Contracts

The HarperCollins Lawsuit: Keeping Authors Aboard As Traditional Publishing Sinks

3 April 2014

From The Misfortune of Knowing:

In March, the U.S. District Court for the Southern District of New York, sitting in Manhattan, handed a victory to HarperCollins in its lawsuit against Open Road Integrated Media over the e-book publishing rights of Jean Craighead George’s award-winning children’s novel, Julie of the Wolves (1972). This “victory” for HarperCollins, however, highlights for authors one of the perils of pursuing the traditionally published route: desperate publishing corporations will stop at nothing to make sure “its” authors go down with the ship.

. . . .

  • In 1971, author Jean Craighead George signed a contract with HarperCollins (then Harper & Row) to publish Julie of the Wolves “in book form” for a $2,000 advance (just over $11,000 in today’s dollars) and royalty payments between 10-15%.
  • Although the grant of publishing rights was in Paragraph 1, the contract also contained a provision (Paragraph 20) that said: “the Publisher shall grant no license without the prior written consent of the Author with respect to the following rights in the work: use thereof in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented … and net proceeds thereof shall be divided 50% to the Author and 50% to the Publisher …” (Emphases mine.)
  • The contract between George and HarperCollins also had a “reserved rights” clause that reserved to George “[a]ll rights in the Work now existing, or which may hereafter come into existence, not specifically herein granted.”
  • In 2010, Open Road, an e-book publisher founded in 2009, offered to publish the e-book of Julie of the Wolves for a 50-50 royalty split with George. George approached HarperCollins to see if they would match the royalty. HarperCollins wanted to publish the e-book, but insisted on giving George a meager 25% royalty for the Newbery-award winning novel.
  • In 2011, George contracted with Open Road to publish Julie of the Wolves in e-book form, which sold around 1,600 copies.

Spurned, HarperCollins filed a lawsuit against Open Road forcopyright infringement on December 23, 2011.* George, who passed away in 2012 at nearly age 93, was never a party to this lawsuit, even though interpretation of the contract between George and Harper Row—whether it assigned e-book publication rights (in 1971!) and whether it was breached—was key to this dispute.

Clearly, through the 1971 contract, George had granted HarperCollins the right to exploit the copyright through printed publication. But now a federal court in Manhattan, in granting the Plaintiff-HarperCollins’ motion for summary judgment, has determined that the 1971 contract also covered later-developed ways of exploiting the copyright (“new uses”).

. . . .

In law school, property rights are often referred to as “a bundle of sticks.” When you own something, you can grant another person some rights to that property while keeping others, or you can give them the whole bundle. There’s a big difference between grantingall of the rights in the Work — which would be the whole bundle — and granting the right to publish a Work in book form. So, when a 1971 publishing contract gives rights to the Work “in book form,” that does not necessarily include the right to publish an e-book decades later.

Back in 2001, another judge in the same New York federal court found that a very similar contract (the publishing contract for a variety of works, including Kurt Vonnegut’s Slaughterhouse-Five) that granted a publisher the right to “print, publish and sell the work in book form” did not grant e-book rights.

. . . .

To me, those two points largely answer the question in this case: the “book form” referred to in George’s contract meant printed versions of the Work, and nothing more. Rights to everything else were “reserved.”

But the Court held exactly the opposite, concluding “the e-book format constitutes a permissible extension of ‘book form’ via ‘storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means.’” That language comes much later in the agreement, in Paragraph 20 of the contract (see “facts section” above).

. . . .

To me, regardless of how the “and/or whether” question is resolved, the overall point of Paragraph 20 remains clear, particularly when viewed in the context of the technology available in 1971. HarperCollins’ memorandum of law gives some examples of what those “storage and retrieval and information systems” could be: in 1969, MIT created “an experimental computer system for accessing the full text of 10,000 journals,” and in 1971, Project Gutenberg was set up to “create electronic books of public domain works that would be stored, retrieved and read on computers.”

That seems to be what the contract was getting at: if the publisher wanted to put the text of the book in some sort of electronic database (either then known or later invented)— which under copyright law would require its own separate license — then George had the option of saying “no” or of receiving 50/50 royalty.

