The Case for Pursuing a Traditional Publishing Deal Without an Agent

From Jane Friedman:

Securing the services of a literary agent has long been the gold standard for authors pursuing a long and successful career in publishing.

It’s easy to understand why. At the turn of the twentieth century, the so-called “author’s representative” emerged as the figure who would help authors cut a better deal with publishers. Most publishers were unhappy about this since agents who skillfully leveraged their clients’ hot properties forced publishers to shell out more money on better terms.

By mid-century, the agenting game was well established. Legendary agents like Sterling Lord (Jack Kerouac and Doris Kearns Goodwin were among his clients) and Robert Gottlieb (Toni Morrison, Robert Caro) impressed writers with their ability to champion talent, nurture genius, and land lucrative publishing deals. Needless to say, authors couldn’t accomplish half so much on their own behalf. The gatekeepers had won—and were here to stay.

Fast forward to today. Agents still function as gatekeepers, especially to the Big Five publishers and many top-tier smaller publishers, such as Tin House (whose open-reading periods are limited to a few days a year). Breakout debuts by authors like Jessica George (represented by David Higham) and stratospheric careers like Bonnie Garmus’ (repped by Curtis Brown) would not be possible without agents in the mix.

But, dear authors, securing an agent is not the only path to getting happily published (outside of self-publishing).

One big reason to consider other strategies (especially with a first book) is that the agenting business model is showing serious signs of wear-and-tear. Many agents readily admit the industry is in flux.

According to the latest member survey by the Association of American Literary Agents, an overwhelming majority of agents report feeling burned out and are working too much uncompensated overtime. And no wonder, as roughly a fifth of them receive 100 or more queries per week. Many also feel underpaid, given that roughly two-thirds depend in part or entirely on commissions—and making a sale can take months, if not years. (Do you imagine this is an elite group? Roughly 30 percent of American agents earn less than $50,000 annually.)

There’s no need to put all your editorial eggs into this one (turbulent) basket.

Scores of traditional small presses operating professionally and ethically in North America (and the UK, Australia, and elsewhere) are open to reviewing manuscripts year-round or seasonally without charging a fee.

Before getting into nuts and bolts on this, let me anticipate some objections that I know are out there, because the lure of agent-magic is strong:

But going directly to a publisher is less prestigious than going with an agent!

Even if that were objectively true, by the time your book is out in the world, readers have no idea how it got there and aren’t thinking about who reps you. The means justify the ends.

But an agent will fight for a better contract, or a bigger advance, than I’d get by negotiating with the publisher myself!

There may be some truth to this, but the tradeoffs are worth considering. For one thing: you’re getting published! A small advance, or no advance, may be offset by your efforts to successfully market your book when it comes out. Secondly, consider spending a few hundred dollars for an attorney to review your contract. The Authors Guild does this for free, and some states (such as Maryland) offer pro bono legal services to artists.

But a small press can’t market my book effectively!

It’s true that the Big Five publishers have bigger marketing budgets for ads and other forms of publicity. But will they put any of that money behind your book? And even big-name authors are increasingly expected to help market their own books and participate on social media.

The best small presses will submit reviews to the same outlets as the Big Five, from Kirkus to Publishers Weekly, and will engage in guerrilla marketing techniques to get you noticed. The gap in marketing efforts is not as wide as you think—and you’ll be expected to self-market with any publisher.

Link to the rest at Jane Friedman

PG says 99 out of 100 small presses have most of the drawbacks of large publishers with even more downside risk.

A large publisher will generally offer to pay a respectable advance. Most small publishers can’t afford those kind of up-front expenditures.

A small press, by definition, doesn’t sell very many books. A small press has to really fight to get one of its titles selected by a major reviewer with lots of readers.

Yet, the terms of a typical small press publishing contract almost always follows New York publisher patterns of demanding everything without a binding commitment to generate a respectable number of sales.

None of the small presses PG has examined vary from large publisher results of an occasional blockbuster, but mostly books that get launched, then flame out.

Kris on The Findaway Scam…

From Dean Wesley Smith:

A few weeks or so back, Kris did a post on her patreon page about what happened with Findaway and writers. I linked to it, but now she gave me permission to put it here to help writers understand another level of business.

The Fallacy of the Findaway “Victory”

Kristine Kathryn Rusch

I do not know how to start this piece without using insulting language. I have literally deleted five first paragraphs which use the words “ignorant,” “stupid,” “dumb,” and certain swear words that should not be attached to people and organizations.

I can’t write this without using one of those words. Insert the one that offends you the least. But here it is: the average writer and average writers’ organization are so ignorant about business that they have no idea what just happened with Findaway.

For those of you who don’t know the story, in February, Findaway Voices released a new terms of service that will go into effect this month. It was the notification that users needed to have by law so that they would know what had changed. And believe me, a lot changed.

. . . .

Writers saw the changes and went up in arms about everything that Findaway asked for. So within hours, Findaway backtracked and released a new terms of service that, in theory, addressed all of the writers’ concerns.

Writers declared victory on social media. They did a happy dance all over their accounts. They kept their books on Findaway, because that was what Findaway wanted. The Authors Guild, never the smartest organization in the room, wrote this:

We appreciate Spotify’s responsiveness to our concerns and those of the author community. We will continue to review the terms and any future updates to ensure that they do not encroach on authors’ rights, and look forward to continuing a productive dialogue with Spotify.

If you actually read the new TOS, including the parts that the Authors Guild quotes in their “we approve and we won” post, you’ll see that the new terms are still objectionable. They’re just not as objectionable as the first TOS offered that day.

The final TOS, though, is much, much, much worse than the TOS writers initially agreed to when they agreed to be part of Findaway.

And therefore, the lawyers at Findaway have won the actual victory and are probably giggling (still) into their celebratory beers.

Here’s how it works, folks.

If writers and writers organizations understood anything about negotiation, they would realize they were part of a bait and switch that lawyers do all the time. In fact, lawyers are trained to do this for their clients.

First, you ask for everything, including the firstborn child and maybe all the children, as well as the stuff that’s objectionable but not as easy to understand.

Then you wait for the expected outcry.

When the outcry comes, you say, Oh, we didn’t mean to ask for children. Our mistake. Here, we’ll fix it.

Then they release their new terms in which references to children are gone, and the language that seems objectionable gets toned down.

The other party, so shocked by being told they’re going to have to give up their children to stay in this organization, say, oh, thank heavens, this TOS is just fine.

They compare the revised TOS to the horrid TOS, instead of comparing the revised TOS to the TOS that the clients initially agreed to.

It’s smoke and mirrors, and it worked beautifully.

There was a tell in Findaway’s gambit. They released the revised TOS within hours. Nope. Had this been a real mistake and these corporate attorneys truly misunderstood what they were asking for, they would have taken days if not weeks to revise the TOS.

The lawyers don’t make the decisions. They draft the TOS, and then the execs give their opinions, usually in writing. Then the changes go back to the lawyers, and the lawyers draft another TOS, which has to go to the execs, who then work it over, and finally, finally, someone will agree to something.

But not within hours.

This “capitulation” was planned. And since it was planned, the question you have to ask is what are they going to gain from this new TOS? If you read it with a jaundiced eye, you’ll see it.

There is so much wiggle room in their new language that they can still use your work to train AI models. They can change their permission structure so that you might give them permission to use those derivative rights or produce an AI audiobook without even realizing it. All it would take are a few words added or removed from their TOS.

