Monthly Archives: March 2012

Hunger Pains

31 March 2012

How to Read a Book Contract – For Avoidance of Doubt

31 March 2012

A reprise of a post from last year.

Contract clauses beginning with the phrase, “For the avoidance of doubt” are a common feature of business contracts.

For example, Company A is negotiating a three-year contract with Company B to purchase twenty different products from Company B. The contract includes ten pages outlining minimum purchases, pricing and quantity discounts, price adjustments for changes in raw materials costs, methods of calculating credits for returns, etc., with variations for each product.

Company A carefully analyzes all the different combinations of prices, refunds, etc., but wants to make certain it doesn’t receive a big bill as a result of unanticipated future permutations.

Company A might insert a clause in the contract that says, “For the avoidance of doubt, Company A will never be required to pay Company B more than $2 million during any calendar month.” (PG has somewhat simplified the likely language.)

With this clause in place, as Company A’s CFO manages cash flow, she knows she will never have to write a monthly check for more than $2 million to Company B.

Last week, Passive Guy blogged about an important essay from Kristine Kathryn Rusch discussing borderline fraudulent contract practices of publishers in recent contracts with authors.

The practices Kris mentioned included embedding important contract provisions in difficult-to-decipher e-rights clauses or obscure clauses in the Warranties section of publishing contracts, traditionally the home of routine boilerplate. An example of one buried warranties restriction Kris identified would “warrant that the writer will not write anything until this particular book under this particular contract is published.”

So, how is an author to respond when the publisher or agent-turned-publisher offers up a shady contract?

An intelligent (and the recommended) response would be to hire a competent attorney to review the contract.

Now, to be completely truthful, is it possible for a clause to be hidden from a competent attorney? The answer is “Yes.” Not likely, but possible. Passive Guy would love to assure you that all attorneys sprinkle themselves with fairy dust each morning so they never make mistakes, but this is not the case. (Besides, fairy dust makes PG sneeze.)

In the absence of fairy dust, an approach to buried gotchas PG sometimes uses is to expand the familiar For Avoidance of Doubt clause into a Smoke ‘Em Out Clause.

The purpose of the Smoke ‘Em Out Clause is to:

  1. Reveal where the gotchas are buried, and/or
  2. Provide a reasonably good method for avoiding the effects of buried gotchas

Here’s an example, based in part on Kris’ essay, of what a Smoke ‘Em Out Clause might look like (simplified to keep you from falling asleep). The term, “Work” is a defined term identifying the book that is the subject of the publishing contract. Reservation of rights would be handled in a separate clause.

For the avoidance of doubt, no provision of this contract shall:

  1. Give Publisher any rights to any present or future work of Author other than new books with the same characters and settings as the Work.
  2. Prevent Author from publishing any of Author’s present or future books with another publisher or self-publishing such books except for books with the same characters and settings as described in Paragraph 1 above.
  3. Give Publisher any rights to electronic versions of the Work except for an ebook version of the Work with features substantially identical to those ebooks being sold at retail by Publisher on the date of this contract.
  4. Give Publisher any rights to versions of the Work in electronic or other formats that are not being sold commercially at retail by one or more major book publishers on the date of this contract.
  5. Give Publisher any rights to past, present or future creations of Author that are not books, including adaptations by Author or others of the Work into a form that is not a book or ebook.
  6. Give Publisher any rights to modify the content of the Work as initially accepted for publication by Publisher without Author’s express written consent in a document separate from this contract.

Passive Guy could go on, but the purpose of the sample clause is to demonstrate what a Smoke ‘Em Out Clause might look like, not provide a comprehensive cut-and-paste example of everything that might be listed in one.

This clause probably doesn’t replace any other clause in a standard publishing contract. It’s added to the contract. What the author is doing is making a list of things that he/she is worried about and negating the publisher’s right to do those things.

The fundamental purpose of this clause is to conflict with hidden clauses that say something different. If you’re sure you’ve found all the gotchas, you may choose a different negotiating tactic to deal with them. However, it still may be a useful approach to set forth some clear and reasonable items in a For Avoidance of Doubt paragraph and make the publisher justify something much more restrictive.

The style of this clause should be simple and straightforward, both for clarity for the author and for clarity for a judge. I’ll talk more about the judge later.

What are some possible responses of a publisher to a clause like this?

Response 1: This is our standard contract and we’re not making any changes.

