Contracts

Amazon makes even temporary warehouse workers sign 18-month non-competes

30 March 2015

From The Verge:

Amazon is the country’s largest and most sophisticated online retailer, but it still runs largely on manual labor. Scattered around the country are massive warehouses staffed by workers who spend their days picking objects off shelves and putting them in boxes. During the holiday season, the company calls on a huge reserve army of temporary laborers.

The work is repetitive and physically demanding and can pay several dollars above minimum wage, yet Amazon is requiring these workers — even seasonal ones — to sign strict and far-reaching noncompete agreements. The Amazon contract, obtained by The Verge, requires employees to promise that they will not work at any company where they “directly or indirectly” support any good or service that competes with those they helped support at Amazon, for a year and a half after their brief stints at Amazon end. Of course, the company’s warehouses are the beating heart of Amazon’s online shopping empire, the extraordinary breadth of which has earned it the title of “the Everything Store,” so Amazon appears to be requiring temp workers to foreswear a sizable portion of the global economy in exchange for a several-months-long hourly warehouse gig.

. . . .

“Employee recognizes that the restrictions in this section 4 may significantly limit Employee’s future flexibility in many ways,” the agreement asserts, referencing the section containing the noncompete agreement and three other clauses. “Employee further recognizes that the geographic areas for many of Amazon’s products and services — and, by extension, the geographic areas applicable to certain restrictions in this Section 4 — are extremely broad and in many cases worldwide.”

The contract — which was obtained through applying and being accepted to a seasonal Amazon warehouse position — even includes a provision that requires employees who sign it to “disclose and provide a true and correct copy of this Agreement to any prospective new employer […] BEFORE accepting employment[…]”

. . . .

It’s unclear whether Amazon has attempted to enforce its noncompete contracts with hourly warehouse workers, and Amazon did not respond when asked about this by The Verge. But the company does have a history of aggressively pursuing such cases against white collar workers. Last year, after a former Amazon marketing manager took a job at Google, Amazon leveled a suit against him that was said to test the limits of noncompete law. The willingness of courts to validate such agreements can vary dramatically across states. But regardless of whether courts are willing to enforce them, noncompetes can still affect workers’ behavior.

. . . .

Courts are often reluctant to enforce noncompete agreements that cover the entire United States, let alone the whole world, according to Garden, who notes that the standard of “reasonableness” is the main legal test of the agreements. Yet different states have far different ideas of what counts as reasonable. (In an apparent nod to this, the Amazon contract stipulates that the signer consents that “each and every covenant and restraint in this Agreement is reasonable.”) California law bans the enforcement of noncompetes. Oregon, North Dakota, and Colorado have also enacted strict limits on noncompetes. “Then there are states like Texas and Florida and a bunch of others that are on the other end of the spectrum,” says Lobel, “that think of it as a simple contract issue, and if you sign the contract and you breach it then, well, you’ve breached the contract, and they’ll enforce it, and they’ll give injunctions quite easily.”

Link to the rest at The Verge and thanks to Jan for the tip.

PG says the story sounds a little weird and you can count him as skeptical.

In the first place, while the laws vary from state to state, most courts considering noncompete agreements tend to apply a reasonableness test when asked to enforce them.

It’s difficult for PG to envision very many judges enforcing an 18 month noncompete agreement against a temporary warehouse worker. It’s also difficult to believe that courts would enforce a noncompete agreement prohibiting a former low-level hourly employee from working for a competitor within a large geographical area for a low level worker. As a matter of public policy, most state governments aren’t trying to prevent their residents from being gainfully employed.

In one case PG remembers, Amazon sued in Washington to enforce a non-compete against one of its vice-presidents in the Amazon cloud business who went to work for Google’s cloud business. If PG’s recollection is correct, the court hearing the case reduced the time for the non-compete from 18 months to 3 months. If the vice-president had continued to work during the litigation, the three months would have almost certainly expired before the court handed down its decision.

As mentioned, non-compete agreements are illegal in California except in very narrow circumstances. If Google had moved the VP to California and he sued Amazon in California, it is almost certain a California court would have voided the non-compete agreement and barred Amazon from enforcing it.