So instead of getting a new TOS, which was what happened this time, you’ll get an email saying, we’re changing our TOS. Here’s your notice. We’re adding three words to clause 5, paragraph 2. You’ll glance at the three words which might seem random: like “grant” and “exclusive” and not look at the language of the new paragraph at all.

How many times have you done that, after all?

. . . .

So, writers, you did not “win” a victory over Findaway. You lost. Big time.

And not only did writers lose, but they’re bragging about the loss as if it were a great big victory.

Link to the rest at Dean Wesley Smith

PG hasn’t checked the new Findaway TOS/publishing contract. He’ll do so in the next few days and let everyone know what he thinks about it. In the meantime, Kris is sharp enough that PG would steer clear of the company.

Even if Findaway fixes a bunch of things, if they’re taking any portion of the royalties an indie author could receive via KDP, Findaway would have to guarantee a boatload of additional sales – in writing – in their contract/TOS.

Authors Equity points toward the future of publishing

From Nathan Bransford:

Some pretty significant news arrived this week as some of the smartest and most experienced people in publishing are joining forces on a new imprint called Author Equity. Its business model says a lot about where we’re headed as an industry.

Essentially, Author Equity pledges to put authors first, and they won’t offer advances. They will instead offer the “lion’s share” (the former agent in me is shouting, “HOW MUCH IS THAT EXACTLY”) of the profits, and will maintain a lean staff that relies on freelancers for editing and production, with distribution by Simon & Schuster. Its author investors (including Atomic Habits author James Clear and The 4-Hour Workweek author Tim Ferriss) probably point the way toward the types of books they’re likely looking for. Namely, entrepreneurial bestsellers and bestsellers-in-the-making who are willing to forego the upfront investment of the advance in favor of making more on the backend.

Those of us who have been in this business for twenty odd years know that parts of this publishing model aren’t new. The no-advance-but-marketing-guarantees was adopted by the imprint Vanguard Press at the Perseus Books Group, which I profiled way back in 2008. (Vanguard was shuttered in 2012, and Perseus was acquired by Hachette in 2016). There have also been more behind-the-scenes deal structures like this that I’ve come across/heard about that I can’t really talk about specifically for confidentiality reasons, but trust me, they exist.

As Ron Charles notes, one thing imprints like this do is to shift more of the prospective investment of a new book onto the author. Which, again, has been around before, but I’ll be interested to see if it spreads more widely to the Big 5, where it’s never really caught on in a big way.

What feels new to me is the reliance on freelance labor. On the one hand, sure, I’m a freelance editor! I embraced the lifestyle even before the pandemic. If you offered me double what I make now, I’d still have a hard time imagining going back to a more traditional job.

Link to the rest at Nathan Bransford

PG notes that he hasn’t seen any Author Equity publishing contracts nor does PG know anything about the investors/managers the company has.

However, promising to give authors a percentage of the “profit” from the sales of her/his books is a system that’s perfectly set up to scam authors. Why might that be?

Gross revenue received by a business of any sort is not terribly easy to fiddle with. Basically, gross revenue is the money and other items with a monetary value the business receives. If a business receives payment in dollars, wheat, corn, gold, timber or diamonds, each of those has a market value that can be used as basis for calculating gross revenues.

Profits, on the other hand, are quite prone to fiddling. Salaries and benefits paid to staff are subtracted from the gross proceeds before profit is calculated. Business travel to exotic locations is a deductible expense that reduces profits.

Similarly, office rents, printing and shipping expenses reduce profits. Depreciation of equipment is another deduction that reduces profits. All sorts of things can be jammed into business expenses to effectively reduce profits.

Gross revenues from the sale of an author’s books are not susceptible to nearly as much “tweaking” as profits are. Auditing of royalties is also an easier process with gross revenues as the basis for royalties.

Protecting Your Work

From Booklife:

The recent suspensions of authors from Amazon’s Kindle Direct Publishing for “copyright infringement”’ provide a powerful lesson on the importance of protecting one’s work. During this year’s BookLife Indie Author Forum, I took part in a panel discussion devoted to copyright issues. Last year, I also facilitated a roundtable discussion by the Independent Book Publishers Association, during which we talked about the hot topic of KDP suspensions for copyright infringement.

Case in point: I have an author-publisher friend who had a book on Amazon since the CreateSpace days without incident. For years, this book had been in publication, and the author owned the copyright. Several months ago, the author received an email from KDP saying that the book included copyright or trademark infringement and that their entire account would be suspended. For a publisher, this is a major problem.

The author’s inquiries about the reason and requests for further documentation and resolution were ignored. He contacted KDP on a regular basis, and, because of his persistence, the account was magically restored, and the book is live again. Compared with some of the other horror stories I’ve heard, my friend should be happy.

Another author told me he spent over $20,000 in legal fees for two books after KDP suspended his account for “copyright infringement.” His requests for clarification were ignored, and no resolution has been provided. Is anyone safe?

If you’re anything like me, you might think that the solution is simply to use publishing sites such as IngramSpark (my favorite), Draft2Digital, or Kobo, which also distribute your title to Amazon. Wrong. One author used one of these providers and shared that Amazon said that the company would have to contact the publisher, which was him, and then the distributor. When he contacted the distributor, the distributor contacted Amazon, which responded that there were no problems with the book and that it was available for purchase. When the author checked, it was not. This problem has still not been resolved.

As problematic as this is, just imagine if you had multiple books. All of your titles can be suspended if your KDP account is frozen. What happens to your royalties during this time? And if you spent money on Amazon ads, you would be paying the same entity that is holding your royalties during the suspension. If you were to continue advertising, on or outside of Amazon, you could lose money indefinitely.

The terms and conditions say Amazon can terminate without cause and keep the royalties owed, including any sales of inventory on hand. The terms only permit dispute resolution through the American Arbitration Association. Ever call the American Arbitration Association? One person was quoted an arbitration fee of $1,725 plus legal fees and an estimate of five to 10 months for resolution. Ouch! This amount is cheaper than the $20,000 I quoted earlier, but many authors cannot afford $1,725 in legal fees.

Here are some of the things that can get your KDP account suspended: using two different ISBNs for the same book format—i.e., one ISBN on IngramSpark and one on KDP (but using separate ISBNs for the paperback, hardcover, and e-book versions is fine); rights reverting to you from a previous publisher but have not been cleared by KDP; having a metadata change that implies a change in rights ownership; changing your imprint name (If you use a publishing provider such as IngramSpark, you can add an imprint name to your dashboard. This means that you need to check which one you use for each book you publish to avoid it defaulting to the wrong one); someone reports you for copyright infringement (even if the claim is not valid); or a bot error that is beyond an author’s control.

What can you do once your account is suspended? The answer varies depending on what triggered your suspension, which, according to some of those affected, is hard to get a clear answer from Amazon about. Here are a few things you can provide:

1. A screenshot of your ISBN account showing your name as owner and the imprint name with your book’s ISBN displayed

2. Approved copyright documentation from copyright.gov, not just the application (which can take up to eight months to receive)

3. Invoices and bank statements for editing costs from both your end as the publisher and from the editor’s end

4. Similar invoices and statements for cover design

Link to the rest at Booklife

OpenAI’s admission it needs copyright material is a gift to the publishing industry

From The New Publishing Standard:

The Writers Union of Canada is among the latest to, rightly, calls for legislation to regulate the excesses of AI companies as this sector evolves.

