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

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 Writers can enter unpublished short stories of between 1,200 and 3,000 words.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

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

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

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

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.

Author Complaints at City Limit Publishing

From Writer Beware:

I first heard of City Limits Publishing (CLP) in September 2020, via a question about author-unfriendly guidelines in a contest it was running (simply by entering, writers granted “a worldwide royalty-free perpetual license to publish”). At the time, CLP had published just eight books, all by the same two authors . . . and was calling for submissions. 

To me, CLP looked like a self-publishing endeavor that was trying to expand into traditional publishing. This doesn’t always work out well, since not all self-publishers have a solid knowledge of publishing (or, necessarily, any business experience) and may unintentionally disadvantage writers with nonstandard business practices, or author-unfriendly contracts, or both. And indeed, CLP’s original contract had some problems. It included a transfer of copyright, a major red flag in a non-work-for-hire contract…

…that was directly contradicted by a clause stipulating the printing of copyright notices in the author’s name (not the publisher’s, as would normally be the case with a copyright transfer), as well as an extremely generous termination clause allowing authors to cancel their contracts post-publication at will for any reason. This kind of internal contradiction is something I see not infrequently in small press contracts, and is a red flag all on its own: it suggests that the publisher has a less than perfect understanding of its own contract terms.

CLP appears to have recognized this at some point, because the copyright grab disappeared from its contracts in September or October 2020 (the generous termination provision remains). CLP’s catalog has ballooned to over 40 titles, including those original eight, and it has big ambitions for 2021, with plans to publish more than 50 books in total. That’s a very large list for a small press–something that can (and often does) lead to trouble if staff and resources aren’t adequate to handle the load.

. . . .

UPDATE: Robert Martin, CLP’s owner, contacted me after this post went live to say that CLP has “never moved or delayed a publishing date. Ever.” The dates on the CLP website listings, he explained, are actually “pre-sale” dates [I assume this is the date the book goes live for pre-orders]; the reason they’re labeled “publish” dates is because “[t]he Shopify theme we purchased automatically uses the date we put the product into our online store as the Publish date.” CLP’s web developer is apparently working to change this.

When I asked why, if the books are available for pre-order on the CLP website, they aren’t also available on Amazon and other retailers, he told me “As for why they aren’t all on retail sites yet, we put them up as we are able and as projects come to a close, but I don’t feel like we have to explain ourselves for every little thing we do.”)

Also of concern: the multiple documented complaints I’ve recently received from CLP authors. These include late royalty payments, missed editing and other deadlines, difficulty getting CLP staff to respond to questions and concerns, free author copies and books ordered at author discount not received or received months late, books ordered by readers not received or received months late, formatting and other errors in finished books that authors struggled to get corrected (for instance, the author’s name spelled wrong on the spine), substandard editing and proofing, and copyrights not registered as required in contracts. Some writers reported problems with CLP’s heavily hyped online author portal–confusingly named AuthorCentral–which they said suffers from frequent crashes. I also heard from an audiobook narrator who told me that they weren’t informed when CLP lost the rights to a book the narrator was in the process of recording, posing payment issues for the narrator, who was working on a royalty-share contract.

Authors also highlighted issues of transparency: being told that copyright registrations had been filed and later discovering they had not been, claims that print runs of thousands of copies were being done when in fact CLP uses on-demand technology to produce books in much smaller batches as ordered.

. . . .

I contacted CLP’s founder, Robert Martin, for comment on all of the above. He gave me the following statement, which I have edited to remove mention of an individual author (not by name, but likely recognizable even so). 

When I started City Limits Publishing, I committed to full transparency and I’ve tried to provide that from the very beginning. Through our bi-weekly author newsletter to frequent direct updates and notices from me to all of our authors, I’ve kept them appraised of shipping issues related to COVID, updates to our financial systems, implementation of our new author intranet system that would provide them greater access to information and updates, as well as any challenges we’re facing as an organization. And, being a new, small press, there are many. The authors who have stuck with us have been absolutely amazing and their support is inspiring. Together, we’re building something great here. Many of our authors have emailed me thanking me for the transparency they’re getting and have been so encouraging even when receiving direct, unsolicited messages from a handful of authors on a war path.

