Contracts

Rethinking the Writing Business

27 June 2019

From Kristine Kathryn Rusch:

When the disruption hit the publishing industry ten years ago, I watched with a wary eye. After I finished The Freelancer’s Survival Guide in the summer of 2010, I repurposed this weekly blog to help me understand the changes the publishing industry was undergoing. It seemed, in those heady days, that everything changed daily. And there was a large contingent of brand-new writers who knew so much better than the rest of us how revolutionary this indie publishing thing would be.

Most of those writers—the hoards that used to come screaming (literally) to this site every Saturday to denounce me and tell me what an idiot I am and how wrong I was—are gone now. They quit the business not because they weren’t earning money—most of them earned a boatload—but because they couldn’t handle what they had set up.

Many of them published rapidly and followed an insane publishing schedule that couldn’t be maintained in the face of real life. Some based everything they had and everything they knew on Amazon algorithms, only to be shocked when Amazon persisted in changing up those algorithms.

Others couldn’t handle the financial ups and downs of freelancing and some, frankly, didn’t give themselves a chance to succeed. They saw others making thousands every month while they were making coffee money, and decided that they’d never succeed and quit without ever completely learning their craft or building up an audience.

. . . .

New, hot, and trendy has a shorter shelf life these days than it did, and I wasn’t sure why. There’s a lot about this new world of publishing, as I called it, that I couldn’t figure out.

. . . .

We’ve been doing this wrong.

By this, I mean the writing business post-Kindle. We’re all approaching our business like we’re still in the publishing business. But we’re not. We’re part of the entertainment industry, and that entails a lot more than we think it does.

Let me see if I can retrace some of this thinking, so that I don’t just spring my ideas on you and have you balk at them.

I signed up for the Licensing University classes connected to the [Las Vegas Licensing] Expo. I saw those last year, and felt that I would miss a huge opportunity if I failed to attend.

This year, I looked at the roster of classes, and promised myself I could leave any class that was too basic for me. The “Is Your Brand Ready For Licensing” was a case in point (although I didn’t realize it until later). That was a copyright/trademark basics course that falls into the well-duh category for me, but is probably necessary for most first-time attendees at the Expo (and for most writers as well).

But the Basics of Licensing class? Holy Crap-Poodles. I figured I’d sit there for ten minutes before going out to the floor to look around. Instead, I took 30 pages of notes. (In future posts, I will deal with much of what I learned on a detail level.)

That class laid out the basics of a licensing deal, while acknowledging that each deal is different.

Let’s back up. We writers are creators of intellectual property. We have the property to license. We are the licensors. We’re looking for licensees. Okay? Got that?

The terms of a basic licensing deal includes these elements:

  • A Royalty
  • An Advance Payment Against That Royalty
  • Net Sales Definition
  • Some Kind of Reporting Process
  • Termination
  • Insurance/Warrantees/Indemnification
  • Jurisdiction

A basic licensing deal includes a lot more than that, things like minimum royalty guarantees, an audit schedule, minimum performance threshold, quality and approvals, advertising and marketing requirements, and so on.

The licensor is a participant in all of that. An active participant, who can terminate if, for example, the quality of the product (based on the sample) doesn’t come up to snuff after several tries.

I remember thinking in the middle of that class that the publishing agreements that I signed back in the 1990s had a lot more in common with a standard licensing agreement than standard publishing contracts do now. In fact, there was a lot in the old publishing contracts that were just like a licensing agreement. In fact, the old publishing contracts were licensing agreements with the pro-licensor stuff (the stuff that benefits the licensor/writer/creator) taken out.

. . . .

Fast-forward through the afternoon to the class on How To Negotiate A Licensing Deal, which was listed as a negotiation class, without the “licensing deal” part added in. I wrote a book on negotiation, for godssake. I’m damn good at negotiating. I figured I’d be leaving this one early as well.

Nope. Another 30+ pages of notes. With two surprises added in.

First, from a passing comment on royalty rates.

In licensing, the royalty rates can vary from 2% to 20% of the net sales price (usually wholesale, but that’s changing depending on distribution). One of the instructors (an agent) mentioned that really big brands with a lot of clout like Disney can get the 20% royalty without a lot of pushback because their brand is so valuable.

. . . .

Once upon a time, I was a work-for-hire writer, and one of the properties I wrote work-for-hire was Star Wars. I got a 2% royalty on the books published (see above).

In most work-for-hire publishing projects, the royalty rate gets split between the licensor who created the intellectual property and the writer who does the actual work on writing the novel. I do not know what Bantam paid LucasFilm for those early books. It might have been 10%, it might have been 15%. I do know it was less than 20%. At the time, you see, Star Wars was considered moribund. The books, Tim Zahn’s first trilogy in particular, led the entertainment industry to realize that there was a hungry audience for more Star Wars. The revival of the brand dates from that very first publication.

So I know that, in those days, LucasFilm didn’t have the Disney-level clout that it would later achieve. Which had an impact. Because, when it came time to renegotiate the license with Bantam, LucasFilm asked for a 20% royalty.

Bantam balked. They claimed they couldn’t make a profit. They claimed they couldn’t pay their writers. They claimed they wouldn’t get writers.

So, LucasFilm threatened to pull out, and the dance began. LucasFilm came down to 19% which still didn’t give Bantam enough room to pay the writers from the royalty rate (the standard way that writers did/do business in traditional publishing).

Bantam came with a compromise. Rather than a 2% royalty, they’d pay the authors $60-90,000 for the book, which was what those books earned out at in those days. Those payments would be guaranteed, but they’d be a flat fee. So if the books sold better than that, the writers would get no more money. If the books sold less, the writers would get more than they usually would.

Business-minded writers realized this: that if they took their upfront payment (which Bantam was offering in four payments) and banked it, they’d make more than they would off the 2% royalty rate. (Money in hand is worth more than money promised. Money in hand allows things like paying down credit cards rather than charging them, and having an emergency fund, rather than borrowing, and so on.)

A bunch of us agreed, our contracts were in the works, and then the idiots at the Science Fiction Writers of America got their undies in a bundle and denounced the entire deal and faxed a protest letter to LucasFilm, naming every single Star Wars writeras agreeing, even those who didn’t agree (and had threatened them if they used our name, like me) and even those who weren’t members (like me). That piece of idiocy cost me at least $90,000 if not more, because I was slated to write a bunch of books, and LucasFilm canceled all communication with me and cut me out of everything, just like they did with all the other authors named.