Additionally, there’s the practical question involved in Amazon ever discovering that one of its former warehouse employees has started working for a competitor. If you’re an Amazon vice-president that starts working for a competitor, your profile is high enough so Amazon is likely to hear about the new job. If you move from an Amazon warehouse to a Wal-Mart warehouse, the chances of being discovered are minuscule.

PG says that blanket noncompete agreements for all employees are a really dumb idea in part because gaining a reputation for suing its former employees hurts a company when it is recruiting high-quality talent. Amazon usually doesn’t do dumb things, but maybe their employment lawyers are an exception.

Sony fails to knock out 19’s Idol stars lawsuit

19 March 2015

From CMU:

Sony Music has failed to have a wide-ranging lawsuit filed by 19 Entertainment a year ago dismissed, though some elements of the case have been thrown out.

As previously reported, ‘American Idol’-owning 19 Entertainment, which also manages many of the finalists that appeared on the talent show franchise, last year sued Sony Music, which traditionally signed ‘Idol’ winners, claiming that it had found “systemically incorrect calculations” on two separate audits of royalty payments made by the major. It then added that the record company had failed to allow 19’s bean counters to access all the data they required to do a full audit.

. . . .

As previously noted, 19’s litigation includes one of the big fat debates of the moment in artist management circles, whether digital income should count as ‘licensing’ or ‘sales’ income with artist contracts that don’t specifically mention downloads and/or streams.

It’s an important distinction, because artists traditionally get a much bigger cut of the loot with licensing money that they do with sales income. Labels say that downloads and streams should be classified as sales for royalty purposes, but many heritage artists point out that what the labels negotiate with iTunes and Spotify are definitely ‘licensing deals’.

And this issue is one that will be allowed to proceed, potentially giving more court time to a dispute that has been subject to countless lawsuits and artist/label deals (some public, most under the radar), but which has generally had little judicial consideration, except in the famous FBT Productions case against Universal, which the majors have always insisted doesn’t set a precedent.

Among the other elements of the case also allowed to proceed is another favourite with artist managers and lawyers, the way labels sometimes confuse things when money moves between global subsidiaries, this time in relation to advertising spend. 19 accuses Sony of using “sleight of hand” tactics to reduce its royalty obligations to its artists.

Link to the rest at CMU

PG notes that since this case is in New York, it has the potential to provide some rulings that could impact a lot of tradpub publishing contracts.

Wheel of Time TV pilot producers sue Robert Jordan’s widow for defamation

15 February 2015

From ars technica:

The tale of the late-night Wheel of Time pilot that aired in a paid infomercial slot on FXX has taken another odd turn. Producers Red Eagle Entertainment LLC and Manetheren LLC have filed a lawsuit in the United States District Court for central California against Harriet McDougal (widow of James Rigney, who wrote the Wheel of Time novels under the pen name Robert Jordan), her company, Bandersnatch Group Inc., and twenty unnamed other persons (“Does 1-20″). The suit alleges that McDougal’s statements about her lack of involvement in the pilot’s production constitute breach of contract, slander, and interference with contractual relations and prospective economic relations; the suit demands declaratory relief and a jury trial.

With the pilot coming essentially out of nowhere and airing with no fanfare, very few fans of the series were even aware of its existence until after the fact; it was clear that the production was accomplished in very little time and on a minimal budget. The resulting effort (titled “Winter Dragon”) did not resemble the series prologue very closely, and it quickly drew strong rebuke from McDougal, who claimed the pilot was made “without my knowledge or cooperation,” and that no one from Robert Jordan’s estate has been involved in any way with it. McDougal claims that Universal currently holds the rights to the Wheel of Time TV series, not Red Eagle Entertainment, and that the pilot made no mention of Universal or her own company, the Bandersnatch Group.

. . . .

All together, the suit claims that McDougal’s statement itself is defamatory and harms Manetheran and Red Eagle’s ability to do further business; that McDougal breached a nondisparagement agreement by making the statement; and that McDougal and the Bandersnatch Group are intentionally interfering with Manetheran and Red Eagle’s contractual and potential economic relationships.

Link to the rest at ars technica and thanks to Ric for the tip.

PG says the suit will make certain that even more Robert Jordan fans know about this disagreement.

