Contracts

On Agency Clauses

29 August 2014

From Adventures in Agentland:

A typical agency clause will read something like:

Author authorizes Agent, located at (ADDRESS), to collect all gross sums of money due under this Agreement. Any receipt of such sums shall be a good and valid discharge of Publisher’s obligations to make payments to Author. Agent is empowered to act on behalf of Author in any and all matters arising out of this Agreement.

In the article, the author addresses why this is problematic, and recommends either not having this clause, and having all money go directly to you, or modifying it to be revocable at any time.

For the record, I HIGHLY respect SCBWI, and I HIGHLY respect the author of the article. The intention behind it is very good, and authors SHOULD think about what they’re agreeing to; it IS problematic if you’ve signed with a “schmagent” – someone who disappears, along with your statements and royalty checks, leaving you high and dry.

I shared my post with Sara Rutenberg, the author of the SCBWI article, who pointed out: “Unfortunately, there are so many agents out there who are unscrupulous. The column was written in response to a number of people who found themselves in [the position of being with an agent who is not remitting timely or disappears]. It is critical to [discuss the agency clause] up front, or people will not feel comfortable taking actions needed to protect themselves.”

. . . .

I think it would be a mistake to feel that you are getting a bad deal from, or not sign with, an agent or agency that insists on this language.

Why?

There are several issues with direct payments. If you have your royalty statements and payments coming to you, instead of your agency, you would be responsible for remitting your agency’s commission and, at the end of the year, also remitting a 1099 to that agency for what you paid them. I actually can’t imagine that any foreign publisher would be ok sending payment to the author, instead of the foreign co-agent who brokered the deal – but, in that case, you’d be responsible for remitting payment to your agent, your co-agent, and dealing with any tax withholdings applicable to the specific country’s laws when you pay your co-agent (and then have to remit a tax form to them, too, at the end of the year).

You would also be responsible for sharing statements with your agent(s). Why? We need to check them! Think mistakes never happen? Think again!! It is part of my job to monitor any statements that come in, to be sure everything is calculated and reported correctly.

. . . .

You can absolutely discuss the split payment option with your agent upfront. However, keep in mind that not all publishers will agree to this (particularly in the case of subsidiary rights), which is why an agent may not agree to contractually be obligated to secure split payments for you.

. . . .

But, as I said, this isn’t something every agent will agree to, even if discussed upfront. And that doesn’t have to mean the agent is a schmagent, or that you’re getting screwed. The agency clause is VERY common. At the end of the day, if you have doubts about whether or not you can trust your agent to handle funds or statements – why are you signing with this person?! I think the true warning, and really, what Sara was after too, should go against schmagents, rather than the agency clause. You sure as heck should have done your research to make sure the agent offering rep is legit.

The agent-author relationship should be one of trust. If you’re worried your agent is going to, or currently is, screwing you over…you’ve got issues that need to be addressed immediately, either in conversation with your agent, or by parting ways/not signing with that agent.

Link to the rest at Adventures in Agentland and thanks to Sandra for the tip.

The original post is incoherent in spots, so allow PG to clarify a few points:

1. The agreement between author and agent as well as an agency clause in a publishing agreement should always provide for split payments with 85% going directly from the publisher to the author and 15% paid to the agent. Each payment should be accompanied by a royalty report delivered to both the author and the agent.

There are no benefits and many potential downsides for an author to have the entire royalty check sent to the agent. At a minimum, there will be an unnecessary delay of a few days or a few weeks between the time the royalties are paid to the agent and the time the author receives his/her share of the royalties.

And if an agent runs into financial troubles or develops a drug habit . . . . Stories of agents stealing from authors are legion. PG believes most agents are honest, but everyone is better off to avoid the possibility of temptation. An old Mark Twain (PG thinks) saying applies here, “Many a man has been saved from sin by the lack of opportunity.” Mark Twain spoke before gender language equity, but the saying would also apply to many a woman.

2. PG usually doesn’t play  the lawyer card, but the advice to check out your agent and go on trust (instead of a proper contract) is typical of the way non-lawyers think about business relationships. And very few agents are lawyers.

How long does the contract last? While PG strongly objects to their length, a typical publishing contract lasts for the life of the author plus 70 years in the US and for a similarly long time in most other industrialized nations.

Under a standard agency contract, how long will the agent be collecting royalties when an author signs a typical publishing contract? You guessed it, the life of the author plus 70 years.