The books went on without us. And I just thought it a weird deal—that LucasFilm wanted 20%–believing what Bantam put out there (that LucasFilm was greedy) and what SFWA put out there (that LucasFilm was greedy) rather than understanding that LucasFilm was treating the books as a standard licensed product.

My brain was spinning as the negotiation class went on, because I finally understood the other side—the other side not being Bantam Books, but LucasFilm. I was just a sorry little contractor caught in the middle of a negotiation for a licensing deal, with a stupid idiotic third-party organization sticking its ignorant foot into the mess.

. . . .

The royalty rates class looked at all kinds of things that can have an impact on royalty rates, including net sales.

In that discussion, one of the agents on the panel clicked the next slide in the deck, which showed Publishing. She made a face, and said, with great disbelief, In publishing, the product is 100% returnable, so you have to figure out how to cap the losses.

She went on to talk about how difficult traditional publishing was to work with because of all the quirks in its contracts.

But I sat there and found my brain spinning again. When I was a baby writer, my book agents could get a minor cap on returns, limiting them to only two or three years. After that, the publisher had to eat the returns.

A standard licensing deal has a three-year term, which meant that publishers were already set up to cap returns earlier than that.

The licensing agent also went on to talk about how she had to explain basic licensing to her publishing partners, and how she had to hold them to the fire to get them to agree to a full royalty for all the participants (meaning that if the brand was say, a star quarterback for the NFL, the NFL would get its share of the royalty and the star quarterback would get his—so maybe a 50-50 split of a 20% royalty—meaning the author would write for a flat fee).

I immediately got retroactive anger.

Licensors from outside the publishing industry—that is, nonwriters. Celebrities. Grumpy Cat—got not just an advance against a substantial royalty, but a term-limited contract, and minimum royalty payment guarantees, and guaranteed marketing/advertising budgets, and the ability to easily and routinely audit the publisher, and, and, and…

. . . .

The licensing professionals who worked for a nonwriter licensor, like LucasFilm, got a licensing deal that would make writers and their book agents fall over in stunned surprise. Simply by using industry standard.

Okay, got all of that?

In the past, writers have gone begging to book agents, to publishers, to comic companies, to gaming companies, hoping to get someone to “take a chance” on their writing.

Writers weren’t acting as brand owners, licensors, people in control of their IP, asking for a standard licensing arrangement. Writers were beggars, which put them in a terrible long-standing position with the publishers.

. . . .

The book, the published book, is not the holy grail.

The story, the thing that the writer has created, is the holy grail. Before publication of any kind.

Because publication is a license. Whether you do it yourself and upload to Amazon (Direct to Retail, is what that’s called) or whether you go through a traditional publisher (Business to Business, is what that’s called {and notice that the businesses are on equal footing in that definition}),  you are licensing a tiny portion of your copyright to make distribution of some product (in this case a book) possible.

We’ve been teaching for years that publication is a license. Not a “sale” because you don’t lose the copyright. You license it.

But Dean and I and damn near every other writer out there (with only a handful of exceptions throughout the last 100 years) have not gone any farther than that. We haven’t thought about the published book as being a single licensed product.

We’ve been conditioned by our upbringing in the business culture of the previous century to think of the published book as the be-all-and-end-all of everything we did.

. . . .

We are not in the publishing industry. We are in the entertainment industry.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

For PG, Kris is one of the most interesting commentators on the publishing business, traditional and modern, and he always appreciates her Business Musings posts.

In these posts, Kris often looks above and beyond agents and publishers, KDP, etc., etc. in a way most authors do not.

In a former legal life, PG represented some software and technology companies whose products were sometimes licensed to very large business organizations, including Goldman Sachs, Morgan Stanley, Merrill Lynch, Fidelity Investments, Apple, IBM, Oracle, Disney, Hallmark, Intel, Hewlett-Packard, and American Express.

(For context, at an earlier stage in his legal career, PG also represented abused spouses, dairy farmers, the tenants of small-time slumlords, people who wanted a divorce and/or needed to file for bankruptcy, a couple of arsonists, drunk drivers and people who couldn’t afford to pay an attorney and got help from Legal Aid.)

PG provides the big business list not to show what a big deal he is or was, but simply to demonstrate the variety of different licensing agreements he has seen outside of the traditional publishing business.

From a legal standpoint, as Kris says, a publishing contract is not a special snowflake, it’s a license of intellectual property, specifically, the copyright to a book which is owned by the author. Copyrights to software are what Microsoft owns and licenses to everybody who buys and uses MS Word, Excel, Windows, etc.

Although PG has not seen very many publishing contracts that acknowledge the fact, a traditional publishing contract also includes a sort-of implied license to the author’s right of publicity, sometimes called personality rights (which may include individual’s image, personal data and other generally private information).

However, most publisher-provided publishing contracts don’t look much like licensing agreements used elsewhere in the business world. Publishing agreements have little quirks that would seem strange to any attorney accustomed to seeing licensing agreements for technology or almost anything else.

PG understands the principle of customs of the trade, assumptions that govern niche businesses and the agreements they make. For example, in another case from PG’s olden days, he learned all about the New York City garment business and the strange ways it operates.

However, trade publishing and, to an even greater extent, academic and professional publishing still operate as if ebooks and other epublications have never existed. Even more important for authors, many publishers operate as if the cost of publishing was still based upon the expense and compensation structure that existed when printed books and journals were the only way to disseminate knowledge and long-form writing.

PG suggests that even for traditionally-published authors, Amazon has provided a great service by offering both self-publishing and Amazon Press as alternative methods of reaching readers. Absent Amazon’s influence, publishers would still be operating as if it were 1955 and today’s authors would be earning much less and accepting it as the author’s burden in life.

Yet, from a legal and commercial viewpoint, traditional publishing is still a screwy business and authors bear most of the burden of its bizarre practices.

PG repeats the admonition of Kris in the OP –

The book, the published book, is not the holy grail. We are not in the publishing industry. We are in the entertainment industry.


Alice Oswald Elected Oxford Professor of Poetry

21 June 2019
Comments Off on Alice Oswald Elected Oxford Professor of Poetry

From The Guardian:

Alice Oswald has won the race to be Oxford’s latest professor of poetry. She will be the first woman to serve in the position, established more than 300 years ago.