But as with so many of these calls for legislation, we need to be clear whether these are reasoned arguments looking to harness AI’s potential to benefit the long-term interests of the publishing industry, or knee-jerk reactions pandering to member’s short-term interests with meaningless soundbites.

In the US we’ve seen the Writers Guild embrace AI as a force for good, fully accepting the AI genie will never go back in the bottle, and so looking for the best ways to work with AI companies to benefit Writers Guild members.

“We have to be proactive because generative AI is here to stay,” said Mary Rasenberger, Authors Guild CEO, explaining, “They need high-quality books. Our position is that there’s nothing wrong with the tech, but it has to be legal and licensed.“

SAG-AFTRA, the US actors union, has taken the same approach.

Proactive rather than endlessly reactive.

While at the other end of the spectrum the outgoing head of the UK’s Society of Authors, Nicola Solomon, is peddling nonsense about how 43% of writers jobs will be devoured by the AI bogeyman.

The Writers Union of Canada has tried to find a mid-way path, and acknowledges AI can bring benefits to writers, but cannot help but seize on statement by OpenAI’s CEO Sam Altman saying that AI needs to use copyrighted material as some kind of admission the company is stealing writers’ IPs.

Given the current legal interpretation of what constitutes fair use, that assertion may or may not have legs, but for the AI opponents such details are neither here nor there. As and when the law on fair use is clarified one way or the other, then we can fling mud.

Similarly, demanding creators be paid for their efforts is right, but suggesting this is not happening is wrong.

The fact that Altman and his company have, since at least May 1923 at the White House AI summit, been talking about ways to pay for the use of copyrighted material, and since mid-summer have been signing deals with content-producers to do just that (American Journalism Project, Associated Press in July 2024, Axel-Springer in December), is being conveniently ignored.

Bloomberg last week reported that Thomson Reuters is looking to sign a deal with AI companies.

Tom Rubin, OpenAI’s chief of intellectual property and content, told Bloomberg News: “We are in the middle of many negotiations and discussions with many publishers. They are active. They are very positive. They’re progressing well. You’ve seen deals announced, and there will be more in the future.”

So these opponents of AI are missing opportunities to do deals that will favour creatives, for the sake of a sound-tough soundbite.

And in this context, we should be clear that the New York Times law suit against OpenAI is happening because negotiations with OpenAI failed, not because OpenAI was unwilling to pay.

In any case, Altman has made clear OpenAI can manage just fine without NYT data if necessary.

We are open to training [AI] on The New York Times, but it’s not our priority. We actually don’t need to train on their data. “I think this is something that people don’t understand. Any one particular training source, it doesn’t move the needle for us that much.”

But this is not the only flaw in the Canada Writers Union case. The CWU has also gone down the “humans-only” road with its interpretation of copyright law.

Copyright is an exclusive right of human creators. Existing copyright legislation protects human creativity and originality, by virtue of requiring the exercise of skill and judgment to obtain copyright in a work. This should not be changed to grant copyright protection to AI generated products or to allow copyrighted works to train models without permission.

And again we have the juggling act with different issues mixed into a pot and violently stirred for the sake of a sound-tough soundbite.

No-one is asking for copyright law “be changed to allow copyrighted works to train models without permission.

And the other part of the soundbite – The law “should not be changed to grant copyright protection to AI generated products” – falls into the other classic Luddite’s Weekly trap.

On the one hand they are claiming, and Altman himself agrees, that AI cannot do its work without copyrighted material, which as of now is defined as human-produced. And at the same time they are claiming copyright “is an exclusive right of human creators.”

Link to the rest at The New Publishing Standard

Who is going to receive the cash if a large publisher signs a license to utilize their books, magazine articles, photographs, etc.?

PG can’t speak for magazines and photographic publications, but, at least for ebooks, the authors are licensing their rights to publishers, not selling those rights. Arguably, under a standard trade publishing agreement, the author hasn’t given her/his publisher the right to use their books as grist for an AI mill. The traditional publisher typically has the right to print, publish, and sell the author’s works.

Granting permission for the author’s books to be utilized as fuel for an AI is something that was not foreseen when the author signed a publishing agreement. It is common for a publishing agreement that reserve rights not granted to the publisher for the author’s use so long as the exercise of those rights doesn’t interfere with the publisher printing, publishing, and selling the manuscript as a book of some sort or another.

Another issue that a great many large publishers will likely have is publishing agreements that were written and signed long before the internet, digital publishing, or anything except print, publish in a printed serial form, licensing as a Book-of-the-Month edition, etc.

And, of course, does the author’s literary agent get 15%?

Taylor-made deals: how artists are following Swift’s rights example

From The Guardian:

A revolution is brewing in the music business as a new generation of female acts, following the example of Taylor Swift, are seizing ownership of their music rights and refusing to sign deals that cede complete control to music companies.

Swift is nearing the end of her project to re-record her first six albums – the ones originally made for Big Machine Records – as a putsch to highlight her claim that the originals had been sold out from under her: creative and commercial revenge served up album by album. Her public fight for ownership carried over to her 2018 deal with Republic Records, part of Universal Music Group (UMG), where an immovable condition was her owning her future master recordings and licensing them to the label.

It is a power-play template for younger acts who are now rising up – especially female pop stars, historically among the most exploited figures in music – alert to the fact that owning their recordings and songwriting is everything. Olivia Rodrigo made ownership of her own masters a precondition of signing with Geffen Records (also part of UMG) in 2020, citing Swift as a direct inspiration. In 2022, Zara Larsson bought back her recorded music catalogue and set up her own label, Sommer House. And in November 2023, Dua Lipa acquired her publishing from TaP Music Publishing, a division of the management company she left in early 2022.

At Glastonbury last summer, Rina Sawayama made a veiled jibe at the 1975’s Matty Healy for laughing at racist comments on a podcast and for the fact that he “owns my masters”, due to his directorship at Dirty Hit Limited (although his directorship was in fact terminated in April 2023). This claim about ownership skips over the complexities of contract law – Sawayama presumably having signed over the rights to her recordings in exchange for the label’s financial investment – but emotionally it plays to a fanbase who increasingly see “the industry” as the inherent enemy of art and creative autonomy. “The artists were creating those works, so really they should be owning them from an emotional point of view,” says Brian Message, a partner at Courtyard Management.

Artists today are more industry-literate and aware of the pitfalls and bear traps of the past, simply because they have to be. A multitude of older acts – perhaps most notably George Michael and Prince – had to take legal action over, in their eyes, being ripped off or badly exploited, while others such as Radiohead have made ownership of their rights in renegotiations an economic and moral mission. Some acts had prescient management on their side, with Bono recounting in his Surrender memoirs in 2022 that band manager Paul McGuinness negotiated with Island Records for U2 to take a lower advance and lower royalties as “it meant that at the end of a period of time we’d get back our rights and regain ownership of our recordings”.

Prince and George Michael are bleak warnings from history, but the moves by Swift, Rodrigo and others can stand as roadmaps for the future. It also means the music industry has had to adapt away from contracts based on ownership. There are two kinds of rights at stake here: the rights to the master recordings of an artist’s work, and songwriting rights, known as publishing. One senior music publishing executive says their part of the business was ahead of the curve, explaining that publishing deals tend to work on exclusive licensing terms or retention periods. “Publishers pivoted from a rights-ownership business to the servicing of rights,” they say. Those retention periods are getting shorter, they add, down from about 25 years three decades ago to between 12 and 15 years today.

