From Kristine Kathryn Rusc h:
For the sake of this particular little series, assume this: When I say “Hollywood,” I mean the movie/TV industry, and I am most likely talking about the biggest one still, the one based in the U.S.
. . . .
Let’s Start With Copyright—Again
Once upon a time in a land faraway, an insurance salesman finished writing a novel. He had graduated from a private college with a degree in English, tried to enlist in wartime and was unable to, because he was too nearsighted—although he did manage to spend his college years in the R.O.T.C. He was a military junkie who read technical manuals for fun.
The novel he had finished was an overly long, much too technical, somewhat dull “thriller” with an everyman hero. “What’s wrong with a hero who’s married, loves his wife and plays with his kids?” the author asked on the cusp of fame. “That’s what most people are.” (Put a pin in that. We’ll come back to it later.)
He couldn’t sell the novel to any of the big players in fiction, or even to any of the small players. At that point in his life, he was a failed novelist, and he did what most failed novelists do: He gave up.
But he gave up aggressively. (He was an aggressive asshole, who only got worse later in life.) Instead of putting his overly long, much too technical, somewhat dull “thriller” into a box under his bed, he mailed it to a tiny nonfiction press. The editor there saw something in it, convinced her boss to buy the novel, if the author cut 100 pages out of it.
The author did. But he still didn’t believe in the book. Or maybe, he was just too damn dumb to know better. I think he was, as most authors are, that horrid mix of ego and insecurity and the insecurity won here. (Ego would win later on.) He sold all rights to the book to the technical press for a pittance.
Then he went back to writing, hoping he would have better luck.
Well, he did have better luck. The press he sold the book to was a government-owned nonprofit, and they routinely sent their books to the White House. The president, a conservative back in the days when conservative politicians actually read, found the book and, when a reporter asked him what he was reading, held the book up and said that the book was his “kind of yarn.”
That was all it took. The book sold millions of copies. It sold to the movies immediately thereafter and actually got made into a good movie with big stars.
But we’re getting ahead of ourselves. Our damn dumb protagonist (we can’t call this author a hero. Trust me) wrote and sold more books related to the first book. The same character, actions that take place both before and after the first book—a sequel in most meanings of the word, according to the non-profit publisher. The non-profit publisher, who had already profited on their investment when they sold paperback rights to a Big New York publisher, contacted said Big New York Publisher about this sequel thing. Because, you see, the damn dumb writer had sold his next few books to that Big New York Publisher, not realizing, apparently that he had written sequels. (Sigh.)
Suddenly, everyone was in a suit with everyone else about who owned the material and who had the right to license the books and produce them and who had the right to license any part of these works to Hollywood.
. . . .
This is the turning point moment. That moment in all good stories where the protagonist (dumb or not) comes to an all-important fork in the road. You’d think this author would have learned that he needed to understand copyright and deal making and all of that stuff. Instead, he blames his error on the fact that he had no agent or lawyer to guide him.
The problem with agents is that they are often as clueless as our damn dumb protagonist. The problem with some lawyers is that they make more money in a case that drags out in court than one that can be settled quickly.
Back then, before the first movie came out, before it became clear just how much money this particular project with the Presidential Gold Seal of Approval could make over decades, there was an opportunity to settle everything.
The technical press had been cooperating. After all, they owned all rights. They wanted “a little bit of compensation.” Compensation they were entitled to, by the way. They could have been draconian about all of this. If they had been a Big New York Publisher, they would have been draconian and the author would have been screwed.
But the non-profit publisher and the writer had a deal to settle this amicably. Most likely, the non-profit would get a percentage, and our damn dumb protagonist would retain the opportunity to write and sell the sequels to the Presidential Gold Seal of Approval book. Some money—maybe a lot of money—would have gone to the non-profit press, but, honestly, in this kind of publishing and licensing movie and TV rights, there’s more than enough money to go around.
The author’s lawyer balked. The deal went into arbitration and (spoiler alert) got settled weirdly and without any clarity. The author, a well known jerk, did not make any friends (even pictures of him with the movie stars show him smiling and the stars as far from him as possible) and he got more and more egotistical over time.
The author incorporated, and did some business things to mitigate his tax burden, things that involved his then-wife. Yep, then-wife. Whoops. Because there was a divorce, and more problems and another wife, and five children, and movies, TV, more books, and lots and lots of business weirdness.
Then our damn dumb author dies. And the second wife wants everything, so she sues. Because those deals, made in the murky beginning before the first movie came out, left a lot of questions unanswered. She wanted answers—and she wanted those answers to come with money. As in, all of the money. (Or 80% of it, with the remaining 20% going to the kids.)
Here’s my favorite part. Her suit and the vehemence with which everything gets argued encourages the judge to put all of the money the properties earn into escrow, until the dispute is settled.
In other words, no one gets any money at all.
. . . .
Eagle eyes now know who I’m discussing. This is the case of Tom Clancy. I’ve oversimplified much of it, because this case also involves the 35-year rule (look it up), the statute of limitations, arcane business law, arbitration, and oh, so much more.
