Contracts

How Bad Publishers Hurt Authors

by

From Jane Friedman:

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

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

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

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

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

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

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

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

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

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

. . . .

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

Link to the rest at Jane Friedman

When Your Publishing Contract Flies a Red Flag: Clauses to Watch Out For

by

From Writer Unboxed:

After the excitement of a “yes” from a publisher comes the job of assessing your publishing contract.

Facing down ten pages of dense legalese can be a daunting task, especially for new and inexperienced writers, who may not have the resources to hire a literary lawyer, or have access to a knowledgeable person who can help de-mystify the offer terms.

And it is really, really important to assess and understand those terms, because publishing contracts are written to the advantage of publishers. While a good contract should strike a reasonable balance between the publisher’s interests and the writer’s benefit, a bad contract…not so much.

. . . .

After the excitement of a “yes” from a publisher comes the job of assessing your publishing contract.

Facing down ten pages of dense legalese can be a daunting task, especially for new and inexperienced writers, who may not have the resources to hire a literary lawyer, or have access to a knowledgeable person who can help de-mystify the offer terms.

And it is really, really important to assess and understand those terms, because publishing contracts are written to the advantage of publishers. While a good contract should strike a reasonable balance between the publisher’s interests and the writer’s benefit, a bad contract…not so much.

In this article, I’m going to focus on contract language that gives too much benefit to the publisher, and too little to the author. Consider these contract clauses to be red flags wherever you encounter them. (All of the images below are taken from contracts that have been shared with me by authors.)

Copyright Transfer

Unless you are doing work-for-hire, such as writing for a media tie-in franchise, a publisher should not take ownership of your copyright. For most publishers, copyright ownership doesn’t provide any meaningful advantage over a conventional grant of rights, and there’s no reason to require it. Even where the transfer is temporary, with rights reverting back to you at some point, it doesn’t change the fact that for as long as the contract is in force, your copyright does not belong to you.

Copyright transfers usually appear in the Grant of Rights clause. Look for phrases like “all right, title and interest in and to the Work” and “including but not limited to all copyrights therein.”

Watch out also for contracts where a copyright transfer in the Grant of Rights clause is contradicted by language later on–such as requiring the publisher to print a copyright notice in the name of the author (which shouldn’t be possible if the author no longer owns the copyright). For one thing, you don’t want your contract to be internally contradictory, which could pose legal issues down the road. For another, such contradictions suggest that the publisher doesn’t understand its own contract language, which is never a good thing.

There’s more on the not-uncommon problem of internal contradictions here.

Life of Copyright Grant Without Adequate Reversion Language

Big publishers routinely require you to grant rights for the full term of copyright (in the US, Canada, and most of Europe, your lifetime plus 70 years). Although they’re more likely to offer time-limited contracts, many smaller presses do as well.

Contrary to much popular belief, this is not necessarily a red flag…as long it’s balanced by clear, detailed language that ensures you can request contract termination and rights reversion once sales drop below specific benchmarks: for example, fewer than 100 copies sold during the previous 12 months, or less than $250 in royalties paid in each of two prior royalty periods. Publishers like to sit on rights, because they can make money from even low-selling books if they have a big enough catalog. Authors, on the other hand, don’t benefit from a book that’s selling only a handful of copies and getting no promotional support. At that point, it’s better to be able to revert your rights and do something else with them.

If you’re offered a contract with a life of copyright grant term, the first thing you should look at is the termination and reversion clause. A good clause will be specific about when and how the book will go “out of print” or “out of publication”, and what the author can do to terminate the contract once that happens.

In the clause below, the definition of “in publication” is tied to objective standards, including minimum sales numbers, and there’s a clear procedure for both the author and publisher to follow to request and grant rights reversion once falling sales take the book “out of publication”.

By contrast, here’s an example of a poor reversion clause.

Defining “in print” as “on sale by the Publisher” (similar problematic terminology: “available for sale in any edition” or “available for sale through the ordinary channels of the book trade”) means that an ebook edition available only on the publisher’s website would qualify as “in print”, even if it was barely selling or not selling at all. Since it costs little or nothing to keep a book “available” this way, the publisher has no incentive ever to take the book “out of print”, and the author has no leverage to compel the return of rights.

. . . .

Claiming Copyright on Edits

Can a publisher claim that it owns the copyright on the editing it provides?

As far as I know there’s no legal precedent for such a claim, and the very limited legal discussion I’ve seen leans toward the view that editing process doesn’t give the publisher—or the editor—any copyright ownership. After all, other than copy editing, most editing is a collaboration between author and editor, with the bulk of the work done by the author.

Claiming copyright on edits is not standard publishing practice. Nevertheless, some publishers do attempt it, either with an outright claim of copyright on the final version of the work…

…or simply a claim on the edits themselves (telltale language: “original, unedited manuscript”):

It’s unlikely that either of these clauses would hold up in court—especially the first one: among other things, the presence of a copyright notice in the author’s name inside the book would certainly seem to indicate the publisher’s acknowledgment of the author’s ownership of the finished product. What good does it do the publisher to hoard edits on a book it doesn’t own, anyway? What difference does it make if an author re-publishes their fully-edited book once rights have reverted? Claiming copyright on edits is simply pointless and greedy.

Editing copyright claims can occur throughout a contract: I’ve seen them in the grant of rights section, the termination section, and the editing section. So keep a sharp eye out.

Net Profit Royalties

While larger publishing houses tend to pay royalties as a percentage of a book’s list price, smaller publishers often pay based on net revenue or net sales income: list price less wholesalers’ and retailers’ discounts and channel fees.

Less common are royalty payments on net profit: list price less discounts less some or all of the expense of publishing.

Net profit royalty clauses are always a contract red flag. Even at higher royalty percentages, expense deductions can drastically reduce the amount on which your royalties are based: that 50% royalty may seem generous, but depending on what’s taken out before it’s calculated, what you actually receive may turn out to be much less than you expected. Additionally, net profit royalties are a temptation for publishers manipulate expenses to make author payments as small as possible.

Here’s a fairly straightforward example of a net profit royalty: sales receipts less printing and shipping.

Here’s a clause that deducts much more, including ISBN, cover art, layout and formatting, author copies, and possibly other costs. Not only does this have the potential to reduce your royalty to a pittance, you won’t have any idea of why you were paid what you were paid unless the publisher provides an itemized accounting.

Some publishers with net profit royalties confuse the issue by claiming to pay on “gross income” or “net sales price” or similar terms that don’t include the word “profit”. This is why you always want to see a precise definition of whatever terminology the publisher uses to describe its royalty payments, so you can be sure exactly how your royalties will be calculated. The absence of such a definition is another red flag.

Link to the rest at Writer Unboxed

Long-time visitors will recall these and many other items from PG’s posts from a long time ago.

The bottom line is:

  • Read any Publishing Contract, regardless of whether it’s from a small publisher or a very large one.
  • Don’t sign a contract that contains any provisions you don’t understand.
  • Don’t trust a contract that someone on the other side of the contract or your agent says is “a Standard Contract.”

Unlike many contracts that individuals are asked to sign, book publishing contracts are not regulated in any meaningful way.

If you want to get a new Visa credit card, there are lots of laws that limit what terms may be included in the credit card contract.

This is definitely Not the case with a publishing contract.

It costs much, much less to hire a literary attorney to examine the contract before you sign it than it does to hire that same attorney to get you and your book(s) out of a publishing contract after you’ve signed it.

PG knows because that those two services occupied much of his professional time before he pulled down his shingle. Examining a contract before it was signed cost hundreds of dollars. After it was signed, getting an author out of that contract cost thousands of dollars.

(No, PG is not coming our of retirement. Been there, done that, quit paying for malpractice insurance.)

Arbitration Agreements

by

PG updated a post he put up a few days ago with a short discussion of arbitration in contracts, including literary contracts.

He decided to expand it a bit and make it it’s own post because he thinks it may benefit authors in a variety of ways.

Arbitration is one form of Alternative Dispute Resolution (ADR) that is frequently used by businesses. It’s Alternative because it’s an alternative to locating an attorney to file a lawsuit in one of the many the civil courts which, at least in parts of the US, are massively backlogged. It’s not quite Jarndyce and Jarndyce, but in many places, we’re talking about a years-long process.

ADR has flourished in the last 30-40 years because commercial businesses have wanted to get disputes resolved promptly so they can move forward with the real business of the company.

To avoid this backlog in the United States (and a number of other Western nations), a competently-drafted arbitration clause will govern the resolution of any disputes between the parties. Arbitration sidesteps the courts entirely and uses a far more efficient alternative. Arbitration is generally a better way and virtually always a much faster way of resolving business disputes than the civil court system.

For one thing, most judges have never had dealings with publishing disputes (or disputes in other specialized commercial businesses). Depending upon the jurisdiction, a trial judge may try a criminal case involving a theft from a convenience store one day, a contested divorce the next day and a dispute between two adjacent landowners about where the property line should be on the third day.

Many trial judges, particularly those who decide commercial disputes, are generalists. Most have never tried a case involving an author and a publisher or a group of authors.

Arbitration allows the parties in a publishing dispute to have an experienced literary attorney to act as an arbiter (for a fee) and they won’t have to educate the arbiter about publishing law.

You can find knowledgeable arbitrators in a variety of different ways. The American Arbitration Association is designated to choose an arbitrator and set the arbitration rules in the large majority of business contracts PG has viewed that include arbitration provisions.

The AAA website even provides a variety of arbitration clauses you can cut and paste into your contract. Here’s an example:

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

While US civil and criminal courts are typically open to the public (you can go watch a divorce trial or a criminal trial on virtually any weekday in any large or medium-sized American city), arbitration is typically private. You can specify confidential arbitration in your arbitration clause if you like, but the arbiter isn’t required to announce the time and place of arbitration to anyone but the parties and their attorneys.

While he was practicing, PG never attended an arbitration that wasn’t set in a law firm’s conference room. Typically, a supply of water bottles was provided for any who desired one. An arbitrator will have read all the written materials provided by the parties beforehand (judges sometimes don’t have the time to do so) and often has asked the parties in advance to agree upon facts that are not in dispute.

While the arbitrator is there to resolve disputes, an arbitrator has an ability to get to the bottom of the core disputes by using any reasonable shortcut. “Ms. Jones, does your client agree that the other driver entered the intersection before she did?” is an example.

Another might be, “Is there any dispute or question that the royalty reports are accurate information about how many books the publisher shipped during the period of time we’re talking about? That we’re only looking at a dispute about how many books were returned during that period and whether the publisher accurately reported and charged back those returns on the royalty statements or whether the publisher charged back a number of books in excess of the number returned or failed to report the later sales of some or all of those returned books?”

A typical trial judge would likely not know how some publishers mishandle accounting of books returned.

If two or more attorneys are charging by the hour for the parties involved, in addition to getting a dispute resolved quickly, the parties might be paying less for legal counsel via arbitration rather than educating a trial judge about the details of the traditional publishing business.

IBPA Hybrid Publisher Criteria

by

From Independent Book Publishers Association:

Hybrid publishing companies behave just like traditional publishing companies in all respects, except that they publish books using an author-subsidized business model, as opposed to financing all costs themselves and, in exchange, return a higher-than-industry-standard share of sales proceeds to the author. A hybrid publisher makes income from a combination of publishing services and book sales.

Although hybrid publishing companies are author-subsidized, they are different from other author-subsidized models (i.e., self-publishing service providers) in that hybrid publishers adhere—without exception—to the following set of professional publishing criteria.

For the avoidance of doubt, this means organizations that do not adhere to the entirety of IBPA’s Hybrid Publisher Criteria—or adhere to most, but not all of the criteria—are not hybrid publishers as IBPA would define them and should not be calling themselves “hybrid.” These organizations are better categorized as self-publishing service providers. In a self-publishing service provider/author relationship, it is the author who plays the publisher role.

Self-publishing service providers mislabeling themselves as hybrid publishers, whether knowingly or unknowingly, are contributing to the confusion and exploitation of authors and are rightly called out for doing so.

A hybrid publisher must:

  1. Define a mission and vision for its publishing program. A hybrid publisher has a publishing mission and a vision. In a traditional publishing company, the published work often reflects the interests and values of its publisher, whether that’s a passion for poetry or a specialization in business books. Good hybrid publishers are no different.
  2. Vet submissions. A hybrid publisher vets submissions, publishing only those titles that meet the mission and vision of the company, as well as a defined quality level set by the publisher. Good hybrid publishers don’t publish everything that comes over the transom and often decline to publish.
  3. Commit to truth and transparency in business practices. It should go without saying, but like any reputable business, a hybrid publisher must commit to transparency in its business practices. This includes being clear about the cost of services and providing an honest estimation of each book’s potential for success. A hybrid publisher is also fair and transparent in its financial dealings, writes contracts in understandable language, and resolves any disputes promptly and fairly. A hybrid publisher never misleads potential authors with false promises, inflated sales data, or manipulated reviews.
  4. Provide a negotiable, easy-to-understand contract for each book published. A hybrid publisher supplies a clear, negotiable contract at the start of every negotiation which sets out—in understandable language—the exact scope of the arrangement, including term limits and compensation. All contracts should include regular reviews and updates as needed. A clear rights-reversion clause must be included in every contract. A hybrid publisher should be clear that it welcomes potential authors to discuss the proposed contract with neutral third-party advisors, such as a legal advisor or authors guild.
  5. Publish under its own imprint(s) and ISBNs. A hybrid publisher is a true publishing house, with either a publisher or a publishing team developing and distributing books using the hybrid publisher’s own imprint(s) and ISBNs.
  6. Publish to industry standards. A hybrid publisher accepts full responsibility for the quality of the titles it publishes. Books released by a hybrid publisher should be on par with traditionally published books in terms of adherence to industry standards, which are detailed in IBPA’s Industry Standards Checklist for a Professionally Published Book.
  7. Ensure editorial, design, and production quality. A hybrid publisher is responsible for producing books edited, designed, and produced to a professional degree. This includes assigning editors for developmental editing, copyediting, and proofreading, as needed, together with following traditional standards for a professionally designed book. All editors and designers must be publisher approved; they can be part of the publisher’s internal staff or outsourced, or a mix of both options.
  8. Pursue and manage a range of publishing rights. A hybrid publisher normally publishes in both print and digital formats, as appropriate, and perhaps pursues other rights, in order to reach the widest possible readership. As with a traditional publisher, authors may negotiate to keep their subsidiary rights, such as foreign language, audio, and other derivative rights.
  9. Provide distribution services. A hybrid publisher has a strategic approach to making books available to consumers beyond the simple mechanism of uploading files to online retailers and making books available for purchase online. Depending on the hybrid publisher, this may mean partnering with a traditional distributor that has a team of sales representatives who actively market and sell books to retailers, libraries, wholesalers, etc., or it may mean publisher outreach to a network of specialty retailers, clubs, or other niche-interest organizations. At minimum, a hybrid publisher has a marketing and sales strategy for each book it publishes, inclusive of appropriate sales channels for that book, and provides assistance and/or education to the author seeking to execute or understand this strategy in order to get his or her book in front of its target audience. This is in addition to listing books with at least one industry-recognized wholesaler.
  10. Demonstrate respectable sales. A hybrid publisher should have a record of producing several books that sell in respectable quantities for the book’s niche with a demonstrated sales track record with like titles. This varies from niche to niche; small niches, such as poetry and literary fiction, may see sales of less than a couple thousand copies, while mass-market books require more.
  11. Pay authors a higher-than-standard royalty. When compensation is based on royalties, a hybrid publisher pays its authors more than the industry-standard* royalty range on print and digital books in exchange for the author’s personal investment. Although royalties are generally negotiable, the author’s share must be laid out transparently and must be commensurate with the author’s investment. In most cases, the author’s royalty should be greater than 50% of net on both print and digital books.