Speaking to the Guardian after the announcement, Oswald said that after a “distinctly unsettling process” she was “very pleased, daunted, grateful to my nominators”.

“I look forward to thinking about all forms of poetry,” she said, “but particularly the fugitive airborne forms.”

Celebrated for their exploration of nature and myth, Oswald’s nine books of poetry have already brought her prizes including the TS Eliot, Griffin and Costa poetry awards. The former poet laureate Carol Ann Duffy has hailed her as “the best UK poet now writing, bar none”, while Jeanette Winterson has called her Ted Hughes’s “rightful heir”, a poet not “of footpaths and theme parks, but the open space and untamed life that waits for us to find it again”.

. . . .

Established in 1708, the Oxford position is one of the UK’s top accolades for poetry, with former professors including Seamus Heaney, Robert Graves and WH Auden. Candidates must win the support of at least 50 Oxford graduates and be “of sufficient distinction to be able to fulfil the duties of the post”, which include one lecture a term during an appointment lasting four years.

. . . .

The contest was marred by controversy surrounding [poet and Oxford contestant Todd] Swift, who founded the independent poetry imprint Eyewear Publishing in 2012. Last year the Bookseller reported that the firm’s contracts included clauses forbidding authors from contacting the Society of Authors, with the imprint’s behaviour on social media also attracting criticism. The poets Claire Trevien and Aaron Kent wrote to Oxford University suggesting Swift should be removed from the contest, arguing that he was “unsuitable for the role of Oxford professor of poetry, and the level of prestige it offers”.

Link to the rest at The Guardian

From The Bookseller, July 25, 2018:

Independent press Eyewear Publishing has drawn criticism from the Society of Authors (SoA) over its treatment of poets, including contracts “constituting an unwarranted interference with their civil rights”.

Poets have complained about some of the London-based press Eyewear’s contracts, seen in full by The Bookseller, demanding its authors not engage with the SoA which it said was “biased against small press publishing and unduly aggressive”.

. . . .

The contract clauses, seen in a contract from this year, state: “Under no circumstances shall the author refer these matters to ‘The Society of Authors’ as the publishers consider them biased against small press publishing and unduly aggressive.

“The author may not claim any breach on the grounds of ‘irreconcilable’ or ‘personal’ differences, unless these can be clearly documented over a period of time and only if the grounds are such as would normally end a marriage or other serious relationship – ‘rude emails’ or ‘hurt feelings’ are not enough.”

Solomon described the clauses as “extraordinary” and unprecedented and revealed that Eyewear poets had contacted the society in the past in need of assistance.

“To prohibit authors from contacting the SoA is to prevent them from taking independent advice from their trade union,” she told The Bookseller. “Not only is this unenforceable, it constitutes an unwarranted interference with their civil rights. The termination clause is also extraordinary – the fact that it explicitly mentions the possibility of the publisher sending ‘rude emails’ that cause ‘hurt feelings’ speaks for itself.

“The SoA’s role is to defend writers’ interests, and poets contacting us in the past about Eyewear contracts have always been grateful for our input. We have not seen a clause before now forbidding the author to speak to us. I would advise any author not to sign such a contract.”

Swift told The Bookseller the contract clauses were often deleted if a writer objected to them.

“Each contract we have signed since 2012 is bespoke, we try and base on industry standard templates,” he said. “They are all discussed with the authors. We are very short on resources and usually if authors object to a clause we delete.

. . . .

Last week Eyewear prompted a strong reaction on social media from its poets when it published a tweet saying: “In light of the decision by several Eyewear poets to happily announce new books with rival presses today without warning director [Todd Swift] has suspended all further poetry projects. Poets who abandon their debut presses do severe damage in terms of sales and funding to them.”

However, Swift told The Bookseller the since-deleted tweet had been “misread” and the poetry list would not be suspended.

Link to the rest at The Bookseller

PG is not familiar with any of the parties mentioned in either of the stories quoted above and cannot provide any personal reactions to the events described therein.

However, as a general proposition, when advising his clients, PG suggests that authors not sign contracts with any sort of overreaching provisions.

In the US, these include noncompete clauses by which an author agrees not to write, “any work which might compete” with the work the publisher is licensing from the author. Since the term of the associated contracts is typically “for the full term of Author’s copyright to the Work,” (which, in the US, is the life of the author plus 70 years) this is an attempt to effectively prohibit an author from ever writing another book on the same subject or within the same genre as the book subject to the publishing contract.

PG further suggests that, if a publisher is overreaching in its contracts, it may also treat an author badly in other aspects of the publisher/author relationship.

Here It Comes

8 June 2019

From Kristine Kathryn Rusch:

[F]or years, I’ve been wondering why big traditional publishing companies aren’t licensing their backlist. There’s a million ways to make money off copyright licenses, and the most obvious is to keep books in print. Yet so many big traditional publishing companies don’t keep their books in print.

Or, worse, in my opinion, those companies don’t publish ebook versions of their catalog. All of their backlist in their catalogs. Realize that this isn’t thousands of titles for them. In the case of some of the larger companies, the title list has to be closer to a million.

But the companies have no idea which books they still can license, whether or not the old contracts have clauses in them that allow ebooks, or even who handles the estate of those old books. I had just read a Daphne Du Maurier novel, My Cousin Rachel,  which had recently been made into a movie, and it took me a lot of scrolling to find that book. I want to read more of her work, but I’m going slowly in ordering it or buying it.

. . . .

We’ve hit the point in the ebook revolution—the online revolution really—where we expect everything (and I do mean everything) to be at our fingertips.

So back to Led Zeppelin. The band is fifty years old this year. And yeah, jeez, that hurts. Because I remember when they were the epitome of cool (and being young and not being understood by the old fogies). Anyway, the folks at Warner Music Group which apparently owns or licensed most of Zeppelin’s catalog, were planning some kind of celebration of the band.

Instead of issuing a retrospective album, they set up a website with a logo name generator. You plug in your name, and it comes up in the Zeppelin iconic font. That’s not the coolest thing about the website, though. The coolest thing is the playlist generator, which allows users to compile their own playlist of Zeppelin songs or covers of Led Zeppelin songs, and then share those playlists on social media.

Think about that for a moment: the website, if set up properly, will help Warner Music Group know what songs from the Led Zeppelin catalog (and related catalogs, like Jack White’s, are the most beloved). That information can be used in marketing later.