Wheel of Time is the sad lesson of what can happen when you sell the rights to your books

11 February 2015

From Vox:

At 1:30 in the morning on Monday, February 9, a highly unusual program aired for a half hour on out-of-the-way cable channel FXX. Billed as Winter Dragon in some listings and The Wheel of Time in others, it was apparently a TV pilot for an adaptation of Robert Jordan’s ridiculously popular Wheel of Time fantasy series.

. . . .

The Wheel of Time is of great interest to TV fantasy fans because it has the potential to be the next Game of Thrones. Its sprawling world and gigantic cast of characters make it the natural choice for any network that might want to get in on the epic fantasy action. Plus, the pilot starred well-known actor Billy Zane. Outside of some terrible computer special effects, the production values were solid. And it was based on a beloved book series.

So why on Earth was it airing at 1:30 am on a Monday on FXX?

The answer to that has very little to do with quality control and everything to do with how TV networks and movie studios handle adaptations of popular material. The contracts governing those adaptations create situations like this all the time.

. . . .

Thanks to the huge success of HBO’s Game of Thrones, TV and film are hungry for grittier adaptations of fantasy novels, and Wheel of Time more than fits that description. Thus, an adaptation seems like an inevitability.

Or, rather, it would if a company that seemingly redefines incompetence didn’t own the rights.

. . . .

A short-lived attempt to get a series version of Wheel of Time off the ground was first made by NBC in 2000. That attempt failed, and the rights were sold by Jordan’s company, Bandersnatch Group, to Red Eagle Entertainment.

Red Eagle first exercised its adaptation rights with a comic book adaptation in 2005. In 2008, it actually got so far as to sign a deal with Universal to produce film versions of the books. (Remember Universal. Though it appears to have nothing to do with the FXX pilot, it will be important later.)

Significantly, if you go to Red Eagle’s website, which hasn’t been updated since 2009, it appears to be a company that exists solely to attempt adaptations of Jordan’s books. It’s done nothing else of note.

Wheel of Time films didn’t materialize, to Jordan’s anger and consternation. Yet Red Eagle retained the rights to the series through Wednesday, February 11, 2015, according to Jordan’s widow, Harriet McDougal Rigney.

. . . .

Thus, the pilot appears to be a bit of a rush job, created to beat the February 11 deadline. It was filmed mere weeks ago, according to its director, then rushed to air. It has every appearance of being a last-ditch attempt by Red Eagle to retain the rights to Jordan’s series.

. . . .

Most contracts between creators and those who buy adaptation rights to said creations have built-in expiration dates when the rights revert to the creator. These expiration dates vary, based on how much rights-purchasers wish to pay.

But these expiration dates also usually include a crucial caveat. If the person who buys the adaptation rights keeps making adaptations of the original property, the rights will usually stay with them.

. . . .

Rigney, Jordan’s widow, said in a statement:

It was made without my knowledge or cooperation. I never saw the script. No one associated with Bandersnatch Group, the successor-in-interest to James O. Rigney, was aware of this.

Bandersnatch has an existing contract with Universal Pictures that grants television rights to them until this Wednesday, February 11 – at which point these rights revert to Bandersnatch.

I see no mention of Universal in the “pilot”. Nor, I repeat, was Bandersnatch, or Robert Jordan’s estate, informed of this in any way.

Remember Universal? That reference to the studio may prove key. If, indeed, Bandersnatch’s adaptation rights contract was with Universal and not Red Eagle, then whatever claim Red Eagle has to the property will fall apart. If that contract was with Red Eagle directly, however, or if Universal turns out to have funded this secret pilot, things will get more complicated.

Link to the rest at Vox and thanks to Claire for the tip.

My Gravity Lawsuit and How It Affects Every Writer Who Sells to Hollywood

31 January 2015

From author Tess Gerritsen:

Yesterday, the court granted Warner Bros’s motion to dismiss my lawsuit against them. While Warner Bros crows victory, the judge has in fact left the door open for me to pursue my claim, allowing my legal team twenty days to revise our complaint and address a single issue: the corporate relationship between Warner Bros. and New Line Productions.

. . . .