Agents die. Agents go out of business. Agents sell their businesses to other agents. Agents merge their businesses with other agencies. The probability that the agent who sells a book to a typical publisher will still be around when the publishing contract finally ends is very close to zero. The probability that, at some time during the life of the publishing contract, a total stranger will take over administration of the contract in place of the original agent is close to 100%.

Your original agent could be the Mother Teresa of the agent world, someone who would never, ever do anything to harm an author under any circumstances. But, when Mother Agent goes to her heavenly reward, she could be succeeded by Mother Devil. You don’t want Mother Devil’s hands on your money.

3. PG could mumble on about other problems with the original post, but he won’t. Like many other fields of human endeavor, some agents are wonderful and capable, other agents are terrible and incompetent and most are somewhere in the middle.

Some of the problems with agents are a result of the fact that anybody can call themselves a literary agent regardless of qualifications or the lack thereof. Cathy Convict could walk out of a twenty-year stretch in Folsom Prison on Monday afternoon and set herself up as Cathy Agent on Tuesday morning.

For all their shortcomings, lawyers must hold a valid license to practice law. For all their shortcomings, bar associations can and do cause lawyers’ licenses to be yanked if the lawyers don’t follow the rules. Clients can file complaints with bar associations without hiring a lawyer to assist them. For all its shortcomings, the threat of losing a license helps keep lawyers in line.

If a lawyer does what virtually all agents do – receives all the royalties payable under a publishing contract, then pays the author 85% of the proceeds – the lawyer would be required to maintain a trust account separate from any other bank accounts for the purpose of holding client funds. The lawyer would have to deposit the publisher’s check into the trust account and pay the author directly from that account. The trust account is subject to audit by the bar association to make sure client money is handled properly.

Trust account mismanagement is one of the quickest ways to lose a law license. A complaint from a client to a bar association about trust account problems may be the best way to fast-track a bar association investigation of that lawyer. A lot of lawyers (including PG) strive to avoid receiving client funds in order to stay clear of potential trust account issues.

None of these safeguards apply to a literary agent. There is no agent’s license to yank. The agent may have a trust account, but nothing requires the agent to put all client funds in the trust account. If a client has a complaint about improper behavior by an agent, there is no agents’ bar association where the client can lodge a complaint. An author has no way to resolve a large problem with an agent short of hiring an attorney and, if that doesn’t work, filing suit against the agent.

Up Against Amazon

15 August 2014

From the Independent Book Publishers Association:

Amazon doesn’t just take orders. It is used to barking orders at publishers and getting us to salute. But bullying only goes so far, and I’m thankful that a single large publisher, Hachette, stood up to it and that The New York Times ran an editorial about its strong-arm tactics.

I’ve been sitting on my own Amazon story for a while, after having receiving a threatening phone call from its legal department when I refused to agree to a unilateral change of terms. But with all the publicity and debate about Hachette, I thought other publishers, as well as Berkshire Publishing’s friends, colleagues, and customers, might like to know about our experience and why I believe that Amazon is destroying healthy competition in the publishing world.

. . . .

My fight with Amazon began when it decided to go after traditional “short discount” publishers (academic presses as well as presses like Berkshire Publishing) with a unilaterally imposed change in business terms announced only in a “case note” within their order-processing platform. This platform is normally used to inquire about the availability of certain books and is used by customer service staff.

A colleague of mine whose staff was puzzled enough to pass the “case note” along to him asked Amazon to contact him directly by telephone or email, saying that business terms were a matter for our company’s executive team. Amazon refused to talk—communication would take place only through the “case.”

Berkshire Publishing had sold print through Amazon.com since 2006. Although it originally demanded a 40% discount—four times our standard—I decided that we should make books available through any major platform that individual readers and libraries use. Our authors like knowing that their books are readily available worldwide. And we reach some people who would never otherwise know about our titles. In fact, I was recently at a meeting in Beijing and showed a copy of our book This Is China: The First 5,000 Years. Two of the people there started whispering and giggling, and finally one spoke up, “I have that book. I ordered it from Amazon!”

Amazon’s demand in 2012 was for an additional 5%, bringing the discount to 45% (some academic presses had been at 25%, so the change to 45% meant a reduction of 80% in their net income from Amazon sales). Bookstores generally get a discount of 30-40%. Amazon has been getting 50-55% from the big trade presses, and the current battles are in part over further discounts that Amazon is demanding to increase its marginal profit.