This little landing page, with its logo generator and its playlist generator, will then direct users to the Zeppelin website, where you’ll find all the fiftieth anniversary goodies, including the ubiquitous best-of collection and an authorized book about the band.

. . . .

According to Rolling Stone:

The [logo] site received more than 200,000 unique visitors in its first 10 days, with users making 230,000 logos and 20,000 custom playlists. The “biggest uplift” was from White’s playlist, branded as “Led Zeppelin x Jack White,” which drew thousands of users each day — which translates to hundreds of thousands of streams, which translates to a steady stream of cash to Warner and Led Zeppelin without the band lifting a finger.

Hundreds of thousands of streams, “without the band lifting a finger.” Passive income, based on one idea. Yes, streaming services don’t pay a large amount for streams, but they pay. And even a small amount of money adds up when it is multiplied by hundreds of thousands. Not counting the visibility, discoverability, and all those other “abilities” that come from the social media shares, and the links between the various playlist generators. They all play into the streaming services algorithms, which results in even more recognition, and more plays.

Once upon a time (maybe as recently as three years ago) working with what we call the backlist and what the recording industry calls “catalog marketing” was the unlit basement of the industry. No one wanted that job. It wasn’t glamorous, and it barely earned its way.

But that’s changing, and changing rapidly. Apparently, consumers no longer care about the latest and greatest thing. They want what’s new to them. More than that, they want something that they like.

This is where sync marketing comes in. A lot of younger consumers buy music because they heard it on their favorite TV show or in an important scene in a blockbuster movie. From the Rolling Stone article:

Tiffany’s 1987 cover of “I Think We’re Alone Now” has seen 42 percent of its all-time Shazams come after it appeared in Netflix’s 2019 series The Umbrella Academy, and several tracks from the 1940s to 1970s climbed up the company’s global charts after floating into people’s ears from the background of Avengers: Endgame.

. . . .

I’ve noted for years now that traditional publishers have become reluctant to let go of a license once they receive it. In other words, books don’t go out of print anymore, no matter how badly the publisher is mismanaging the book. (In the past, if the book wasn’t in stores, the writer could get her rights back. Not anymore.)

Someone in that megaconglomerate knows that these rights are worth money. They’re worth a lot as assets on a balance sheet, but in the music industry, anyway, they’re also being turned into active revenue streams.

When this starts happening to books—and it will—writers are going to have to be vigilant about their contracts. They’re going to have to see if the contract’s vague 1997 language covers things like streaming rights or omnibus rights or any one of a dozen other ways to license that print book into something new.

What will probably happen is that publishing companies will do what they always do—figure it’s easier to ask forgiveness than it is to ask for permission. They’ll also not want to make payments, so writers are going to have to start auditing their publishers (which no traditionally published writer will do for fear of being blacklisted—because that’s what agents tell them to do. Sigh.

. . . .

So…be warned. Changes are coming, traditionally published writers. Within five years or so, expect a department of back catalog management in your publisher’s offices (if that department doesn’t already exist now). Expect to have every inch of your contract exploited by that department—and maybe some rights you didn’t license as well.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

PG says that many authors have so much emotional energy (and more than a bit of insecurity) tied up with their publisher that they desperately want to believe that publisher will always be honest and considerate of their welfare. Unfortunately, such is not always (or even frequently) the case.

Are You Self-Publishing Audio Books?

21 May 2019

From Just Publishing Advice:

It takes total concentration to read a book or an ebook. But with an audio book, a listener can multitask.

This is the key attraction for so many younger readers in particular, as it allows for the consumption of a book while driving, commuting and playing a game on a smartphone, knitting or even while grinding out the hours at work.

The popularity is on the move and according to recent statistics, audiobooks are now a multi-billion dollar industry in the US alone.

. . . .

In another report, it estimates that one in ten readers are now listening to audiobooks.

While the data helps to gain a small insight into the market, it is still easy to draw an assumption that it is the next logical step for self-publishing authors and small press.

Ebook publishing is now the number one form of self-publishing. Many Indie authors then take the next step and publish a paperback version.

. . . .

An audio version offers an opportunity for self-publishing authors to extend their sales potential, and at the same time, diversify revenue streams.

Well, only a little at present as it is really an Amazon Audible and Apple iTunes dominated retail market. However, in the future, this may change.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

This is a very common complaint about Amazon and its US-centric approach, which creates so many hurdles for non-US self-publishers.

The following quote is taken from Amazon’s help topic regarding ACX.

At this time, ACX is open only to residents of the United States and United Kingdom who have a US or UK mailing address, and a valid US or UK Taxpayer Identification Number (TIN). For more information on Taxpayer Identification Numbers (TIN), please visit the IRS website. We hope to increase our availability to a more global audience in the future.

If you live in the UK, Amazon can help you, but you will need to have a TIN. If you are already publishing with KDP, you probably have one.

For the rest of the world, well, Amazon, as it so often does, leaves you out of the cold.

. . . .

There are a growing number of small press and independent publishers who offer to produce and publish audio books.

Distribution is most often on Amazon Audible and iTunes.

Do your research and look for publishers who accept submissions or offer a production service using professional narrators and producers.

As with any decision to use a small publisher, be careful, do your background research and don’t rush into signing a contract until you are totally convinced it is a fair arrangement concerning your audio rights.

While some may charge you for the service, it is worth looking for a publisher that offers a revenue split. This is usually 50-50 of net audio royalty earnings.

It might seem a bit steep, but Amazon ACX offers between 20 and 40% net royalties, so 50-50 is not too bad.

Link to the rest at Just Publishing Advice

As with any publishing contract, PG suggests you check out the contract terms carefully before you enter into a publishing agreement for audiobooks.

Speaking generally (and, yes, there are a few exceptions), the traditional publishing industry has fallen into a bad habit (in PG’s persistently humble opinion) of using standard agreements that last longer than any other business contracts with which PG is familiar (and he has seen a lot).

He refers, of course to publishing contracts that continue “for the full term of the copyright.”

Regular visitors to TPV will know that, in the United States, for works created after January 1, 1978, the full term of the copyright is the rest of the author’s life plus 70 years. Due to their participation in The Berne Convention (an international copyright treaty), the copyright laws of many other nations provide for copyright protections of similar durations — the author’s life plus 50 years is common.

PG can’t think of any other types of business agreements involving individuals that last for the life of one of the parties without any obvious exit opportunities. The long period of copyright protection was sold to the US Congress as a great boon to creators. However, under the terms of typical publishing contracts, the chief beneficiaries are corporate publishers.