. . . .

At the end of the day, this case suggests that one of the ways big publishers are trying to stay afloat in the current market is by holding e-books of popular authors for ransom, a strategy that has now been blessed by the Southern District of New York.

The shaky legal reasoning in the HarperCollins v. Open Road Mediacourt opinion will likely do nothing but encourage publishing corporations to threaten authors with years of litigation if they dare to try to bargain for even equal treatment (such as a 50-50 split) for “new uses.”

. . . .

Well, if authors have any bargaining power at all, it may be worth it to consider the possibility of limiting copyright grants to ways of distribution known at the time of the contract. However, a better course of action may be to avoid traditional publishing entirely.

Link to the rest at The Misfortune of Knowing

Nature Publishing Group Requires Faculty Authors to Waive ‘Moral Rights’

2 April 2014

From The Chronicle of Higher Education:

Faculty authors who contract to write for the publisher of Nature, Scientific American, and many other journals should know that they could be signing away more than just the economic rights to their work, according to the director of the Office of Copyright and Scholarly Communication at Duke University.

Kevin Smith, the Duke official, said he stumbled across a clause in the Nature Publishing Group’s license agreement last week that states that authors waive or agree not to assert “any and all moral rights they may now or in the future hold” related to their work. In the context of scholarly publishing, “moral rights” include the right of the author always to have his or her name associated with the work and the right to have the integrity of the work protected such that it is not changed in a way that could result in reputational harm.

“In many countries, you can’t waive them as an author,” Mr. Smith said. “But in the Nature publishing agreement you are required to waive them, and if you are in a country where a waiver is not allowed, you have to assert in the contract you won’t insist on those rights.”

. . . .

“The ‘moral rights’ language included in our license to publish is there to ensure that the journal and its publisher are free to publish formal corrections or retractions of articles where the integrity of the scientific record may be compromised by the disagreement of authors,” Ms. Baynes wrote. “This is not our preferred approach to dealing with corrections and retractions, and we work with authors and institutions to seek consensus first.” The Nature Publishing Group will listen to all feedback on its license to publish and has invited Mr. Smith to “have a discussion with us,” Ms. Baynes said.

. . . .

[Smith's] comments were part of a longer post noting that the powerful scholarly publisher has apparently begun enforcing at Duke a requirement that authors at institutions with open-access policies secure waivers exempting their work from those policies.

About a half dozen faculty members contacted him last week to ask him about waivers after receiving emails from the Nature Publishing Group, Mr. Smith said. Duke’s open-access policy was adopted in March 2010, Mr. Smith said, and the archiving of published work has always been done in compliance with publishers’ policies so as not to unduly burden faculty authors. He has added a note to his office’s website telling faculty members to contact him for a waiver.

While the timing of the publisher’s enforcement of its waiver requirement is “odd,” Mr. Smith said, he is most concerned about faculty authors’ signing away their moral rights. He intends to suggest to Duke faculty members that they seek to have the language stricken from their agreements. It could be replaced with a sentence stating that the Nature Publishing Group retains the right to correct or retract an article if the need arises.

Link to the rest at The Chronicle of Higher Education and thanks to Meryl for the tip.

PG says academic press publishing contracts are, in general, very unfair to authors. The moral rights gambit described in the post is typical of these publishers.

Judge Rules for HarperCollins in Open Road E-Book Dispute

18 March 2014

From Publishers Weekly:

In a significant ruling regarding backlist e-book rights, a New York court this week held that e-book publisher Open Road infringed HarperCollins’ copyright with its e-book edition of Jean Craighead George’s 1973 bestselling children’s book Julie of the Wolves.

“Having accordingly relied on the words of the contract, this Court holds that, by its language, the contract grants to HarperCollins the exclusive right to license electronic publications, a right which was infringed by Open Road in its unlicensed e-book publication of Julie of the Wolves,” held judge Naomi Reice Buchwald.

While some have viewed the case as a follow-up to the 2001 landmark ruling in Rosetta vs. Random House, the judge acknowledged that her ruling “dependent as it is on antiquated language,” could be of “limited applicability beyond the confines of this contract and this case.”

