Contracts

Logan Composer Is Getting Sued Over Allegedly Stolen Lucifer Theme Song

13 February 2017

From i09:

Warner Bros. has a hell of a problem on its hands. A pair of musicians are suing the company and Logan composer Marco E. Beltrami for using the theme song they helped create for the show without giving them money or credit.

 Robert and Aron Marderosian, known collectively as The Mardos and Heavy Young Heathens, filed the suit in California last week. It claims that Beltrami, who did the Academy Award-winning scores for 3:10 to Yuma and The Hurt Locker, reached out to the brothers for help in creating a theme song for the show. According to the lawsuit, Beltrami “was not able to capture the essence of what Warner Bros. and NS Pictures were looking for,” and that Warner Bros. had rejected all of Beltrami’s submissions.

The Mardos agreed to create a theme song for the show in exchange for co-writer credit, as well as retention of all publishing rights if the show went to series. However, according to the lawsuit, Beltrami passed off the composition as his own and didn’t tell Warner Bros. about his agreement with the brothers after they chose the six-second excerpt that was ultimately used in Lucifer.

Link to the rest at i09

Working for free (but working for yourself)

7 February 2017

From Seth Godin:

Freelancers, writers, designers, photographers–there’s always an opportunity to work for free.

There are countless websites and causes and clients that will happily take your work in exchange for exposure.

And in some settings, this makes perfect sense. You might be making a contribution to a cause you care about.

. . . .

But just because you’re working for free doesn’t mean you should give away all your upsides.

Consider the major publishing platforms that are happy to host your work, but you need to sign away your copyright.

. . . .

Now, more than ever, you have the power to say “no” to that.

Because they can’t publish you better than you can publish yourself.

It doesn’t matter if these are their standard clauses. They might be standard for them, but they don’t have to be standard for you and for your career.

Link to the rest at Seth Godin

PG says “This is our standard contract” may be the oldest con known to humankind to persuade someone (including an author) to sign a terrible contract.

The “standard contract”, “standard clause” or “standard language” designation is designed to make the author think that everyone agrees to those terms. Who is an author, particularly a new author, to dare to ask for something different than all the established authors accept?

This is baloney. Publishing contracts are changed all the time.

Publishing contracts of a certain era were formatted so the changes in “standard” language were shown in a different font or otherwise highlighted. PG has seen such contracts that included dozens of changes for authors who were not best-sellers. Many agents have a set of standard changes they always make to the “standard contract” from a particular publisher.

Most publishers no longer use stone tablets for their contracts. Microsoft Word can change a “standard contract” to a fairer contract in an eyeblink.

PG says, “Ask and ye shall receive.” And if you don’t receive, you can walk away and get a better deal from someone else. The Amazon or Draft2Digital or Smashwords, etc., options are always open.

Another negotiating tip – Always have an alternative planned before you begin a business negotiation. Negotiation theorists call this a BATNA – Best Alternative To a Negotiated Agreement. Part of the psychology of the “standard contract” ploy is the assumption that the author is mentally and emotionally committed to having a book published by a particular publisher, working with a famous editor, seeing big stacks of books in Barnes & Noble, etc.

Prior to sending the contract to the author, many publishers encourage an author, particularly a first-time author, to think everything will be sunshine and lollipops. The author has told all of her relatives and friends that Big Time Publishing has accepted her book, imagined what it will be like to fly on a private jet to Paris for a book signing, what she will say during her Nobel Prize acceptance speech, etc., etc., etc.

These sorts of things put immense pressure on an author to not walk away from a bad deal. PG suggests that an author may want to defer any announcement until after a fair contract is negotiated and signed. However, he knows this can be a very difficult thing to do, so perhaps a cautionary element should be added to any pre-contract announcements, “But I’m going to make sure the contract and all the details are right before this is official.”

Major Record Labels Under The Gun In Sales v. Licensing, Carpenters Case

1 February 2017

From Forbes blogs:

The dispute between artists and labels over the income earned from digital downloads continues to rage.