While it is important for authors to read their publishing agreements thoroughly (Yes, PG knows it’s not fun. He has read far more publishing agreements than you have or ever will and understands what it is like.), if you are looking for a method of performing a quick, preliminary check for provisions that means you will die before your publishing agreement does, search for phrases like:

  • “full term of the copyright”
  • “term”
  • “copyright”
  • “continue”

Those searches may help you immediately locate objectionable provisions that allow you to put the publisher into the reject pile without looking for other nasties. However, if the searches don’t disclose anything, you will most definitely have to read the whole thing. The quoted terms are not magic incantations which must be used. Other language can accomplish the same thing.

Until the advent of ebooks, book publishing contracts used Out of Print clauses to give the author the ability to retrieve rights to his/her book if the publisher wasn’t doing anything with it.

With printed books, even dribs and drabs of sales would eventually deplete the publisher’s stock of physical books. At this point, the publisher would likely consider whether the cost it would pay for another printing of an author’s book was economically justified or not. If the publisher was concerned about ending up with a pile of unsold printed books in its warehouse for a long time, the publisher might decide not to print any more.

Once the publisher’s existing stock was sold, the book was out of print – it was not for sale in any normal trade channels. The author (or the author’s heirs) could then retrieve her/his rights to the book and do something else with them.

Of course, once an electronic file is created, an ebook costs the publisher nothing to offer for sale on Amazon or any other online bookstore with which PG is familiar.

The disk space necessary to store an individual epub or mobi file is essentially free for Amazon and it doesn’t charge anything to maintain the listing almost forever. (There may be a giant digital housecleaning in Seattle at some time in the distant future, but don’t count on it happening during your lifetime.) Print on demand hardcopy books are just another kind of file that’s stored on disk.

So, in 2019 and into the foreseeable future, an infinite number of an author’s ebooks are for sale and not “out of print”.

So, the traditional exit provision for an author – the out of print clause – remains in existence in almost all publishing contracts PG has reviewed, but it provides no opportunity for the author to exercise it to get out of a publishing agreement that has not paid more than $5.00 in annual royalties in over ten years.

 

Are the Humanities History?

2 April 2019

From The New York Review of Books:

Who is going to save the humanities?

On all fronts, fields like history and English, philosophy and classical studies, art history and comparative literature are under siege. In 2015, the share of bachelor’s degrees awarded in the humanities was down nearly 10 percent from just three years earlier. Almost all disciplines have been affected, but none more so than history. According to the National Center for Education Statistics, the number of history majors nationwide fell from 34,642 in 2008 to 24,266 in 2017.

Last year, the University of Wisconsin–Stevens Point, facing declining enrollments, announced it was eliminating degrees in History, French, and German. The University of Southern Maine no longer offers degrees in either American and New England Studies or Modern and Classical Languages and Literatures, while the University of Montana has discontinued majors and minors in its Global Humanities and Religions program. Between 2013 and 2016, US colleges cut 651 foreign-language programs.

The primary cause of these developments is the 2008 financial crash, which made students—especially the 70 percent of whom are saddled with debt—ever more preoccupied with their job prospects. With STEM jobs paying so well—the median annual earnings for engineering grads is $82,000, compared to $52,000 for humanities grads—enrollments in that area have soared. From 2013 to 2017, the number of undergraduates taking computer science courses nationwide more than doubled. A study of Harvard students from 2008 to 2016 found a dramatic shift from the humanities to STEM. The number majoring in history went from 231 to 136; in English, from 236 to 144; and in art history, from sixty-three to thirty-six, while those studying applied math went from 101 to 279; electrical engineering, from none to thirty-nine; and computer science, from eighty-six to 363.

University donors and public officials, hoping to duplicate the success of Stanford and Silicon Valley, are flooding STEM with money.

. . . .

Few comparable investments are occurring in the humanities. The contempt many officials feel for them was expressed most bluntly in 2011 by then-Florida governor (now senator) Rick Scott: “You know, we don’t need a lot more anthropologists in the state… I want to spend our dollars giving people science, technology, engineering, math degrees,” so that “when they get out of school, they can get a job.” It’s not just Republicans who feel this way. In 2014, President Obama, speaking at a GE gas-engine plant in Wisconsin, extolled the virtues of learning a vocational skill: “I promise you, folks can make a lot more potentially with skilled manufacturing or the trades than they might with an art history degree.”

Defenders of the humanities generally emphasize what the field can do for the individual: they promote self-discovery, breed good citizens, and teach critical thinking. In a 2017 essay in The Washington Post, “Why We Still Need to Study the Humanities in a STEM World,” Gerald Greenberg, the senior associate dean of academic affairs at Syracuse, maintained that by studying the humanities, “one has an opportunity to get to know oneself and others better.” Such study “opens one to the examination of the entirety of the human condition and encourages one to grapple with complex moral issues ever-present in life.” His argument was recently echoed by a writer for the Harvard Business Review: “A practical humanism, paradoxically, is of little use. When we turn to them for tips, but not for trouble, the value of the humanities is lost.”

No doubt the humanities do broaden the mind and deepen the soul. In one form or another, they have been at the heart of higher education since the founding of the university itself in the thirteenth century, and they remain a repository of a society’s cultural and creative values. But to dismiss their practical worth seems both short-sighted and self-defeating. Far from lacking material value, the humanities are economic dynamos. The arts and entertainment industry that plays such a central part in people’s lives today is largely the creation of people who have studied literature, history, philosophy, and languages.

Link to the rest at The New York Review of Books

PG respectfully demurs from the Gospel of STEM.

He doesn’t recall disclosing his undergraduate major on TPV on an earlier occasion, so this may be a. historic moment.

PG majored in The Oral Interpretation of Literature. (Undoubtedly, if this major still exists, it includes the word, “Communications” somewhere in its title because “Communications” is a Good Thing. The world needs more.)

For those with any questions, PG’s major was the antipode of a STEM degree then and now.

However, some of the skills he learned as an undergraduate have been very helpful in his legal career. A couple of examples:

  • PG was very effective in a courtroom. (He’s humble about it, but PG is not alone in his assessment. Others paid him very nicely for the benefits of this talent.) Being able to persuasively present a message like, “The quality of mercy is not strained” can come in handy with both judge and jury.