The suit was filed by HarperCollins in December of 2011, after George had agreed to publish an e-book edition of her 1973 Newbery Award-winning book with Open Road. HarperCollins argued that two clauses in its contract (signed in 1971) gave it the exclusive right to license an electronic edition—albeit, only to be executed with the permission of George.

Open Road, however, believed there to be no explicit grant of e-book rights in the contract, and offered to publish the digital edition, even agreeing to indemnify George and her agency, Curtis Brown.

. . . .

In 2001, Random House sued Rosetta Books, arguing that contracts for three works signed by Rosetta included the rights to publish the works in e-book editions. In July, 2001, district court judge Sidney Stein ruled that Random House’s language to “print, publish and sell the works in book form” did not include the format “that has come to be known as the e-book.” In March, 2002, the Second Circuit unanimously upheld Stein’s opinion. In 2002, Random House settled the case.

Like the Rosetta case, the heart of the issue in the HarperCollins suit is a disputed contract clause. But unlike the Rosetta case, HarperCollins argued that its contract with George included both a standard subsidiary rights grant (paragraph 23), which taken with another clause (paragraph 20), gave HarperCollins e-book rights.

Specifically, paragraph 20 of the 1971 contract stated that HarperCollins “shall grant no license without the prior written consent of the Author… including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented…”

. . . .

In her reading, Buchwald held that the HarperCollins contract at issue “differs significantly” from its counterpart in Rosetta Books. First, while the governing grant in both contracts convey the right to publish “in book form,” the Rosetta contract grant is “to print, publish and sell in book form.” The word “print” does not appear in the HarperCollins contract. The inclusion of the word “print,” Buchwald ruled, “has a limiting effect and a strong connotation of paper copy,” distinguishing the case from Rosetta Books.

. . . .

“This language, encompassing as it does the forward-looking reference to technologies ‘now known or hereafter invented,’ is sufficiently broad to draw within its ambit e-book publication,” Buchwald ruled. “Although no commercial market for e-books existed at the time of its drafting, e-book technology comprises a later-invented version of the very computer, computer-stored, mechanical or other electronic means provided by Paragraph 20.”

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

PG says this is another reason for authors to be very careful about the contracts they sign with publishers.

And a reminder that contracts for the life of the copyright really are essentially forever. The author in this case died while litigation was in process.

Nervous Writers Have Questions About Amtrak’s Residency (and Amtrak Answers Them For Us)

13 March 2014

From The Wire:

After all the hype and excitement over it new residency program for writers, Amtrak officially announced guidelines for the new program. For starters, it will be titled (in all its social media-fueled glory), #AmtrakResidency, and they opened the online application on March 8. But a closer examination of the program’s official terms has some writers tempering their interest. Specifically, they are balking at the fact that Amtrak wants rights to their submitted writing samples.

. . . .

Included in the application for the residency program is a required writing sample (no more than 10 pages), to ensure that Amtrak is sending actual serious writers on a residency and not just someone looking for a free ride. After reading the quoted portion of Section 6 above, however, writers are questioning whether or not they cede rights to their submitted samples simply by applying. The fear is, essentially, that Amtrak can do whatever it wants with submitted work, even work that they have been planning to use elsewhere.

. . . .

The distinction should be made, of course, between work submitted as an application to the residency program, and work completed during the actual residency. “The terms do not apply to any work the residents produce while on the residency,” Julia Quinn, Amtrak’s Social Media Director, wrote in an email to The Wire, but she confirmed that Section 6 does indeed apply to submitted writing samples.

Why, exactly, does Amtrak want the rights to applicants’ writing samples? Quinn wrote that “the idea would be to potentially use the applications as a way to promote the program,” which could include “[featuring] the selected residents with an excerpt from their application.” She continued: “This would happen through a conversation with the applicant.”

According to Amtrak, 7,000 applications have already been submitted, for a total of 24 spots available this year. So concerns over writing sample rights haven’t decreased interest too dramatically.