. . . .

Amazon is destroying competition and innovation because it is not letting the market determine winners and losers, but is instead making the selection itself, deciding arbitrarily where to take its pound of flesh and shore up its feeble margins. Publishers (and authors) would be fine if they were actually competing with one other for sales without Amazon sucking the life out of every transaction.

Finally, what happened? Are Berkshire Publishing titles available through Amazon? Dear reader, I capitulated after four months. It wasn’t fair; it wasn’t good for anyone but Amazon, but I was losing sales that I needed and I gave in.

Link to the rest at the Independent Book Publishers Association and thanks to Karen, who points out that this brings into focus the area where independent publishers and independent authors are NOT aligned for the tip.

While PG almost reflexively takes the side of the little guy/gal in any battle, he would suggest that Amazon is exquisitely attuned to the market, much more so than any publisher.

 

For the Authors Guild & Other Legacy Publishing Pundits

4 August 2014

From Joe Konrath:

Recently on Twitter, Barry Eisler asked with sincerity, “Why would anyone want to join the Authors Guild?”

Bestselling author and celebrated indie, CJ Lyons, whom the AG mentioned as an example of diversity, responded with, “What’s your wish list for a Guild?”

Barry didn’t miss a beat, and immediately replied that the Authors Guild should change its name to reflect its fundamental purpose, because the Guild clearly represents legacy publishers more than it represents writers.

. . . .

So here is my wish list:

1. Support the authors in the Harlequin lawsuit and fight to get their backlist rights returned. Then do the same for all members who want to get their backlist rights returned.

It’s no secret I got my rights back, and there are hundreds, if not thousands, of other authors who want theirs back, too. It’s the single most asked-question I get via email, and my required response is that my publishers and I parted amicably, which is the limit of what I can say. I can’t help. But the AG could.

2. Draft a petition to raise ebook royalties for all authors. If a publisher doesn’t comply, these authors will no longer submit work to that publisher. If you could align with a like-minded AAR, real change could be instituted.

The Guild has stated publicly that they don’t believe 25% of net is fair. Well, DO SOMETHING ABOUT IT.

3. Demand that unconscionable contract terms are removed in legacy boilerplate, including holding rights for term of copyright, impossible rights reversion clauses, the elimination of non-compete clauses, the elimination of first option clauses.

A guild for authors would not only pressure publishers to return rights that they’re sitting on without making any discernible profit, but it would also use attorneys to get the DOJ to examine the unconscionability of publishing contracts. I can’t think of a more lopsided abuse of power than the paper oligopoly controlled by the Big Publishing cartel for the last fifty years, and how many authors have been forced to take ridiculously one-sided terms in order to get their books into bookstores.

Seriously. This is perfect for a class action suit.

. . . .

 7. Coordinate with David Gaughran to petition and publicly disapprove of any publisher engaged in vanity publishing. As far as I’m concerned, Gaughran should be a paid consultant for the Guild on this issue. And if the AG were behind him, with some legal muscle, predatory vanity publishers could be crippled, if not erased.

. . . .

11. An Author’s Guild worthy of the name would be all over the legacy practice of paying out royalties only twice a year.

As suggested int he comments by Barry Eisler: In the 21st century, this practice is a disgrace and it’s astonishing that anyone can take it remotely seriously. Yes, I know legacy publishers earn millions of dollars in interest by holding onto that money for six months at a time instead of putting it in author pockets promptly. But why does the “Authors Guild” let them get away with it?

Hint: a cynic might suspect it’s because fat cats like Scott Turow, the former Guild president, get paid advances so large it’s understood they will never earn out. Turow himself, in a rare moment of clarity and candor, acknowledged as much: “Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it.” So authors like Turow never get paid in royalties, meaning that for Turow, yearly, monthly, even daily payments are an irrelevance. He gets all his money upfront.

By the way, for any legacy apologist inclined to argue that paying authors more frequently than twice a year would be oh-so-difficult, Amazon pays its authors monthly. And I’d like to hear of any other business in the 21st century that pays its people twice a year.

Or to put it another way: if all legacy-publisher employees agree to switch from being paid monthly to being paid twice a year, I’ll relax a bit on this issue.

Link to the rest at Joe Konrath and thanks to Bridget for the tip.

Here’s a link to Joe Konrath’s books

PG says it’s often easier to build a new house than it is to fix up the old one.