David Martin, CEO of the Featured Artists Coalition, says there is “a propensity towards owning rights” for artists, but some acts are still prepared to sign away ownership for what they think might be their only shot at the big time. “We have members who are still signing major label deals,” he says. “Some of the terms in some of those deals are terms that we’d expect artists to be thinking very carefully about.”

Message says he steers acts away from ownership-based contracts. “We have a default position that we won’t advise our artists to do life-of-copyright deals,” he says. “It’s not that we wouldn’t do them, but our strong advice would always be to come up with a licence arrangement of some description.”

This is the ideological underpinning of BMG and AWAL (Artists Without a Label), which is now under the ownership of Sony Music Entertainment. “The philosophy is flipping the relationship,” says Alistair Norbury, president of repertoire and marketing at BMG UK. “There had to be a fairer and more transparent way to work with the creative community.”

Acts on BMG’s roster – notably Kylie Minogue, Suede, Sigur Rós and Louis Tomlinson – are on licensing or assignment deals, so ownership of the recordings eventually reverts to them. “They want to be with a record label where they have creative control and ownership coming back to them at some point,” says Norbury.

Link to the rest at The Guardian and thanks to C. for the tip.

PG says three cheers for musical artists who don’t give up rights forever.

Memorandum of Agreement for The 2023 WGA Theatrical and Television Basic Agreement

PG introductory explanation: The following is an excerpt between a couple of chapters of the Writers Guild of America and The Alliance of Motion Picture and Television Producers. The producers contract with writers for movie and television scripts.

Basically, this is a union contract with management. The original document is 94 pages long, and you should be able to review the entire document at the link if you’re into that sort of activity.

PG is excerpting a portion of the agreement that governs the use of Artificial Intelligence programs. He apologizes for the formatting, which he has tweaked a bit for readability but is, unfortunately, still used in far more than a few contracts negotiated by lawyers and keyboarded by legal secretaries. Additionally, PG could see no need for the use of quote marks here and there.

Note also that PG’s excerpt begins with Article 72 of the contract. PG reads these sorts of documents so you don’t have to.

From WGAcontract2023.org:

ARTICLE 72 GENERATIVE ARTIFICIAL INTELLIGENCE

A. The parties acknowledge that definitions of generative artificial intelligence
(‘GAI’) vary, but agree that the term generally refers to a subset of artificial
intelligence that learns patterns from data and produces content, including written
material, based on those patterns, and may employ algorithmic methods (e.g.,
ChatGPT, Llama, MidJourney, Dall-E). It does not include ‘traditional AI’
technologies such as those used in CGI and VFX and those programmed to
perform operational and analytical functions.

B. The Companies agree that because neither traditional AI nor GAI is a person,
neither is a ‘writer’ or ‘professional writer’ as defined in Articles 1.B.1.a.,
1.B.1.b., 1.C.1.a. and 1.C.1.b. of this MBA, and, therefore, written material
produced by traditional AI or GAI shall not be considered literary material under
this or any prior MBA.

C. Should a Company furnish a writer with written material produced by GAI which
has not been previously published or exploited, and instruct the writer to use the
GAI-produced material as the basis for writing literary material:

1. The Company shall disclose to that writer that the written material was
produced by GAI.

2. The GAI-produced written material shall not be considered assigned
material for purposes of determining the writer’s compensation.

3. The GAI-produced written material shall not be considered source material
for purposes of determining writing credit.

4. The GAI-produced written material shall not be the basis for disqualifying
a writer from eligibility for separated rights.

This subparagraph C. also applies when a writer, with the consent of the
Company, uses GAI in the course of preparing literary material. Company agrees
that it will not publish or exploit GAI written material for the purposes of evading
this provision.

“When a writer, with the consent of the Company, uses GAI in the course of
preparing written material or incorporates GAI-produced material in written
material, such written material shall be considered literary material and not
material ‘produced’ by GAI.

The following examples illustrate application of this subparagraph C.:

EXAMPLE 1:

“Company furnishes Writer A with written material substantially in the
form of a screenplay produced by GAI which has not been previously
published or exploited and assigns no other materials. Company instructs
Writer A to rewrite the GAI-produced written material. Company must
pay Writer A no less than the minimum compensation for a screenplay
under Article 13.A.1.a.(2), as well as no less than the amount specified in
Article 13.A.1.a.(9), ‘Additional Compensation Screenplay – No Assigned
Material.’ The GAI-produced written material is not considered source
material when determining writing credit to Writer A and will not
disqualify Writer A from eligibility for separated rights.

“Company later assigns the screenplay rewritten by Writer A to Writer B
and instructs Writer B to rewrite the screenplay rewritten by Writer A.
Company must pay Writer B no less than the minimum compensation for a
rewrite under Article 13.A.1.a.(3). Writer A’s rewritten screenplay must be
considered when determining writing credit to Writer B and eligibility for
separated rights.

EXAMPLE 2:

“Company furnishes Writer A with written material substantially in the
form of a story produced by GAI which has not been previously published
or exploited and assigns no other materials. Company instructs Writer A to
write a teleplay based on the GAI-produced written material. Company
must pay Writer A no less than the minimum compensation for a story and
teleplay. The GAI-produced story is not considered source material when
determining writing credit to Writer A and will not disqualify Writer A
from eligibility for separated rights.
“Company later assigns the teleplay written by Writer A to Writer B and
instructs Writer B to rewrite the teleplay written by Writer A. Company
must pay Writer B no less than the minimum compensation for a rewrite.
Writer A’s teleplay must be considered when determining writing credit to
Writer B and eligibility for separated rights.

“D. A writer will be required to adhere to the Company’s policies regarding the use of
GAI (e.g., policies related to ethics, privacy, security, copyrightability or other
protection of intellectual property rights). Any purchase of literary material from
a professional writer is also subject to such policies. A writer must obtain the
Company’s consent before using GAI. The Company retains the right to reject the
use of GAI, including the right to reject a use of GAI that could adversely affect
the copyrightability or exploitation of the work.

“E. A Company may not require, as a condition of employment, that a writer use a
GAI program which generates written material that would otherwise be ‘literary
material’ (as defined in Article 1.A.5.) if written by a writer (as defined in Article
1.B.1.a. and Article 1.C.1.a.) (e.g., a Company may not require a writer to use
ChatGPT to write literary material). The preceding sentence does not prohibit a
Company from requiring a writer to use a GAI program that does not generate
written material, such as a GAI program that detects potential copyright
infringement or plagiarism.

“F. The parties acknowledge that the legal landscape around the use of GAI is
uncertain and rapidly developing and each party is reserving all rights relating
thereto unless otherwise expressly addressed in this Article 72. For example,
nothing in this Article 72 restricts any writer who has retained reserved rights
under Article 16.B., or the WGA on behalf of any such writer, from asserting that
the exploitation of their literary material to train, inform, or in any other way
develop GAI software or systems, is within such rights and is not otherwise
permitted under applicable law.

“G. Each Company agrees to meet with the Guild during the term of this Agreement at
least semi-annually at the request of the Guild and subject to appropriate
confidentiality agreements to discuss and review information related to the
Company’s use and intended use of GAI in motion picture development and
production. The foregoing provision shall not be construed to waive any right of
the Guild under the National Labor Relations Act, including but not limited to the
right to seek information necessary and relevant to the administration and enforcement of this Article 72.”

Link to the rest at WGA Contract 2023

The brutal truth about earning out

From Blake Atwood:

What does earning out mean?

When an author signs a book deal with a publisher, the publisher pays the author in the form of an advance on future sales, aka an advance against royalties, aka an advance.