Traditionally, record labels sold physical copies of music mediums, like CDs, and then would pay a royalty to the artist for each record sold. When iTunes came on the scene in 2001, the labels treated the sales of digital downloads the same as sales of physical CDs, and ever since have paid the artist a royalty on sales of those digital downloads. However, labels actually license the master recordings to digital distributors like iTunes and after a while artists began to make the argument that the income earned from digital downloads should be treated as licensing income and not sales income. The reason why artists want downloads to be treated as licensing income is because instead of getting a small percentage for a sales royalty (most commonly ranging from 11-20%, with an average of about 15% of the wholesale purchase price), licensing income is usually split 50-50 between the label and the artist. Therefore, artists stand to make a lot more money in royalties if a digital download is treated as a license rather than a sale.

This issue came to court starting in 2007 with the case FBT Productions v. Aftermath Records, a case involving royalties paid on Eminem recordings at the “sales” rate rather than the “licensing” rate. FBT won the lawsuit, establishing that income from digital downloads should be treated as licensing income rather than sales income, but Universal Music Group (owner of Aftermath Records) argued that this case should not set a precedent for all artist or record deals.

. . . .

The Carpenters. Surviving member Richard Carpenter (fighting on behalf of his sister Karen Carpenter’s estate, as well) audited the band’s label, A&M Records/Universal Music. Artists often audit record label books to make sure that they are getting paid the proper royalties. Richard Carpenter’s audit showed that the label was under-reporting the number of downloads sold, was calculating the royalty on those downloads at a lower base price than they were supposed to, and that the label was paying a royalty on digital downloads at the sales rate instead of the licensing rate. Apparently, attempts to resolve the issue amicably were unsuccessful, and thus Richard Carpenter sued.

The Carpenters’ suit cites the FBT case as a precedent, and if the court follows FBT’s ruling then Carpenter has a good chance of success.

Link to the rest at Forbes blogs

PG has written about the sales vs. licensing royalties issue several times. If you search TPV using the key word, Eminem, you’ll find several posts.

 

When your agent wants to charge you a fee

1 February 2017

From QueryTracker Blog:

There are two kinds of lousy agents. The first is the scammer, the kind who wants to get money from authors without in any way performing the services an actual agent ought to perform. When you know the basics about the business, you’ll recognize those. They ask you for money just to read your manuscript and refer you for “necessary” editing services to their friends, many of whom are actually themselves operating under a different business name.

The second kind of lousy agent is just…slippery. That agent is harder to recognize from the outside. While you know to run from agents who charge reading fees, for example, what do you do about one who brings up “administrative charges” after the contract is signed?

Today a writer sent me a copy of an email his agent had sent him. This agent is a legit agent at a legit agency. It’s just that….well, you’ll see.

The agent sent the writer an email about changes to their literary agency agreement, with the expectation that the writer would sign it and be thrilled. (Note: I’ve removed all references to The agency and rephrased in order to clarify in parts. The content is the same, and I verified on the agency’s website.)

In the current contract, the only charges are for any extraoridinary expenses that may occur (courier services, foreign exchange, etc.), $250.00 per year, and a $500.00 cancellation fee should the author wish to terminate the contract.

Please note: don’t sign a contract with that stipulation. Why should the author be charged a fee to break the contract? There’s no matching fee for the agent if the agent decides to fire the writer, after all. Usually an agented writer is pleased to stay onboard. When the writer wants to leave, often it’s because the writer has issues with the way the agent is representing the manuscript. By charging this ridiculous contract-breaking fee, the agent has stated that s/he would rather have a bitter, angry client than just part ways amicably.

. . . .

Then we get to the fun part, where the agency describes their new contract, introducing an administrative fee structure:

The first year we represent a manuscript we charge five hundred dollars ($500.00), then an additional two hundred fifty dollars $250.00 each year until we place it with a publisher. Upon securing a publishing contract, the agency receives 15% of net revenues.

On their website, they try to sweeten the deal: they explain that this fee helps them partner with writers who are serious and willing to invest in their careers.

. . . .