PG agrees with Joe that the only authors’ organization with enough power to influence traditional publishers is one with a credible litigation fund. Even very large organizations pay attention to a well-drafted civil complaint. (No, PG doesn’t do litigation any more but in the past, he has had some delightful experiences litigating against organizations much larger than any publisher.)

Self-Publishing and Author-Agent Agreements: The Need for Change

27 July 2014

From Writer Beware:

Earlier this week, I ran across a blog post by best-selling author Claire King about the process by which she decided to become a hybrid author, ditching her high-powered agency in the process. It’s an interesting story–but what really caught my eye was this:

And then one day on the phone my agent informed me that in order to continue to be represented by this mighty agency, I would have to turn over 15% of the proceeds of my about-to-be self-published book to said agency. Not only that, but I would have to publish it exclusively through Amazon, because the agency had a system in place with Amazon where I could check a box and their 15% would go straight to them, no muss, no fuss.

I’ve warned in the past about interminable agency clauses in author-agent agreements (language through which an agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates for your book, but for the life of the book’s copyright). One of the many concerns raised by such language is what happens if you want to self-publish backlist books that the agency originally sold for you. With an interminable agency clause, might your agency feel entitled to a share of your self-publishing income?

. . . .

Contract language often lags behind technological innovation. For instance, years after the advent of digital publishing, many publishing contracts still don’t include adequate rights reversion language (I’ve written here about why that’s a problem).

The same is true for author-agent agreements, many–if not most–of which don’t address self-publishing at all. Right now, I’m sure that most self-publishing questions are dealt with amicably one-on-one between author and agent. But with more and more writers choosing to become hybrid authors, and more and more agencies branching out into publishing and self-publishing-related activities, those kinds of informal resolutions aren’t enough. For the protection of both author and agent, author-agent agreements need to explicitly address what happens (or doesn’t happen) when clients self-publish, either on their own or through the agency.

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

PG says the contractual solution for this is simple. Agency agreements should be terminable by the author at any time.

If the agent has already made a sale for the author, the agent should be entitled to commissions on that sale. If the author has signed a life-of-copyright publishing contract the agent has procured, then the agent’s commissions will continue for the length of the publishing contract (another very good reason to insist on split checks – who knows what kind of people will be running the agency in 50 years).

In PG’s everlastingly humble opinion, a trip to the courthouse would end most agency agreements that purport to tie the author to the agent when the author no longer desires the agent’s services.

Doubling Down on DRM

17 July 2014

From Cory Doctorow via Publishers Weekly:

I’ve just seen a letter sent to an author who has published books under Hachette’s imprints in some territories and with Tor Books and its sister companies in other territories (Tor is part of Macmillan). The letter, signed by Little, Brown U.K. CEO Ursula Mackenzie, explains to the author that Hachette has “acquired exclusive publication rights in our territories from you in good faith,” but warns that in other territories, Tor’s no-DRM policy “will make it difficult for the rights granted to us to be properly protected.” Hachette’s proposed solution: that the author insist Tor use DRM on these titles. “We look forward to hearing what action you propose taking.”

The letter also contains language that will apparently be included in future Hachette imprint contracts, language that would require authors to “ensure that any of his or her licensees of rights in territories not licensed under this agreement” will use DRM.

It’s hard to say what’s more shocking to me: the temerity of Hachette to attempt to dictate terms to its rivals on the use of anti-customer technology, or the evidence-free insistence that DRM has some nexus with improving the commercial fortunes of writers and their publishers. Let’s just say that Hachette has balls the size of Mars if it thinks it can dictate what other publishers do with titles in territories where it has no rights.

. . . .

The truth is that anyone who wants to avail herself of a Hachette e-book title without paying for it will have no problem doing so. DRM doesn’t stop people who scan books, or retype books. DRM doesn’t stop people who download widely available cracks that can remove all the DRM from an entire e-book collection. And DRM doesn’t stop people who are inclined to download the DRM-free pirate editions. All DRM does is punish legitimate users who had the misfortune to be so honest that they paid for the book, rather than taking it.

Hachette’s letter claims, “Improvements in retailer systems and e-book platforms has led to more flexible DRM which grants the consumer” (this being the odious term the letter uses in place of “the reader”) “greater flexibility in their use of purchased files, such as the ability to share across multiple devices.”