 

  • One of the elements of an assignment in the Oral Interpretation of Literature was a detailed written analysis of the piece to be performed. If you can effectively dissect, understand and analyze the subtleties of a collection of Spenserian stanzas (See, for example, Childe Harold’s Pilgrimage, The Eve of St. Agnes and, of course, The Faerie Queene), you can untangle the most complex contractual provisions ever written.  No Copyright Licensing, Choice of Law and Forum or Force Majeure clause can match the linguistic complexity of eight lines of iambic pentameter followed by a ninth line of iambic hexameter in an end rhyme structure of ababbcbcc repeated a zillion times.

One of the benefits of a law degree and of other advanced degrees is that they can serve to take the curse off an undergraduate major that is unfashionable during a certain era.

PG has known enough engineers who were dissatisfied with their work life to state that STEM studies are not an unfailing key that opens the gates of happiness.

Publishing Contract Red Flag: When a Publisher Claims Copyright on Edits

26 February 2019

From Writer Beware:

It’s not all that common, but I do see it from time to time in small press publishing contracts that I review: a publisher explicitly claiming ownership of the editing it provides, or making the claim implicitly by reverting rights only to the original manuscript submitted by the author.

Are there legal grounds for such a claim? One would think that by printing a copyright notice inside a published book, and registering copyright in the author’s name or encouraging the author to do so, publishers are acknowledging that there is not. It’s hard to know, though, because it doesn’t seem to have been tested in the courts. There’s not even much discussion of the issue. Where you do find people talking about it, it’s in the context of editors as independent contractors, such as how authors hiring freelancers should make sure they own the editor’s work product, or how freelance editors might use a claim of copyright interest as leverage in payment disputes.

In 2011, Romance Writers of America published a brief legal opinion on its website (still on the website, but unfortunately no longer accessible by the public), indicating that the claim would probably not prevail in court. But that’s the only legal discussion I’ve been able to find.

The legal ambiguity of a copyright claim on editing is good reason to treat it as a publishing contract red flag. But that’s not all.

It’s not standard industry practice. No reputable publisher that I know of, large or small, deprives the author of the right to re-publish the final edited version of their book, either in its contracts or upon rights reversion. One might argue that in pre-digital days, this wasn’t something publishers needed to consider–books, once reverted, were rarely re-published–whereas these days it’s common for authors to self-publish or otherwise bring their backlists back into circulation. But publishers haven’t been slow to lay claim to the new rights created by the digital revolution. If there were any advantage to preventing writers from re-publishing their fully-edited books, you can bet it would have become common practice. It hasn’t.

Link to the rest at Writer Beware and thanks to The Digital Reader for the tip.

PG says this is a carryover from olden days when publishers felt they could bully authors and authors would have to take it.

PG thinks most judges would look askance at an editor’s claim that he/she owned the copyright to the completed work, especially in a situation in which the author had provided an editor with a complete draft of the book and the editor made editorial corrections and suggestions.

Additionally, if a fee for the editor’s services was negotiated in advance and paid according to the agreement of the parties, PG thinks a broad license to use any part of the editor’s work that was provided per the agreement would be implied by the relationship.

You can also look to the custom of the trade, whether, prior to starting work, anyone had mentioned anything about the editor retaining a copyright interest in and to the work, etc.

Additionally, what, exactly, does the editor’s copyright include? A period that replaces a semi-colon in the original ms. and the capital letter that replaces the lower-case letter in the first word following the period?

If, according to US copyright law, the author owned a copyright to whatever the author sent to the editor, how does the editor overcome an argument that, if the editor’s work is potentially copyrightable, it is a derivative work based on the author’s copyrighted original work. Absent some sort of agreement with the author, how does the editor gain an ownership interest in a derivative work?

Here’s what part of what the US Copyright Office says about derivative works in its Circular 14:

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. The derivative work right is often referred to as the adaptation right.

. . . .

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement.

So, when did the author grant the editor permission to use the author’s copyrighted work to create a derivative work? If the editor used the author’s work without the author’s permission, none of the editor’s work is entitled to copyright protection.

The Beginning of the End for Patreon

9 February 2019

From The Digital Reader:

There comes a time in the life of many companies when the owners (or investors, or vulture stockholders) decide that they want to extract more profit than is healthy for the company to survive. This is one of the things killing American newspapers, and it’s even impacting B&N, and now it’s about to kill Patreon.

Patreon is fairly healthy, but apparently not profitable enough for its capital investors.

From CNBC:

The number of active patrons supporting artists on the platform in 2019 has seen significant growth, up 1 million over the last year, the company said. The company is also on track to pay out $500 million to content creators in 2019, pushing the company to surpass $1 billion in payouts since its inception in 2013.

Under the company’s current business model, 90 percent of funds are paid directly to content creators. Patreon takes 5 percent, and the remaining 5 percent covers transaction fees.

Patreon CEO Jack Conte said in an interview with CNBC that the platform will soon be facing the challenge of maintaining a profitable model as the company continues its growth.

“The reality is Patreon needs to build new businesses and new services and new revenue lines in order to build a sustainable business,” Conte said.

The company does not currently provide contracts, which allows users to retain 100 percent ownership of their work and full control of their brand.

The company plans to provide creators with new “value services,” like options for merchandising, to generate new revenue. Creators will be given the opportunity to participate in these services, and it could ultimately reduce Patreon’s generous 90 percent pay-out model.

What this means is that Patreon’s investors want the company to be more profitable, and if necessary they’re going to force the company to pay its users less.

. . . .

I do not currently use Patreon; I closed my account when they tried to jack up costs in late 2017. But I had been thinking about going back to Patreon in order to fund the blog through donations and pledges.

Now I think I’ll just still with Paypal (not exactly a nice company either, but beggars can’t be choosers).

The thing about Patreon not being profitable enough is that Paypal has a very similar model and they turn a profit on a smaller cut of the funds they transfer. Paypal only collects payment processing fees (the 5% transaction fees mentioned above) and yet Paypal is so profitable that they spun off Ebay as not being worth the hassle.

Of course, Paypal had a unique advantage when they were starting out; they were acquired by Ebay, which then forced buyers and sellers to use the service (when you’re growing your business, there’s nothing like having a captive audience who can’t say no).

. . . .

Folks, Patreon’s attempts to increase its profitability are doomed not because this is going to drive away users but because their niche is too damn small. Patreon only handles one small segment of payment processing (what are essentially charitable fundraising campaigns); in comparison, Paypal covers dozens of segments.