We’re aware of the situation and some of the issues a small group of former authors have brought up. First, with regards to late royalty payments, we were delayed in sending out payments as we both moved to a new system and I had a personal matter that required my attention and took me away from work for a bit. The payments were made up in full with tracking and confirmation of receipt, along with my sincerest apologies, and a promise that our next payout, July 20, would be made in full and on time, with the exception of authors who have entered into final accounting after requesting to be released from their agreements. Their final payments are being made this month as agreed during termination discussions. We’re in the process of hiring a Business Manager that will take help ensure we are not late in the future. Our royalty statements were delayed in April as we made the transition to RoyaltyTracker (MetaCommet). Their implementation schedule caused us delays in sending out statements. We made a major investment in this new system so that going forward everything would operate more smoothly. With progress comes growing pains.

With regards to author copies, we have committed to making sure that our authors receive at least half of their author copies in the weeks leading up to their release, and half within 90 days of release. Author copies are a large expense for the company. We’re a small business trying to get started during a global pandemic. As for ordering problems, we admit that during our early months we faced many delays, especially with our original printer and our transition to the IngramIgnite program. Still, all orders were fulfilled, and we’re now shipping out daily with no delays.

With copyright registration, we did drop the ball on some of our earlier titles. Before we brought on a full team, I was working mostly on my own with operations. I’m human and did make mistakes with copyright registration of some of our earlier titles. Now, we have a system in place to make sure registration happens within 90 days of publication, as outlined in the agreement. And, we have made steps to help educate authors on the copyright registration process. It’s not a fast process, so we’ve made sure to provide information to authors on timelines and how that process works.

Other complaints mentioned: Our early editing process was not as refined as it is now. We were just getting started, and we really learned a lot. We’ve even gone back through older titles for extensive checks and proofing to ensure we’re putting out the highest quality of work. Authors complained about books going to print with errors, but we do require all of our authors to initial the bottom corner of every page of their book before it goes to print. So, respectfully, that’s a shared mistake, and one we’ve worked extremely hard to rectify, now having four sets of eyes on all works published. Additionally, we do still have a contract with ACX and with Audiobook Universe. We were temporarily suspended from ACX for a contract mix-up where exclusive rights were selected when non-exclusive was intended. We removed the book from our website (it had not sold any copies) and our contract was reinstated. With regards to our printing, we originally used an up-front printing method, but were approached by Ingram’s IngramIgnite program (a program specifically for small presses) about using their system. We transitioned to their system, but still process upfront orders of copies of books and fulfill them to bookstores in the US and Canada that are ordered directly from us through our marketing efforts. Additionally, we make sure our wholesale pricing is competitive to get our books listed with as many retailers as possible, and we’ve enjoyed great success with the help of our partners at Ingram.

Are we perfect? Absolutely not. Are we learning from our mistakes and putting in place processes to ensure they don’t happen again? Absolutely.(I’m not familiar with IngramIgnite; websearches don’t turn up any information.)

To his credit, Martin admits mistakes. But fostering an us-and-them mentality (hints of this come through in the statement, and it’s clear from my communications with Martin, as well as what CLP authors–both pro and con–have shared with me, that the complaining authors are being badmouthed internally), and blaming writers, if only partially, for mistakes such as poor proofing (authors certainly owe their publisher the duty of checking their proofs, but ultimately it’s the publisher’s responsibility, and not the author’s, to make sure books are error-free), doesn’t seem like the most positive way forward.

. . . .