Devices, perhaps. But not across multiple platforms. With the exception of the Kindle Reader app, or the Nook app, available in Apple’s App Store and Google Play, there is no way to read e-books across platforms. And recently, we got a reminder as to what happens when Apple decides that an app is eating into its profits: out it goes. Just last week, Apple stopped bundling the YouTube player with its devices as part of its ongoing war with Google.

. . . .

Readers aren’t stupid. When they discover that paying for books results in locked, crippled editions, and downloading for free (simply by typing the title and “free e-book” into Google or Pirate Bay) gets them the same book, minus the offensive restrictions, they start to put two and two together. After all, DRM is not a selling point. There’s no one who’s ever bought a book because it had DRM. No one has ever clicked onto Amazon saying, “I wonder if there’s any way I can buy a book that offers less than the books I’ve been buying all my life.” People buy DRM e-books because they have no choice, or because they don’t care about it, or because they don’t know it’s there. But DRM never leads to a sale.

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

The Publishers Are as Bad as Amazon

16 July 2014

From The Huffington Post:

In recent months, America’s publishing giants have been up in arms about the predatory practices of Amazon.com. Their outrage would be less hypocritical if they weren’t guilty of conduct that’s just as bad.

I’m an author. One of my books (Muhammad Ali: His Life and Times) was on theNew York Times best seller list. Another (Missing) served as the basis for an Academy-Award-winning film. I’ve learned over the years that big-name writers might be treated fairly by the media conglomerates that dominate publishing today. But the average author isn’t.

Publishing is a business. It’s about squeezing every last dollar out of every available source, and the most vulnerable source is the author. No clearer proof of that exists than the “standard” book contract.

Many clauses that are imposed on authors throughout the industry today bear no relationship to any economic reality other than the best interests of the publisher. Yet these clauses flourish because virtually every major publisher insists on them and the average author has no recourse.

. . . .

As for traditional options, publishing contracts now often contain the following provisions:

1) The author must submit his next book in completed manuscript form to the publisher before it is considered by any other publisher;

2) The first publisher need not consider the manuscript before publication of the work currently under contract; and

3) Even if the first publisher declines to bid on the manuscript, the author must subsequently offer the publisher the chance to match any offer received at a later date from any other publisher. Thus, an author who has a book under contract to a publisher can find his career put on hold indefinitely.

In sum, just getting published is an adventure in contract law for most authors. And when authors are published, they find that their royalties have been cut precipitously by today’s standard publishing contract.

For example, most publishers now require a clause to the effect that, if the publisher increases its discount to a particular book-seller beyond a certain percentage, the author’s royalty is cut in half. The logic underlying this provision is that, if a publisher has to give a giant like Amazon.com a break in order to sell books, then the author should shoulder part of that burden. However, the way the formula works in practice, a publisher can sometimes increase its discount to the bookseller on a twenty dollar book by, say, forty cents (two percent of list price) and cut the author’s royalty in half (from $3.00 to $1.50). In other words, the publisher takes $1.50 out of the author’s pocket, gives forty cents to the bookseller, and keeps the remaining $1.10 for itself.

. . . .

But one ray of hope does exist. The antitrust laws of the United States are sometimes enforced. And in addition to outlawing predatory monopolistic practices, those laws provide that “every contract, combination, or conspiracy in restraint of trade is illegal.”

Quite possibly, what now passes for “standard” in the publishing industry is an illegal restraint of trade.

Publishing today is characterized by powerful corporate entities acting in concert to the detriment of essentially powerless authors. Something must be done to remedy the situation because it’s driving a lot of good writers out of publishing. They simply can’t make a living writing books anymore.

Link to the rest at The Huffington Post and thanks to Elizabeth for the tip.

Enhanced editions!

8 July 2014

From author Courtney Milan:

Hi everyone! The enhanced editions of my first five books–Unveiled, Unclaimed, This Wicked Gift, Proof by Seduction, and Trial by Desire, are now available–and they’re only 99 cents each through July 25th.

. . . .

Q. Why are you releasing enhanced editions?

A. Because I can. I know that sounds a little bit ridiculous, but let me put it to you this way–if you had a contract with a publisher for print-only releases, and the contract specifically stated that you reserved digital rights, would you put that book up as a digital edition? Of course you would.

That’s what my contract looks like with regards to enhanced editions. They specifically reserve the right to make enhanced ebooks to me. I had that right, and so I am now exercising it.