Link to the rest at The Digital Reader

PG suggests that, unless an internet-based business has some sort of moat around it (patents, must-have technology, unique voices or expertise, etc.), raising prices is very difficult because someone else is always ready to clone the business plan and offer the service for less.

PG is only passingly familiar with Patreon, but is not aware of any patents or similar limits to those who might build a similar platform for the same purposes – providing an online means for people to help fund various creative endeavors.

However, while PG was looking at Patreon’s Terms of Use to see if there were any mentions of patents, trade secrets, etc., he did find a rights grab that may be troubling to authors and other creators:

You keep full ownership of all content that you post on Patreon, but to operate we need licenses from you.

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

You may not post content that infringes on others’ intellectual property or proprietary rights.

Patrons may not use content posted by creators in any way not authorized by the creator.

On the front page of Patreon’s site, the company makes a representation that some might construe as conflicting with the quoted portion of the Terms of Use:

You own your content

There are no contracts to sign and you retain 100% ownership of your work. You made it, not us.

Under Patreon’s equivalent to an FAQ, the following is a question and answer about ownership of creative works:

Wait, does Patreon own my content?

Nope! Your content is 100% yours, unless a record label or studio owns part of it, in which case it’s partly theirs too, but it’s definitely not Patreon’s — not even a little.

PG suggests that Patreon’s Terms of Use are, in fact, a contract between Patreon and its creators. It is a “click-to-accept” contract with an electronic signature by the creator which is not physically “signed”, but is still enforceable by Patreon against the content creator.

In the United States, the Electronic Signatures in Global and National Commerce Act (15 U.S. Code Chapter 96) explicitly authorizes electronic signatures in interstate commerce and makes electronically-signed contracts enforceable. Here are the first paragraphs of the law:

(a) In general Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce—(1)a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

In particular, the quoted portion of the Terms of Use above explicitly create a license, which is most definitely a species of contract, between the content creator and Patreon.

Furthermore, the license cannot be unilaterally canceled by the content creator – it is a “perpetual, irrevocable”, “sublicensable, worldwide” license.

What about all the “you own your content” messages on Patreon?

In a traditional publishing contract granting a publisher all rights to an author’s book, the author continues to “own the content” in that the author is the owner of the copyright to the book. However, the publishing contract grants the publisher the exclusive worldwide right to print, publish and sell the book in all its various forms, including the right to license subsidiary rights for movies, television shows, etc.

Under such a contract, the author owns the content, but can’t do anything with it because the publishing contract grants the publisher all rights to exploit the contract.

Let’s briefly unpack the licensing paragraph:

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

PG suggests that the first sentence is inconsistent with the second sentence in tone and, perhaps, in the manner in which it may be enforced.

The portion of the first sentence beginning with “you grant” is precise and definitive. The second sentence is squishier. “The purpose of this license is to allow us to” . . . .

Under general principles governing the interpretation of contracts, if there is a conflict between a specific and a general provision, the specific provision will govern. If PG were representing a content creator, he would suggest that the second sentence above be reworded for clarity:

“The license granted in the preceding sentence is expressly limited to grant Patreon the ability to include content created by the author in various ways that are reasonably calculated to promote the author’s content on Patreon’s website. All other rights of author in and to the content are expressly reserved to author, including, without limitation, the exclusive right to grant others the right to print, publish, license and/or sell the content and/or any derivative rights arising from the content to any third party. After termination of this Agreement for any reason, at author’s request, Patreon will provide a document disclaiming all rights to author’s content if reasonably requested by author disclaiming any and all rights in and to the content.”

 

 

The Growing Importance of Intellectual Property

31 January 2019

From Kristine Kathryn Rusch:

I need to be clear as I start this post. We writers create intellectual property. We license our copyrights. We do not sell stories. In fact, the stories we tell, along with their titles, are often not copyrightable. The form in which we tell that story—the order of the events, the order of the words we use,—those things are copyrightable, but the basic boy meets girl, boy loses girl, girl discovers she’s fine on her own storyline can and does fuel a thousand books and movies. (That’s why so many memes over the holiday season made fun of the romance movies on Hallmark. Because the movies—all copyrighted in their own right, all different in the copyright sense—share a lot in common.)

If you don’t understand copyright and you consider yourself a professional writer, then you do not understand the business you are in. If you have published a novel, traditionally or indie, and you do not understand copyright, you are volunteering to get screwed over and over and over again. I say this often, and I’m saying it loudly again, because the trend for 2019 and beyond is that every organization you do business with will try to take a piece (if not all) of your copyright on each and every one of your projects.

Your job is to protect that copyright.

. . . .

Forbes actually published an article in fall of 2018 titled “What Authors Should Do When Their Publisher Closes.” You can click over there if you want. The advice isn’t good, because as someone in the article says, what an author should do varies based on the author’s contract. And if the author has an agent, then they’re probably screwed. If the author doesn’t understand copyright, then they’re definitely screwed.

. . . .

I recommend publishing indie, because that’s the best way to protect yourself and your writing income. You’ll have a career if you do that. Your career might vanish on you if you try to remain traditional. Or, rather, you will write as a “hobby” while you make your living doing something else.

Yes, I’m being harsh, but that’s because the intellectual property apocalypse that I’ve been warning you about is upon us. The trends are there, and the signs that traditional publishing (and all of the other big entertainment organizations) know about the value of intellectual property are becoming clearer and clearer.

. . . .

For years now, the Big 5 traditional publishers have had contracts that essentially transfer the entire copyright of a novel from the author to them. The contracts don’t say that explicitly, but when you read the contract as a complete document (which is how you should read it), you realize that the sum total of what the clauses mean is that the writer retains no part of the copyright, and is only entitled to a tiny percentage of the money that copyright earns.

The reason these contracts changed about a decade ago had nothing to do with publishing and everything to do with mergers. As these publishing companies became part of big international conglomerates, many of them entertainmentconglomerates, the legal teams redrafted the contracts to do the copyright grabs.

Most writers had no idea what they were signing, and most of their agents didn’t either. Agents are not trained lawyers. A handful of the big agencies have lawyers on staff, but most of those agencies are concerned with making the agency money, not with making the writer money. So a lot of the contracts are structured to pay and protect the agent, while bilking the writer.

. . . .