Good intentions are all very well. But most of the publishers I’ve featured on this blog had good intentions, at least to start. Writers need to keep in mind that good intentions–like responsiveness, enthusiasm, praise, and all the other non-publishing-related things that so often entice writers into questionable situations–aren’t a substitute for knowledge, experience, qualified (and adequate) staff, and working capital–all of which are far more important factors in a publisher’s success. Just as new writers can get into trouble if they set out to get published without taking the time to learn about publishing, inexperienced publishers can run into difficulties if they start up too quickly and attempt to learn on the fly. 

In effect, such publishers are using their writers as subjects in a kind of science experiment. Sometimes the experiment succeeds, against odds and errors. Sometimes it doesn’t. But while unwary writers’ screwups harm only themselves, a publisher’s screwups harm its authors.

Link to the rest at Writer Beware

PG noted the following in the publisher’s comments about the problems reported in the OP:

Author copies are a large expense for the company.

For PG (who may be wrong), this statement caused a large flashing sign to appear in his mind’s eye:

Undercapitalized

Once the presses start running for publication of a hardcopy book, a few extra copies are pretty cheap.

Here are Amazon’s published printing costs for KDP books:

Paperback specification: black ink with 110-828 pages
Amazon.com0.85 USD per book0.012 USD per page
Amazon.ca1.11 CAD per book0.016 CAD per page
Amazon.co.uk0.70 GBP per book0.010 GBP per page
Amazon.de, Amazon.fr, Amazon.it, Amazon.es0.60 EUR per book0.012 EUR per page
Amazon.com.au2.17 AUD per book0.0215 AUD per page
Amazon.co.jp175 YEN per book2 YEN per page

That works out to $3.85 for a 250-page trade paperback on a print-on-demand basis. Twenty free copies cost $77.

The OP says the publisher’s catalog totals 40 books. That’s a total expanse of a little over $3,000 for all the author copies in the publisher’s catalog at the price Amazon calculates its POD cost is.

If $3,000 is a “large expense” for the publisher, PG wonders how much working capital the publisher has available to pay its employees, rent, advertising and promotion costs, printers bills, etc., etc., etc., and afford all the other things any business has to pay for if it’s going to be successful.

From The Free Dictionary:

handwaving

Actions, words, or ideas that are meant to impress or appear convincing but which are in reality insubstantial or inconsequential.The governor has been doing a lot of political handwaving over the issue of immigration lately, but few suspect that anything will actually be accomplished in the coming year.

. . . .

See also:

  • airy-fairy
  • run on fumes
  • run on empty

Link to the rest at The Free Dictionary

How Getting Canceled on Social Media Can Derail a Book Deal

From The New York Times:

When Simon & Schuster dropped Senator Josh Hawley’s book a day after the Jan. 6 riot at the Capitol, the news caused an explosion of attention, condemnation and praise.

Amid the cries of censorship and cancel culture, however, the way the publisher backed out of the deal got relatively little attention. Simon & Schuster invoked part of its contract typically referred to as a morals clause, which allows a publisher to drop a book if the author does something that is likely to seriously damage sales.

Widely detested by agents and authors, these clauses have become commonplace in mainstream publishing over the last few years. The clauses are rarely used to sever a relationship, but at a time when an online posting can wreak havoc on a writer’s reputation, most major publishing houses have come to insist upon them.

“They’re just something you have to deal with now,” said Gail Ross, a media lawyer and the president of the Ross Yoon Agency, whose clients include Senator Sherrod Brown, former Attorney General Eric Holder and the CNN contributor Van Jones, among dozens of other political figures and journalists. “Because you’re not going to be able to sign a contract without them in some form.”

. . . .

Morals clauses do not require authors to be upstanding citizens. Used in contracts across many industries, such clauses are designed to protect companies’ financial interests if somebody they’ve invested in — be it a chief executive or a football star being paid to wear a logo — does something that harms their reputation. But since the point of these clauses is to protect a company from damaging behavior it doesn’t yet know about, morals clauses are, by their nature, vague.

. . . .

“They’re squishy,” Ms. Ross said. “An agent’s job or a lawyer’s job is to make them as objective as possible.”