In 1999, I sold the film rights to my book GRAVITY to New Line Productions. The contract stipulates that if a movie is made based on my book, I will receive “based upon” credit, a production bonus, and a percentage of net profits. The book is about a female medical doctor/astronaut who is stranded aboard the International Space Station after the rest of her crew is killed in a series of accidents. A biological hazard aboard ISS traps her in quarantine, unable to return to earth. While my film was in development, I re-wrote the third act of the film script with scenes of satellite debris destroying ISS and the lone surviving female astronaut adrift in her spacesuit.

. . . .

In 2008, Warner Bros acquired New Line Productions. The takeover was rumored to be brutal, with numerous New Line employees losing their jobs overnight.

Sometime around 2008 – 2009, Alfonso Cuaron wrote his original screenplay “Gravity” about a female astronaut who is the sole survivor after her colleagues are killed by satellite debris destroying their spacecraft. She is left adrift in her space suit, and is later stranded aboard the International Space Station. I noted the similarities, but I had no evidence of any connection between Cuaron and my project. Without proof, I could not publicly accuse him of theft, so when asked about the similarities by fans and reporters, I told them it could be coincidence.

In February 2014, my literary agent was informed of Cuaron’s attachment to my project back in 2000. Now the similarities between my book and Cuaron’s movie could no longer be dismissed as coincidence. I sought legal help, and we filed a Breach of Contract complaint that April. Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also owns the film rights to my book. They had every right to make the movie — but they claim they have no obligation to honor my contract with New Line.

This is why every writer who sells to Hollywood should be alarmed.

It means that any writer who sold film rights to New Line Productions can have those rights freely exploited by its parent company Warner Bros. — and the original contract you signed with New Line will not be honored. Warner Bros. can make a movie based on your book but you will get no credit, even though your contract called for it.

Link to the rest at Tess Gerritsen and thanks to Clair for the tip.

Here’s a link to Tess Gerritsen’s books

 

 

Reasoning with the Unreasonable?

31 January 2015

From author Renee Bernard:

Recently, I’ve begun drafting my next semi-annual requests to my previous NY based publishers for the rights to revert back to me for dustier tomes that I would love to welcome back onto my shelves. It’s become a bit of a ritual and repeated rite of supplication and rejection for me.  For a lot of Indie authors, it’s just part of the landsacpe–a nearly hopeless quest to recover your creative offspring and reunite them with their newer siblings.

I ask.  They say, no.   It isn’t fun.

They say something about the book still being available for sale…and with the veils of secrecy that they’ve perfected over a century, it’s tough to argue that it is NOT “in print” if one box is rotting in a warehouse, or if they’ve jobbed out copies for pennies on the dollar and it’s clear they aren’t making any print runs anytime soon (aka never).  Prove it.  Even if I buy the few remaining copies at a fire sale, they refuse to let go.  They use the same electronic copies that have become the stuff of dreams against you because those books never go out of print, right? Sorry.

As NY publishing continues to stumble in the dark, the fallback position is to hold onto everything they have, either for fear of losing the tiniest revenue stream from past books or out of the hope that one of those long-neglected and dropped authors will become quite the lottery win if the writer goes on to do great things outside of their hold.  For them, they think retaining every scrap of rights is a win-win.

. . . .

If an author has stepped away from traditional publishing, they probably had reasons.  By refusing to play nice and yield publication rights when it is reasonable to do so–you step firmly into the role of greedy villain.  Which while probably an awesome thing to be in a captitalist profit-driven scenario in a Hollywood film, won’t sustain an industry in the real world for long.  As talent flees in droves and the publishing world changes, what hope do they have of luring back any of those Big Fish if things do take a turn for the better?

What author would look back and say, “Yes! Oh, please! You’ve been so reasonable and pleasant to deal with!  Where do I sign?”

They lock the door on any future contracts with incredible writers because let’s face it, those creative types tend to remember every bruise and insult.  The business model becomes dependent on new, naive, uninformed talent to sign on the dotted line… And we all know how that’s going!  Because writers are talking to each other!  We communicate.  We share stories of our experiences, numbers, names, details.  That’s right–it’s quite the forum out there!  In other words, I believe that the pool of talent they say is shrinking is in fact the pool of willing newbies they can attract with the diminishing prestige of hardcovers and shiny marketing.