Let’s be optimistic and say that your literary agent sold your book to a publisher for $100,000. That means that prior to your book having gone on sale, you will have made $85,000.

Don’t forget: your lit agent gets 15 percent of what you earn. That number isn’t always the same for every agent, but 15 percent is typical.

That advance money may be paid in a lump sum, but it may also be doled out to you at specific publishing milestones, e.g., when you sign the contract, when you submit your manuscript to the publisher, and when the book is published.

Let’s assume that it takes approximately two years for those three events to happen. At that rate, you’re paid $28,333 three times over two years. Can you already see how even a sizable advance may not mean an author can quit their day job? We haven’t even accounted for taxes yet!

To “earn out” means that a publisher sells enough of that author’s book so that the publisher recoups their investment in the author.

In other words, the publisher needs to earn $100,000 before the author will ever see more money as a result of sales of their book.

Considering that an author stands to earn maybe $2.50 per hardcover book and less for other editions, at best, the publisher will have to sell 40,000 books for the author to earn out their $100,000 advance.

. . . .

According to Jane Friedman, 70 percent of authors don’t earn out their advance.

In other words, a majority of authors are paid anywhere between $5,000 and $1,000,000 in an advance and their book sales never match how many the publisher thought they could sell.

Fortunately for these authors, they don’t have to pay the advance back to the publisher. The advance is a calculated financial risk that publishers take on their authors.

. . . .

Literary agent Jeff Kleinman shared an apt visual for advances and royalties: Imagine a jar filled with 100,000 marbles. When you sign a book deal, you and your agent are given those 100,000 marbles. The publisher takes the jar back. Once they fill it back up with 100,000 marbles made through book sales, then the jar overflows and the author (and agent) “earn out” and begin to see royalty checks on top of what they’ve already been paid through the advance.

But that only happens 30 percent of the time.

Link to the rest at Blake Atwood

Here’s a link to Blake Atwood’s Author Page on Amazon. If you appreciate Blake’s insights, you might want to check out his books.

PG notes that it’s not unusual for a wide variety of little nibbles that some publishers and agents sometimes take from the author’s royalties. Some publishers and some agents add little fees for this and that, which can add up. Fedex fees charged by the agent to send you your royalty statements and royalty checks are one small example.

PG regards items such as these as part of the cost of doing business as a literary agent and, as such, the costs should be borne by the agency.

(Note: For simplicity’s sake, the following hypothetical does not include book wholesalers that all large and many small publishers use to warehouse and ship orders to individual bookstores and book chains and whoever else wants to purchase them.)

And don’t forget the notorious reserve against returns. For those who are unfamiliar with this process and how it is sometimes manipulated, PG will provide a quick overview.

  1. Publishers are happy to ship bookstores as many printed copies as the store is willing to accept. How can you expect the bookstore to make towering stacks of a book unless they have lots and lots of copies?
  2. All big bookstores and most small bookstores have the right to return any unsold hardcopies of a book the publisher has shipped to them and receive for full credit of the wholesale price the publisher charged them for the books in the first place.
  3. As an example, Bob’s Big Books orders 200,000 printed copies of Lucky Anna’s first book at the wholesale price of of $10 per book. To spare you any arithmetic, this means that Bob is receiving books with a retail price of Two Million Dollars. If Bob sells all 200,000 copies of the books at the suggested retail price, Bob will be depositing Two Million Dollars into his bank account. Of course, out of the two million, he’ll be paying rent, salaries, taxes, etc., but if Bob is a good manager, he’ll make a bunch of money after paying the related expenses involved with selling 200,000 copies of the book.
  4. However, although Bob has plenty of Lucky Anna’s books to stack up in his bookstore, he sells only 25,000 copies of the book.
  5. What is Bob going to do with 175,000 unsold copies?
  6. Under a long-standing system used by traditional publishing in the US, Bob can send his unsold 175,000 copies of Lucky Anna’s book back to the publisher for full credit.
  7. Bob only has to pay for the 25,000 books he sells for a total of $250,000
  8. The publisher then has 175,000 more hardcopy books sitting copies sitting in a warehouse somewhere.

What’s a Publisher to Do?

1. In a reasonable-sounding accounting manner, the Publisher holds a financial reserve against book returns. Lucky Anna is only paid a royalty for amounts the publisher has actually received, less a reserve for returns.

2. Let’s assume hypothetically that a salesperson for a traditional publisher makes a two million dollar sale of a single title written by Lucky Anna to Bob’s Bookstore. The Publisher determined that setting a return against reserves of $1,900,000 would be prudent.

3. Conveniently, even though the Publisher shipped Two Million Dollars worth of one of Lucky Anna’s books to Bob’s Bookstore, after subtracting the $1,900,000, the reserve amount the Publisher set, The Publisher is required to pay Lucky Anna royalties only on the $100,000 remaining after subtracting the $1,900,000, the amount the publisher has set as a reserve against returns.

4. Multiply the calculations for Bob’s Books by 1,000 other bookstores, and you can see the calculations getting very sticky.

5. When Bob’s Bookstore returns $1,750,000 worth of Lucky Anna’s books to the Publisher, theoretically, the Publisher should pay Lucky Anna royalties on the $150,000 Bob sold beyond the amount the Publisher estimated that Bob would return for credit.

6. “However,” the Publisher thinks, “not every bookstore is like Bob’s. Some of the other bookstores will certainly return a higher percentage of books they didn’t sell than Bob did.”

7. Traditional publishing contracts allow the Publisher to withhold “a reasonable reserve for returns.”

8. “Reasonable” is, of course, in the mind of the Publisher.

9. Back to our hypothetical, the Publisher has sold books to a zillion other bookstores. The Publisher reasonably decides that not every bookstore is exactly like Bob’s. Some will sell a higher percentage of the books shipped to them than Bob did and others will sell a much smaller portion of the books shipped to them than Bob did.

10. Theoretically, a smart and highly computerized publisher would have track records on what the rate of returns each bookstore demonstrated for at least a few hundred of the titles the Publisher had released. But that would require the Publisher to spend a lot of money on analysts and statisticians to examine the data and calculate probable return rates for fiction, non-fiction, various genres, etc. And what English major wants to walk into that bramblebush?

11. PG’s understanding is that, to the extent traditional publishers think about the number or percentage of books that will be returned for credit, they either use intuition and listen to the music of the publishing spheres or they just lump almost all books into a big bucket. Rules of thumb prevail to the extent anyone thinks about accurate forecasting.

12. Given this fundamental truth, PG understands that most traditional publishers hold a higher amount of reserves against returns than they expect they will ever need.

13. Whether anyone does an accurate job of recalculating Lucky Anna’s past royalties should reserves for returns be much higher than the number of actual returns would justify, PG doesn’t know. He has his suspicions, however.

14. However, PG is certain that mistakes will be made by the Publisher and its underlings. He suspects that, on occasion, a mistake will be identified and remedied. On other occasions, a mistake will go unidentified or be ignored on the theory that the Lucky Anna will never ask about it.

15. Theoretically, Lucky Anna’s literary agent is double-checking the publisher’s reports for errors and jumping on the publisher when she locates one. Or, more often than not, the agent is out pushing for new business and delegates the arithmetic to the agent’s underpaid staff. This brings in more English majors earning low salaries into the mix.

16. More than a few agents have lots of turnover of back-office staff and not a lot of time to train newbies thoroughly. Or they have close to no back-office staff.