The clauses vary from publisher to publisher, and even from one literary agency to the next — every agency strikes its own deal with each publishing house — but the general principle is that they take aim at conduct that would invite widespread public condemnation or significantly diminish sales among the book’s intended audience, and that the publisher didn’t previously know about when it signed the deal. If an author has a propensity for getting in fistfights, for example, the book cannot be dropped because he or she gets in another one.

. . . .

“It diametrically changes the premise between a publisher and an author, which traditionally always meant that the author’s words in the book were what was promised to the publisher, not the behavior beyond it,” said the literary agent Janis Donnaud. “The fact that the publisher can be judge, jury, executioner and, in fact, beneficiary of these clauses seems incredibly outlandish.”

. . . .

Regnery, the conservative publisher that signed Mr. Hawley after Simon & Schuster dropped his book, also has a morals clause — what Thomas Spence, its president and publisher, described as the “infamous 5F of our contract.” Regnery will not take it out.

“This is the one thing in our contract that I have virtually no discretion over,” he said. “I’ve been told it’s got to be in there.” The morals clause in Mr. Hawley’s new contract was not a contentious issue, Mr. Spence added.

. . . .

In the book world, executives say these clauses were a part of Christian publishing agreements before they became fixtures in mainstream deals. The televangelist Benny Hinn was dropped by his publisher, Strang Communications, for violating its “moral turpitude provision” in 2010, after he was caught in a relationship with another minister before his divorce was finalized.

. . . .

The clauses began proliferating more quickly after the #MeToo movement revealed allegations of misconduct against many public figures, including Mark Halperin, a journalist and author whose book contract was canceled by Penguin Random House in 2017 under its conduct clause.

Today, Penguin Random House requires conduct clauses in all its contracts — that way, according to the company, the publisher isn’t implying that it trusts author A but not author B.

. . . .

Agents generally consider Penguin Random House’s clause to be less onerous than others, in part because the company states that authors will not have to repay any money they’ve already received; the publisher just wants the right to walk away. Simon & Schuster, on the other hand, typically includes a clause that says it can demand its money back. (Penguin Random House said last year that it plans to buy Simon & Schuster.)

Link to the rest at The New York Times

PG will observe that morals clauses are massively squishy sorts of things wherever they’re used.

As the OP suggested, some of them are effectively punitive damages clauses when they require an author to repay all the money she/he has received from the publisher, regardless of whether a publisher could prove to a judge or jury that it actually suffered any financial damages due to the author’s misbehavior. As a general proposition, courts tend to look askance at contract provisions that are unduly punitive, but that involves spending the money to get the matter before a judge.

In an era when Woke culture apparently has the power to turn business executives of all sorts into quivering and spineless pools of goo, a morals clause can be dangerous to a traditionally-published author’s financial and emotional health, both presently and in the future.

PG’s three potential responses for an author:

  1. Provide in the publishing agreement that, if the publisher invokes the morals clause to terminate the publishing agreement, neither the publisher nor any of its employees, agents or representatives will make any public announcement or other disclosure that states or implies that the publishing agreement was terminated due to the author’s alleged violation of the Morals Clause. “The parties have agreed to an amicable termination of their publishing agreement” or something boringly similar announcement of the termination of the publishing contract might be specified in the publishing agreement. The purpose is to make certain that the termination of the publishing contract doesn’t bring any attention to the author or publisher. This gives the publisher the protections it seeks via the Morals Clause without publicly tarring the author’s reputation.

2. Write under a pen name, then live in meatspace and politically under your real name. Demand a clause in your publishing contract that requires the publisher never to disclose your real name and include a substantial financial penalty if they do – 3X the amount of money they have already paid you plus any unpaid portion of your advance if the publisher or any past or present employee ever connects your pen name with your real name. Require that a model be used if the publisher wants an author photo and an agreement that any media interviews be conducted remotely without video. Make certain the publisher’s obligations and penalty for failing to maintain your anonymity continue for the full term of the publishing agreement, e.g., the full term of your copyright.