Up until a year or so ago, most of the Big Five continued to operate like traditional publishing companies have since the 1990s—a focus on publishing a lot of titles, hoping that some will stick and become bestsellers. But that strategy isn’t working, and sales are down precipitously.

. . . .

[Simon & Schuster] has been in a media conglomerate since the 1980s. I’m not going to go through its tortured history, which runs from Paramount to Viacom and beyond, but realize this: It became part of the CBS Corporation officially in 2005. Around then, it became impossible to get book rights reverted, which is one of the tricks that is recommended for writers in the Forbes article I cited above. (How 1995. Sigh.)

S&S has experimented with electronic books since the 1990s. Dean and I personally made a lot of money in the early 2000s when S&S realized they hadn’t licensed e-rights for Star Trek books. (Dean and I wrote a bunch of them in the 1990s). S&S has tried to have a self-publishing arm since 2012, and they’re doing a lot of things that require writers to pay for services that publishers used to provide.

. . . .

The more IP a company acquires, the more its value goes up. Even if they don’t create anything from that IP. Acquiring a novel’s copyright—with all its potential spinoffs, TV shows, toys, comics—increases a company’s value tremendously.

Read that paragraph again, because the information therein is the key to this whole piece.

The more IP a company acquires, the more its value goes up. Your novel is IP. If they acquire it, their bottom line goes up, even if they never do anything with that IP. Got that?

That’s why S&S stopped, in 2000 or so, reverting the rights to the novels they acquired. Those novels equal more earnings potential—and they allow the company to maintain a value that it wouldn’t have otherwise.

I’ve been warning writers about this copyright grab by corporations for some time, but it was easy to ignore me because the Big 5 have not been (for the most part) exploiting (the legal term for developing or making use of) that copyright.

S&S finally is. That’s what Simon & Schuster’s CEO Carolyn Reidy’s heady year-end report was really all about. She called 2018 “the most successful year in Simon & Schuster’s history,” and yet she didn’t cite a single print bestseller as something that caused the success.

Instead, she touted the rise in audio . . . as well as a mention that sent a little shiver through me.

She wrote:

…[backlist sales now] comprise a higher portion of our revenue than at any time in memory…while readers wanting the tried and true is an industry-wide phenomenon, our concerted effort during the last few years to acquire books with the potential for long-term backlist sales has yielded dividends.

This article does not specify what exactly she means by “backlist sales.” Does she mean actual ebook and print sales, or other licensing, such as foreign rights and so on? Clearly S&S is exploiting the audio rights clauses in their contracts.

What is clear, however, is that a big traditional publisher has finally figured out that not only does their backlist have value in raising the company’s worth, but it also has earnings potential that can be exploited in 2019.

Why does this send a chill through me? Because if one traditional publisher learns it, the others will learn it as well. And the ability of writers who have sold their work into traditional publishers to get the rights reverted will go down to almost nil.

Big traditional publishers will finally join their counterparts in the entertainment industry—the movie/TV companies, the music studios, the game companies—in demanding control of every aspect of the copyright from the original author.

Which means that if an author signs one of those agreements, the author will get pennies on the dollar (if that) for any rights—audio, movie, TV—rather than the kind of earnings writers could have gotten as recently as 10 years ago.

. . . .

And those of you who licensed mass market rights a few years ago, thinking you’d get your ebooks into stores, you probably already signed away most of the copyright, particularly if you went with Harlequin or Simon & Schuster.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

As usual, Kris incorporates a lot of intelligent business thought and advice into the OP (and her other posts in this series).

As PG has mentioned before, he has negotiated, drafted and/or reviewed a great many contracts during his legal career, including some large technology copyright and patent licensing agreements. As he has also mentioned before, the typical contracts between authors and traditional publishers are some of the most unfair and one-sided agreements he has seen.

In a prior era during which it was impossible for an author’s works to reach any sort of meaningful audience without a publisher to cover the costs of printing books and provide meaningful access to buyers for large numbers of physical bookstores, perhaps the value of a publisher’s services was an extremely large portion of the income generated by sales of a book.

However, in an age in which:

  • Amazon is the largest English language bookseller in the world; and
  • Opens its electronic doors to self published authors on terms substantially equivalent to those it provides commercial publishers; and
  • Ebooks have the highest profit margin of any edition of a book a publisher sells; and
  • Ebook editing, formatting and cover design of a quality comparable to that provided by a commercial publisher can be had for a few hundred to a few thousand dollars;

the real value of a publisher for a typical author compared to the effective cost of a publisher to that author has declined precipitously.

PG was about to discuss the value of branding for either an ebook or a printed book, but he will be uncharacteristically brief.

Does anyone go to an online or offline bookstore seeking out a Random House book? Of course not. They’re looking for an author, a genre, etc.

With respect to promoting and selling books, which brand name is most valuable, James Patterson’s or Little, Brown and Company’s?

Without singling out any particular literary agent or agency, PG will say, as a general observation, that agents famous and obscure don’t do anything significant to improve the contract terms for publishing contracts other than increasing the amount of the advance on some occasions. In particular, agents rarely if ever do anything to address the issues Kris discusses in the OP.

In some types of contracts — consumer loans, for example — federal and/or state legislatures have passed laws that prevent commercial lenders from including some contract provisions that are unfair or harmful to borrowers. Compared to the number of individuals who take out loans to purchase a house, automobile or dishwasher, however, authors are a tiny constituency and elected officials have much bigger fish to fry than commercial publishers.

However, perhaps as a result of such consumer protections, some authors may believe they are somehow protected from  unfair provisions in publishing contracts between themselves and large publishers. That belief is incorrect.

Some of the most unfair provisions in a typical publishing contract are presented in the most innocuous manner imaginable.

 

 

Finally, there is nurturing. Publishers don’t just produce books. They nurture. Literary agents also provide nurturing in case publishers fall short in any way.

Like a baby duckling, a baby author needs to be nurtured and petted and encouraged and gently guided if she/he is to grow into a beautiful swan.

Who better to nurture such a delicate creature than a Kommanditgesellschaft auf Aktien headquartered in Gütersloh?

Off the top of his head, other than publishing, PG can’t ever remember ever having a business discussion that included the word nurture or any of its variants.

PG is reminded of a quote attributed to former president Harry S. Truman, “If you want a friend in Washington, buy a dog.”

PG suggests that if you want someone to watch over you, steer clear of the publishing business.

.



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