But it all stems from complete and utter ignorance. In the beginning, the ignorance was the ignorance of a typical writer. Writers don’t need to know business (they think) or copyright (they think) or marketing or anything else. They’ll have people to take care of that.
Clancy had no people at first. Then he hired people known to have sticky fingers. Or, at least, people known to make deals that benefited themselves as much or more than the client.
. . . .
When there was a fork in the road, Clancy always took the road that led to disaster, not the road that would clarify. His ego, never small, got in the way once Ronald Reagan gave him the Presidential Gold Seal of Approval. Every thing in this legal mess can be brought directly on Clancy’s ignorance and his unwillingness to bend.
But let’s not ignore the Naval Institute Press, which initially bought the book. They too seemed to be ignorant of a few things.
. . . .
[W]henever Hollywood makes a contract, especially when the publishers and authors involved were ignorant of the ways of movie powerbrokers, Hollywood takes everything. They want movie rights—sure—but literary rights too, and usually merchandising rights (thanks, George Lucas [insert sarcasm emoji]) and anything else their sharks…um, lawyers…can think of.
. . . .
All of this—decades of legal wrangling, an estate tied up in litigation for eight years now—could have been avoided if Clancy had understood copyright in the first place.
. . . .
[A]s I’ve often said, what hurts writers the most is success, not failure. Failure is something you can move on from.
Success can destroy a writer, a career, and an entire family. (You think Clancy’s family is one big happy huggy group? Yep, me neither.) When you negotiate a contract, you should negotiate for success, not for failure. (Although you should keep an eye on that failure side of thing.)
There’s so much money in successful publishing that leeches moved into this business a hundred years ago. Leeches can siphon funds away from bestselling writers and the writers don’t even notice. Clancy made millions on his books. I’ll wager, without looking at any numbers, that at least one of his agents (a Jabba The Hut character whom I’d met and run from) made more.
I know that Clancy’s New York publishers made a boatload more money than Clancy ever did. That’s due to traditional publishing contracts. The traditional publisher makes 80-90% on the book; the writer makes 10-20%.
Link to the rest at Kristine Kathryn Rusch and thanks to Nicole for the tip.
Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.
PG says that you definitely want to click through on the link to Kris’ post to read the whole thing. PG has a tendency to go on rants, but he is a small-timer compared with Kris.
PG will make a few comments.
Some lawyers truly are jerks and idiots. (This is one area where PG can claim more expertise than Kris.)
Yes, you do have to get through law school to be an attorney. Yes, you do have to pass the bar exam in some state to be an attorney.
These accomplishments don’t mean that you aren’t an idiot.
Anyone who has graduated from college knows some idiots who managed to accomplish the same thing. Law school is a bit different than college, but idiots can graduate. If you can get through law school, you can pass the bar. The bar exam is like a law school exam.
Just like graduating from a fancy college or university doesn’t guarantee that you’re not an idiot, graduating from a fancy law school doesn’t guarantee that you’re not an idiot. (Indeed, PG has known more than a few graduates from fancy educational institutions who wander into idiocy precisely because they think they’re smarter than anybody else.)
If a lawyer, even a very good lawyer, has a client who is an idiot, the result is not likely to be good.
Good lawyers try to help clients avoid making dumb mistakes, but ultimately, the client is the boss.
If the lawyer strongly recommends red and the client says blue, it’s going to be blue. The lawyer might be able to negotiate a few contract clauses that are blue with a tinge of red, but the lawyer is obligated to go blue if that’s what the client tells the lawyer to do.
The lawyer can withdraw from representing an idiot (or crazy or evil) client and PG has done that on occasion in the past.
(Side Note you can skip if it’s not interesting – If a client is charged with a crime, it may be very difficult for a lawyer to withdraw from representing a crazy or evil client (particularly if a judge has assigned the lawyer to represent that client). Under the US Constitution, crazy and/or evil criminals are entitled to competent legal representation at trial and their lawyers have an ethical obligation to avoid communicating the jury by words, acts, omissions, disgusted looks, etc., that the client is guilty as hell. In a former life, PG found himself in that position a couple of times and you just (figuratively) hold your nose, push through, try to poke holes in the prosecution’s case, work to make shady witnesses testifying against your client look as shady as they really are and hope the client’s breath doesn’t smell too bad when he/she whispers to you in court.)
Since PG doesn’t know anyone who represented Tom Clancy, he’s not in a position to say whether they were good lawyers representing an egocentric idiot or they were idiot lawyers representing an idiot author.
Whether you like it or not, if you are an author who cares about getting paid for your work, you’re also a businessperson. If you’re a brilliant, superbly-talented author who cares about getting paid for your work, you don’t get a pass. You’re still a businessperson.
If you have the money to deal with smart, talented and ethical professionals, you can get help with the business side of writing. However, despite having those people helping you, you’re still in charge of your writing business.
Authors who “just want to write” are prime targets for crooks and shysters. They may luck out and hire only honest, honorable and competent people who stay that way for the author’s entire career and thereafter (if the author cares about their heirs continuing to reap the fruits of the author’s labors), but most successful self-employed people that PG knows, including authors and non-authors, who have managers/employees/helpers/etc. pay ongoing attention to how their businesses are being run.