Link to the rest at Independent Book Publishers Association

PG says good luck enforcing that. PG has heard just as many complaints about Hybrid Publishers as he has about traditional publishers.

 Long-term IP Management

by

From Kristine Kathryn Rusch:

[W]riters should consider their IP a living breathing entity that has a lifespan all its own; IP is not something to be easily discarded or sold for a quick buck.

Writers who do that will live to regret it.

In the previous post, I discussed how the most valuable intellectual properties are the ones with longevity, even if they’re not the most famous properties. A property with a long history also has a long relationship with its fan base, something that businesses which license intellectual property for things like games and toys truly value.

. . . .

In May, Authentic Brands Group issued threatening cease-and-desist letters to wedding chapels around Las Vegas. The reason? ABG told the chapels that they were using Elvis Presley’s image, music, and iconography without permission.

I’d often wondered about some of these places. I live in wedding chapel central, not far from several chapels that have a silhouette of Elvis as part of their logo. Not a week goes by in my neighborhood without an Elvis getting into a Cadillac or a group of Elvises (Elvi?) standing around a fake grass lawn or Elvis hits wafting from the cupola of a nearby wedding chapel.

If I’d given this anything—and I really hadn’t—I’d assumed that these Elvis appearances were licensed. I do recall discussing Elvis impersonators in my recent Entertainment Law class in regards to some music copyrights: the Elvis estate routinely denies Elvis impersonators synch licenses, licenses that allow the impersonator to marry their video to Elvis’s music. I get that; the estate wants videos of Elvis singing to be Elvis, not someone else.

. . . .

When Elvis died, in 1977, there were no impersonators, no Vegas Elvis weddings, nothing like that. There were no laws on the rights of celebrities to control their own images. All of that—what little there is—was developed long after Elvis died, and is still changing and growing.

The Elvis impersonator industry, including the wedding chapels, evolved over decades, and the Elvis estate did not actively pursue imitators. So the industry flourished.

The Elvis estate fascinates me, because of its management history. Elvis essentially died broke, and when his ex-wife Priscilla took over, the estate had little ability to generate revenue. Priscilla, with the help of advisors, created Elvis Presley Enterprises “to manage all Elvis image rights and remaining royalties, which primarily included turning Graceland into a tourist attraction. Between Graceland profits, merchandising, image deals, and royalties from songs recorded after the RCA deal, Priscilla and her co-executors of the Elvis Estate helped grow its value to a reported $100 million by 1993” according to Forbes.

That year, Lisa Marie Presley turned 25, and was able to claim her part of the estate. Then things got messy.

I’m not going to go into the mess here, but suffice to say that Lisa Marie got her father’s business acumen, not her mother’s. She appointed a business guy, one Barry Siegel, to handle the financial affairs. He sold 85% of Presley’s interest in EPE and invested some part (this is murky to me) in a holding company that included American Idol and eventually went bankrupt.

. . . .

During this great financial upheaval, Authentic Brands Group acquired the rights to license and merchandise all things Elvis. ABG calls itself “an intellectual property corporation,” and it handles the images of Marilyn Monroe and Muhammad Ali, among others. The details of the deal aren’t easy to find, but suffice to say that this deal was made for money, not because EPE wanted to lose control of its cash cow.

. . . .

Bullying often works in IP cases because the costs of going to court are so very high. If a company like ABG comes after a small business like a wedding chapel, then the small business usually has no recourse but to cave. A long-term lawsuit on these issues can cost upwards of $100,000 or more. Very few small businesses can absorb that.

But ABG made a biiiiiiig mistake going after wedding chapels in Las Vegas. The wedding industry in this city is a two billion dollar industry, and Elvis-themed weddings are a big part of it.

So, when ABG went after the chapels (and not all of them, either), it screwed up. Within days, the chapels had banded together to fight this overreach, and had the entire city behind them. Eighteen-thousand jobs were suddenly at risk, not to mention all the other Elvis themed products.

ABG didn’t randomly pick this spring to go after the chapels. There’s a big Elvis movie coming out on June 24, and some person at ABG figured that would increase interest in Elvis. They sent these letters so that no one would profit off the Elvis revival but them.

Big problem, though. People have been profiting off Elvis for decades. Yes, EPE and the estate have occasionally gone after trademark infringers, but not in any organized way. Neither has ABG.

. . . .

This has serious implications for potential lawsuits. ABG expected the wedding chapels to roll over and either give up their work or pay hundreds of thousands without a fight. ABG did not want a legal fight, because they have not correctly defended the Elvis brand.

No one has. It would take years, but there’s a strong possibility that lawsuits over the IP could result in ABG and EPE losing their trademarks over Elvis. To maintain a trademark, you need to vigilantly defend it. EPE and ABG did not defend much at all. In fact, for years, EPE and ABG allowed this to go on, and so to try to shut it all down now might be impossible.  (Lawyers, feel free to correct if I’m wrong.)

Given the fact that ABG reversed course the moment the wedding chapels and the city got involved tells me that some higher up in the company blinked. I’m sure some junior lawyer has been fired and now ABG is trying to clean up its mess.

The clean-up is ugly as well. ABG is now trying to charge for a license, which they should have done in the first place. The charge went (in less than a week) from tens of thousands to $500 per year. No one has signed anything or agreed to anything, and if the chapels are getting advice from some of the good IP attorneys in this city, I doubt anyone will pay for a license.

. . . .

Why am I telling you this? Because Elvis Presley is the 7th highest earning dead celebrity, according to Forbes. The estate earned $30 million last year. Yes, some of that was Graceland, but it also included licensing a TV channel and a Netflix animated alternate history series in which (I’m not kidding) “Elvis will explore an alternate history where he faked his own death to fight crime with a secret government spy program.”

As I mentioned before, long-term IP is worth a lot of money. Even when it’s badly mismanaged, as the Elvis estate has been since Priscilla stepped away from it all. The dang thing keeps earning money. Clearly a lot of that money is going into the pockets of people who have no connection to the long-dead King, but that’s because of the mismanagement.

Had Lisa Marie handled everything—or let her mom remain in charge—that $30 million would go directly to the estate instead of others. And clearly, someone would have known better than to mess with the wedding chapels and Vegas, which have done more to keep Elvis’s legacy alive than almost any other group.

. . . .

Story number two is one many of you sent to me. Each one of you sent a different article, and all of those articles were different from the one I initially saw.

Yep, there’s a copyright lawsuit over the new Top Gun: Maverick movie. A lawsuit so serious that should some judge really want to, the judge could pull the movie from the theaters.

The lawsuit was filed in early June, and so far, the movie is still playing well, so I doubt that any injunction will happen. But what’s going on here is almost the exact opposite of what happened with Elvis.

In 1983, Ehud Yonay published an article in California Magazine called “Top Guns.” The original movie, Top Gun, was based on this article. In fact, Ehud Yonay received a single card credit in the movie, which I noticed when I rewatched the movie in late May.

Yonay’s involvement wasn’t hidden, like the involvement of so many writers. It was there for everyone to see.

Yonay died in 2012. In 2018, Yonay’s widow and son filed a notice to reclaim the full copyright…and notified Paramount Pictures that it was doing so. The rights reverted to the Yonays in 2020, and in January of 2020, they filed a notice of termination of the copyright with Paramount Pictures, knowing full well that the Maverick movie was in development.

The Yonays claim that Paramount needed to reacquire the film and ancillary rights to the article. In other words, they needed a new agreement.

Paramount claims they do not need to do that, since the movie was more or less complete before the notice of termination hit. The pandemic messed everything up, including timing here. The Yonays claim that the movie wasn’t completed until May of 2021, long after Paramount received notice.

This will be up to a court to decide. What’s happened in most of these 35-year reclamation cases is that ultimately the licensing agreements are renewed, with a boatload of money going to the copyright holder. Most of these cases are settled and the terms are not disclosed.

Link to the rest at Kristine Kathryn Rusch

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.

Publishing Contracts 101: Beware Internal Contradictions

by

From Writer Beware:

It should probably go without saying that you don’t want your publishing contract to include clauses that contradict one another.

Beyond any potential legal implications, internal contradictions suggest a publisher that either doesn’t understand its own contract language well enough to spot the problem–or a publisher that simply doesn’t care. Neither is a good sign for what lies ahead.

Contradictions can be tricky to spot, especially for first-time authors who aren’t experienced in contract legalese. Here’s an example that came across my desk recently: an anthology contract from Dark Lake Publishing that provides for rights reversion 12 months after publication:

(Side note: this is a crap reversion clause, since it not only allows the publisher to keep publishing indefinitely, but doesn’t say anything about paying for that privilege. That’s not the issue I’m highlighting in this post, however.)

The wording of the clause seems pretty clear, right? All rights other than publishing rights–and this is an all-rights contract, with the publisher laying claim to “all Intellectual Property Rights subsisting, either in present or in the future, in the Book in all formats”–return to the author 12 months after the contract’s effective date, which is the date of publication. But just a few clauses down, there’s this:

But…but…if all rights other than publishing rights revert after 12 months, how can the publisher lay claim to dramatic rights for two more years? It’s a clear internal contradiction.

In practical terms, there’s probably no impact: this particular publisher has about as much ability to exploit dramatic rights as I do of space touristing to Mars. But what does it say about a publisher that it either hasn’t spotted the cognitive dissonance, or is perfectly fine with it?

Another example I’ve seen recently involves royalties. This contract from Fractured Mirror Publishing appears to be planning to pay both twice a year and once a year:

Here’s more confusing royalties language from Beacon Publishing Group, which first promises to pay based on Net Receipts, but then cites percentages of retail price (guess which one will appear in your royalty check):

Another example: serial reading/writing app Popink, whose contract appears to extend for a limited term, but includes a Power of Attorney clause at the end of the contract that claims rights for the duration of copyright (you can read more about Popink’s awful contract here).

But the internal contradiction that I see most often, and most consistently, involves copyright: contracts where the grant of rights explicitly transfers copyright to the publisher, while further clauses acknowledge copyright retention by the author.

Here’s what I’m talking about. These clauses are from the contract of Histria Books.

The key wording here is “exclusively grants, assigns, and otherwise transfers to the Publisher…all right, title, and interest in and to the Work…including but not limited to all copyrights therein”. Whenever you see language like this, it means that you are agreeing to give up ownership of your copyright.

Histria’s contract includes language allowing for termination by the author under certain circumstances, so the copyright transfer is temporary rather than permanent (which doesn’t necessarily make it a better deal). However, when you transfer your copyright to someone else–even temporarily–that someone becomes the owner of all your intellectual property rights, without exception, for as long as the transfer is in force, and can do anything it wants with them, from licensing rights to third parties to creating sequels, spinoffs, and derivative works.

So you have to wonder why Histria’s copyright transfer language is followed by this:

In a contract with a conventional grant of rights–one that does not include a copyright transfer–you want to see such a clause, to make clear that the publisher can’t claim any rights that haven’t been specifically mentioned. But Histria’s contract does include a copyright transfer, which means that there are no rights remaining that can be reserved to the author. If not outright contradictory, this clause is certainly inconsistent. But then there’s this:

But wait–didn’t the Grant of Rights make Histria the owner of the copyright? So why would it register in the author’s name? To do so would be to acknowledge the author as the copyright holder, since copyright registration is made in the name of the copyright owner.

(Side note: what the hell is meant by “material contributed by the author to the Work”? Wouldn’t that be, hmmm, the work itself, given that the author wrote it? Even if nothing else in this contract were problematic, this bizarre wording would demand an explanation.)

Finally, there’s this–a pretty unambiguous acknowledgment of the author’s copyright ownership:

Bottom line: multiple clauses in Histria’s contract are inconsistent with or directly contradict the copyright transfer in Clause 1.

I have no idea what the legal ramifications are here. If there’s a dispute, whose ownership would prevail: Histria’s, per Clause 1, or the author’s, for which registration in their name provides prima facie evidence? Regardless, such inconsistencies really should not exist in a publishing contract, and their presence raises the questions posed above: does the publisher not understand its own contract? (Not a good sign of professionalism or expertise.) Does it just not care? (Ditto, and you have to wonder what else it doesn’t care about). Worth noting: I’ve heard from authors who contacted Histria about the copyright contradictions, and were brushed off.

Link to the rest at Writer Beware

The author of the OP is Victoria Strauss. Her bio doesn’t mention anything about law school, but PG’s assessment is that she’s smarter about contracts than quite a few of the attorneys he has dealt with over the years.

While a single blog post could not cover all of the dishonest/stupid/evil/clumsy provisions that have appeared/currently appear/will appear in publishing contracts, all authors should read the entire post by Ms. Strauss, save a copy of it for future reference, and review the contents of the post if they receive a publishing contract, solicited or unsolicited. No single post could possibly contain all the gotcha’s that appear in the universe of business contracts, the post demonstrates some good techniques for examining a contract.

Although PG doesn’t review contracts any more (except for Mrs. PG), during his centuries-long legal career, he examined contracts from the largest tech companies, the largest banks and the largest publishers from various parts of the globe. Ditto for medium-sized and small techs, banks and publishers. Plus contracts from a whole bunch of other business organizations and a few non-profits.

Publishing (and a few literary agency) contracts stand out for their audacious mistreatment of the counterparties (authors). In PG’s experience, the only industry that approaches the nastiness of publishing contracts is the movie/TV/music business.

PG notes that traditional publishing and the entertainment industry share some common traits, including the practice of the talent employing agents, only a few of which have any legal training or experience at all.