17. In the United States, there is no official set of requirements that must be met before an individual hangs out a shingle saying they’re a literary agent and are accepting new submissions.

18. Someone can get out of prison after serving a ten-year sentence for accounting fraud on one day and open up shop as a literary agent the next day.

19. What could go wrong?

20. PG acknowledges that there are some very hard-working and dedicated employees in at least some publishers and at least some literary agencies. He has no intention of slandering such individuals. However, he will say that for most authors, accurately assessing who will do a good job on their books and who will not is effectively impossible.

Willingham Sends Fables Into the Public Domain

From These Foolish Games:

Fables Press Release

Subject: Fables Enters the Public Domain

15 September 2023

By Bill Willingham

For Immediate Release

The Lede

As of now, 15 September 2023, the comic book property called Fables, including all related Fables spin-offs and characters, is now in the public domain. What was once wholly owned by Bill Willingham is now owned by everyone, for all time. It’s done, and as most experts will tell you, once done it cannot be undone. Take-backs are neither contemplated nor possible.

Q: Why Did You Do This?

A number of reasons. I’ve thought this over for some time. In no particular order they are:

1) Practicality: When I first signed my creator-owned publishing contract with DC Comics, the company was run by honest men and women of integrity, who (for the most part) interpreted the details of that agreement fairly and above-board. When problems inevitably came up we worked it out, like reasonable men and women. Since then, over the span of twenty years or so, those people have left or been fired, to be replaced by a revolving door of strangers, of no measurable integrity, who now choose to interpret every facet of our contract in ways that only benefit DC Comics and its owner companies. At one time the Fables properties were in good hands, and now, by virtue of attrition and employee replacement, the Fables properties have fallen into bad hands.

            Since I can’t afford to sue DC, to force them to live up to the letter and the spirit of our long-time agreements; since even winning such a suit would take ridiculous amounts of money out of my pocket and years out of my life (I’m 67 years old, and don’t have the years to spare), I’ve decided to take a different approach, and fight them in a different arena, inspired by the principles of asymmetric warfare. The one thing in our contract the DC lawyers can’t contest, or reinterpret to their own benefit, is that I am the sole owner of the intellectual property. I can sell it or give it away to whomever I want.

            I chose to give it away to everyone. If I couldn’t prevent Fables from falling into bad hands, at least this is a way I can arrange that it also falls into many good hands. Since I truly believe there are still more good people in the world than bad ones, I count it as a form of victory.

2) Philosophy: In the past decade or so, my thoughts on how to reform the trademark and copyright laws in this country (and others, I suppose) have undergone something of a radical transformation. The current laws are a mishmash of unethical backroom deals to keep trademarks and copyrights in the hands of large corporations, who can largely afford to buy the outcomes they want.

In my template for radical reform of those laws I would like it if any IP is owned by its original creator for up to twenty years from the point of first publication, and then goes into the public domain for any and all to use. However, at any time before that twenty year span bleeds out, you the IP owner can sell it to another person or corporate entity, who can have exclusive use of it for up to a maximum of ten years. That’s it. Then it cannot be resold. It goes into the public domain. So then, at the most, any intellectual property can be kept for exclusive use for up to about thirty years, and no longer, without exception.

Of course, if I’m going to believe such radical ideas, what kind of hypocrite would I be if I didn’t practice them? Fables has been my baby for about twenty years now. It’s time to let it go. This is my first test of this process. If it works, and I see no legal reason why it won’t, look for other properties to follow in the future. Since DC, or any other corporate entity, doesn’t actually own the property, they don’t get a say in this decision.

Q: What Exactly Has DC Comics Done to Provoke This?

Too many things to list exhaustively, but here are some highlights: Throughout the years of my business relationship with DC, with Fables and with other intellectual properties, DC has always been in violation of their agreements with me. Usually it’s in smaller matters, like forgetting to seek my opinion on artists for new stories, or for covers, or formats of new collections and such. In those times, when called on it, they automatically said, “Sorry, we overlooked you again. It just fell through the cracks.” They use the “fell through the cracks” line so often, and so reflexively, that I eventually had to bar them from using it ever again. They are often late reporting royalties, and often under-report said royalties, forcing me to go after them to pay the rest of what’s owed.

            Lately though their practices have grown beyond these mere annoyances, prompting some sort of showdown. First they tried to strong arm the ownership of Fables from me. When Mark Doyle and Dan Didio first approached me with the idea of bringing Fables back for its 20th anniversary (both gentlemen since fired from DC), during the contract negotiations for the new issues, their legal negotiators tried to make it a condition of the deal that the work be done as work for hire, effectively throwing the property irrevocably into the hands of DC. When that didn’t work their excuse was, “Sorry, we didn’t read your contract going into these negotiations. We thought we owned it.”

            More recently, during talks to try to work out our many differences, DC officers admitted that their interpretation of our publishing agreement, and the following media rights agreement, is that they could do whatever they wanted with the property. They could change stories or characters in any way they wanted. They had no obligation whatsoever to protect the integrity and value of the IP, either from themselves, or from third parties (Telltale Games, for instance) who want to radically alter the characters, settings, history and premises of the story (I’ve seen the script they tried to hide from me for a couple of years). Nor did they owe me any money for licensing the Fables rights to third parties, since such a license wasn’t anticipated in our original publishing agreement.

            When they capitulated on some of the points in a later conference call, promising on the phone to pay me back monies owed for licensing Fables to Telltale Games, for example, in the execution of the new agreement, they reneged on their word and offered the promised amount instead as a “consulting fee,” which avoided the precedent of admitting this was money owed, and included a non-disclosure agreement that would prevent me from saying anything but nice things about Telltale or the license.

            And so on. There’s so much more, but these, as I said, are some of the highlights. At that point, since I disagreed on all of their new interpretations of our longstanding agreements, we were in conflict. They practically dared me to sue them to enforce my rights, knowing it would be a long and debilitating process. Instead I began to consider other ways to go.

Q: Are You Concerned at What DC Will Do Now?

No. I gave them years to do the right thing. I tried to reason with them, but you can’t reason with the unreasonable. They used these years to make soothing promises, tell lies about how dedicated they were towards working this out, and keep dragging things out as long as possible. I gave them an opportunity to renegotiate the contracts from the ground up, putting everything in unambiguous language, and they ignored that offer. I gave them the opportunity, twice, to simply tear up our contracts, and we each go our separate ways, and they ignored those offers. I tried to go over their heads, to deal directly with their new corporate masters, and maybe find someone willing to deal in good faith, and they blocked all attempts to do so. (Try getting any officer of DC Comics to identify who they report to up the company ladder. I dare you.) In any case, without giving them details, I warned them months in advance that this moment was coming. I told them what I was about to do would be “both legal and ethical.” Now it’s happened.

            Note that my contracts with DC Comics are still in force. I did nothing to break them, and cannot unilaterally end them. I still can’t publish Fables comics through anyone but them. I still can’t authorize a Fables movie through anyone but them. Nor can I license Fables toys nor lunchboxes, nor anything else. And they still have to pay me for the books they publish. And I’m not giving up on the other money they owe. One way or another, I intend to get my 50% of the money they’ve owed me for years for the Telltale Game and other things.

However, you, the new 100% owner of Fables never signed such agreements. For better or worse, DC and I are still locked together in this unhappy marriage, perhaps for all time.

But you aren’t.

If I understand the law correctly (and be advised that copyright law is a mess; purposely vague and murky, and no two lawyers – not even those specializing in copyright and trademark law – agree on anything), you have the rights to make your Fables movies, and cartoons, and publish your Fables books, and manufacture your Fables toys, and do anything you want with your property, because it’s your property.