Link to the rest at Renee Bernard

Here’s a link to Renee Bernard’s books

Sure, I Trust You

29 January 2015

From Kristine Kathryn Rusch:

Here’s the one sentence response that I expected to last week’s post  and didn’t receive:

I know some writers have had troubles, but my agent [editor/publisher] would never do something like that.

Am I optimistic enough to believe that writers—traditional and indie—are finally getting the message that they’re business people? And, as business people, they should operate under the trust-but-verify model?

Or have I simply trained the people who respond to my blog not to put that sentence on here? (And if that’s the answer, then how come I didn’t see that sentence in the comment threads on other sites?)

In the past, I’d put up a post challenging the numbers coming out of traditional publishing and half a dozen writers would defend traditional publishing, their agents, or their editors.

But so far, no one has—at least in the venues I’ve seen.

Does that finally mean that events of the last few years have proven to writers that traditional publishing does not hold a writer’s best interest at heart?

. . . .

It doesn’t matter how much you trust your editor or your agent, they’re not the ones handling every aspect of your career. You are. You are responsible for your career. And as such, you need to trust but verify.

In other words, you need to run your business as a business.

When I negotiate contracts, I always imagine that I’m negotiating with someone worse than the person I’m actually negotiating with. The easiest way to do this is to imagine that the person handling the other side’s negotiation gets fired or dies or moves to a better job, and gets replaced by a savvy spawn of Satan. That spawn of Satan will take every innocently drafted clause of the contract and twist it to his advantage.

My job, if I do it correctly, is to make certain that the clauses can only be interpreted as written.

. . . .

But there’s more to trusting and verifying than audit clauses or even a fiduciary responsibility.

There’s an attitude.

When I started in the publishing business, long-time professional writers told me that my relationship with my agent would be like a marriage. I was startled, because at that point, I had just come out of a divorce, and frankly, I didn’t want another. What I didn’t realize was that about six years hence, I would fire my then-agent and the experience would be lots worse than the divorce.

. . . .

Your editor might be nice, but the publishing company she works for is a corporation attached to a large international conglomerate. Whose attitudes do you think will triumph inside the corporation when it comes to dealing with your business relationship? Your nice, salaried editor’s or the corporate legal department’s? Your editor may be on the communication end of the contract negotiation, but you can bet cash money that she’s checking with legal before responding to your requests. She has to, or she’ll lose her job.

So, if something goes awry, your editor will not be able to help you. A lot of editors go dark when things go badly, and forward emails and paper communications directly to legal. Some editors try to maintain the relationship with their authors, only to lose their jobs in the process.

When it comes down to it, the business decision for the editor is pretty simple: Do I defend my author or do I keep the job that pays for my home and feeds my children?

. . . .

Imagining that these powerful people are protecting us is quite parental, isn’t it? And it’s flattering to think that our talent is so great that important people will do things for us so that we can concentrate on “what we’re good at.”

Only…they’re not doing these jobs for us. They’re doing the job for money. Agents get more than 15% for the work they do. Agents are only as powerful as their clients, so if they have powerful clients, the business grows. And many agents work hand in glove with publishers.

Agents run their own businesses, and again, that trumps anything they do for you. Given a choice between the good of the agency and the good of a single writer, they’ll choose the agency every time. (And so would you, if you were an agent.)

Link to the rest at Kristine Kathryn Rusch and thanks to Bruce for the tip.

Here’s a link to Kristine Kathryn Rusch’s books

‘American Idol’ Winner Files Bold Legal Claim to Escape ‘Oppressive’ Contracts

27 January 2015

From The Hollywood Reporter:

For those who would give almost anything for a chance at superstardom, American Idolmight be the entertainment industry’s version of a Faustian bargain: Through 14 seasons, the very successful Fox show has exploited the fact that there are millions of singers who are willing to sign onerous deals for the chance to compete. But season 11 winner Phillip Phillips isn’t going to let the deals he made as a precursor to his fame go unchallenged.

On Jan. 22, Phillips lodged a bombshell petition with the California Labor Commissioner that asserts thatIdol producer 19 Entertainment and its affiliated companies have “manipulated” him into accepting jobs since he hit it big. In a filing that reveals some of Phillips’ post-show tribulations, including being forced to perform for free for one of Idol sponsors and not even knowing the title of his last album before it was announced publicly, the singer is seeking to void his various agreements with 19, said by the star’s lawyer to be “oppressive, fatally conflicted.”