Both publishing and entertainment feature:

  • quite a few insecure individuals among the talent
  • a business in which most of the would-be talent does not find success
  • a talent pool which is full of people who hold down some sort of job to support themselves and pursue their artistic dreams on the side
  • a few superstars that haven’t learned much about managing their finances
  • a good chance of a boom-and-bust career path, e.g.one-hit wonders

Freelance Isn’t Free Act Passes in New York State

by

From Publishers Weekly:

After being introduced as a bill back in February by Democratic New York state senator Andrew Gounardes and assembly member Harry Bronson, the Freelance Isn’t Free Act has been passed in New York State. The law is intended to establish and enhance the rights of freelance workers including authors, journalists, and other writers on contract.

S8369 will build upon the law previously instated in New York City, expanding the protections for freelancers state-wide. The law is intended to “protect contract and freelance workers from wage theft by ensuring all freelancers receive appropriate contracts for their work, are paid in a timely manner, and have state support to recoup unpaid wages.”

The law requires employers to provide written contracts for all freelance workers and that those freelancers be paid by the agreed-upon date or within 30 days of the completion of the work. It also permits freelancers to collect double the agreed-upon fee if employers do not satisfy those requirements. The law also lowers the threshold for mandating additional financial remediation from contractors to contract workers, and makes the New York State Labor Department the regulatory agency for freelancers in the state.

Link to the rest at Publishers Weekly

Music Streaming and The EU Digital Single Market Copyright Directive

by

From The IPKat:

Readers may have followed the IPKat reports on the UK Music Streaming Inquiry, which focused on musicians and performers’ remuneration from streaming, or lack thereof, amongst other things. However, this conversation is not solely a national matter. It is clear that these issues are global and that there is a need for change at an international level in the music industry.

In May 2021, the French government gave organisations representing performers and phonographic producers 12 months to negotiate an agreement guaranteeing “an appropriate and proportional minimum remuneration for artists” whose works are broadcast by streaming services. The deadline came after a 2015 initiative that sought an industry-led solution for a fair online music industry. The negotiations were mediated and no doubt the EU Digital Single Market Copyright Directive – which requires “appropriate and proportionate” remuneration for performers – also impacted on those ongoing talks.

Now, in May 2022, – much like most of us these days who only meet our deadlines in the eleventh hour– a historic agreement was reached between France’s main organisations representing record labels and performers/musicians. The agreement ensures that all performers will receive a minimum remuneration for the exploitation of their recordings by streaming services and provide a minimum royalty rate. It also embraces the principle of a minimum advance for featured artists, as well as, for non-featured musicians, a specific package for streaming with automatic additional remuneration when listening thresholds are reached.

In particular, the agreement includes the following,: 

• A minimum rate of royalties due to featured performers for the broadcast of their work via streaming; 

• A guaranteed minimum advance of €1,000; 

• A profit-sharing mechanism for the benefit of musicians when musical works reach a certain level of success; 

• A fixed remuneration for the benefit of all musicians; 

• A strengthening of FONPEPS – a private/public fund supporting employment 

• Increasing minimum fees for session musicians 

• Additional remuneration for artists, paid for by their record label, for every 7.5 million plays their song receives

Currently, revenue from streaming for featured artists depends on their recording or distribution contract. Non-featured performers – i.e., session musicians – are usually paid a one-off fee for their time and so do not usually receive anything more when the song is streamed. Therefore, these agreed changes will change the remuneration framework for both featured and non-featured artists from streaming.

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

PG notes that both authors and musicians have a long history of being badly treated
by the entities that have traditionally published their work. Despite the
differences between US and French intellectual property laws, unsurprisingly,
the same historic pattern appears to have been established in France.

While PG instinctively comes down on the side of the
author/performer/artist/musician, etc., in matters such as are discussed in the
OP, he wonders whether music producers might dodge this agreement by putting
all the performers onto an airplane and flying them to a destination outside of
France for recording sessions paid for by a non-French (or even non-EU)
corporate entity.

In PG’s hazy memory, he thinks this may have happened with California-based
production companies flying everyone to Mexico for performance and recording
purposes. But, as always, PG could be wrong about that.

One of the fundamental problems in these sorts of situations is that there
are always far more starving artists/authors/musicians, etc., than there are
publishers/producers, etc.

The established stars of any field of creative endeavor have the clout to
negotiate favorable agreements and payments – think author James Patterson in
the US – but those creators farther down the food and power chain are often
faced with take-it-or-leave-it choices due to the substantial power differences
that limit negotiation opportunities.

PG has no idea of how many negotiations he has been involved in for clients,
and although power differences between the negotiating parties are always in
play, competent negotiators can almost always improve the contract provisions
in favor of the parties they represent.

A long time ago, PG was appointed to represent various indigent defendants
who had been charged with a comprehensive and colorful variety of crimes. Here,
the power differences were substantial – the state with a group of salaried law
enforcement officers with access to many other resources the state and federal
governments could provide on one side and PG with a semi-literate impoverished
client on the other. (With a small handful of exceptions, crime does not pay
very well in the real world.)

The only alternative to a negotiated settlement – a plea bargain – was a
criminal trial either in front of a judge (whose predilections were either
known to PG or could be ascertained by a few calls to attorney friends) or a
jury trial in front of twelve randomly-selected adults who happened to live in
the county where the crime had been committed and the criminal charges were
filed. (PG will skip change of venue possibilities in this discussion because,
in 99% of the cases, jurors from one county were, for practical purposes,
indistinguishable from jurors from any nearby county.)

After a jury verdict, PG attempted to chat with as many jurors as possible
to determine what elements had influenced their decision. It was a very
interesting experience because the jurors had sometimes intuited some
additional elements to the case that could not be included in the evidence they
had received for one reason or another. They were also quite good at
identifying a witness who was lying, even if that witness was a law enforcement
officer (a rare occurrence in PG’s experience, but not out of the question).

Juries are relevant to copyright issues because, although almost all
copyright cases are tried without a jury, the Supreme Court has held that the
parties have a right to a jury trial if a defendant in a copyright lawsuit for
statutory damages demands a jury trial. See Feltner v. Columbia
Pictures, 523 US 340 (1998). Click
here for a summary of that opinion.

 

Copyright Fun Part 2

by

From Kristine Kathryn Rus ch:

What I want all of you blog readers to do is to think about possibilities. The possibilities exist on two fronts:

  1. What can you do before signing a contract to protect yourself and your copyright?

And

  1. What can you do after you signed a (bad) contract to protect yourself and your copyright?

Copyright law is a constantly changing beast, particularly here in the U.S. How we make money, as artists, is through the licensing of our copyright, not by “selling” our books. If you don’t understand copyright, guaranteed you will get screwed, maybe many times, throughout your writing career. This is why I recommend that writers buy The Copyright Handbook and read it.

I would also suggest that you learn to become a copyright geek, like Dean and I are, excited about the things you learn about copyright each and every year. Take a look at Part One of this series to see some ways to make your copyrights work for you.

This post, and the other two in this limited series, come from the copyright coolness that occurred in 2021. I was going to put this information in my year in review, but there’s simply too much of it. (If you want to read the year in review, start here.)

Copyright law in the United States comes from our founding document, the Constitution of the United States. Lawmakers have made significant changes to that original law throughout our history. Some of the changes are major. Others are minor until they’re used properly (or improperly) by someone.

We’re going to step outside of the book writing sphere to examine a few cases that have sent shivers through the spines of major corporations in 2021.

First, let’s talk about current law. The Copyright Act of 1976 gave creators the ability to reclaim their copyright, lost to a contract or some kind of agreement, 35 years after the agreement was signed.

This 35-year rule, as some call it, nearly upended the music industry as creator after creator tried to reclaim their copyrights from the music industry’s egregious contracts. Some major players in the industry stood to lose entire catalogs of works from artists like Billy Joel.

There were a lot of speculative articles written about 10 years ago, talking about the death of the larger music industry because of this. That was before the industry fought back, with all kinds of expensive lawsuits. The fight ended up being major, especially for artists who did not have the financial (or emotional) wherewithal to handle protracted litigation.

Billy Joel lost his case. Duran Duran lost theirs in 2016 and it made major international news, because the courts held that the British contract governed their copyrights, not the U.S. contracts.

After a bunch of high profile cases, the lawsuits went underground. No company wanted to be known as a company that would allow artists to reclaim their rights. So there are non-disclosures involved with artists who have sued and won, and no major press releases for artists who sued and lost.

(I went deep down a copyright rabbit hole as I was looking at these, and found a bunch of fascinating cases, including one between Cher and Mary Bono, Sonny Bono’s widow. Mary Bono is trying to use the copyright termination to stop paying Cher 50% of the Sonny and Cher royalties. It’s a complicated and probably bitter mess, and one worth keeping an eye on.)

Other industries have either fearfully watched the music industry grapple with this or chuckled behind their hands as they saw the lawsuits going by. But, they shouldn’t have chuckled, because they’re facing some serious issues on their own.

Under U.S. law, there’s a difference between works made for hire, and works that are independently created. Both can become, say, the basis of a movie or a comic book, but the question becomes who owns the copyright to the work.

A work made for hire is owned by the person who employed a writer to create the work. The word “employed” is essential here, and has specific definitions under copyright law.

Quite frankly, some of the book work that Dean and I did in the 1990s does not meet the standard for work-made-for-hire, even though the contract said the books we created were work for hire. That would take a lawsuit to settle, and there’s not enough money in that.

Some of the other books we did as work for hire (which we’ll now discuss as wfh) did fall under that definition.

Works made for hire do not (generally) fall under the 35-year rule, because the writer never owned the copyright in the first place. The writer was playing in someone else’s universe, under the guidance of the universe’s owner (or one of their employees).

But, wfh is not always easy to determine. And sometimes, big corporations just claimed product was wfh when it was not.

With that in mind…

In September of 2021, the 2nd Circuit Court of Appeals decided a case concerning the Friday The 13th franchise based on both the termination clause and California labor law. The 2nd Circuit upheld a lower court’s decision that the screenplay that Victor Miller wrote was not work for hire.

The decision had to delve into the various ways that employment was defined in California, not just the way it was defined under copyright law. In other words, the court had to determine whether or not Miller was an independent contractor when he wrote the screenplay.

If he was, then he could reclaim his rights to that screenplay.

The 2nd Circuit determined that Miller was an independent contractor. He could reclaim the rights to the Friday the 13th screenplay and the way that screenplay was used under U.S. law.

What does this mean? Well, for the franchise, it’s a scary moment (pun intended). Because he could pull their right to use that screenplay, which means they might not be able to distribute the movie any longer.

It’s doubtful that will happen, for a variety of reasons, most of them financial. As The Hollywood Reporter wrote in its coverage of the case:

And there’s still reason for settlement given that the producer retains (nonexclusive) foreign rights as well as intellectual property derived from Friday the 13th sequels, including maybe the monstrous “Jason” character that showed up later in the franchise

In other words, if there is no settlement, then someone would have to figure out how to keep the movies out there, how to handle the foreign rights that probably do not belong to Miller (or maybe that’s a separate lawsuit) and how to handle all the derivative rights to characters, merchandise, sequels and more.

I couldn’t find much on the state of the case at the moment I write this. I’d be surprised if the Friday the 13th franchise lawyers fail to settle this.

I actually hope they do settle, because that’s the best way to handle something this complicated. But the settlement will benefit Miller, because he’ll be asking for a new (and probably much bigger) payday for his 40-year-old work on the franchise.

Link to the rest at Kristine Kathryn Rusch

As regular visitors to TPV know, PG usually doesn’t include the links in the OP from which he excerpts his posts here. PG has followed this practice for many years for a couple of reasons:

  1. He would like it if his excerpts sent visitors to the location of the original post if the excerpts tweak their curiosity. PG has received more than a few emails over the life of TPV that say something like, “I couldn’t figure out why my blog traffic went crazy until I learned that you linked to a post I made there. Thanks!”
  2. He works to to be confident that his excerpts will fall under the Fair Use provisions of the United States copyright laws and similar laws in other nations.

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.

Requesting Rights Reversion From Your Publisher

by

From Writer Beware:

This is an update of a post I wrote some years ago. Since I’ve been getting a lot of questions lately from writers wondering how to request contract termination and rights reversion, I thought it would be useful to take another look.

There’s no “right” or “official” procedure for a rights reversion request. If you do a websearch on “rights reversion request” you can find various pieces of advice from authors and others. That said, here are some common-sense suggestions for how to go about this (Obligatory disclaimer: I’m not a lawyer, so what follows is not legal advice.)

First of all, if you have a competent agent, discuss the situation with your agent and ask them to approach the publisher on your behalf. Especially if you’re with a larger publisher, your agent is more likely to know whom to contact, and in a better position to push for a response.

The advice below is primarily aimed at authors who don’t have agents, and/or who are with smaller publishers.

1. Look through your contract to find the clause or clauses dealing with termination and rights reversion. Typically this will be a separate clause, but some contracts bury termination/reversion language in other and even unrelated clauses.

Hopefully there will be stipulations for when and how you can request your rights back–for example, a book may become eligible for rights reversion once sales numbers or royalty income fall below a stated minimum.

The ideal reversion language is precise (“Fewer than 100 copies sold in the previous 12 consecutive months” or “Fewer than 50 copies sold in each of two consecutive royalty periods”) and makes reversion automatic on the author’s request, as long as those benchmarks are met. (For more on why reversion language needs to be precise–including examples–see my post on The Importance of Reversion Clauses in Book Contracts.)

Unfortunately, reversion language is often far from ideal. Your contract may impose a blackout period (you can’t request reversion until X amount of time after your pub date), a waiting period after the reversion request (the publisher has X number of months to comply, during which time your book remains on sale), or provide the publisher with an escape mechanism (it may only allow you to request reversion, leaving the publisher the latitude to refuse, or may make your request moot if the publisher issues or licenses a new edition within 6 months of your request).

Worse, your contract may not include objective standards for termination, leaving the decision entirely to the publisher’s discretion; or it may include antiquated standards, such as this: “The book shall not be considered out of print as long as it is available for sale through the regular channels of the book trade”. Such language was meaningful in the days when books existed only in print, and print runs could be exhausted, but it’s useless for today’s digital reality.

It’s also possible that your contract may not include any reversion language at all. This is often the case with limited-term contracts, so if your contract is one of those, you may just have to wait things out. Unfortunately, I’ve also seen life-of-copyright contracts with no reversion clause. This is a big red flag: a life-of copyright contract should always be balanced with precise reversion language.

. . . .

6. DO: be polite, businesslike, and succinct.

7. DON’T: mention the problems the publisher may be having, the problems you’ve had with the publisher, problems other authors have had, online chatter, news coverage, lawsuits, or anything else that could be construed as negative.

As much as you may be tempted to vent your anger, resentment, or righteous indignation, rubbing the publisher’s nose in its own mistakes and failures will alienate it, and could cause it to decide to penalize you by refusing your request, or just refusing to respond. This is a real risk: I can’t count the number of stories I’ve heard over the years about vindictive publishers who decided to punish authors they deemed troublemakers by holding a death-grip on the authors’ rights.