3. Require that the Morals Clause be reciprocal. Under the publishing agreement, the publisher together with its executives, employees and representatives, will be held the same standards of behavior that apply to the author pursuant to the Morals Clause. In the event of the publisher, etc., violates the morals clause, the author is entitled to exact similar penalties as the publisher can exact if the author violates the morals clause.

Three Authors’ Associations Address Status of Audible.com Talks

From Publishing Perspectives:

As we reported in late November, Audible‘s initial response to what writers called #Audiblegate was soundly rejected as inadequate by authors’ organizations.

Originally, Audible had allowed a subscriber to return or exchange an audiobook within 365 days—and had deducted an author’s royalties from her or his account when that happened if the audiobook was distributed through ACX, the Amazon-owned Audiobook Creation Exchange. This and a lack of an accounting for authors as to unit purchases and returns, the author corps stressed, was unacceptable, with some writers saying they’d seen between 15 and 50 percent of their anticipated ACX revenue withdrawn this way.

What Audible came back with was a reduction from 365 days for returns to seven days, pledging, “Audible will pay royalties for any title returned more than seven days following purchase.”

The writers were less than fully impressed, and a strong coalition of international author advocacy organizations and programs has continued putting pressure on the audiobook giant.

. . . .

It was in early February last year that the Association of American Publishers led an effort by seven major publishing houses to stop the company’s deployment of “Audible Captions” without a publisher’s permission.

In the current question about returns and transparency at Audible, an update arrived on January 20. In that statement, Audible’s ACX unit wrote that starting in March, its producing authors will be able to see details on returns, “including returned units by title” on their sales dashboards and in monthly financial statements, beginning with that month.

. . . .

The three organizations write that “at the heart” of the authors’ coalition’s complaints has been “a lack of transparency—around the implications for authors of key contract terms and in opaque accounting practices which make it impossible for any author to get a true picture of how their income is being calculated.”

. . . .

The original ask, the coalition reiterates, was:

  • “Provide a full and complete accounting of returns made pursuant to this policy since it was first implemented
  • “Limit the time period of returns and exchanges that could be deducted from royalty counts from 365 days to a reasonable period, such as 48 hours, and allow only ‘true returns’ (e.g., where less than 25 percent of the book has been read) to be deducted from royalty accounts
  • “Show the total number of unit purchases and returns on the author dashboards, not just the “net sales” already adjusted for any returns; and
  • “Take action against abuse of the ‘return and exchange’ terms by listeners”

Conceding that Audible “has made progress on some of these demands and other subsequent ones,” the coalition says, “our reasonable demands for a full and complete accounting of returns made to date—to recompense authors and narrators for returns unfairly charged back to their accounts, and to stop charging back returns when more than 25 percent has been read—have not been met.”

. . . .

Ability to Terminate Audible Distribution

Quoting the coalition:

“Starting February 1, all ACX rights holders (including authors who self-publish audiobooks through ACX, as well as independent publishers that rely on ACX services to create audiobooks)—both exclusive and non-exclusive—may, with notice, terminate distribution of any title that has been in distribution for at least 90 days. To withdraw titles created using a royalty share option with the producer, however, the ACX rights holder will need to obtain consent from the producer.

“Titles for which distribution is terminated will be removed from all sales and distribution through ACX including Audible, Amazon, and Apple. Audible will share details about the process for termination in the January payments letter, including details about how termination requests will be processed.”

The State of Play: ‘An Important Step Toward Fairness’

The coalition of three leading authors’ advocacy organizations in its summation, is indicating to the groups’ respective memberships exactly what good diplomacy dictates—an outlook that there is more progress yet to be made but that cooperation to date is worthwhile and to be appreciated. There are politicians working in many countries at this moment who could learn something from this.

What’s encouraging here is the bargaining efficacy these long-running authors’ organizations are able to show as they work through this thicket of rights holders’ and content providers’ issues with Audible. Even the leading writers’ trade associations in the field have been too easily dismissed at one time or another by some players—by no means all—in the publishing industry.