Releasing enhanced editions gives me control over pricing, covers, branding, promotion, and back matter. It also makes me more money.

. . . .

Q. Specifically what in your contract allows you to do this? Can I do this, too?

A. There are two parts to my contracts that allow me to do this. The first is the following statement in the Grant of Rights section of my contract:

(d) electronic use of the non-dramatic unenhanced verbatim text of the Work, excluding video use (whether in a now known form or hereafter discovered) … Notwithstanding anything to the contrary in this Agreement, electronic rights shall be limited to the display of the text in the Work and shall not include any moving images, sound or any interactive or multimedia elements.

Incidentally, give my agent, Kristin Nelson, a hand for drafting an extremely clear statement. If she’d just left it as “unenhanced verbatim text” or even limited it to “multimedia elements” we might have had to argue about what “multimedia” and “enhanced” meant. As it is, the line about “sound” gave me a really, really clear out: As long as I included audio, I was outside the rights I had granted to my publisher.

The second is something that is not in my contracts, and that is a noncompete provision of any kind.

I don’t know if you can do this. You’ll have to look at your contract. I’ve mentioned here the two things you’ll need to look at–the grant of rights section and…uh, the rest of the contract. In the grant of rights section, you need to look and see if you are only granting rights to the “unenhanced” text, or if you reserve “multimedia” rights or something along those lines. There are probably a thousand different ways to word the reservation, and so there’s no magic language I can tell you to look for.

There are also a lot of authors out there who don’t have an enhanced reservation at all. I’m pretty sure that Harlequin series boilerplate, for instance, will not allow this.

Whether you can do this will depend entirely on what you and/or your agent negotiated.

Link to the rest at Courtney Milan and thanks to Amy for the tip.

Start Media Buys Whiskey Creek Press, Imposes New Contract Terms

28 June 2014

From Writer Beware:

In early June, Debra Womack, owner of Whiskey Creek Press, announced in a letter to authors that the publisher was in the process of being acquired by Start Media (a company that has recently acquired two other small presses, Night Shade Books and Salvo Press).

As part of the acquisition process, Start is asking all current WCP authors to agree to and sign an offer of new terms as follows on page two below. We are offering you the non-refundable sum of $1 and other good and valuable consideration, payable to you if and when the sale of the company to Start is completed (expected to be by the end of June 2014). Upon closing you will also receive a payment from WCP of current royalties and/or advances or any other sums owing to you by WCP for sales up through and including April 30, 2014.

. . . .

WCP’s contract includes this clause:

If the Publisher sells its assets to another publisher who does or plans to market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement.

In direct contradiction to this, however, the letter of agreement Start Media is asking authors to sign imposes some substantially different terms. WCP’s contract term is 3 years from publication; Start Media’s is life-of-copyright. WCP’s ebook royalties are 35% of the net download price; Start Media’s are 25% of net (“all monies actually received”). There’s also a troubling gap between April 30, when WCP ceases to pay royalties, and July 1, when Start Media’s new royalty rate kicks in. What happens to books sold in May and June?

Understandably, WCP authors are upset and angry. Many are refusing to sign–despite the fact that no explanation has been provided, either by Womack/WCP or Start Media, of what will happen to their rights if they don’t.

Link to the rest at Writer Beware

The moral of this cautionary tail is that authors can’t assume the publisher they sign with (and who gives them all sorts of promises that aren’t written into the contract) will be the same publisher they’ll be dealing with for the entire term of their contract.

Indeed, in a life-of-the-copyright agreement, it is virtually certain the existing publisher will disappear before the contract ends. At a bare minimum, all the people working for the existing publisher will be long gone before the contract is done.

Writer Beware is an excellent site and provides insightful analysis and warnings concerning publishers and their contracts. However, PG disagrees with WB’s defense of life-of-the-copyright contract terms. Ultimately, it’s the worst sort of rights grab and, in PG’s unceasingly humble opinion, is always unreasonable.

Additionally, as they are typically written, out-of-print clauses are seldom a reasonable solution to the problem of ridiculously long publishing contracts.

First, the typical OOP clause is extremely complex and difficult for an author to navigate. Having to pay an attorney to help figure out whether a book is out of print and work through the OOP administrative process is ridiculous.

Second, the typical OOP clause gives the publisher all sorts of ways to avoid reverting the title with no material benefit to the author.