Mark Buckingham is free to do his version of Fables (and I dearly hope he does). Steve Leialoha is free to do his version of Fables (which I’d love to see). And so on. You don’t have to get my permission (but you might get my blessing, depending on your plans). You don’t have to get DC’s permission, or the permission of anyone else. You never signed the same agreements I did with DC Comics.

Link to the rest at These Foolish Games and thanks to B. for the tip

PG notes that, absent a provision that specifically prohibits them from being sold, assigned or transferred, most publishing agreements can be assigned/sold to someone the author doesn’t know.

The promises made by employees of publishers regarding ambiguous language in publishing contracts that “we don’t believe that provision means what you think it might mean” or “we would never use this provision in the way you’re suggesting because that wouldn’t be fair to our authors and that’s something we won’t ever do,” while having been accepted by a huge number of traditionally-published authors, are no protection for the author.

As described in the OP, new management or new owners will look to the contract language and, often, give no effect to understandings between the publisher and the author that are not spelled out clearly in the written contracts.

There is an argument to be made that, by the publisher’s earlier voluntary actions, the previous bunch effectively modified the written words of the contract and the former publisher’s purchasers/assignees should be bound by the acts of the previous publisher. However, speaking generally, that’s a desperate legal tactic that may or may not fly, depending on how a judge is feeling on the day she/he hears the case.

That said, most judges on most days will default to looking to the language of the written contract to determine whether the author granted the publisher the right to do what the latest owners of the publisher want to do.

The actions taken by Mr. Willingham, the author of the OP and the creator of the intellectual property under new and unfriendly management, while emotionally understandable, end up trashing the value of Mr. Willingham’s creations.

PG has mentioned the following suggestions far more than once on TPV:

  1. Read every word of the contract. If you don’t understand any portion of the contract, you need to contact a competent attorney who has spent enough time with copyright licenses to know what she/he is doing. (PG used to fall into that category, but he has permanently taken down his shingle and doesn’t practice law any more.)
  2. If you or your attorney objects to any portion of the contract language and the counter-party says something like, “We would never do that” or “We don’t think that provision means what you think it means,” your unfailing response should be some variation of “I’m so pleased to know that. Let’s change the contract language to state the actual ways we’re going to do business with each other to avoid any possible future misunderstandings and keep our business relationship on an amicable basis.”

There are more than a few other things to consider/fix, but the two paragraphs above are the bones of making certain an author signs a fair contract and doesn’t have any nasty surprises with the publisher or whoever manages or buys the publisher in the future.

Imbalance of Power

From Publishers Weekly:

Mary Abigail Dodge (1833–1896), known by the pen name Gail Hamilton, was hailed in a national newspaper after her death as “the most brilliant woman of her generation.” Author of numerous essays and more than 25 books on religion, politics, travel, rural life, and the rights of women, Hamilton also played a key role in the evolution of publishing when she sued her publisher, James T. Fields (of the house Ticknor & Fields), for underpaying her. With the issue of how writers are valued and paid still raging today, the legal battle waged by this writer is a reminder of how little things have changed.

At 23, Hamilton had an essay run in National Era, an abolitionist magazine edited by Gamaliel Bailey, best known as the editor of Uncle Tom’s Cabin. She began to write regularly for him, and he invited her to move to Washington, D.C., to be governess for his children. While this arrangement would be considered inappropriate today, it afforded Hamilton opportunities to rub elbows with politicians and thought leaders that fed her writing. (Later in her career, however, she was a vocal critic of paternalist publishers.)

In her essays and books, Hamilton urged women not to conform to societal expectations and instead become what she called “androgynous,” by which she meant they should develop the side of themselves she felt most resembled men, giving up any tendency to remain ignorant of, or above, worldly, commercial dealings. She felt that women’s spiritual and artistic tendencies should be tamped down in favor of male decisiveness and firmer attitudes. She especially advised this for women writers, saying, “a certain prejudice against female writers ‘still lives.’ It is fine, subtle, impalpable, but real.”

Her assessment that women writers weren’t treated as equal to men was confirmed when she discovered that her publisher, whether by accident or design, had cheated her out of her royalties. Fields published Hamilton’s first book in 1862 and subsequently published seven more. Theirs was a friendly relationship until 1867, when Hamilton learned that most beginning authors received a 10% royalty, while she received only 6% and 7%. For her subsequent books, Fields had convinced her to accept 15¢ per copy. When they sold for $1.50 each, the arrangement was fair, but as the price of her books rose, her earnings didn’t.

Hamilton and Fields had no written contract, merely a congenial relationship that benefitted the publisher more than the author. When she approached him about the discrepancy, instead of acknowledging the error, he dismissed her complaint, calling her “aggressive” and “unwomanly.”

Hamilton pursued legal arbitration, gathering a sizable amount of data from other publishers and authors in an attempt to prove that the entire royalty system was arbitrary and capricious. Nathaniel Hawthorne’s widow shared that at the start of her husband’s career, he had received 15% from Fields but was later knocked down to 10%. Other authors received 20%, while Harriet Beecher Stowe received a full 50% of the profits from her highly successful books. It galled Hamilton that writers seemed grateful to accept whatever rates publishers chose for them.

Though she worked with a lawyer, Hamilton presented her own case in the hearing and petitioned for the 10% she had never received, plus an additional 7%, and legal expenses of $3,000. In their ruling, the arbitrators determined that neither party had intended to defraud the other—a decision that treated the two parties as equals, when clearly they were not.

. . . .

(T)he literary community took notice, and the veneer of gentlemen publishers was forever tarnished. Hamilton successfully warned writers to be wary of the supposed benevolence of the gentlemen’s business. Her case made it obvious that authors assigned too much importance to publishers’ reputations and not enough to their own financial interests.

In Hamilton’s opinion, a writer’s relationship to his or her publisher was too much like that of a submissive wife in a traditional marriage.

Link to the rest at Publishers Weekly

Book Origins and the Ongoing Journey

From Women Writers, Women’s Books:

New Story, New Power: A Woman’s Guide to Negotiation, took a few years to research and write, but it was a lifetime in the making. I have been working in the area of negotiation for more than 30 years, with its origins in my experience in intercultural communications. I lived and worked in Japan for 13 years, and being an independent, New York woman, meeting this very different culture head on was a rude awakening. Those encounters naturally led to my interest in cross-cultural conflict, partly from my own personal experiences and partly from observing what was around me. I put gender in the classification of being a culture.

Cultures socialize those born into them about how to be in that world. We are socialized to be a certain way, with a particular set of values and beliefs, habits, and ways of thinking and behaving that create the stories by which we live. We have our family stories that we carry and we have our own personal stories that guide us over time. Some of these stories are generative and lead us to where we want to be and others get in the way of us progressing. I was curious to know more about why some women carried stories that helped them at the negotiating table, while others carried stories that inhibited them, caused them stress, and got in the way of being effective negotiators. I wondered about the specific origins of these stories and how they influenced women negotiating?

As a scholar-practitioner, a large part of my world is in the academy and there is an orientation to grounding what I have to say in evidence-based research. I support this in the world of practice, as well: the difference is in how we gather data, what we are looking for, and how we use what we find. I interviewed hundreds of women, to find out more about they bring the stories they carry and by which they live to the negotiation table: women from across industries, with one study being solely focused on women in the STEM professions; women who were junior in their career, with five or less years of experience; mid-career women with 10-15 years of experience; and women who had more than 25 years of experience.