Link to the rest at The Wire and thanks to Meryl for the tip.

The Amtrak Writers Program

10 March 2014

Passive Guy has received lots of email about the terms and conditions of the newly-announced Amtrak Residency Program for writers. If you’re not familiar with it, Amtrak is offering free tickets for authors, presumably on train trips that will last for at least several hours, encouraging them to write about their experience.

The email has focused on the following paragraph in Amtrak’s Terms and Conditions:

6.   Grant of RightsIn submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties. In addition, Applicant hereby represents that he/she has obtained the necessary rights from any persons identified in the Application (if any persons are minors, then the written consent of and grant from the minor’s parent or legal guardian); and, Applicant grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy the name, image, and/or likeness of Applicant and the names of any such persons identified in the Application for any purpose, including, but not limited to, advertising and marketing. For the avoidance of doubt, one’s Application will NOT be kept confidential (and, for this reason, it is recommended that the writing sample and answers to questions not contain any personally identifiable information – e.g., name or e-mail address – of Applicant.) Upon Sponsor’s request and without compensation, Applicant agrees to sign any additional documentation that Sponsor may require so as to effect, perfect or record the preceding grant of rights and/or to furnish Sponsor with written proof that he/she has secured any and all necessary third party consents relative to the Application.

PG has the following responses:

1. He is exceptionally pleased that authors and others are carefully reading terms and conditions relating to their writing and encourages the continuation of this practice.

2. PG is also pleased that authors and others are raising the alarm about problematic terms and conditions and hopes this practice continues and grows.

3. For attorneys who are writing terms and conditions, PG suggests it’s a good idea to consider public response before pulling out the moldy boilerplate paragraph covering a Grant of Rights. Amtrak should be asking uncomfortable questions of its counsel about this public relations disaster. Because it is counsel’s fault.

4. This language is, in fact, a rights grab. Amtrak officials have issued statements saying this isn’t what they meant, they would not use any materials without consulting the author, etc. As with all “we would never do that” responses to contract concerns, PG’s response is, “Great. Let’s change the contract to reflect what you just said.”

5. While this is a rights grab, it only covers the Application that would-be train-riding authors submit to Amtrak, not the stories and books the authors write while they’re on the train. So it’s a baby rights grab.

6. However, babies grow up, so authors who are selected to receive free train travel will want to carefully review any other terms and conditions or contracts that Amtrak requires them to sign before the conductor says, “All Aboard!”

Performance Copyright Problems

7 March 2014

The 9th Circuit Court opinion in Garcia v. Google begins as follows:

While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”

The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

Most copyright case opinions don’t begin in such a compelling manner. Passive Guy could provide numerous examples, but you’ll have to trust him on that contention for now.

PG includes the full opinion below, but will summarize some of the major points here. For copyright nuances, read the opinion.

Ms. Garcia’s contention was that her performance in the film was a copyrightable work and that she never granted the producer any rights to her performance, particularly the right to make a derivative work in which she appeared to be speaking different words.

Mr. Nakoula was guilty of a number of errors of judgement with respect to this film, one of which was not following the standard Hollywood practice of having everybody sign a work made for hire agreement.

Under copyright law, a work made for hire means that the creator of a book, song, movie or acting performance has transferred all of his/her/its interest to whatever copyrightable work he/she/it creates under the agreement to the producer. Under a proper work made for hire agreement, Mr. Nakoula would have owned all of Ms. Garcia’s copyright to her performance. Since he owned the copyright, he would be permitted to make derivative works, like putting new words into her character’s mouth.

As an illustration of the layers of copyright involved in this decision, let’s start with a simple example that was mentioned in the case opinion.

1. The artist known as Prince writes a song called Nothing Compares 2 U.

2. The singer known as Sinéad O’Connor performs the song with a proper performance rights license from Prince for the song music and lyrics.

Prince owns the copyright to the music and lyrics of the song. You need a license from him to do anything with the music and lyrics. Sinéad owns a copyright to her performance of the song. You need a license from her to do anything with that performance.

Even though Prince is the author of the song, he can’t do anything with an audio or video recording of Sinéad performing the song without Sinéad’s consent.