What you’ve learned from this response is that the publisher’s contract has at least one provision and probably more than one provision that conflicts with the Smoke ‘Em Out Clause. If the Smoke ‘Em Out Clause doesn’t make any changes in the standard contract, there is no cost to the publisher in accepting it.

By virtue of the blanket refusal to discuss changes in the contract, you’ve also learned that, as the author, you are not a respected partner for this publisher. Instead, you are an indentured servant. The only reason you’re not a slave is that slavery is prohibited by the 13th Amendment to the United States Constitution (and similar laws in another countries), so the publisher will have to be satisfied with indentured servitude.

A variation on this response is, We have dozens of contracts and the administrative issues involved in modifying our standard form for an author would be overwhelming.

Bogus. Hundreds of large companies have thousands of contracts that are completely different from one another and they manage to deal with them.

Response 2: We can agree to paragraphs 1 and 3, but can’t accept the rest.

Now you know where to look for gotchas. The ones you talked about in your paragraphs 1 and 3 are probably not in this contract, but you need to hunt through the contract for the rest.

Response 3: We can’t agree to your proposed addition because it conflicts with other parts of the contract.

Bingo! Your immediate response is, “Which parts of the contract do my proposed language conflict with?” You will then receive a nice little map to a flock of gotchas. If the publisher refuses to tell you where the conflicts are, see Indentured Servitude above.

Response 4: We can agree to your proposed addition with some minor changes to your language.

Watch the changes like a hawk. Analyze the contract until you are certain you know which contract provisions the changes leave in place. Once you think you know what contract provisions are involved and if they don’t bother you, generate another Smoke ‘Em Out Clause that just skirts around those provisions. If the publisher says OK to the new clause, you’ve probably found all the gotchas. If the publisher wants more changes to your language, analyze those carefully or, alternately, ask why the changes are necessary and which contract provisions are conflicting.

Response 5: Your addition is acceptable to us.

This may mean you have a clean contract. This may also mean your Smoke ‘Em Out Clause missed the hidden landmines. This may also mean the publisher will be relying on its standard contract language to override the Smoke ‘Em Out Clause. This reliance is, I believe, risky for the publisher.

As mentioned earlier, the Smoke ‘Em Out Clause is designed to conflict with objectionable provisions hidden in the contract. If your language does conflict and both remain in the contract, you’re looking at a fight somewhere down the road. The Smoke ‘Em Out Clause is not a guarantee of victory, but it should help you out.

When a judge is presented with a contract that includes unclear or conflicting language, the judge will first try to find an interpretation of the contract that honors all the language. One of the reasons for simple and clear statements in the For Avoidance of Doubt (FAOD) clause is to make it difficult for a judge to construe the contract in a way contrary to this clause.

The language of the FAOD clause (“For the avoidance of doubt, no provision of this contract shall”) is designed to tell the judge that if something else is floating around the contract that conflicts with it, the FAOD provision will govern.

Another reason for simple and clear statements is that, comparing those with the complex and roundabout wording necessary to conceal a good gotcha, the judge has more opportunities to construe the gotcha language in a way that preserves the fundamental intent of the FAOD language.

A general rule of copyright law is that an author is presumed to retain all rights not expressly granted to a publisher. Some of the FAOD provisions sound like retained rights.

Finally, a judge will understand the publisher was trying to distract or deceive with a hidden gotcha and will be aware of the great disparity in resources between a big publisher and an individual author. If the FAOD language gives the judge something to hang his/her hat on, he/she will come down on the side of simple, clear and fairer to the author 9 times out of 10.

An FAOD clause is not a replacement for carefully reading and understanding a publishing or agency contract. An FAOD clause is not a replacement for a competent attorney.

An FAOD clause is not many things, but it is a lovely way to set a cat among the pigeons in a negotiation.

Since Passive Guy has been more specific about clauses, language, etc., than he is in most of his contract posts, he will remind you that nothing in this blog is legal advice. People who want PG’s legal advice need to hire him or be a very close relative.

 

E-books settlement talks advancing

31 March 2012

From Reuters:

The Justice Department could reach a settlement in the next few weeks with Apple Inc and some of the major publishers suspected of colluding to push up electronic book prices, according to two people close to the negotiations.

While negotiations are still fluid, the settlement is expected to eliminate Apple’s so-called “most favored nation” status, which had prevented the publishers from selling lower-priced e-books through rival retailers.