This agent seriously wants you to fork over five hundred bucks before even starting the job, and that $500 won’t come out of the advance when the book sells. Then, if the agent fails to sell your book in one year, the agent gets rewarded with an additional $250.

Link to the rest at QueryTracker Blog and thanks to Deb for the tip.

Micro-Publishing: An Inside Look at Goosebottom Books

23 January 2017

From Digital Book World:

You’ve probably heard of indie publishers, but have you heard of micro-publishers? Author Shirin Bridges, owner of Goosebottom Books, calls her company a micro-publisher: a professional publishing organization that brings together a flexible workforce to produce a small number of highly targeted books.

Because of the nature of micro-publishers as small, custom organizations, no two are alike. This in-depth look at Goosebottom’s structure and goals can offer insights into the benefits of this new highly flexible option for energetic authors and entrepreneurs looking to reach niche audiences.

. . . .

Goosebottom was created with the goal of producing books for children about females who have found a way to effect change in their communities.

“We run Goosebottom like a co-op,” said Bridges.

The organization does not employ full-time staff members. Instead, trusted professional members come together on an as-needed basis. Bridges noted that she doesn’t pay herself, but the other members of the team receive standard compensation. Authors get advances and royalties, illustrators get either a flat fee or a royalty, and all copy editors and designers get a flat fee.

. . . .

“Micro-publishers can’t compete in the realm of general fiction.” said Bridges. “They have to know their narrow niche.”

Bridges defines the brand as the thinking girls’ series that boys are interested in, too.

The stories produced at Goosebottom Books span various times in history, and the stories come from all over the globe. For example, one series is about real-world princesses, including Hatshesput of Egypt and Sorghaghtani of Mongolia. Another series, called “Dastardly Dames,” includes biographies of iconic women such as Cleopatra and Njinga, “The Warrior Queen.”

. . . .

“There’s recognition out there,” said Bridges. “People see me at conferences and say they recognize the logo.”

. . . .

Goosebottom Books, like publishers of any size, is inundated with queries.

“We get two to three manuscripts a day,” said Bridges. “Though they’d be hard-pressed to know how to find us.”

Link to the rest at Digital Book World

PG knows nothing about Goosebottom Books, its personnel or financial backing.

However, the first thing that popped into his mind when he read the OP was All Romance E-Books.

Goosebottom struck PG (perhaps wrongly) as a hobby, albeit a serious hobby, for most of its participants. There is nothing inherently bad about that type of organization, but is Goosebottom and its books only a hobby for the authors it publishes?

PG quickly scanned the website and couldn’t find anything about the contracts Goosebottom wants authors to sign. He checked out the publisher’s Terms of Use and they were standard boilerplate legalese.

If the same attorneys who wrote the TOU wrote Goosebottom’s publishing contracts, PG would expect the usual (unfortunately) term-of-copyright, all ancillary rights language that most publishers include in their contracts.

This type of language is dangerous enough for authors publishing through well-established traditional publishers. In PG’s astonishingly humble opinion, such provisions definitely should not be in the publishing contracts of small publishers, some of whom will definitely go out of business in either an organized or unorganized fashion before their authors’ copyrights expire.

For small publishers who may read this, what are PG’s alternatives?

  1. The publishing contract lasts for a specified term – three years, five years, seven years, ten years max. At the end of the contract term, the parties can renew the agreement if everybody’s still happy.
  2. The publishing contract is for printed books and ebooks only.
  3. For any other rights associated with the book (games, toys, movies, etc.), the author agrees to negotiate with the publisher if the publisher wants to do something with those rights, but is not required to grant those rights to the publisher.
  4. If any payment of royalties and/or royalty statement is more than 30 days late, the author may immediately terminate the contract on written notice to the publisher and all rights to the author’s books immediately revert to the author.

If an author is writing as a hobby, perhaps he/she may knowingly take the risk of giving his/her stories to a publisher on a wing and a prayer. However, if an author is working towards a career in writing, the author and any publishers with which he/she associates should engage in sound business practices.