For copyright purposes, there are several levels of derivative works in the Garcia case, each of which is copyrightable:

1. The copyright to the screenplay is owned by the screenplay’s author (unless they signed a work made for hire agreement).

2. The film made from the screenplay is a separate derivative work of the screenplay and the film’s creator owns the copyright to the film. The filmmaker needs rights to the screenplay to do anything with the film, but the author of the screenplay does not own the film because the film is a separate creative work.

3. The court held that Ms. Garcia’s acting performance, while derivative of the screenplay and incorporated in the larger film, was a separate work as well and she owned the copyright to her performance (absent a work made for hire agreement). Like the filmmaker, Ms. Garcia was the author of her performance. She would need rights to the film (and, through the film, the screenplay) to do anything with her performance, but she owned the copyright to her performance.

Because she owns a copyright in part of a video YouTube is streaming, she has the right to pursue a DMCA take-down enforcement action against YouTube for her copyrighted performance in the film. If the filmmaker didn’t have rights to her performance, neither does YouTube.

This is a long prologue to a few thoughts that are more directly related to authors and the kinds of contracts they’re asked to sign.

1. As a general proposition, authors should not sign work made for hire agreements. In doing so, they are transferring all their interest in their books written under such agreements, including their copyright, to someone else. Advertising copyrighters, screenwriters hired by a producer, etc., should expect to sign work made for hire agreements, but fiction authors (and, most of the time, non-fiction authors as well) should not.

Instead, the author gives a license under his/her copyright for others to do things with the author’s book – put it up for sale online in ebook form, publish it, translate it, turn it into a movie, etc.

2. Generally speaking, PG doesn’t like publishing contracts by which an author gives up all rights to his/her books to a publisher. Draw the line at licensing the publisher to publish ebooks, printed books and, perhaps, audiobooks.

Unless the publisher owns a movie studio, the author should keep film, TV, etc., rights. The only way the publisher will monetize those rights is to license a producer or studio to use them. The author can do exactly the same thing her/himself with no need to give a big chunk of film revenues to a publisher.

3. PG has been seeing some publishing contracts that include a grant of rights to publicly perform the author’s work in addition to the right to print, publish and sell hardcovers, paperbacks and ebooks.

The idea behind the publicly perform language is that licensing and distributing ebook files for people to read on digital devices is pretty much the same thing as licensing and distributing video files for people to watch on digital devices.

Motion picture studios earn most of their money by licensing others to publicly perform their movies, whether the license is to a movie theater for paying customers to watch sitting in a big dark place or to Netflix for subscribers to watch in a small dark place.

PG’s problem with the publicly perform language is that it can cause big problems for authors who retain movie, TV, etc., rights. The author can license the studio to create a screenplay and movie from his/her book, but, with the broad language in the publishing agreement, the author can’t license the studio to publicly perform the movie because the publisher holds that right.

Producers and studios aren’t interested in only giving private performances of their films to friends and family at home.

Such public performance language can constitute a back-door rights-grab.

Here’s the full opinion:


Rights Concerns: Simon451 Novel-Writing Contest for Students

7 March 2014

From Writer Beware:

Recently, Big 5 publisher Simon & Schuster announced the launch of two adult trade speculative fiction imprints: Saga Press, which will do both print and digital, and Simon451, which will also do print and digital, but will concentrate on digital-firsts and ebook originals. Simon451 currently is accepting submissions from unagented authors.

Simon451 is also running a novel-writing contest for college students. Students submit a synopsis ad the first 50 pages of a novel. A panel of judges will select ten finalists, who will be asked to submit their entire manuscripts. The winner receives a publishing contract with Simon451, a $3,000 advance, and a trip to NY Comicon.

In the past weeks, I’ve heard from a number of writers who are wondering about an apparent rights-grab in the contest guidelines .

. . . .

First, on page 2 of the guidelines, where it refers to the initial 50-page submission, a.k.a. the Initial Entry:

Submission of an Initial Entry grants Sponsor and their agents the unconditional, irrevocable, perpetual, worldwide right to excerpt in part or whole, use, adapt, edit and/or modify such Entry in any way, in any and all media, without limitation, and without consideration to the entrant, whether or not such Entry is selected as a winning Entry.