. . . .

The deal could also force a shift, at least temporarily, in pricing control from publishers to retailers, one of the people said.

Such a move to a “wholesale model” would not only benefit consumers but also Amazon, which had been the leading bargain e-book retailer with its Kindle reader.

. . . .

When Apple entered the digital books market with its iPad in January 2010, Amazon had nearly 90 percent of the e-book market.

Amazon now has about 65 percent of the e-book market, while Barnes & Noble has 20 percent and Apple has 10 percent at most, according to Cowen & Co estimates.

As the market shifted, prices have risen.

. . . .

Andrew Gavil, who teaches antitrust at the Howard University School of Law, said the consumer would win under a Justice Department settlement that rips up the agency model, even temporarily.

“The consumer will be the short-term winner because the autonomy to set the price of e-books will go back to Amazon. Manufacturers may have to lower the price of hard cover books. They may have to adjust their expectations of profits of hard copy books,” said Gavil.

Link to the rest at Reuters and thanks to Al for the tip.

F+W Starting E-book Subscription Sites

31 March 2012

From Publishers Weekly:

F+W Media is launching a series of e-book subscription sites aimed at enthusiasts in particular niches beginning with the Artist’s Network eBooks Book Club. The art community subscription site, http://ebooks.artistsnetwork.com, features more than 100 full-color art instruction titles.

For a yearly subscription of $199, subscribers to the Artist’s Network will receive unlimited access to all titles for as long as they remain subscribers.

Link to the rest at Publishers Weekly and thanks to Abel for the tip.

9 Clips From ‘Game Of Thrones’ Season 2

30 March 2012

Link to eight more clips at The Playlist

20,000 Comments

30 March 2012

Today, The Passive Voice passed the 20,000 mark in total comments posted since it opened 14 months ago.

PG has often said the best part of the blog is the comments. He thanks all who have commented and continue to contribute their insightful and often witty thoughts.

Experience

30 March 2012

Experience is not what happens to you; it’s what you do with what happens to you.

Aldous Huxley

Each Indie Book is Like a Bond

30 March 2012

From a comment by Camille:

If you’re investment/retirement fund oriented:

Tell yourself that your writing time isn’t creating cash, it’s creating BONDS. Figure that each of those books is worth, at minimum, $5k in 30-year treasuries for your retirement fund.

(And that’s assuming you’ll only make $150 a year off each book average. $500 a year return on a $5000 property puts it with up with relatively aggressive stock market return.)

Here’s a link to Camille’s website – The Daring Novelist

Get More Out of Your Kindle Fire Tablet: Five Tips

30 March 2012

From PC World:

Now you can tweak the user interface, no rooting required. You can also view full desktop versions of websites, instead of the default–and minimalist–mobile versions that the Kindle Fire normally delivers. And you can add several gigabytes’ worth of music to your device without hogging valuable storage.

Here are five tips to rev up your Kindle Fire and put a bit of that tablet swagger back into your investment.

View Full Websites, Not the Cruddy Mobile Versions

The mobile version of Facebook is fine when you’re on your iPhone or Android handset, but the stripped-down version seems inadequate on the Kindle Fire. Other badly stripped-down sites include CNN, ESPN, and Gmail. For me, the Kindle Fire has more than enough screen real estate to support full websites.

. . . .

Add Your Own Music, Movies, and Documents

Using a Mini-USB cable, you can transfer movies, music, and documents from your desktop to your Kindle Fire. You will need to familiarize yourself with the Kindle Fire’s file-management system. For navigating folders on your Kindle Fire, I suggest the free file-navigating Android app AndroXplorer.

Documents: To put .pdf, .txt, and .prc documents on the Kindle Fire, plug your tablet into your PC. Now open the Kindle Fire folder on your desktop, find the Documents folder within, and drag and drop the files to the folder. Next time you open the Docs app, they will be available. (You can also send files to your device via the dedicated email address listed in your Docs app.)

. . . .

Music: Simply drag and drop MP3 tracks to the Kindle Fire’s Music folder while it’s connected to your desktop. Next time you open the Kindle Fire’s Music app, they will be listed.

Link to the rest at PC World

Redefining Research

30 March 2012

Passive Guy is always a little hesitant about big infographics because they’re hard to proof for errors, but this looked interesting.

Wikipedia
Via: Open-Site.org

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