Again: keep it professional, businesslike, and unemotional.

Link to the rest at Writer Beware

PG notes that it is not uncommon for publishers large and small to do all sorts of things with an author’s books that aren’t mentioned in the contract. Look for those as well.

While PG doesn’t do that sort of work any more, on more than one occasion he found errors and omissions in publishing contracts, including from the largest of publishers, which would get a first-year lawyer fired from any reputable law firm if she/he had made a similar error.

The type of people who do well in law school don’t have the slightest desire to go to work for a big publisher because the pay is terrible and management doesn’t like lawyers very much anyway. A publisher won’t hire a law firm with serious attorneys until the publisher gets itself into serious trouble because they didn’t hire a good lawyer in the first place.

Creation from imagination is the basis of intellectual property

by

From The Creative Penn:

How can you future-proof your author career by being careful with the publishing clauses you sign? Why are NFTs so interesting for intellectual property? How might DAOs help authors with estate planning? Copyright and trademark attorney Kathryn Goldman talks about these things and more.

. . . .

Transcript

Joanna: Kathryn Goldman is a copyright and trademark attorney, and has worked in intellectual property for over 30 years. She runs creativelawcenter.com, which offers resources, workshops, and advice for creative professionals, including authors, artists, designers, and more.

. . . .

Joanna: I’m so excited to talk to you about this. Let’s start with more of an attitude question.

Let’s say metaverse/web3/whatever we’re going to call it in the future. What do you mean around that? What do you mean by given up their rights?

Kathryn: Publishing contracts are license agreements between an author and a publisher, and in that license agreement, the author grants to the publisher a group, a bundle of, or part of their copyrights in their creative work. And publishing contracts are dense with language.

In those grants of rights, there are these broad provisions that encompass future technologies. And so, if there is a publishing contract that was drafted and signed 10 years ago, that includes language that encompasses future technologies unknown at the time, then the author may have already agreed, with that language, to allow a publisher to mint an NFT of her work without even knowing what an NFT was at the time.

So it’s possible that there’s language embedded in the contract already, covering future technologies, that would give the publisher control over the creative’s NFTs.

. . . .

Joanna: Why are you so interested in this intersection between web3 and intellectual property?
Because I’ve seen so many people shying away from it and saying it’s just not happening. But you embrace the change. So, why is that?

Kathryn: I embrace watching the change. It is happening. You cannot turn your back on it right now, but mostly what’s intriguing me is that people’s imaginations have caught fire in a way we really haven’t seen for a couple of decades, or maybe a decade.

People are taking this technology and doing things with it that are just limited only by their imaginations, and that is what is fun to watch. It’s the creation, from imagination, that is the basis of intellectual property. That’s why I am just loving what’s going on these days.

[Joanna: You have written:]

“Authors who have signed publishing contracts may have already given up their right to control their work in the metaverse.”

Let’s say metaverse/web3/whatever we’re going to call it in the future. What do you mean around that? What do you mean by given up their rights?

Kathryn: Publishing contracts are license agreements between an author and a publisher, and in that license agreement, the author grants to the publisher a group, a bundle of, or part of their copyrights in their creative work. And publishing contracts are dense with language.

In those grants of rights, there are these broad provisions that encompass future technologies. And so, if there is a publishing contract that was drafted and signed 10 years ago, that includes language that encompasses future technologies unknown at the time, then the author may have already agreed, with that language, to allow a publisher to mint an NFT of her work without even knowing what an NFT was at the time.

So it’s possible that there’s language embedded in the contract already, covering future technologies, that would give the publisher control over the creative’s NFTs.

This analysis, this concept, is not without precedent. The same thing happened with e-books. Before e-books were commonplace, there was language in publishing contracts that gave publishers the right to control the creative work in unknown or yet-to-be-known technology. So, about 10, 20 years ago, the battle over can a publisher publish the e-book of a work was fought.

Link to the rest at The Creative Penn

PG will comment that, some time ago, he was involved in many more than one argument regarding whether a publishing agreement covered ebooks or not. Without compromising any client confidences or violating any client obligations to keep these sorts of matters confidential, PG can say that on frequent occasion, the publisher had done such a bad job on its standard publishing contract that PG was able to convince publisher’s counsel that the publisher didn’t actually have the right to license ebooks because the contract only talked about selling ebooks and ebooks are always licensed by those whose business is to find people to acquire ebooks.

For the record, PG isn’t doing anything in this sphere any more.

How sensitivity readers corrupt literature

by

From UnHerd:

What did the sensitivity readers say? And did I care? Of all the aspects of the recent attempt to cancel my work, the one that seems to fascinate most people is the moment when my publishers sent my Orwell Prize-winning memoir, Some Kids I Taught and What They Taught Me, to be assessed by experts who would detect and reform its problematic racism and ableism.

Of course I cared. I’m horrified that people found prejudice and cruelty in my book. And I went into the process willingly: I’ve always enjoyed and benefited from editing and saw this as an extension. I did an initial rewrite — there were many things I was eager to change — in the autumn of 2021 and sent it off full of interest and optimism. I received the reports on it before Christmas. They were never formally used and I share the content here — anonymously, of course — because sensitivity reads are being used more and more widely, and mine gives a valuable insight into how they might work with non-fiction and memoir.

There are several reports — Picador did a thorough job — and they are varied. The novelty of the whole field is reflected in the fact that the Readers use different titles — sensitivity and authenticity — and different methods, too. Some write A4 reports, others use the comment button on Microsoft Word or an Excel sheet, still another presents a simple list of headings, done very possibly with a word search. More than one grades infractions, 1-3. They have of course special areas of expertise — Islam, blackness, disability — but these emerge through inference, not announcement.

Their scopes vary, too. One Reader fusspots around single words: I should not use “disfigure” of a landscape (infraction level 3, as presumably comparing bings — spoil heaps — to boils might be harmful to acne sufferers). Nor should I use “handicap” in its ordinary sense of “impede” (infraction level 2, serious); and I should prefer the acronym “SEN” to its origin phrase, special educational needs, because it is more inclusive (infraction level 2).

Others have grander ambitions: paragraphs, sub-sections and even entire chapters should be revised. Still others focus on issues around the presentation of the book. One suggests the authors of endorsements containing the words “love” and “humanity” might want to “rethink their stance”. To add to the cacophony, the Readers contradict each other freely, even praising and disparaging the same passages.

Given this diversity, it seems reasonable to start with areas of agreement. These mostly occur in the first part of my book, which is set in the Nineties. Perhaps this is because all of the Readers seem to be experts on sexuality and gender, and resisting homophobia is one of my themes. There is even a particular passage, the only one in the book, on which the whole Reader crowd comments and concurs.

The setting is London, 1992. After end-of-term drinks, a favourite student, Liam, comes out to me and then asks me to take him to G.A.Y — because, he says, no one else in his world would know where it was. I was very worried about doing this at the time; even though Liam had just left school, I still felt like his teacher, and I worry even more now, when teachers no longer take 18-year-olds to the pub and are much more aware of influence and consent.

None of these sensitive issues, though — raised at length in the book — worry the Readers. They are concerned, rather, that I might be boasting about helping a young gay person: “Straight white saviour trope”, suggests Wordsearch List, “could be problematic”. And they set up a chorus about what I feel and say after Liam hits the dance floor and I note:

… a new kind of pain, a physical, chesty anxiety that I was not to experience again until I watched my own children walk along ledges or cross a busy road. What would happen to Liam among all those strong bodies? What would happen to his body? He was too young to understand you only got one. Fortunately, it was only twenty minutes or so before he came back out of the crowd and grasped his beer.

‘Liam,’ I said, ‘I love you. You have to promise me to always use a condom and never get AIDS.’ 

I make, my Readers agree, a “reductive” and “rogue” remark. The preceding passage “comes across as homophobic” and is an LGBTQ infraction Level 2. But in 1992, people were still dying in large numbers from AIDS, and I would have urged all young people to use condoms. Excel Reader is kind enough to acknowledge this — “the author has chosen to reproduce contemporary dialogue which may not … reflect brilliantly on her” — but the other Readers seem to concur that the past should match an idealised present, in the same way that Anne of Green Gables, say, got a gay best friend when she went on Netflix.

There are similar injunctions throughout the text. I am enjoined not to quote from My Ántonia by Willa Cather, as it is “an old novel”; nor to state that homosexuality has historically been taboo in Nepal, as homophobia comes from colonialism; nor to mention that the Taliban were terrorists. Extending the principle of sunny improvement into the present, Wordsearch List breaks out of their list to make the helpful suggestion that I should remove references to terrorism from across the book, as it “over-sensationalises such a heavy topic, especially with minors involved”.

. . . .

But Some Kids isn’t a novel, nor written for children. Adults are able to put books down if they upset them, so their books may safely contain difficult ideas. I don’t, for example, agree with my Readers that the references to looks, attraction and sexuality in my book should be removed in case readers are hurt by a metaphor as a child might plausibly be. I think adults can endure bings being compared to boils. I also believe that physical human beauty empirically exists, is enormously important for adolescents, and that I can observe its currency and often destructive power, especially for young women, in the classroom. I make an explicit argument about this, which readers may disagree with.

. . . .

I struggle with all this. I baulk, besides, perhaps snobbishly, at their language: the imprecision of phrases such as “feels like the kind of saying that could be deemed insensitive these days”, or “white knight tone/verve” (verve?). I snarl when Excel helpfully suggests I have made a typo with e. e. cummings, and lost his capital letters. It upsets me in particular, when so many of their criticisms depend on it, that none of the Readers deploy the word “irony”, but use “sarcasm”, “jocular aside” and “subtlety” instead, always as negatives. Comment Button condemns my entire chapter on Prizes as “it shows none of the adults involved in a good light”. Indeed it doesn’t. They are being satirised, even though one of them was me.

Link to the rest at UnHerd

The OP gave PG an idea for another standard paragraph writers should put into their publishing contracts:

Phony Provision for Sensitivity Review

Publisher will not utilize “sensitivity readers” to review and comment on Author’s Work without the prior written consent of Author. In the event that Publisher desires to have one or more sensitivity readers review and comment on Author’s work and Author consents, Publisher shall immediately pay Author an additional sum equal to the advance Publisher paid Author at the time Author executed the Publishing Agreement with Publisher.

The purpose of this additional payment is to compensate Author for the additional time that Author will require to review the comments and recommendations of the sensitivity readers.

Author can reject some or all of the recommendations or make some or no modifications as suggested by all, some or none of the sensitivity readers.

In the event Publisher is not satisfied with Author’s response to the comments and suggestions of the sensitivity readers, either Publisher or Author may terminate this Agreement. Upon such termination, Author shall repay the advance received from the Publisher but shall be permitted to retain the additional payment received due to the use of sensitivity readers as described above. Upon receipt of Author’s returned Advance payment, Publisher shall give Author a document executed by an officer of Publisher, certifying that Publisher has relinquished all rights to Author’s Work.

Without the advance written consent of Author, Publisher shall not disclose the reason why the Publishing Agreement with Author was terminated nor any information regarding the sensitivity analysis, its findings and/or recommendations nor shall Publisher reveal the identities of any of the sensitivity readers to any third parties or, by acting or failing to act, reveal any information about the sensitivity analysis to any third party without Author’s advance written consent in writing in each case.

Publisher shall require that each employee, agent or representative of Publisher who has or had any information about the sensitivity analysis of Author’s Work to sign an an agreement to keep this information confidential under the same terms and conditions which limit Publisher’s disclosures above.

In the event that Publisher or any employee, agent or representative of Publisher discloses any information that it or they have agreed to keep confidential, the parties agree that the discovery, calculation and/or proof of the amount of damages incurred by Author will be difficult or impossible for Author to fully discover and prove.

Accordingly, in the event of any breach of the provisions of this Sensitivity Review provision by Publisher or anyone who is under obligation to maintain the information relating to the Sensitivity Review as described described above, Author shall be entitled to liquidated damages for such breach in the amount of Author’s Advance multiplied by ten. By way of example and not limitation, if Author’s advance for the Work is $10,000, the amount of liquidated damages Publisher shall pay to Author for breach of this agreement shall be $100,000.

In the event that Publisher refuses to promptly pay liquidated damages as provided herein and Author hires legal counsel to enforce Publisher’s obligations under this Agreement, Author shall be entitled to recover Author’s reasonable legal expenses and costs from Publisher in addition to the Liquidated Damages to which Author is entitled under this agreement.

NOTE: This is purely an exercise by PG to demonstrate how a Sensitivity Review provision might be constructed. PG has not conducted any research to determine whether such a provision would be enforceable under US or state laws or the laws of any other country in the world.

THIS IS NOT LEGAL ADVICE.

You obtain legal advice by consulting an attorney, not by reading a blog post. PG is not your lawyer.

If you want to try to accomplish something that is similar to what is described in PG’s fanciful Sensitivity Review, you really and truly need to hire a competent attorney to advise you. Failure to do so could result in a giant legal mess, a huge bill and untold sleepless nights.

What Can Happen When Your Agent Decides To Become Your Publisher

by

From Writer Beware:

Last week, several people drew my attention to this article in the Des Moines Register. “Iowa Romance Writer Sues Over Efforts to Have Ghostwriter Take Over Series.” 

If your “conflict of interest” radar is screaming right now, it should be. 

Clark’s complaint (which you can see here) accuses Grishman et al. of breach of contract, breach of fiduciary duty, and fraudulent concealment, and alleges a variety of malfeasance, including concealing the family connection, and invoking an allegedly non-existent contract clause to justify buying out the final two books in an uncompleted series and hiring a ghostwriter to write them. Clark is seeking to terminate both her RedRock Literary and Pink Sand Press contracts, and to receive an award of “lost profits, damages, costs, and attorney’s fees based on Pink Sand’s breach”. 
As of this writing, Grishman hasn’t filed a response to the lawsuit, but he did have this to say to a local reporter:

. . . .

Apart from the books it has published for Clark, Pink Sand has virtually no track record as a publisher. A search on Amazon turns up two other authors and five other titles–but the status of those titles is unclear. They are nowhere to be seen on the Pink Sand website, they don’t appear ever to have been promoted–or even mentioned–on Pink Sand’s Facebook page, and four of them–by Jeanne De Vita, writing both as herself and under the pen name Callie Chase– have either been taken out of print or are listed as out of stock or unavailable everywhere but on Amazon.

. . . .

Both of the contracts Clark signed–the RedRock agency contract and the Pink Sand publishing contract –are attached to her original complaint. 

The agency contract looks reasonably standard to me, though it imposes a three-year term that the author can terminate only in the event of breach by the agent–not ideal. It also has an arbitration clause, which could complicate things for Clark’s legal effort to be released.

The publishing contract, which covers a whopping 28 titles, is another story. It includes some really terrible clauses, particularly in regard to payment. 