“I am very grateful for the opportunities provided to me through appearing on American Idol,” says Phillips. “The value that the fans and the show have given to my career is not lost on me. However, I have not felt that I have been free to conduct my career in a way that I am comfortable with.  I look forward to being able to make my own choices about my career and to being able to make great music and play it for my fans.”

. . . .

Before Idol viewers voted him the winner [in 2012], Phillips signed a series of contracts governing his management, merchandising, recording and publishing. The deals are quite favorable to 19 Entertainment, a company founded by Simon Fuller that also produces other shows such as So You Think You Can Dance. For example, according to the complaint, when Phillips does endorsements, 19 gets as much as a 40 percent cut.

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

American Liar

21 January 2015

From Salon:

Chris Kyle, author of the runaway best-seller American Sniper, was a military hero who killed 160 people during his four tours of duty in Iraq and is now the subject of an Oscar-nominated blockbuster. He was also a fabulist. Before his tragic murder in 2013, Kyle told a number of extremely dubious stories.

. . . .

But it wasn’t these fantastical tales of vigilante justice that got Kyle into legal trouble. It was another, much less exciting story—one that wasn’t just unverifiable, but verifiably false. That tale, conveyed in a mere three pages of American Sniper, has put Kyle’s widow on the hook for $1.845 million in damages. And it may soon make Kyle’s publishers wish they approached the veteran’s claims with great deal of skepticism.

Kyle’s legal difficulties emerged from a subchapter of American Sniper titled “Punching Out Scruff Face.” In it, Kyle describes beating up a former Navy SEAL (“Scruff Face”) after the SEAL claims American soldiers deserved to die in Iraq. Early drafts of the book identified the SEAL as Jesse Ventura, former governor of Minnesota and famed professional wrestler, but Kyle’s publishers removed the name for fear of a lawsuit. Nonetheless, in a radio interview following the book’s release, Kyle admitted that “Scruff Face” was Ventura, and he repeated the claim soon after on The O’Reilly Factor.American Sniper shot to the top of Amazon’s best-seller list, becoming a smash hit for its publisher, HarperCollins, selling more than 1.5 million copies by July of 2014.

There was, however, a problem: The Ventura story wasn’t true, and Ventura meant to prove it. So he took Kyle to trial, suing him—and, after he died, his estate—for defamation and unjust enrichment. In the United States, defamation cases are extremely difficult to win, thanks to the First Amendment. When allegedly defamatory statements pertain to a public figure, the plaintiff mustn’t just prove those statements were false. He has to prove the defendant made those statements with “actual malice”—that is, knowledge that they were false—or with “reckless disregard” for their falsity. Very few defamation plaintiffs can make it over the high bar of actual malice.

Ventura made it. On July 29, 2014, a federal jury returned from six days of deliberations to award Ventura $1.845 million in damages—specifically, $500,000 for defamation and about $1.345 million for unjust enrichment. (In other words, Kyle unjustly profited from defaming Ventura, and so his estate must give Ventura some of that money.)

. . . .

For the Kyle family, then, the legal tribulations surrounding American Sniper are probably wrapping up, and Taya Kyle will likely pay some damages but walk away from the affair with many millions of dollars left to her name. ​(HarperCollins’ libel insurance, in fact, will cover her defamation damages.) But for Kyle’s publisher, HarperCollins, the nightmare is just beginning. Several months after the verdict against the Kyle estate, Ventura brought another lawsuit for unjust enrichment, this time against HarperCollins.

. . . .

During the first trial, Ventura’s attorneys uncovered records of HarperCollins’ negligence in fact-checking Kyle’s book, as well as evidence that HarperCollins specifically touted the Ventura story to drum up publicity. Kyle’s ghostwriters spoke with only one person who claimed to have witnessed the fight, a friend of Kyle’s who told a different version of the story that lacked Ventura’s offensive remarks. No one from HarperCollins contacted Ventura or his representatives to verify the story. And though Kyle claimed Ventura appeared at a SEAL graduation afterward with a black eye—where “everybody was laughing” and asking “Who beat the shit out of him?”—HarperCollins never asked a member of the graduating class whether they saw Ventura’s injury. (A photograph from the event shows a clear image of Ventura—with no black eye.)