Third the typical OOP clause is set to such a low trigger point – WB mentions 50 copies per year or 25 copies per year – that the author has probably experienced years of absurdly small royalties before the OOP clause can be triggered.

A long time ago (as measured in Internet time), PG suggested an improvement to OOP clauses – A Mimimum Wage for Authors. Basically, it’s tied to royalties paid by the publisher to the author, not the number of copies the publisher sells. The author cares about dollars (or euros, etc.), not how many ebooks were sold at 99 cents each.

In a nutshell, the Minimum Wage for Authors OOP clause says if the author doesn’t receive a certain minimum royalty payment for a book, the book reverts. In a life-of-the-copyright contract, PG recommends that an inflation adjustment provision be applied to the minimum royalty payment as well because $100 will be worth a lot less fifty years from now than it is today.

The best solution is, of course, a publishing contract that ends within a specific number of years which is the way contracts operate in the reality-based business world.

Why Creativity is Your Best Negotiation Tactic

28 June 2014

From Fast Company:

Ted Leonhardt always got the jitters before a big client meeting. It didn’t matter that he ran a design firm with big name clients like Boeing and Charles Schwab, raking in $10 million a year in fee revenue. Closing a deal with a new client always brought up those same feelings of insecurity.

Leonhardt would duck into the men’s room before a meeting, lock himself in a stall, and jot down a list on a scrap of paper–projects he’d done successfully, awards his company won, other accomplishments. “I would make two to three lists a week and they were always the same,” he says. “I never needed to read them, but making the list, and putting it in my coat pocket made me feel okay about whatever it was that was stressful.”

And it gave Leonhard the confidence to tackle what so many creative professionals dread doing: negotiating.

. . . .

“For about 10 years I’ve been consulting with creative firms and over and over I would find people who are sophisticated professionals running firms with 50 to 100 people [who are] terrible negotiators,” he says.

. . . .

A common weakness of creative people is impostor syndrome–that nagging voice telling you that you’re just a big fake, no matter how successful you are.

Creative work requires a healthy measure of sensitivity. You want your work to move people, which means being in-tune with their emotions. But at the negotiating table, this same sensitivity can backfire for creative people. “They are too sensitive. They don’t want to bicker over the price. They just want to get over it and get to the work,” says Leonhardt. “Learning to ask for what you need is really important and it’s hard to do.”

Link to the rest at Fast Company

Open Road Fires Back at HarperCollins in Copyright Case

23 June 2014

From Publishers Weekly:

In a court filing, Open Road attorneys last week assailed what it called HarperCollins’ “extreme”proposal for an injunction and more than $1.1 million in legal fees and damages to settle claims stemming from Open Road’s unauthorized e-book edition of Jean Craighead George’s Julie of the Wolves.

Claiming that the Harper proposal is based on “a misleading portrayal” of the facts, Open Road attorneys argued that not only has Harper not suffered the kind of irreparable harm necessary to justify its proposed remedy, in fact it has not suffered any harm at all. “Harper cannot prove any present harm, let alone irreparable harm,” Open Road attorneys argued, noting that despite its win in court, Harper does not have the right to sell Julie of the Wolves e-books without the author’s consent, “which it has never obtained” owing to “a fundamental disagreement as to a fair e-book royalty.”

. . . .

 In its response last week, Open Road argued that it litigated the case in a “non-vexatious” manner only after two separate legal reviews supported its belief that George held e-book rights. The brief concluded that a damage award in the $750 to $30,000 range would be “sufficient,” given that Open Road has not made significant profits and that Harper lacks the explicit right to publish a digital edition of its own.

. . . .

 “Authors who believe they have retained e-book rights and traditional publishers who often overreach in claiming broad grants under the original contracts are often involved in negotiations over the exploitation of the authors’ works in new media,” the Open Road brief argues. “Given the disparity in economic resources, those negotiations are already heavily skewed in favor of the large publishers. The Court should not skew the balance further against authors who seek to assert their rights with the threat of million dollar attorneys’ fee awards.”

. . . .

 At its heart, however, as Open Road’s brief suggests, the case is more about e-book royalties. HarperCollins signed George’s Julie of the Wolves in 1971, for a $2000 advance and has since sold over 3.8 million copies in print. But according to court filings, Harper has refused to budge from a 25% net royalty on e-book sales, which George, before her death in May 2012, deemed fundamentally unfair. Open Road paid George a 50% e-book royalty.

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

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