For instance, here are the royalty rates for hardcover publication:

This is seriously nonstandard. Mass market paperback royalties are also substandard, at 5% of wholesale. 
Of course, both of these provisions are moot, since Clause 4(a) of the contract stipulates publication only of “an e-book and trade paperback edition”–but there are big problems with royalties for those formats as well. Ebooks are paid at just 15% of net (even the big publishers typically pay 25% of net, and most small presses pay considerably more). As for trade paper royalties, there is no mention of them in the contract. At all. (!!!)

Subsidiary rights payments too are hugely, one might almost say rapaciously, substandard, with the publisher keeping 85% and the author getting just 15%. These include foreign language, book club, and numerous other rights that are typically allocated at least 50/50 between author and publisher.  
Other lowlights: an overly lengthy grant term (10 years); no advances for certain of the many backlist titles acquired; a non-competition clause that bars Clark not just from publishing competing works, but from publishing anything until the terms of the contract have been completed; an agency clause that empowers RedRock to increase its commission for subagented rights sales beyond the commission rates stipulated in the agency contract; and a clause that empowers Pink Sand to retain rights for five years to a delivered revision it declines to publish, unless the author can find another publisher willing to hand all the author’s earnings over to Pink Sand until advances have been repaid. (Good luck with that.)

It’s hard for me to imagine any reputable publisher offering a contract like this, or any reputable literary agent advising a client to sign it. I see some pretty atrocious contracts from inexperienced publishers who don’t know any better, but Grishman is not inexperienced. Waterhouse Press is a successful house, and he worked there for years. 

Make of that what you will. Make what you will, also, of the timelines involved. David Grishman incorporated RedRock Literary (for the first time) on November 13. Less than three weeks later, on December 2, he signed Clark as an agency client. Six weeks after that, on January 15, Steven Grishman incorporated Pink Sand Press. Clark’s publishing agreement was signed just eight days later, on January 23. 

The whole thing has the feeling of a rush to pin something down.

Link to the rest at Writer Beware

PG was inclined to go on a rant, but, surprisingly, he restrained himself.

He will make a few points, however.

  1. Yes, lawyers cost money. Ms. Clark is learning that because she has had to hire a lawyer to represent her in this contract litigation.
  2. Litigation always costs more, lots more, than hiring a competent attorney to look at a contract before you sign it.
  3. (Side note: PG has cut his law practice way back and isn’t accepting any new clients. If anyone has had a personal satisfactory experience with another attorney who reviewed a publishing contract or agency agreement, send a note to PG via the Contact PG link at the top of the blog so PG can add her/him to his list of attorneys to send to people who contact PG for legal help when he’s not able to provide it.)
  4. Any time someone sends you a document for your signature, they are asking you to agree to be bound to a contract, give them permission to do something, give up some right you have, pay them money, act as their body slave, etc., etc., etc. This is standard practice for most reputable businesses and also standard practice for many crooks.
  5. READ THE DAMN CONTRACT BEFORE YOU SIGN IT! READ THE DAMN CONTRACT BEFORE YOU SIGN IT! READ THE DAMN CONTRACT BEFORE YOU SIGN IT! READ THE DAMN CONTRACT BEFORE YOU SIGN IT!
  6. Make a working copy of the contract, sit down with that copy and a red pen and READ THE DAMN CONTRACT! The longest business agreement PG ever reviewed was much shorter than any book PG has read. (And a lot more boring.)
  7. An author who has spent hours and days and weeks and months writing a book should be willing to spend the extra time necessary to make sure that her/his baby is going to have a good home surrounded by honest people. Plus, remember how much it will cost you in legal fees to get out of a bad contract.
  8. Annotate the contract with your red pen as you go through it – underlines, question marks, exclamation points are all great. Write notes in the margins. Use your red pen for anything that worries you, that sounds fishy or that you don’t understand.
  9. If the contract says something like, “As set forth in Paragraph 49 . . . ” make your red pen mark, then go look at Paragraph 49, use your red pen there and combine the Paragraph 49 language with the language that includes “As set forth in Paragraph 49 . . . ” so you’re reading both provisions together.
  10. The other party can give you something in Paragraph 1 and effectively take it all back in Paragraph 49.
  11. Be just as careful reading the end of the contract as you are when you are reading the beginning of the contract. If the contract has exhibits or additional pages after the place where the parties sign it, read those just as carefully as you read the rest of the contract and use your red pen liberally.
  12. In most American business contracts, the last provisions of the contract are called boilerplate and often consist of stuff the person who put the contract together may well have copied and pasted from a prior contract. But just because it’s copied from another contract doesn’t mean the boilerplate provisions are fair or safe or that something nasty isn’t hidden there.
  13. PG can recall more than one contract written by someone else that incorporated what looked like it was a boilerplate “Standard Terms and Provisions” section at the end of the contract. In some cases, these were even a photocopy of something taken from another contract and attached to the custom contract that the parties had agreed to. On more than one occasion, the innocent-looking “Standard Terms and Provisions” included some terms that were deal-breakers for PG’s clients, even though the rest of the contract was fine.
  14. After you get finished with your red-pen fun, either:
    1. Send an email/letter to the person you’re dealing with asking about each of the items that concerned you or that you don’t understand; or
    2. Make a photocopy of your red-marked version of the contract and ask the other side to respond to your concerns.
  15. Aside from specific responses to your redline questions, the manner in which the individual on the other side reacts to your questions may tell you a great deal about whether this is someone you want to work with or not.

PG has millions of additional tips, warnings, cautionary tales, etc., that he could add, but these are the most obvious things you should look at and do.

Inside the Realms of Ruin

by

From TechCrunch:

“The Ruin stirs, and the Five Realms rumble,” a now-archived web announcement read on Thursday morning. “You are cordially invited to join New York Times bestselling and award-winning authors Marie Lu, Tahereh Mafi, Ransom Riggs, Adam Silvera, David Yoon, and Nicola Yoon in Realms of Ruin, a collaborative fantasy epic filled with dark magic, intrigue, and unique characters — launched online in a thrilling new way.”

These celebrated young adult authors shared the announcement across social media, opening a Twitter, Instagram and Discord server for fans to discuss the buzzy new project that would propel the traditional publishing industry into the new territory of Web3, an evolution of the decentralized internet that emphasizes privacy, data ownership and compensation for work — maybe even fan-made creative works.

As the catalyst for this collaborative fantasy epic, these authors would post 12 initial origin stories about their fictional universe, to which they owned the copyright. Then fans would be tasked with writing their own stories, submitting them to the Realms of Ruin universe by minting them as NFTs on the Solana blockchain. If the authors were to enjoy a fan’s story enough, they could declare it part of the project’s official canon.

Within hours, fans confronted the authors in the Discord server with their concerns about the project. If the authors are inviting fans to write fan fiction about a universe they created, who owns the derivative works? Does minting those stories as NFTs affect the copyright of those stories? And how are these concerns exacerbated given that these authors’ target audience is too young to buy cryptocurrency on platforms like Coinbase and Gemini?

Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, aptly summed up the situation. “It’s a turducken of things people don’t understand,” she said. In other words, on top of the usual NFT concerns, the team would also be facing copyright questions and confronting the historical hesitancy from fan fiction writers over monetization of their works in a commercial environment.

Along with a team of nine developers, the six young adult authors spent two months working nights and weekends to bring Realms of Ruin to life. Within hours of its announcement, the project garnered so much backlash that they pulled the plug.

. . . .

Fan fiction is a tricky, yet fertile ground for legal questions about copyright and ownership.

Sometimes, top fan fiction writers can even parlay their online success into real publishing careers. If a writer can capture the interest of tens of thousands of readers online, it’s not unreasonable to believe that, with original characters and an original story, they could do the same on The New York Times bestsellers list.

One recent example of this phenomenon is Tamsyn Muir’s “Gideon the Ninth,” published in 2019, which The New York Times called “a devastating debut that deserves every ounce of hype it’s received.” But Muir isn’t secretive that she got her start writing fan fiction. Another unabashed proponent of fan fiction is N.K. Jemisin, a MacArthur Foundation “Genius Grant” awardee who is also the only writer to win the prestigious Hugo Award for Best Novel three years in a row. From a revenue standpoint, E.L. James’ “Fifty Shades of Grey” series might be the best example of how a writer can start their career by posting derivative stories online — before the series was an international hit, it was Twilight fan fiction.

But monetizing fan fiction through online platforms is a trickier matter. For example, when Tumblr announced it would roll out Post+, a paid subscription product, the company used fan fiction writers as an example of a content creator who could profit from the product. This caused concern among writers who worried that putting a derivative work behind a paywall could land them in legal trouble.

. . . .

“My main concern was that [the Realms of Ruin project’s creators] were asking their audience to come in and write a bunch of stuff, and they would then select things to be canon in their world. And the tricky part of this is that they already made this world and copyrighted it,” said Manzano. She said it wasn’t clear if the fan fiction writers would be able to do anything more with their work or if they would be acknowledged or compensated for creating it.

TechCrunch’s source close to the project feels differently. Although the six established authors own the Realms of Ruin copyright (at least according to the archived version of the website), writers can be paid to participate in larger publishing projects where they don’t have ownership in the franchise. Over 850 “Star Trek” novels have been published, for example, but that doesn’t mean that those authors own the rights to “Star Trek.”

Harvard Law professor Rebecca Tushnet — who is a member of the legal team at the Organization for Transformative Works, which runs major fan fiction site Archive of Our Own — said that these questions would depend on what the actual contract is between Realms of Ruin and the writers.

“If they’re giving permission, there aren’t copyright infringement questions, there are ownership questions. And those would be navigated by contract. But the thing that you usually expect is that the people writing the fan works might have limited rights,” she told TechCrunch. Because the Realms of Ruin project was shut down before it officially launched, contract details weren’t available.

“The fan fiction part is probably the least interesting part about this,” added Tushnet. “It’s not unknown for authors to say, ‘I want to authorize you to play in my world, and you can even have some of the money.’ Kindle Worlds was an attempt at this, but it ultimately did not seem to be profitable, and Amazon shut it down.”

Fan creators are generally skeptical of projects like Kindle Worlds since they can seem like thinly veiled ways for corporations to profit off of these communities.

Link to the rest at TechCrunch

PG says that just because you can conceive and code something doesn’t make it a good idea.

Any time a person or entity is publishing something another person has written, there’s a legal issue over ownership of the copyright and what rights the copyright owner is granting or not granting to the publisher.

Fan fiction can be a lot of fun to read and write, but if you get your one blockbuster story idea and give it to someone else to publish someplace in cyberspace or meatspace, there are legal issues involving copyright ownership and what rights the author has granted to others. You don’t want anything hazy with respect to rights to something you’ve written. No hand-waving should be involved.

If you write something really good, haziness and hand-waving could quite possibly mean that everybody is giving a lot of their money to lawyers – many digits between the dollar sign and the decimal point. In some sorts of litigation, whoever runs out of money first loses.

Getting it right at the beginning is much, much easier and far, far cheaper.

We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums

by

From The Wall Street Journal:

Recording nearly identical covers of her first six albums is the latest step in Ms. Swift’s legal tussle to control her back catalog. In addition to the “Wildest Dreams” rerecording, she has released “Fearless (Taylor’s Version),” and “Red (Taylor’s Version)” was released on Nov. 12.

Ms. Swift was unable to buy the master recordings of her first studio albums from her original label, Big Machine Records. Ownership of the recordings have changed hands twice against Ms. Swift’s wishes. The first time, when they were sold in 2019, she described it as her worst-case scenario. The second time, the rights were sold to investment firm Shamrock Capital Advisors LLC in the fall of 2020. Both times, Ms. Swift said, the deals happened without her knowledge.

“Everyone’s talking about Taylor Swift getting her masters back, but there’s nothing for her to get back because she never owned them in the first place,” said Tonya Butler, a professor and chair of the Music Business/Management Department at Berklee College of Music.

Yet Ms. Swift does exert some ownership over her music. How? It boils down to music copyright and longstanding deal-making in the industry:

  1. Any music recording you listen to comes with two distinct types of ownership, according to U.S. copyright law: one that covers the specific sound recording (also referred to as owning the master), and the other which covers the musical work (sometimes described as owning the composition or publishing).
  2. Owning the musical work covers the publishing side: the words, melody and underlying composition. Songwriters or publishers usually own this type of music copyright
  3. Owning the sound recording means owning the master recording. Owning the masters allows you to control, for example, how a master is duplicated and distributed across digital and physical formats.

Ms. Swift has tried to, but doesn’t, own the masters of her first six albums. Shamrock Capital does.

Her solution: Make a new recording that sounds almost exactly like the first one.

When Ms. Swift signed a new recording contract with Universal’s Republic Records in 2018, part of the deal was that she would own 100% of any recordings she makes during the length of their contract.

By rerecording—technically she is covering her own song—she is creating a new sound recording copyright that she fully owns.

The same idea applies to any other artist who records “Wildest Dreams.”

For instance, singer-songwriter Ryan Adams released a “1989” cover album in 2015. His own label, Pax Americana Recording, controls the recording’s copyright. But Ms. Swift and the other owners of the publishing side receive royalties through various revenue streams, including when a digital or physical copy of his recording is reproduced such as on vinyl or Spotify. The owners on the publishing side would also get paid if Mr. Adams played their song in concert.

In November 2020, her rerecording restriction, a key term in Ms. Swift’s original contract, expired and opened up the opportunity to return to the studio. Rerecording restrictions—agreements between an artist and label that stipulate the artist can’t rerecord a song for a certain period—are standard.

“Regardless of the reasons why she’s rerecording, whether it’s spite or good business, the fact she is bringing to attention the rerecording restriction agreement alone makes the whole controversy valuable,” Prof. Butler, who previously worked as an entertainment attorney and record company executive, said.

In April, Ms. Swift released “Fearless (Taylor’s Version),” an album containing 25 tracks, 19 of which are rerecordings from the 2009 platinum edition of “Fearless.” Around the time of the release, Ms. Swift said she intended for the recorded lyrics, melody and instrumental arrangements to have little difference.

The business rationale for why she is rerecording identical sounding versions is clear. If someone wants to use her song in their TV show, movie, game or commercial, they would need the approval of both the person who owns the recording and the owner of the publishing. They would also need to pay a fee to obtain a license.

If someone requested to use the original “Love Story” in a movie trailer, having Shamrock Capital’s approval alone wouldn’t be enough since Ms. Swift owns the publishing side. She could deny the request unless they used her rerecorded version, which Shamrock Capital doesn’t own.

Link to the rest at The Wall Street Journal (Should be a free link. If not, PG apologizes for the paywall, but hasn’t figured out a way around it.)