It gets worse for HarperCollins. Despite the tenuous source of the Ventura story, HarperCollins quickly saw it as a publicity gold mine. After Kyle identified “Scruff Face” as Ventura in a radio interview on The Opie & Anthony Show, HarperCollins editor Peter Hubbard wrote in an email that the publicity from the story was “priceless.” HarperCollins publicist Sharon Rosenblum described the Ventura kerfuffle as “hot hot hot,” immediately arranging for Kyle to retell the tale on The O’Reilly Factor. Sales of American Sniper—which, up to that point, were fairly modest—spiked dramatically, apparently in conjunction with interest in the Ventura story. After theO’Reilly appearance, Ventura publicly denied Kyle’s accusations. Yet Rosenblum arranged for Kyle to tell the story again on The Opie & Anthony Show, and HarperCollins printed several new editions of the book that still featured the “Scruff Face” section. (It was finally removed after Ventura won his suit.)

Link to the rest at Salon and thanks to Matthew for the tip.

A few points:

  1. Under standard Big Publishing contracts, Kyle would be responsible for paying any and all expenses of HarperCollins in the Ventura suit, including any damages HC pays to Ventura.
  2. If the article is true, it appears that Kyle’s attorney had HC add a provision to the contract that named Kyle as an additional insured under HC’s publisher’s liability insurance policy. This is always a good idea, but something most publishers won’t do without being asked.
  3. Even with the liability insurance policy in place, most such policies include a large deductible – $500,000 – $1,000,000 deductibles are typical. Under a standard Big Publishing contract, Kyle would be responsible for paying the deductible.
  4. Boilerplate in most Big Publishing contracts gives the publisher the right to have an attorney conduct a pre-publication legal review. The author is required to change anything the lawyer finds problematical. PG hasn’t read whether or not such a review was conducted in this case. Given that the book referenced living persons and their behavior, it would be an extraordinarily bad decision for HC not to have conducted such a review. If anyone sees a news account that mentions whether a legal review was conducted or not, please send a link to PG via the Contact Page.
  5. The publishing contract provisions PG mentioned are typically contained in a section called something like Warranties or Warranties and Indemnities. Most authors tend to breeze through such provisions (in part because they’re really boring), but this story demonstrates that every part of a publishing contract has consequences.
  6. In PG’s prodigiously humble opinion, the warranties required of authors in most publishing contracts are among the most unfair provisions in those contracts.

Why You Should Not Assume Your Publishing Contract Doesn’t Apply to You

20 December 2014

From Writer Beware:

I’ve been struck by the number of comments from writers who seem to think that a bad contract clause is not so very awful if (pick one) the publication is great; the people who run it are great; the bad contract clause is not always enforced.

. . . .

[T]his is exactly how writers get screwed: by making assumptions about a publisher’s intentions, by letting their emotions overrule their business sense, and by forgetting that, in the author-publisher relationship, the publishing contract is the bottom line.

. . . .

Don’t assume that every single word of your contract won’t apply to you at some point.You may think “Oh, that will never happen” (for instance, the publisher’s right to refuse to publish your manuscript if it thinks that changes in the market may reduce your sales). Or the publisher may tell you “We never do that” (for instance, edit at will without consulting you). But if your contract says it can happen, it may well happen–and if it does happen, can you live with it? That’s the question you need to ask yourself when evaluating a contract.

. . . .

Don’t rely on your publisher’s assurance that objectionable contract language won’t be enforced. Your publisher may be telling the truth–at least, up to the point that they give you the assurance. But even if they aren’t just trying to get you to shut up and sign, circumstances may alter (what if management changes? What if the publisher sells itself?) and internal policies may shift. Promises that contradict contract language offer youabsolutely no protection or guarantees . . . . Never forget that by signing a contract, you are giving your publisher the full legal right to enforce it.

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

PG says this is good advice.

He would add that, with length-of-copyright provisions in a publishing contract, everyone who makes promises to you at the publisher will be dead before the contract ends.

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