Paul McCartney is suing Sony to finally obtain ownership of The Beatles’ catalog

19 January 2017

From COS:

Last March, it was reported that Paul McCartney had begun the process that would allow him to legally regain the rights to his portion of The Beatles’ catalog from Sony/ATV. Facing resistance from the music publishing company, McCartney has now filed a lawsuit in a New York court seeking a judgement affirming that he’ll regain ownership to the songs he co-wrote with John Lennon by the end of 2018.

McCartney is invoking the US Copyright Act of 1976 in his argument. The legislation allows for songwriters to reclaim copyrights 56 years after a legal transfer by filing a termination notice. With the earliest Lennon-McCartney compositions hitting that mark on October 18th, 2018, Macca has issued numerous such notices to Sony/ATV over the last decade. However, the company has refused to acknowledge his rights, hence the new lawsuit. “For years following service of the first Termination Notices, Defendants gave no indication to Paul McCartney that they contested the efficacy of Paul McCartney’s Termination Notices,” reads the complaint.

. . . .

For their [part], Sony may be hoping to employ a legal tactic currently being used against Duran Duran in a similar legal situation. In that case, an English court ruled that British interpretations of contract law supersede the US termination law. Essentially, if a British contract says an artist promises not to transfer its stake in a copyright, the artist can’t then try to issue a termination without breaching the original agreement.

. . . .

This whole mess started in the 1980s when McCartney famously advised Michael Jackson to invest in song publishing rights. Jackson then went out and bought ATV, which owned the Lennon-McCartney catalog. A decade late, Jackson agreed to a merger between ATV and Sony in which the latter gained half his stack. The publishing company acquired the other half from Jackson’s estate in early 2016.

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

Here’s a copy of the complaint:

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Brisbane author John Birmingham takes leap from trade publishing to go indie

17 December 2016

From ABC News:

Brisbane author John Birmingham likens the break with his trade publishers to jumping out a window, but insists the leap was not suicidal and that he has landed firmly on his feet.

The successful author, renowned for his iconic 1994 autobiographical novel He Died With A Felafel In His Hand, has garnered worldwide acclaim in more recent years for mystery thrillers and alternate history novels including The Disappearance trilogy and the Axis of Time series.

All were released with big-name publishers. But in 2015 Birmingham found to his chagrin how quickly those ties could unwind.

As a consequence, he spent much of 2016 stepping boldly into the realm of self-publishing.

After successfully releasing three novellas under the banner of Stalin’s Hammer, his year of living dangerously culminated in this week’s publication of his first self-published novel, A Girl In Time.

“The book debuted at five on Apple, which is very gratifying when I see my former publishers further down the list. That was fun,” he said.

The change of fortune was due to disappointing sales of his David Hooper action adventure series.

The Hooper books were published by a coalition of publishing businesses who had loosely agreed to release simultaneously worldwide.

But his Australian publisher broke ranks and went early with both the print and digital versions of the first book, which resulted in heavy online pirating and a resulting hit to sales.

From there on, the series struggled.

Birmingham summed it up thus: “I was the author of a failed series. My options were limited. It’s the equivalent of seeing my business collapse. I had to come up with a new business.”

. . . .

Most publishing contracts (his included) contain a clause preventing authors from releasing any works in competition with the publisher, and before the Hooper farrago Birmingham had figured self-publishing risked burning too many bridges.

“I waited until the Hooper series tanked and then they spent eight months twiddling their thumbs saying, ‘we’ll offer you a deal but it won’t be very good’.

“I basically allowed myself to be backed into a corner. That was the point at which I said I’m going to do this instead — you know, I’m jumping out the window.

“They’d just released a book they probably weren’t going to make their money back on, so what were they losing?

“If I’d tried to do it before, there’d have been real trouble — lawyers at 10 paces.”

. . . .

“Indie publishing makes explicit something which is unstated in trade publishing, which is that you are not just a writer — you are a publicist and a marketer and a salesperson.”

Link to the rest at ABC News and thanks to Alexis for the tip.