PG notes that the original WSJ article is heavily formatted in a manner that may make understanding the OP easier. There are also segments of both the original and the newly-released recordings of Ms. Swift performing her songs embedded in the WSJ article.

Having spent a long time looking at various types of contracts, PG suspects the language separating ownership of the master recording from the musical work was devised by an attorney for a recording company some time ago and the talent agent representing the singer/songwriter didn’t read or didn’t understand the language.

Back in the day when vinyl audio records (78, 45 and 33⅓ rpm – you’ll understand this if you’re over a certain age) were the only way to duplicate and distribute musical recordings to listeners, whoever owned the physical master controlled who could manufacture (“press”) the records by limiting who had a chance to use the master.

Over time, this type of provision became “standard” in the music business and agents didn’t try to get it changed or inform their clients about its implications.

The technology change that took place and has established today’s recording status quo is that exact copies of musical performances recorded digitally can be easily created and distributed electronically. Ms. Swift doesn’t need any music publisher or record duplication factories or warehouses or physical retail stores any more. She can work through various digital streaming services (or even afford to create one herself) and earn a great deal more money than she was receiving from her former music publisher.

Alert readers will note similarities in the digital disruption of the music recording business and the book business.

Authors who have dealt with traditional publishers will find book equivalents to the language Ms. Swift managed to circumvent in their publishing agreements.

Without disclosing any details, PG has helped more than one author who signed a publishing agreement years ago to regain some rights to self-publish their own books. He has sometimes been surprised at how seldom some publishers review the provisions of their own publishing agreements.

You Are A Writer. You Create And License Intellectual Property Assets.

by

From The Creative Penn:

Language is powerful.

We choose words carefully in our written works because we understand their impact. They carry a message from one mind to another. They shape ideas. They can change lives.

But writers often use language carelessly when it comes to the business side of being an author, and it shows that many still don’t understand copyright, and how rights licensing can impact your publishing choices, as well as your financial future.

I’ve run across several examples of this recently in discussion with author friends and also online, so I thought it was time for a refresh on intellectual property (IP) — and how important it is to define terms as we move toward Web 3 and a new iteration of what ‘digital’ even means.

You have to understand IP and rights licensing in order to make a living as an author for the long-term, whether you work with an agent or you’re entirely independent.

It might take a little getting used to, but once the penny drops around intellectual property, your language will change and you will have the power to shape your author career in a much more effective — and profitable — way.

Note: I am not a lawyer/attorney and this article is not legal or financial advice.

This article is based on learning about intellectual property from books, courses, and my personal experience publishing independently since 2008. It is a huge topic, so I can only scratch the surface and hopefully, give you something to think about and resources to take your knowledge further.

In this article, I cover: 

  • An overview of intellectual property rights related to written work
  • Original written work = Intellectual property asset
  • Print, Ebook, Audio
  • Other rights licensing opportunities
  • What rights have you licensed? Are you leaving money on the table? Plus, the issues with licensing “digital” rights as we move toward Web 3.
  • More resources — books, courses, podcast interviews

Link to the rest at The Creative Penn

PG says every author should save a copy of the OP for future reference.

Some of the items Ms. Penn discusses will be familiar to regular visitors to TPV, but others may not be.

Here are a couple of excerpts PG fully endorses:

Rights licensing is usually based around: 

  • Format e.g. ebook, paperback, audiobook defined to specific types of each and royalty levels for sale
  • Territory e.g. North America, UK Commonwealth, World
  • Language e.g. German
  • Term e.g. 7 years
  • Specific work (sometimes more than one, and sometimes with an option for other work in the world or under the same author name)

There are also many options for subsidiary rights licensing. Some include: 

  • Adaptations — film, TV, web series, plays/theatre, graphic novel/comic, podcast series, gaming, merchandise, online courses
  • Serial rights, reprints, anthologies 
  • Book clubs
  • Public lending rights, reproduction rights (for example, ALCS in the UK collects these on behalf of authors for library borrowing and photocopies etc.)

Selective rights licensing means you choose to limit the license to whatever the publisher is capable (and likely) of producing. It is very unlikely that a publisher will be able to use all rights in all formats in all territories in all languages.

For example, I license World French electronic, audio, and print for specific non-fiction titles for five years with a first option to renew. 

If you license selectively, you can also independently publish in other formats, territories, and languages. For example, I have now sold ebooks in 168 countries — and that’s just through Kobo.

If you have any form of written content available for someone else to read or purchase or listen to, then you have signed a contract that will include some kind of license. 

What rights have you licensed? Are you leaving money on the table?

If you are traditionally published and someone has paid you for your rights, check your contract to see what you have agreed to.

Many traditionally published authors I talk to will say they don’t know what rights they have signed, which shows they don’t understand how copyright works. If you don’t know what you’ve signed, then you don’t know what else you can do with your body of work. If that’s you, go check your contracts. You might be leaving money on the table.

If you’re an indie author, you sign a contract when you accept the terms and conditions of whichever service you use to publish. So read the Ts&Cs, download a copy, and keep them somewhere as evidence of what you have ‘signed.’

Many of the sites have a non-exclusive contract for a specific format, e.g. Kobo has a non-exclusive right to your ebooks so you can always publish them elsewhere. 

Some sites have exclusive options. For example, if you opt into KDP Select and make your ebooks available on Kindle Unlimited, that is a 90-day exclusive contract for your ebook, so you can’t use any other publishing or distribution service, or sell direct, for the term you enroll. That doesn’t stop you from licensing your audio or print rights, it just limits your ebook options. . . .

Some sites have terms and conditions that are being questioned by authors and author organizations, for example, check out #audiblegate and the investigation into Audible’s contracts. 

Here are a few points PG will emphasize/add to Ms. Penn’s very good post.

  1. Read the Contract – Yes, PG knows that it’s not great fun to read any sort of contract (he has read thousands so he speaks from experience), but read it anyway.
    1. If you receive an electronic version of the contract, print it out.
    2. Then go through the printout or a copy of the paper original like you were grading an essay and looking for evidence of cheating.
    3. Go through it paragraph by paragraph.
    4. Pay attention to the sentence structure. (Really!)
    5. Underline things you don’t understand.
    6. Write notes about your concerns in the margins.
    7. Pay particular attention to defined terms.
      1. Defined terms may be included in a separate section of the contract. PG has seen some contracts that seemed perfectly reasonable until he hit the “Definitions” section in paragraph 36.A.(1) where all hell broke loose.
      2. Here’s an example of a defined term clause, “As used herein, “publish” shall mean . . . .” As mentioned in the prior subparagraph, the “As used herein” piece may be found in an entirely different location in a 30-page contract than the place which talks about publishing your book.
      3. Here’s another example of a defined term, “Blah, blah, blah, blah, blah, blah (“Publish“)”
  2. Read the Damned Contract! PG knows that when you were two years old, you pitched a fit whenever your mother tried to feed you peas and she finally gave up. But you’re an adult now and you have learned to do hard things, like reading a publishing contract or a Terms & Conditions clause on Amazon’s or somebody else’s website.
  3. Ask Questons: If you don’t understand something you read even after you have diagrammed the sentence, ask what it means.
    1. You can even do it with a Terms & Conditions clause online.
    2. Contact the online help people. If they can’t answer the question, ask them who can and contact that person.
    3. If you can’t get a good response via the Help link, do a bit of searching on the website or online. You’re looking for the Legal Department or Corporate Counsel. If the website is owned by another company, look on that company’s website.
    4. If corporate counsel has an email address, send them an email. If they have a mailing address, also send them a paper letter that says the same thing.
    5. Here’s an example of an email/letter you might consider sending:
      1. “Dear ______________: or Dear Corporate Counsel: I was reviewing your Terms and Conditions and in Paragraph 15 (A), I found the term, “publish” but I could not find a definition of this term anywhere in the Terms and Conditions. I believe “publish” is an ambiguous term and I am confused. In the Merriam-Webster’s Dictionary (2019 edition), “publish” is defined as “blah, blah, blah” but in the New Oxford American Dictionary (2021 edition), “publish” is defined as “blah1, blah1, blah1.” As you can clearly see, the two definitions are not identical and, I believe, do not define the term, “publish” in the same way. My particular concern is whether the term, “Publish” as your company uses it includes or does not include blah, blah, blah. Could you please clarify. I started a discussion group concerning this question on Reddit and have received a variety of different opinions, including some by people who say they are attorneys, but you can never tell if someone is telling the truth or not online. One of the people who responded said he was a law student and was going to raise my question in his intellectual property class to see what the professor and other students think about your company’s definition.”
    6. PG just did a Google search for “legal department” on Amazon’s U.S. site and found this link (https://www.amazon.com/gp/help/customer/display.html?nodeId=GLSBYFE9MGKKQXXM)
    7. At the link he found the following in Amazon’s Conditions of Use:

OUR ADDRESS

Amazon.com, Inc.
P.O. Box 81226
Seattle, WA 98108-1226

And a little farther down, he found this:

HOW TO SERVE A SUBPOENA OR OTHER LEGAL PROCESS

Amazon accepts service of subpoenas or other legal process only through Amazon’s national registered agent, Corporation Service Company (CSC). Subpoenas or other legal process may be served by sending them to CSC at the following address:

Amazon.com, Inc.
Corporation Service Company
300 Deschutes Way SW, Suite 208 MC-CSC1
Tumwater, WA 98501
Attn: Legal Department – Legal Process

And farther down he found this:

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT

If you believe that your intellectual property rights have been infringed, please submit your complaint using our online form. This form may be used to report all types of intellectual property claims including, but not limited to, copyright, trademark, and patent claims.

We respond quickly to the concerns of rights owners about any alleged infringement, and we terminate repeat infringers in appropriate circumstances.

We offer the following alternative to our online form for copyright complaints only. You may submit written claims of copyright infringement to our Copyright Agent at:

Copyright Agent
Amazon.com Legal Department
P.O. Box 81226
Seattle, WA 98108
phone: (206) 266-4064
e-mail: copyright@amazon.com

Courier address:
Copyright Agent
Amazon.com Legal Department
2021 7th Avenue
Seattle, WA 98121

PG advises keeping a copy of your email and the online contract as it existe when you reviewed it in an electronic file on your computer. Insert the date in the copied documents in addition to the date your computer assigns to the file.

Electronic copies will allow you to compare different versions of the Terms and Conditions over time to see whether any changes were made as a result of your email.

PG gave up the practice some time ago, but he used to keep copies of various Terms of Use on different sites to track how they changed over time. Document comparison software makes the job very easy.

PG would be surprised if most online sites would fail to respond to an email such as he described. Potential ambiguity in a contract should raise a red flag with any competent attorney.

If a provision is ambiguous or subject to two different interpretations and a lawsuit follows, a judge will decide what the provision really means. As a very general proposition, a genuine ambiguity in a written contract means the judge will be more likely to interpret the ambiguity against the party that drafted the contract, particularly if, like Terms and Conditions used by online companies, the contract is a take-it-or-leave-it proposition.

If you don’t receive a response to your letter and email asking about the meaning of the terms and conditions, you could follow up with an email noting that you haven’t received a response.

If you don’t receive an answer to your question at this point, go ahead and post the T’s & C’s and your questions about them to several relevant online discussion forums and see what happens. Remember squeaky wheels and grease.

It’s clear that PG has gone on way too long about this topic and needs to do something useful. He will leave with one final admonition:

Read the Contract!

Contest Alert: Bardsy’s “The Short and Long of It”

by

From Writer Beware:

Yes, folks, it’s another of my posts about problematic writing contest rules.
I do a lot of these, and the issues are often pretty similar from post to post. But because writing contests are so popular, and poor rules language is so common, it never hurts to blast another warning out there.
Bardsy offers products and resources intended to help writers “Optimize Your Writing Process”, including writing tools, templates, video courses, automated tips and prompts, and something called the “Bardsy Method”. Bardsy members can publish their stories to the Bardsy Library, where they can be accessed and read by other members, or submit to Bardsy anthologies for possible publication. All of this is accessible for a monthly membership fee of $12.99.

Right now, Bardsy is running a “NoNoWriMo Prep Contest” called “The Short and Long of It”. Writers can enter unpublished short stories of between 1,200 and 3,000 words. The winner will get a cash prize of $299, plus a free six-month Bardsy Elite membership (Elite membership normally involves an invite from Bardsy and a higher monthly membership fee). An unspecified number of finalists will receive a  50% discount on regular Bardsy memberships for six months (a prize, in other words, that they will have to pay to take advantage of). There’s no entry fee. Notably, there’s also no guarantee of publication–even though Bardsy does claim publishing rights.
And that’s where the problem arises. Specifically, in the Additional Rules section of the contest guidelines: 

There are several issues here. First, simply by submitting to this contest, you’re granting publishing rights to Bardsy–whether or not you win or are declared a finalist.

Link to the rest at Writer Beware

Either Bardsy is malevolent or filled with idiots.

If Bardsy’s attorney recommended this language, PG would welcome a conversation to set her/him straight about why this was a really stupid drafting error and a vast rights overreach. If counsel picked this provision from a law firm form file, somebody intelligent needs to go through that file to make certain it’s not filled with other garbage.

Writer Beware posted the OP yesterday and, when PG checked today, the rights grab language was still there.

Either way, PG suggests watching your wallet if you deal with them or, even better, finding similar services from someone else.

The curious case of the midsized publishers

by

From Nathan Bransford:

Now that Workman has been acquired by Hachette and Houghton Mifflin Harcourt has been acquired by HarperCollins, where have all the midsized book publishers gone? Jim Milliot at Publishers Weekly surveys this dying breed and cites the difficulty of building a backlist, the capital needed to grow into midsized publisher, and ongoing acquisitions by bigger players, but there are still publishers like Kensington who are holding on by focusing squarely on their niche.

Link to the rest at Nathan Bransford

PG suspects that midsized book publishers are having the same financial problems as the rest of traditional publishing is experiencing. The small folk just don’t have the financial resources that the big publishers do.

When a little publisher is swallowed by a big publisher, those people working at the little publisher who aren’t fired outright get new bosses and any promises the survivors made to the little publisher’s authors disappear into the wind.

If a commitment is not inserted into a written contract, for virtually all legal purposes, it doesn’t exist. Certainly, it doesn’t exist for the big company because it took over the rights and obligations in the written contract.

That said, PG suggests that the big publishers are facing exactly the same market forces that battered the little publishers into selling out.

The Titanic will take longer to sink than a fishing boat.

Public Domain

PG apologizes for the sloppy Photoshop job, but he was in a hurry.

An Erotica Pioneer Goes From Hero to Villain for Dozens of Authors

by

From The New York Times:

Anne Wills was a mother of four who doted on her children, was an active volunteer with a youth swim team, loved animals and was known to those around her as a generous, nurturing, motherly figure in her small town in rural Virginia.

