath. It’s a technothriller about a group of ten people who each have tattoos of numbers on the bottoms their feet, and don’t know why.

One of them, a Chicago Homicide cop named Tom Mankowski, has had one of these strange tattoos since birth. When he investigates a violent murder and discovers the victim also has a tattooed number, it sets the ball rolling for an adventure of historic proportions.

To say more would give away too much.

The above description was, more or less, the query letter that my agent sent out to over a dozen top editors.

Here are some of the rejections The List received:

Here is The List. I’m returning it to you. Sorry it didn’t work out at Ballantine, hope you’ll place it elsewhere soon. – Ballantine Books

As discussed, The List by Joe Konrath isn’t a book for me. Thank you, and I’m sorry. – Penguin Putnam

Thanks for letting me see The List by Joe Konrath. While it’s certainly not a plot I’ve seen before–at least the cloning part–it seems very familiar all the same, plus the humor in the storytelling seems a little forced and sitcom-ish, and finally exhausted my interest. So it has to be a pass for me. Despite my reservations about The List, I suspect the originality of the concept will prove a lure to someone, and I wish you all the best with it. – Simon & Schuster

. . . .

I shared The List by Joe Konrath with some colleagues here. Several found it amusing but ultimately we felt it was a bit too odd and were concerned about the audience. So I will be declining. William Morrow


I certainly give Joe Konrath lots of credit for trying to put forth a most creative and different kind of thriller involving clones of famous people. And for the most part his wise-cracking dialogue held my attention, too. But int he final analysis, I just thought he tried to hard in this over-the-top novel. I just think it would be a very difficult thriller to sell to our sales force in a major way. The credibility factor is strained a wee bit too much. As such, I’m returning it with my regrets, but with my thanks for the look. – Warner Books

. . . .

In April of 2009, I self-published The List.

As of this writing, December 26, 2011, The List has earned me over $100,000.

Right now it is in the Kindle Top 100 again (it has cracked the Top 100 four different times since I published it.)

What does that translate into sales?

The novel, rejected by everyone, is right now selling over 100 copies an hour, currently earning $3.50 a minute. That’s $210 an hour, $5040 a day. And it seems to be picking up speed.

. . . .

So I’d like to take this opportunity to send warm holiday cheer and sincere thanks the editors at HarperCollins, Bantam Dell, Hyperion, NAL, Simon & Schuster, Doubleday, William Morrow, Warner Books, St. Martin’s Press, Ballantine, Penguin Putnam, Talk Miramax, Pocket Books, Little, Brown and Company, for rejecting The List. And thanks to Grand Central for rejecting Trapped.

Much success to you all in 2012.

And just to show my story isn’t unique, my friend and writing partner, Blake Crouch, recently had a similar experience with his novel Run. It was shopped during the fall of 2010 to a dozen major publishers, all of whom rejected it. Since Blake published Run himself in March, it has sold over 40,000 copies, and is currently ranked at #92 in the Kindle store. In the last 48 hours alone, it has sold over 2000 copies.

Blake and I want to wish all of those editors who rejected us a very Happy New Year.

Link to the rest at A Newbie’s Guide to Publishing

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