. . . .

What if you become a finalist, though, and are asked to submit your entire manuscript? Per pages 3 and 4 of the guidelines, you are subject to the exact same grant of rights, expressed in identical language. The only difference is the use of the term “Entry,” rather than “Initial Entry,” referring to the full manuscript:

Submission of an Entry grants Sponsor and its agents the unconditional, irrevocable, perpetual, worldwide right to excerpt in part or whole, use, adapt, edit and/or modify such Entry in any way, in any and all media, without limitation, and without consideration to the entrant, whether or not such Entry is selected as a winning Entry.

Link to the rest at Writer Beware and thanks to Ekta for the tip.

PG says it looks like another case of runaway lawyers.

He doesn’t read contest rules for fun, but almost every time he does, he finds overbroad language and rights-grabs.

On one occasion, PG was thinking about entering one of his photographs into a contest for calendar photos featuring landscape shots. His primary reasons for doing so were that proceeds from the sale of calenders went to a children’s hospital and he thought his photo was better than previous winners.

Then he read the contest terms and conditions and discovered, instead of granting rights to use his photo on the calendar, he was surrendering all rights to his photo, which could be used for any purpose, including being licensed to third parties without compensation to the photographer.

He decided to send some cash to the children’s hospital instead.

For those in the frozen regions of the US and Canada, here is a photo PG took on the Gulf Coast of Florida several years ago:

Sunset and Pier-Blue Variation-Red Enhanced-Unsharp Mask

and another (you can click to see somewhat larger versions)

Naples Sunset 2 cropped

Rights Grabs and Copyrights

26 February 2014

Passive Guy put together the following for the IndieReCon online writers conference which continues through today:

Let’s discuss the rights authors own under their copyrights to their books.Although we could talk a long time about what copyright is, for the purpose of this post, we’ll call it the exclusive legal right of the author of a literary work to reproduce, publish and sell a book for the period during which the copyright is in force. Copyright also includes the right of the author to permit others to do the same thing.Copyright is a collection of different rights. Some of these are called derivative works.

Here’s a definition from the United States Copyright Office:

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. The fol­lowing are examples of the many different types of derivative works:

•   A motion picture based on a play or novel
•   A translation of an novel written in English into another language
•   A revision of a previously published book
•   A sculpture based on a drawing
•   A drawing based on a photograph
•   A lithograph based on a painting
•   A drama about John Doe based on the letters and journal entries of John Doe
•   A musical arrangement of a preexisting musical work
•   A new version of an existing computer program
•   An adaptation of a dramatic work
•   A revision of a website

Note that a derivative work includes uses for the work that are developed in the future. Authors who wrote novels long before ebooks were invented still have copyright protection for their work in the form of ebooks.

So, what is a rights grab for the author of a book?

Here’s Passive Guy’s own definition: A rights grab happens when a publisher demands more rights than to print, publish and sell hardcovers, paperbacks and license ebooks.
Period.

Of course, many publishers ask the author to grant many more rights than those three. Common additions are motion picture, television and dramatic rights.

Why does PG not like this?

Does Penguin make movies? Does HarperCollins create stage plays?

Those sorts of things are done by people whose principal business is something other than publishing. Publisher like these sorts of things because all they have to do is contact someone, usually a Hollywood agent, and ask the agent to sell performance rights. Quite often, the author even pays some or all of the agent’s fee through royalty deductions.

That’s a lot less work than editing, printing and promoting books.

An analogous set of rights are translation rights. The right to translate a book into German, French, etc., and sell those books world-wide. There are some exceptions, but quite often, the process is similar to performance rights. The publisher contacts a German publisher or agent and the German publisher does all the work.

Of course, the publisher takes a cut of all of these subsidiary rights, sometimes a very large cut. The author gets what’s left.

So, PG’s standard for what rights an author should grant to a publisher are those that the publisher has the in-house capability of exploiting without involving third-party agents, producers or publishers.