When that life felt too tame for her, she became Bethany Burke, a bawdy, kink-loving erotica author who also made low-budget spanking films. She wrote them and occasionally even directed them.

She was an early online erotica entrepreneur with her subscription spanking site, Bethany’s Woodshed, and a hero and mentor to dozens of authors, most of them women, whom she published for the first time through Blushing Books, the company that grew out of her original site. Some of those authors started earning tens of thousands of dollars a year from what they had thought of as a secret hobby, not a profession.

Now, to many of those same writers, she is a villain.

“She has you, she owns you,” said Barbara Carey LaPointe, a retired social worker in Camden, N.Y., who writes romance under the pen name Stevie MacFarlane and who, like dozens of other authors, is fighting Ms. Wills to reclaim the rights to the stories she created.

“These are the only things I’ll be able to leave to my grandchildren,” Ms. LaPointe said.

In interviews with The New York Times, a dozen Blushing authors and seven former employees described a haphazardly run business that frequently failed to pay authors on time, and threatened them with lower royalties and defamation lawsuits if they defected. Some writers who spoke to The Times discovered they were not being paid for books that Blushing was selling through certain online vendors or in audio format. Others were locked into contracts that gave Blushing “permanent and exclusive” rights to their books and pen names, which publishing experts called onerous and outside of industry standards.

When asked by authors about the missing payments, Ms. Wills, 63, the chief executive, often called it an oversight or a glitch in the system. But several former employees said that delayed payments to authors were a result of Blushing’s routine mismanagement of finances.

. . . .

In December 2020, the Romance Writers of America, a trade group, announced that, following an ethics investigation, it had suspended the publisher’s membership for three years and barred Blushing from attending its conferences. The Authors Guild, an advocacy group, is representing 30 writers seeking to reclaim rights to their work from Blushing. So far, one of those authors has stopped Blushing from selling her books after filing copyright-infringement notices with retailers, showing that Blushing did not hold contracts for them. Umair Kazi, director of policy and advocacy at the Authors Guild, said that some of Blushing’s contract provisions and its treatment of some authors go against industry standards and raise “many red flags.”

In a statement to The Times, Ms. Wills declined to address specific allegations from authors, and said that her company’s policy was not to speak publicly about any “author’s contractual obligation with Blushing.” She also noted that Blushing had paid “millions of dollars in royalties just in the past five years.”

Under pressure from authors, Blushing has offered more transparency, and says that it is now providing monthly royalty payments, and that since the first quarter of 2020, it has used an automated royalty tracking system to generate payments.

A lawyer for Ms. Wills said that she “believes she has fulfilled her contractual duties to her authors and continues to do so” and that “Blushing wishes to move on from this small group of past authors and disgruntled past employees and put its energy into focusing on the talented and passionate authors they have the privilege to represent.”

. . . .

On top of major companies like Harlequin, Avon and Berkley, which are owned by large multinational corporations, a constellation of smaller, independent romance publishers sometimes operate in a gray area between corporate publishers and vanity presses, which charge authors to publish their work. The independent presses tend to offer writers small advances of four to five figures but a higher cut of royalties, a share of profits. Often, they attract writers, mostly women, who have little professional publishing experience and aren’t represented by lawyers or agents who can help them evaluate a contract.

“Writers who really want to get published are so easy to take advantage of, and there are more and more people out there to take advantage of,” said Mary Rasenberger, chief executive of the Authors Guild.

While every creative field has horror stories about artists who are underpaid and exploited, the dynamics of the romance industry can be especially difficult to navigate. Despite the ascendance of erotica, there’s a lingering stigma attached to the genre, which is written largely by and for women, and is still sometimes dismissed as shameful or unserious. Many romance authors publish under pen names and keep their professional and personal identities separate, and some write in secret for fear of being judged for writing about sex, and more particularly about women enjoying sex.

Ms. LaPointe, 66, became disillusioned with Blushing after she discovered it had added clauses to her contracts without telling her. The additions included claiming rights to foreign editions, audiobooks, and film and television adaptations, according to contracts shared with The Times. Her royalty payments were erratic — she said she sometimes made $3,000 in a quarter, and other times Blushing would claim she owed the company money for advances that it hadn’t made back in sales. She recently started self-publishing and is making far more on her own, but Blushing still has rights to 31 of her books.

She understands now how many questions she should have asked when she began publishing with Blushing in 2012.

“At the time you’re so thankful that a publisher is going to take your book,” she said. “Looking back, you realize how incredibly naïve you were,” she said.

. . . .

As she was building her erotica empire, Ms. Wills ran into legal trouble.

Under her married name from her first marriage, Anne Briggs, Ms. Wills was charged with embezzlement in Charlottesville, according to court records. In 2000, she pleaded guilty to embezzling funds in 1998 from a cafe where she worked as a bookkeeper and to credit card fraud in 1997. Around the same time, she was accused of taking tens of thousands of dollars from a youth swim team, according to reports in The Daily Progress, a Charlottesville paper, but she was never prosecuted. (A lawyer for Ms. Wills said that “the allegations regarding criminal charges are false.”)

In her other life as Bethany, she had grand ambitions for her publishing business, and recruited a large stable of authors. “She would wine and dine you,” said Victoria Rouch, a former editor in chief for Blushing, who writes under the name Ava Sinclair. “She always had this image of being extremely wealthy.”

She added: “She would get new writers and they would be the flavor of the month. She would treat them like queens.”

Ms. Wills bought many books outright as “work for hire,” meaning Blushing bought them outright and no royalties would be owed. For others, she offered a seven-year term to license the work, but in some contracts, she claimed permanent and exclusive rights, meaning Blushing could sell the books forever. To attract new writers, Blushing promised some a large cut of royalties — 50 percent, or 60 percent if authors agreed to publish exclusively with Blushing — far more than the typical 25 percent that most authors make for e-books with mainstream publishers. Those royalties were to be paid quarterly, but Blushing’s most successful authors were offered monthly payments.

. . . .

Some former employees said that they found her endearingly scatterbrained, and that they tried to create automated systems to keep track of royalties and to try to make sure authors were paid on time. Former employees said that they had asked Ms. Wills to create an escrow account for author earnings to protect them until royalties were paid, but she declined. An informal policy was to make sure the best-selling authors, and the ones who frequently complained — called “the yappers” by employees —- were paid first, while others had to wait, according to former employees.

As an avalanche of self-published erotica arrived after “Fifty Shades of Grey” came out in 2011, the dark, edgy category Blushing once thrived in was flooded. Ms. Wills looked for ways to stay visible in a cutthroat online marketplace.

. . . .

One of her workarounds was risky. Several former employees said that Ms. Wills had set up multiple Kindle publishing accounts on Amazon, around 10 at one point, a violation of Amazon’s one-account-per-publisher policy. Ms. Wills told employees that books performed better with Amazon’s algorithm when they came from accounts with fewer new releases. She also told them not to talk about the accounts — if Amazon learned of it, Blushing’s account could potentially be shut down, taking authors’ sales and careers with it.

But some former employees grew suspicious when they saw accounts opened in authors’ names, or when Ms. Wills used employee names, addresses and tax IDs to open an account, including Alta Hensley, a former editor in chief who quit after Ms. Wills tried to open an account in Nevada under her tax ID and address without Ms. Hensley’s permission. Ms. Hensley refused to sign the paperwork and later quit. Ms. Wills threatened to sue her if she said anything negative about the company, she said.

. . . .

At first, Wendy Weston, a clinical social worker who lives in Texas and writes as Alyssa Bailey, was ecstatic to see her books in print. “She published me first and I will always be thankful that she took a chance on me,” she said of Ms. Wills.

But now she fears she has signed away rights to her books forever. The company holds permanent and exclusive rights to 22 of her titles, including her historical romance series, “Lords and Little Ladies,” and her contemporary Western spanking romances. In 2019, her royalties fell to half what they once were. Once, when she received no royalties for eight months, she asked Ms. Wills why she hadn’t been paid.

“She said, ‘Oh we forgot to pay you,’” Ms. Weston said.

Some authors signed contracts that gave Blushing permanent rights to their pen names and series names, making it all but impossible for them to leave without sacrificing their careers and audience.

Ms. Wills also added a clause giving the company “permanent and exclusive rights” to titles, often without informing authors of the change, and instructed an employee to revert to the previous term of seven years only if authors noticed and asked for it, emails reviewed by The Times showed. “Based on what I’ve seen, some of these clauses read as predatory and not standard,” said the literary agent Kimberly Brower, who reviewed language in Blushing’s contracts at The Times’s request. “Some of these publishers count on the fact that authors do not have agents or cannot afford a lawyer.”

. . . .

Anya Summers, whose real name is Margaret Huth, is a former music teacher who lives in St. Louis and now writes romance full time. She started publishing her “Dungeon Fantasy Club” series, about a secret B.D.S.M. sex club, with Blushing in 2016. Her relationship with the company soured last year, when she ended her exclusive agreement with it and began self-publishing books on the side. Ms. Huth was alarmed when her royalty payments from Blushing subsequently plummeted, even though many of her latest Blushing books were ranking higher on Amazon than they had in the previous quarter, suggesting sales remained strong. Royalty statements from Blushing said one of her books had not sold a single copy, when Amazon reviews showed verified purchases.

. . . .

When she emailed Ms. Wills last October to ask why her royalties fell, Ms. Wills replied that her Blushing sales fell because she was self-publishing, and said that unless Ms. Huth agreed to publish exclusively with Blushing, her payments would shrink even more, according to an email reviewed by The Times. Ms. Huth wouldn’t agree to the terms, and subsequently, she said her payments fell by nearly 70 percent, amounting to thousands of dollars a month.

Ms. Huth recently learned that in 2017, the publisher registered a limited liability corporation under her pen name, Anya Summers, and that it also opened a Kindle publishing account in her name without her knowledge or permission.

. . . .

In a way, Blushing’s vast and growing catalog of erotica was itself something of an illusion, a fantasy in more ways than one. Blushing often treated its writers and their work as interchangeable, another kinky story to feed the bottomless appetite of Amazon’s algorithm.

To keep pumping out new releases, Ms. Wills padded inventory by taking older books and repacking them with new covers, sometimes under a different title and pen name, according to several former employees. One former Blushing author said Ms. Wills often rehashed older books as new titles and asked her to lightly rewrite some. “She had thousands of books by all kinds of authors that she claims she just owns and she can put other people’s names on,” the author, who writes as RJ Gray, said.

While Blushing can legally recycle books it bought as work for hire, the practice can trick readers into buying the same story twice.

That’s what happened to some fans of JoAnn Kinder, who started writing for Ms. Wills in 2001 and published more than 200 books with Blushing. When she died suddenly in June 2018, at age 67, many of her books did not have formal contracts.

She was in the process of finalizing agreements that specified that in the event of her passing, her royalties would go to her surviving family, including her husband, her two children and her grandchildren, according to her daughter, Christina Boes.

Ms. Wills told Ms. Kinder’s family that her books hadn’t been making much money and promised to send them a share of royalties, Ms. Boes said. “To say that she wasn’t making any money on her books is a complete falsehood,” said Ms. Boes, a home health nurse in Colorado, who added that her mother used to make $3,000 to $5,000 in royalties every quarter, though payments often arrived late.

Two former employees confirmed that Ms. Kinder’s books, which were written under 10 pen names, including Joannie Kay, still sold steadily.

Nearly two years after Ms. Kinder’s death, the company sent a contract to her husband, promising the family 10 percent of profits for her titles and claiming the right to revise and republish her work under new titles and pseudonyms. On the advice of a lawyer, Mr. Kinder signed the contract, a decision the family now regrets.

Ms. Boes said the family has not received royalties for her mother’s works, apart from $200 that Blushing sent for a chapter she submitted right before she died. The family and Blushing dispute the status of royalty payments. Beyond that, Ms. Boes is upset that her mother’s work is being revised and released, and that her mother would have been appalled by readers feeling deceived.

“They’re still selling all of these books and rewriting them,” Ms. Boes said.

RJ Gray said that in 2019, after Ms. Kinder’s death, Ms. Wills had asked her to add more explicit scenes to Ms. Kinder’s books, something Ms. Kinder had opposed, according to her family.

“She told me that she had access to Joanie’s material and she wanted me to rewrite it,” Ms. Gray said. “Joanie wrote clean, and she wanted to spice up her work and resell it.”

Ms. Gray said no, but Blushing pressed ahead with plans to keep Ms. Kinder’s books coming out posthumously.

. . . .

For a while, Ms. Wills was able to keep authors from speaking about the company through nondisclosure agreements in their contracts. But in 2019, a group of writers rebelled. The author organizing the uprising was Addison Cain, one of Blushing’s top sellers. Ms. Cain had gotten into a copyright dispute with another author after Ms. Cain claimed that her books had been plagiarized, and then discovered that Blushing had never copyrighted her books, a standard service that many publishers provide and that Blushing’s contracts said they would cover. (The accused author filed a lawsuit against Ms. Cain and Blushing, and received a judgment against Blushing, but the suit against Ms. Cain was dismissed after the plaintiff liquidated her company and missed court deadlines.)

Ms. Cain told some other authors, who learned that their books, too, had never been copyrighted. Some found their books on piracy sites but Blushing said it couldn’t do anything and discouraged authors from seeking to have them removed.

“Blushing was risking the livelihood of all of their authors,” Ms. Cain said.

The group, seven authors, hired a lawyer to send a demand letter to Blushing for breach of contract and reached a settlement with Blushing to get their rights reverted, but some had to file copyright-infringement notices with retailers to get Blushing to take their books down.

The departure of many of Blushing’s best-selling authors was disastrous for Ms. Wills, who faced mounting legal bills and shrinking profits, and had just spent $135,000 on an office building in Farmville, which was later sold at a $20,000 loss. She worried that other authors might defect, and she registered trademarks for successful series that she thought she might lose in her company’s name, not the author’s, according to trademark filings.

The conflict escalated in February 2020, when some routine financial paperwork caused everything to unravel.

That month, the seven authors who got their rights back received tax documents from Blushing. One of them, Zoe Blake, said she believed the form incorrectly labeled her earnings. In seeking to have it corrected, she was sent email correspondence that Blushing said was from an accountant, explaining no error had occurred. In fact, the email had been altered by Ms. Wills, according to email records and interviews.

Ms. Wills acknowledged in a phone call that she had changed the accountant’s email, but claimed she had only done so to make his meaning more clear, according to Ms. Lamon, who was on the call with two other employees. (In a statement to the Times, Ms. Wills said she had “never been contacted once by the I.R.S. informing us of any issues with tax documents.”)

Blushing’s production manager, accounts manager and editor in chief all promptly resigned. Before they left, the production manager paid herself and other employees their salaries and paid out royalties, including some that had been delayed, and she listed these payments in her resignation letter.