The findings from these studies matched what I was seeing in my coaching sessions with women and in the workshops I conducted on negotiation, leadership, and communication. Some of the findings showed that women carry stories from when they were very young to present times and these stories influenced how they prepared for and conducted themselves during their negotiations. I became curious about why some stories stuck with them more than others and how they manifested in their particular behaviors at the negotiating table, in their everyday interactions, and in their career advancement.

I also wanted to explore beyond the workplace and see how these stories appeared in their families, in their interpersonal dynamics with friends and romantic partners, in their everyday interactions. For me, research and practice inform one another, so that what I discover in research I apply in practice, and what I see showing up in practice I explore through research.

And I am certainly not immune to these same stories! I often say that I was born over confident and I have been managing it ever since. I grew up hearing stories about how I could be anything I wanted to be and I took those stories to heart. However, there were also stories of not being good enough, pretty enough, smart enough, and so on, that dampened the confidence-building stories. Even while writing this book, every now and then I would stop and question myself about whether I had the knowledge, experience, and credentials to be writing it. Then I would take a step back, fascinated that I was experiencing the same things I was writing about. Our narratives are so strong!

That meta-awareness amused me and helped me recalibrate. I reviewed the sources of the information I gathered from hundreds of women, many research studies, my own observations, and reassured myself I could and should continue. I was sharing with others what a collective of women find useful. Sharing this information and having otters learn, practice, and make it their own is the value. It builds confidence, while developing negotiation skills.

Link to the rest at Women Writers, Women’s Books

The word negotiation is derived from two Latin terms, negare otium; they translate literally as “to deny leisure.” In French and Spanish, “deny leisure” becomes “business.” Yet, while the word is Latin-derived, the behavior predates that culture by roughly 200,000 years, dating back to ever since Homo sapiens developed as a species.

Going Forward to the Past: A Brief History of Negotiation

PG first became interested in negotiation as a field of study about 7-8 years into his legal career. He stumbled across a publication from something called The Harvard Negotiation Project, which included both the law school and the business school. He read severa; papers the Project had published and was very intrigued.

Many lawyers and business people felt negotiation was a talent which an individual did or didn’t possess. Among those who possessed a talent for negotiation, some were better than others.

The Harvard Project (now a well-established department, primarily in the Law and Business Schools, but stretching into other domains as well) was one of the earlier attempts to study the way that individuals negotiated with each other.

Some accepted techniques included putting forward a proposal for an agreement and sticking to it regardless of how the other party to the negotiation responded. This was often accompanied by a tough-guy persona that basically communicated, “My way or no way.”

While elements of this approach could be useful, the negotiation researchers found that this approach lead to quite a number of failed negotiations with neither party agreeind. In legal terms, this approach was likely to end with, “Let the judge decide.”

Other approaches involved being so anxious to reach an agreement that one side of a negotiation conceded a lot more than would have been necessary to come to an agreement – paying more money than necessary, accepting less money than the other side was willing to offer, etc., etc.

Some styles of negotiation involved hiding what concessions one party was willing to make vs. making concessions so quickly that the other side thought that there would be many more concessions available if they just kept saying no.

One of the lessons from the studies was that planning ahead for a negotiation tended to make a negotiations more successful for both parties. Another lesson was that preparing for not being able to come to an agreement and what alternative paths might be available.

The acronym was BATNA – Best Alternative to a Negotiated Agreement.

If a party had a good idea for a path that would allow it to meet at least some of its important goals if the contract negotiation didn’t work out because the other side wanted more than the party was willing to give.

In the author/publisher world, an example of BATNA for an author is to self-publish her/his book instead of agreeing to a traditional publishing agreement which involved paying a literary agent 15% of all money the publisher paid in royalties.

How Bad Publishers Hurt Authors

From Jane Friedman:

It began with that heart-fluttering feeling of acceptance after so many rejections. My second novel was going to be published!

It was the end of August 2020. The world as we knew it had been upended. We were getting deeper into the pandemic, with fear, illness, death, and uncertainty ravaging the world. When New York City–based Adelaide Books offered me a contract to publish Painting Through the Dark, it set my heart racing in a good way. It was a promise.

The contract looked good: 20% royalties, paperback and ebook, quarterly reports, approval over the design and cover art. The marketing plan also sounded excellent: pre-publishing editorial review, all pre- and post-print marketing tools and services, design and maintenance of author’s website, magazine promotion and interview with author, social and blog posts, book video trailer, book giveaways to bloggers, and consideration for various literary competitions. Plus two free books for the author, and further books could be purchased at a 30% discount.

Then came this sentence: “All we ask of you is to pre-purchase 45 copies of your book (at 30% discount) upon signing the contract as a token of your support for our publishing endeavor.”

That’s when the happy heart flutter turned anxious. Was this legit?

I knew that after publication I’d order at least that many books for private events, but still. I checked the company out. They had been in business for several years and had offices in New York and Lisbon. They listed a large number of titles on their website. They attended the Frankfurt Book Fair every year, in addition to the Lisbon and Brooklyn book festivals. I asked around—friends who were published authors, others with knowledge of independent publishing. In their opinion it wasn’t a red flag. Several said it wasn’t unusual to ask authors to buy a certain number of copies up front. I was thrilled. This was the answer I wanted. I didn’t relish the long, soul-killing process of querying all over again. I squelched any remaining doubts and signed.

After finalizing the contract, communication was sketchy. Weeks would go by between emails. I knew Adelaide was a small company, and I was concerned about the large number of books on their roster. I finally requested a Zoom meeting and was reassured by a pleasurable, hour-long, wide-ranging conversation with the publisher. He clearly loved and believed in books. We talked about what to expect when my book came out—I was definitely coming to New York for the Brooklyn Book Festival, and he told me he would book me at the Strand bookstore and other NYC locations. Distribution was through Ingram. This was all working out.

After that call, the publisher wasn’t responsive to emails, but I convinced myself all was well. The dates for publication were pushed back a few times due to COVID, but I was fine waiting until it might be safe to do in-person readings. I thrive on meeting readers, having conversations, signing books.

After a couple of rounds of editing, Adelaide fell off the radar again. Even when I put URGENT, CONCERNED, PLEASE RESPOND, in the subject line of my emails, I got no response. I tried not to sound desperate, but I was. The publisher never answered the phone or replied to voicemail messages. My book suddenly appeared on Amazon in July 2022. No advance reader copies, no reviews, none of the publicity promised in the contract.

I approached local bookstores in Portland, Oregon, where I live, so I could set up readings. They all told me they couldn’t find my book on Ingram. I was embarrassed. I told them there must be some hold up as my books were definitely on Ingram. I said I’d get back to them after I spoke with my publisher.

. . . .

When I reached out to Authors Guild, they informed me that their lawyers had been sending letters to Adelaide since June with no response. They said they would add my name to the next letter naming authors seeking reversion of rights. They set up a Zoom meeting for Adelaide orphans and suggested we all file with the New York Better Business Bureau and New York State Attorney General. They requested we send our stories, and they would pitch to Publishers Weekly. I filed complaints with NYBBB and the Attorney General. I received replies saying they had attempted to contact Adelaide but received no response. The NYBBB added, “A firm’s rating may be affected by its failure to answer even one complaint. Your experience may, therefore, alert other inquirers seeking information through the BBB.” Hopefully filing complaints would help someone.

Link to the rest at Jane Friedman