If a book sells well, it will attract people in the movie business and foreign publishers on its own, without the involvement of the US publisher and, if the author retains these rights, he/she keeps all the money.

How does the author know what to do with these non-book rights? Hire an attorney or agent to help. They will charge much less than a publisher will to handle those types of licenses. And the author will be in control of negotiations and the contract terms, not the publisher.

What does rights grab contract language look like? Here’s a short one from a real publishing contract (but not a contract that involves one of PG’s clients):

The Author hereby grants the Publisher the exclusive, worldwide rights to publish, display, reproduce, license, grant subsidiary rights, distribute, and sell the Work, in any and all forms currently, or in the future, known for publishing such material.

Here’s that same contract provision with key terms highlighted:

The Author hereby grants the Publisher the exclusiveworldwide rights to publish, display, reproduce,licensegrant subsidiary rights, distribute, and sell the Work, in any and all forms currently, or in the future, known for publishing such material.

Often grants of right are significantly longer than this, but this gives you the idea of the kinds of things to look for.

Why does a publisher need worldwide rights if it only publishes in the US?

Why does a publisher need subsidiary rights if it’s never produced a movie or sold rights to a movie?

Why does a publisher need rights to some unspecified future use of the work when the publisher doesn’t even know what that might be?

If you’re looking for a compromise between a rights grab and PG’s absolutist position about hardcover, paperback and ebooks, here are some ideas:

1.      The publisher has the right to seek movie, TV, etc., deals for a period of time – three years, for example. If no deal is consummated during that time, those rights revert to the author.

2.      The first $1 million derived from the sale or license of any subsidiary right is divided 50/50 between author and publisher and any revenues above that are paid to the author.

3.      The publisher has rights in any countries where it presently has offices and operations with the author retaining rights everywhere else. The countries should be listed.

How the creator of ‘Vampire Diaries’ used Kindle Worlds to get back at her publisher

20 February 2014

From The Daily Dot:

Brace yourselves, fans: Kindle Worlds, Amazon’s write-for-hire publishing platform disguised as a friendly attempt to pay fansfor writing fanfiction, has actually led to some amazing writerly justice for the creator of the Vampire Diaries.

LJ Smith, the original writer of the popular Vampire Diaries books, was fired from the series in 2011 after churning out regular installments for over two decades. But now, using the Kindle Worlds platform of the company that hired her, then fired her, Smith is writing “fanfiction” of the series she created.

In a moment of beautiful karma, Smith’s two installments ofVampire Diaries tie-ins, wryly labeled as “fanfic based on theVampire Diaries book series—also by L. J. Smith,” are currently topping the list of bestselling stories on Kindle Worlds.

Who says fanfic writers aren’t creative?

Fans of the hit CW show may not realize that Smith’s name is missing from the credits. Instead, the Vampire Diaries is the product of a clever book packaging company who’s spent decades producing hit Young Adult series and turning them into popular screen adaptations. Although HarperCollins published the series in book form, Smith was actually hired to write theVampire Diaries for Alloy Entertainment, whose fiction-by-committee efforts have led to some of YA publishing’s most popular series, including Gossip GirlPretty Little Liars, andThe Sisterhood of the Traveling Pants.

But when Alloy hires you to write a series, make no mistake: You work for Alloy, not the other way around. Alloy hires writers through restrictive work-for-hire contracts. The writers don’t own the intellectual property they’re writing, and only get about 50 percent of the total profits. Alloy usually hires young, inexperienced writers who get seduced by the lure of working with a powerful entertainment arm, and don’t realize what it means not to own the property you’re working on.

. . . .

In 2011, Alloy fired her and replaced her with a new writer, reportedly because they wanted to revamp the book series to be more like the version airing on the CW. For years, Smith’s story was a cautionary tale in the world of publishing: a reminder to always read the fine print before signing a contract.

 

Link to the rest at The Daily Dot and thanks to Mike for the tip.

New Publishing Clashes with Old

19 February 2014

From agent Janet Kobobel Grant:

 I was staring at a dinosaur–an old-school publisher.