The next day, Ms. Wills filed a police report claiming that her production manager had embezzled from the company. A few weeks later, the former employee was arrested in her home in front of her husband, the deputy chief of police, and her children, and taken before the magistrate. A group of Blushing authors raised money for her legal fees, and Ms. Wills’s estranged husband and one of her children also offered to help.

Ms. Wills never provided any forensic accounting evidence of embezzlement, a lawyer representing the former employee said, and the charge, which was filed in the wrong jurisdiction, was later expunged, according to the Albemarle County Commonwealth’s Attorney’s Office. Ms. Wills filed a new complaint against the former employee, but no charges have been filed. (The woman spoke to The Times about the events that led to her arrest on the condition that her name not be printed.)

Link to the rest at The New York Times

This is a longer than usual excerpt than PG usually posts, but the original NYT article is longer still.

Here are a few bullet-point lessons authors can take from the OP:

  1. Read your contracts.
  2. Read every contract, even if it is supposed to be the same as an earlier contract. You can use MS Word Document Compare to assist in this process and help make sure you didn’t miss something small but important.
  3. You don’t have to accept the wording of a proposed publishing agreement. It’s an offer sent to you to enter into a binding contract. You can modify the wording of the agreement, sign it and send it back to the publisher. In legal lingo, this is a counter-offer. If the publisher signs the modified publishing agreement, that’s the binding agreement, not the first version they sent to you.
  4. In contract negotiations, PG is a proponent of doing unto others as you would have them do unto you, and PG begins negotiations in a friendly and cooperative manner. (Academic negotiations studies indicate this is the best way to reach an acceptable agreement, so PG has some scientific justification for his normal instincts in contract negotiations.)
  5. PG also applies his “do unto others” standard to the counter-party as well. If counsel for the publisher is friendly and cooperative, that’s the way PG would respond. If counsel is aggressive or a jerk, PG could move into that negotiation mode even if that wasn’t his first preference.
  6. As a general proposition, if the counter-party appears to be shady and devious, PG’s advice to a client would be not to do business with that sort of person or organization because the likelihood of a bad outcome is very high.
  7. If, as the OP implies might have been the case, these authors were pretty desperate to be published and an author, despite PG’s warnings, asked PG to move forward with contract assistance, PG would have no problem creating a modified version of the original unfair contract for the author to send back to a publisher like Blushing with modifications fixing the original unfair provisions. If PG regarded the original contract wording as devious, his response might well be devious, mirroring the publisher’s contract proposal.
  8. As sloppy an operation as the OP indicates Blushing was, PG would be surprised if anyone in the organization read a signed publishing agreement received from an author.

However, even with a reworded publishing agreement, the author would still not be in a very good position to do much with an organization like the one depicted in the NYT article.

Under a typical traditional publishing agreement, the publisher receives all the information concerning a book’s sales. As stated in the OP, at least some of Blushing authors claim the publisher misrepresented the sales numbers and money received from the sales of at least some of its books to the detriment of the authors. If the publisher was operated in the manner implied in the OP, PG would expect a high likelihood that its financial books and accounting are pretty much a black hole.

The first rule of creating a successful agreement is to make it with an individual or entity that will do what he/she/it promises to do competently. No amount of genius legal drafting will avoid problems if the other side of an agreement isn’t inclined to or capable of carrying out its obligations.

Given the high profile of The New York Times, PG would be surprised if a variety of taxing authorities don’t start audits of Blushing’s filings and financial records.

Amazon and other sellers of books published by Blushing may respond to the information in the article in a variety of different ways.

That said, all that PG knows about Blushing and Ms. Wills is what he read in the NYT article. He has not heard Blushing’s side of the story, which he expects would be much different than that published in the Times.

For the record, nothing included in PG’s commentary represents a legal opinion. You don’t obtain a legal opinion by reading a blog post written by an attorney. You obtain a legal opinion by hiring a competent lawyer who would do much more research than read a New York Times article. Facts not mentioned in the NYT article may have a substantial legal impact that would make some or all of the article or PG’s reflections based on the report incorrect.

PG doesn’t have any desire to get involved in this Blushing matter as an attorney. He’s not licensed to practice in Virginia and, while he spent a lot of time in court during a previous life, he has no desire or ability to enter any courtroom now or in the future unless he’s there as a spectator to watch other attorneys do all the work.

How Bad Contest Entry Rules Can Be Mitigated: The Medium Writer’s Challenge

by

From Writer Beware:

That’s right, boys and girls–it’s another of my posts about hinky contest rules.

If you’re a regular reader of this blog, you’ll know I publish a lot of these. That’s not because I like repeating myself…it’s because bad contest legalese is depressingly common, especially in contests conducted by high-profile organizations or individuals, such as HBO’s “Lovecraft Country” short story contest, or T.A. Barron’s Once Upon a Villain flash fiction contest, or the Sunday Times/Audible Short story award, or any number of others. Because it’s so common, though, it never hurts to put out another warning….especially when a contest offers the kind of prize money that’s sure to attract droves of writers.

In a twist, though, I’m not just going to talk about greedy legalese, but also about how one contest sponsor responded to criticism and made it better.

The Medium Writers Challenge is an especially rich contest, with a $50,000 grand prize, $10,000 for four finalists (one of the finalists will be the grand prize winner, so one person will actually win $60,000), and 100 honorable mentions who will each receive $100.

. . . .

To enter, writers choose a prompt, create an essay of 500 words or more, and publish it on Medium. A prestigious slate of judges that includes such luminaries as Roxane Gay and Natalie Portman will select four finalists, one for each prompt, and then choose the grand prize winner and the honorable mentions. The deadline to enter is August 24, 2021.

Moving on to the fine print, namely this paragraph of the official rules:

The concern was with the license writers grant simply by entering the contest, the wording of which gives Medium “an irrevocable, royalty-free, worldwide, nonexclusive, sublicensable, assignable” license to do pretty much anything it wants with any entry, whether or not it’s a winning entry.

This kind of language is extremely common, especially, as I’ve mentioned, in high-profile contests. The intent isn’t so much a nefarious scheme to steal writers’ rights or bind them to eternal servitude, as it is a shortcut for contest sponsors, who don’t have to fuss around with contracts for winners because they’ve already agreed to terms. It’s very easy to mitigate such language–for instance, by releasing non-winning entrants from the license once the winners are declared–but, carelessly or lazily or just sharkily, depending on how many lawyers formulated the rules, many contest sponsors don’t bother, even though it means that they retain rights they likely have no interest in and no intention of ever using.

In Medium’s case, though, they did take steps to mitigate. Note the second line of the paragraph, which limits the license to one year from the end of the contest period (presumably that’s the August 24 deadline). In other words, this is not the perpetual license that some other contests demand: it has an endpoint, after which it expires.

Here’s the interesting thing, though. Paragraph 10 didn’t always read the way it does now. This is the original version, the one that got people upset:

Note the difference: there’s no limit on the grant period. In this version of the contest rules, the license really is perpetual. 

Link to the rest at Writer Beware®

In PG’s experience with large organizations, ignorance or stupidity can be just as destructive as evil intent.

If we rule out evil intent on the part of Medium (which seems to be the case if you read the entire OP), we’re left with ignorance and stupidity. These two characteristics can cause problems either individually or in conjunction with each other.

Drawing on his study of human nature, here’s how PG thinks this mess probably went down:

  1. Somebody in editorial at Medium could see that the publication would be short on content at some time within the next few months. Perhaps no one could think of new story ideas or maybe the business owners had cut back on budgets for commissioned articles so the cupboard was rapidly becoming bare. Staff writers had been squeezed dry and had no more good writing in them for awhile (or maybe they were fired, if they ever existed).
  2. The inevitable question followed: “Where can we get content for nothing?”
  3. One of the stock answers: “Let’s hold a writing contest and we’ll feature the winning entries in next month’s issue!”
  4. Scramble time.
    1. “Suzie, think up a theme and draft two or three good paragraphs about the contest. Run them past a couple of other people for quick takes. Make it sound sexy, cool and current.”
    2. “Bob, organize the summer interns to screen the entries and forward anything decent to you. I know you’re going to have to hold their hands, but that’s why you run the interns.”
    3. “Prizes! Hercule, figure out some cool prizes, but remember the budget. The main prize is being published.”
    4. “Thanks for reminding me, Heloise, we need to have rules. Go look for our last contest and use those. If we didn’t have a last contest, use Google to find some rules online.”
    5. “OK, team, you know what to do. Get going!”

See? No sign of ill will towards authors in sight.

Unfortunately, when the author of one of the submissions (they came in third in the contest) wins the Nobel Prize for Literature and another submitter hits the New York Times bestseller list, even though the summer interns are long gone, somebody at Medium will remember the names, look back and decide there’s a book there – “Famous Entries to Our Contest from People Who Made It Big!”

Unfortunately, one of the published entries is a seriously steamy piece by a best-selling Christian author who has since turned her life around and headed in the opposite direction without looking back.

In conclusion: READ THE FINE PRINT, EVERY BIT OF IT!

If you’re too busy to read the fine print and figure out what it means, don’t enter the contest.

Bad Contract Alert: Bytedance’s Fictum Reading/Writing

by

From Writer Beware®:

Over the past year, I’ve gotten a flood of questions and complaints from writers who’ve been approached by reading/writing platforms or apps based in Hong Kong or Singapore.

There’s a growing number of these platforms, and they are aggressively soliciting for content, including on established platforms like Wattpad. While most of the solicitations target writers directly, agents are receiving approaches as well.

Some platforms appear professional, with contracts that are fairly reasonable and straightforward. Others…not so much. Last October, I wrote about the terrible contracts offered by A&D Entertainment and EMP Entertainment, two companies that are deputized to recruit for Webnovel.

A new player in in the reading/writing app field is Fictum (domain registered just this past November). Available on Apple and Google Play, it’s owned by ByteDance, the parent company of TikTok, and is currently recruiting writers with existing published books, as well as writers willing to produce 200,000 words or more of new material for its Long English Story Project.

For new material, Fictum offers both exclusive and non-exclusive contracts, with different levels of financial remuneration that are rather confusingly described here. You must first publish three chapters in order to apply for a contract; once you’re contracted, you must fulfill punishing word counts and maintain a grueling schedule in order to earn. For the exclusive contract, for instance, you must publish at least 1,000 words a day in order to receive a “daily update bonus” of $200 per month. More words equal more cash: if you can bang out 100,000 words a month, you get $400. Time is money, though: you can’t take more than four days off in a single month, and if you fail to produce for more than four days in a row at any time, you forfeit payment.

Over the past year, I’ve gotten a flood of questions and complaints from writers who’ve been approached by reading/writing platforms or apps based in Hong Kong or Singapore. 
There’s a growing number of these platforms, and they are aggressively soliciting for content, including on established platforms like Wattpad. While most of the solicitations target writers directly, agents are receiving approaches as well.

Some platforms appear professional, with contracts that are fairly reasonable and straightforward. Others…not so much. Last October, I wrote about the terrible contracts offered by A&D Entertainment and EMP Entertainment, two companies that are deputized to recruit for Webnovel.
A new player in in the reading/writing app field is Fictum (domain registered just this past November). Available on Apple and Google Play, it’s owned by ByteDance, the parent company of TikTok, and is currently recruiting writers with existing published books, as well as writers willing to produce 200,000 words or more of new material for its Long English Story Project. 

For new material, Fictum offers both exclusive and non-exclusive contracts, with different levels of financial remuneration that are rather confusingly described here. You must first publish three chapters in order to apply for a contract; once you’re contracted, you must fulfill punishing word counts and maintain a grueling schedule in order to earn. For the exclusive contract, for instance, you must publish at least 1,000 words a day in order to receive a “daily update bonus” of $200 per month. More words equal more cash: if you can bang out 100,000 words a month, you get $400. Time is money, though: you can’t take more than four days off in a single month, and if you fail to produce for more than four days in a row at any time, you forfeit payment.

I’ve seen one Fictum contract, offered for an existing published book. You can view it here. To put it mildly, there are issues of concern.

– The Grant of Rights is non-exclusive and time-limited–but it is also irrevocable. In other words, you aren’t stuck forever–but you have no right to cancel. 
There was originally a clause allowing the author to terminate for cause, but in the contract I saw, that clause had been blacked out. The deletion wasn’t as effective as someone thought, though, because when I converted the contract to PDF, the excised words showed up:

This isn’t much better than saying “no, you can never cancel”. You’d have to wait a year, and you could only invoke the clause if not a single person had accessed your work in all that time (which might be hard to show, given that Fictum doesn’t have to tell you how your work is performing–see below). Talk about crafting an option so that it practically never happens! Plus, if even if you were unfortunate enough to fulfill the requirements, you’d still be screwed, because you’d have to give money back to Fictum:

Let me know if you can make sense of that formula.

– You must waive your moral rights. Moral rights include the right of attribution (the right to be identified as the author) and the right of integrity (the right to protect your work from changes that would be prejudicial to the work or to you). If you waive your moral rights, you surrender both. Among other things, this means that your work could be published without your name, or under someone else’s name.

Moral rights aren’t really recognized in the USA, but they are important in other countries, and the Fictum app is distributed in multiple nations across the world.

Link to the rest at Writer Beware

If you’re an author and not familiar with Writer Beware, you probably should be. To the best of PG’s knowledge, the site was founded under the auspices of the Science Fiction and Fantasy Writers of America. Curently, it’s also supported by the Mystery Writers of America, the Horror Writers Association, and the American Society of Journalists and Authors.

The current staff, as listed on the website is Victoria Strauss (also a co-founder), Michael Capobianco and Richard C. White. All are authors and each is a volunteer.

To the best of PG’s knowledge, none of the three is an attorney, but his strong impression is that each is a savvy veteran author who knows her/his way around both the legal and non-legal aspects of the publishing business. Besides, PG knows an unfortunately large number of dumb attorneys and you don’t have to climb very high on the smart and savvy tree to be better at locating traps in contracts that authors sign than a dumb lawyer.

Besides, PG has never seen any information about a US law school that includes any specialized program that focuses on laws affecting authors and the publishing world. (Way more money in representing people who have been injured in auto accidents involving insured drunks.)

As full disclosure, PG learned about intellectual property law in law school (Gutenberg was still suing people who ripped off his printing press), and worked for a company that made its money licensing patents, but his first exposure to the world of publishing contracts was when Mrs. PG became dissatisfied with her traditional publisher.

That was the first time PG had looked at her publishing contracts (barefoot shoemakers’ children, etc.). He figured out how to break the contracts so she wasn’t shackled to her publisher any more. Prior to that, PG knew a lot about business contracts, but nada about publishing contracts.

So, PG thinks it’s a good idea for authors to visit Writer Beware on a consistent basis. He’s going to be more consistent in checking the site for potential TPV posts, but don’t rely on him to tell you everything you know about whatever appears on Writer Beware.