Torquere Press is Closing

15 December 2016

From Writer Beware:

Troubled publisher Torquere Press is closing. Owners Kristi Boulware and Joanna Talbot announced their decision yesterday in an email that will doubtless infuriate many authors, but probably won’t surprise them:

We have thought long and hard about where things are with Torquere and made the very hard decision that we need to begin the process of closing this chapter of our lives….We have done everything we could to turn things around but with the saturation in the industry, the financial hardships we are in, my health in constant decline along with the negativity we have had hurdled our way. We feel like we are currently fighting an uphill battle.

Trouble at Torquere (which had been in business since 2003 with no problems) surfaced in early 2016, a little more than a year after Boulware and Talbot took it over. Reports of royalty payment problems began to proliferate, even as Torquere participated in Twitter pitch contests to find new manuscripts. During the summer, Boulware was arrested on a hot check charge, allegedly after payment to one author bounced. In November, communication stopped completely, with neither Boulware nor Talbot answering authors’ emails or responding to Facebook messages. Ominously, both co-owners removed “Torquere” from their Twitter handles and bios.

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

Leonard Cohen

12 November 2016

Singer-songwriter Leonard Cohen died last Monday.

He was an extremely prolific writer over his 50-year career. His most well-known song is probably Hallelujah.

Here’s another Leonard Cohen creation that carries an important lesson for writers.

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Philip Pullman calls for UK to adopt EU plans to protect authors’ royalties

23 September 2016

From The Guardian:

His Dark Materials author Philip Pullman has welcomed a “badly need[ed]” new proposal from the European Commission that would protect authors who achieve unexpected success from missing out on royalties.

Pullman was speaking as president of the Society of Authors, which is pressing the UK government to adopt clauses from the new EU draft directive on the digital single market in order to “avoid unfair practices that currently prevent authors making a living from writing”. The Society highlighted the case of Horrid Henry author Francesca Simon, who has not received any royalties from the television and film adaptations of her Horrid Henry books, despite the series being broadcast in 44 countries with more than 1.5m DVDs sold.

In an article last December, Simon revealed that she was missing out on the royalties because when she sold Orion her first Horrid Henry book in 1993, the book deal included film and television rights. A deal with Novel Entertainment for those rights was subsequently negotiated by Orion. “They did a poor deal. They did not use a lawyer,” wrote Simon in the Author magazine. “Not understanding their proper value led to the worst mistake of my career.”

The new draft directive, released last week, states that authors “often have a weak bargaining position in their contractual relationships, when licensing their rights”, and that “transparency on the revenues generated by the use of their works or performances often remains limited”, with this affecting their remuneration.

It proposes two safeguards, which the Society of Authors says are particularly important for writers. The so-called “bestseller clause” would give authors the right to claim additional and appropriate remuneration if the returns in their contracts are disproportionately low compared to the subsequent profits from exploitation of the works. The transparency safeguard, meanwhile, would give writers a right to regular and adequate information on the exploitation of their works.

“I welcome this draft directive, especially for its emphasis on transparency and the bestseller clause. Authors badly need the sort of natural justice that these clauses embody, not least because our work contributes substantially to the wealth of the nation,” said Pullman. “I hope that our government will see the rightness of these proposals and embody them firmly in the law of our land to ensure that they continue when we leave the EU.”

“Publishers too often fail to give their authors full information on sales and exploitation of their work. Many more gain an unfair windfall when a work is an unexpected success but do not share any of that gain with authors. This unfairness leads to many authors no longer being able to make a living from writing and, if unchecked, threatens the creative excellence of our publishing industries,” she said.

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

PG is always in favor of authors being paid more, but this strikes him as strange and a little pathetic.

Why are UK authors so powerless? PG has known some good British lawyers and finds it difficult to believe they could not do an excellent job of protecting authors in contract negotiations.

PG is no expert on UK laws, but if the publishers are colluding, doesn’t the Competition Law provide a remedy for complaints?

Laws have their place, but they certainly have the potential to freeze a 2016 solution in place for many years to the detriment of new and useful business and technical developments. Plus, legislators and bureaucrats everywhere seem to be highly pervious to the lobbying of moneyed interests, including large publishers.

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