When I say “old-school publisher,” I’m not referring to just a traditional publisher; I’m talking about a publisher who apparently isn’t used to working with agents. I hadn’t sold a project to this publisher for decades, but one of my clients had created a proposal for a book that seemed a perfect fit for this niche publishing house.

As I anticipated, the publisher offered my client a contract. But the agreement reflected an old-school mentality toward authors. In essence, the publisher wanted to retain complete control over every aspect of publishing with no guaranteed input from the author. For example, the publisher could hire a writer to make the manuscript into whatever the publisher chose, and the author would foot the bill for that writer–all without the author having any say in whether a writer should be hired; who that writer would be; or how the manuscript would be changed. The publisher also proposed a two-book option at the same terms as the current contract; the ability to put in the book an ad for any product the publisher chose without the author’s input; an out-of-print clause that guaranteed the book would never go out of print, etc.

I rolled up my proverbial sleeves and went to work on making the contract a document that reflected a process an author could live with.

. . . .

Then the dinosaur (probably the executive team) woke up and realized this wasn’t a contract it wanted to honor. The publisher withdrew the offer.

When I asked why this decision had been made, I was told that my client probably should self-publish because she was unrealistic in what the role of an author was, that she didn’t trust the publisher so how could the relationship ever work?

What a perspective! As I was negotiating the contract, the editor would explain that certain egregious clauses existed to protect the publisher from “worst case scenarios.” Yet, when I added or changed elements of the contract to protect my client from worst case decisions on the publisher’s part, the publisher declared my client a perfect self-publishing candidate.

Link to the rest at Books & Such Literary Management and thanks to David for the tip.

PG sometimes gives agents a hard time, but sends kudos to Janet for pushing to turn a terrible contract into something her client could live with.

In this case, the publisher withdrew its offer, which was probably the best outcome for the author, given the publisher’s attitude and style.

An author or any other prospective party to a contract can learn a lot about who they may be doing business with through the negotiation process.

Most of the time, during contract negotiation, each side is trying to show their best face because, at least at the beginning, each side had the idea they wanted to do business with the other.

The behavior of each side is unlikely ever to be better than it is during negotiations. If the opposing party is a jerk during negotiations, they’re probably going to be a bigger jerk after you enter into thc contract. If the opposing party is rigid and unyielding during negotiations, ditto after you sign. If the other side doesn’t give serious consideration to your concerns during negotiations . . . you get the idea.

Unlike selling a used car, where you’re done with the purchaser once you get the cash, entering into a publishing agreement is the beginning of a long-term business relationship.

If you think a tough publisher was hard to deal with during negotiations, wait until after you sign the contract. And, remember, since most old-style publishing agreements are for the length of your copyright, you’ll be linked to that difficult publisher for the rest of your life.

PG has mentioned before that, as a class, publishing contracts are the most unfair and one-sided of any of the many different types of contracts he’s dealt with over his legal career. Plea bargains for drug dealers are more balanced than some publishing contracts he’s reviewed.

The good news for authors who want to work with a publisher is that a few publishers understand their contracts can make or break a deal and are introducing far more reasonable terms into their boilerplate. The bad news for authors is that most publishers haven’t reached that point yet and some will go bankrupt before they do.

However, from the publisher’s viewpoint, if most authors sign whatever the publisher puts in front of them, why not load up the contract with everything the lawyers can think of?

One thing a smart negotiator always keeps in mind is the “or else” option. Negotiation theorists call this BATNA - Best Alternative to a Negotiated Agreement. If the parties are unable to agree, what will happen to each of them?

Most publishers think their BATNA for most failed publishing contract negotiations is to move on to the next sucker author who wants them to publish a book.

Until recently, most authors saw their BATNA as going back to the long and soul-crushing process of trying to find a publisher.

As Janet’s article indicates, the self-publishing BATNA is in the process of significantly changing the negotiation dynamic between authors and publishers.

PG was interested to note that the publisher Janet describes suggested self-publishing was the best alternative for Janet’s client if the client didn’t like unreasonable contract provisions.

PG doubts he would find much common ground with this publisher, but he does agree with that suggestion.

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