. . . .

“With input from independent authors,” the coalition writes, “we raised other issues, including the one-year commitment to exclusivity and the mandatory seven-year license term in Audible contracts, and are pleased to see that progress was made on these demands.”

Link to the rest at Publishing Perspectives

PG is always happy for anyone to lobby for authors and other creators to be treated better by publishers of all sorts.

PG thinks that it would be great for authors’ organization to approach traditional print publishers to negotiate “a one-year commitment to exclusivity and the mandatory seven-year license term” in order to give authors of printed and ebooks the ability to move away from publishers who aren’t treating them right.

PG suggests there’s nothing special about what’s fair in audiobooks that should not also be considered for all the different formats for books that authors create.

PG will look forward to soon reading reports that the Authors Guild, the Society of Authors and the Alliance of Independent Authors are pressuring traditional publishers, large and small, for freedom from the onerous terms of typical print and ebook terms, such as exclusive contracts that are binding for the life of the author plus 70 years, twice-yearly royalty reports and payments, opaque reserves for returns provisions and practices that give authors no real information or rights to understand how such reserves are calculated and how long they will be held by publishers, etc., the ability to book sellers to return unsold printed books for full credit weeks or months after ordering and receiving them from publishers, etc.

Traditional publishing would be far fairer and more invested in the financial well-being of authors if it changed its publishing agreements in the same way these large authors groups, dominated by traditionally-published authors, are insisting Audible, an Amazon subsidiary, change its contract terms.

Authors: Know Your Rights! Key Provisions in a Publishing Contract

From Anne R. Allen’s Blog… with Ruth Harris:

You finally received the call from your agent that you’re going to be a published author.

Congratulations!

All the hard work and months (or years) of attending workshops, writers’ groups, and revising and revising again have paid off. As excited as you may be, the next step, negotiating the publishing agreement, may give you nightmares. You’d rather sign and be done with it, but I’d think again.

The contract is written in the publisher’s favor, and if you’re not careful, it could lead to headaches down the road that can be avoided before signing.

Out of all the provisions in a publishing agreement, I’m routinely asked about the grant of rights, advances, royalties, and option clause.

. . . .

Grant of Rights

The grant of rights is the provision in your agreement that acts as a map to the rest of the contract. As the author of your book, you are given a set of exclusive rights per Section 106 of the US Copyright Act, such as having the exclusive power to:

  1. reproduce (that is, make copies) your book;
  2. create derivative works based on your book;
  3. distribute your book;
  4. publicly display your book; and
  5. perform your book publicly (think adapting your book for the stage).

As the copyright owner, you have the power to determine who you want to transfer these rights to. To publish a book (unless you are a self-published author), you have to transfer the reproduction right above. That can happen in two ways: granting the publisher a license or assigning the publisher the reproduction right.

Licensing

Licenses are rights that are granted to a third party. There are three parts to a license that you need to consider:

  1. Exclusive licenses vs. non-exclusive licenses.
  2. Territory
  3. Term

An exclusive license means that the party you are granting a right to is the only one who can execute that right. Non-exclusive licenses mean just the opposite, where you can transfer a right to multiple parties at the same time.

However, most publishers won’t accept a non-exclusive license.

Can you blame them? Why would Simon and Schuster accept a non-exclusive license, when you can turn around and go to their competitor HarperCollins and sign another license to publish your book? There would be two competing books, and no publisher wants that. Thus, most licenses you will deal with in publishing will be exclusive.

Next you’ll need to determine the territory that is best to execute those rights. In the US there are three basic types of exclusive deals:

  1. US or North America (exclusive English language control in the US or North America)
  2. World English
  3. World All Languages.

Most publishers will ask for world rights in all languages. But your agent (or lawyer) will determine what is best for your book. Perhaps your agent thinks your book may be a hit in the UK, and he or she only wants to grant the US publisher rights domestically, so he or she can negotiate a contract in the UK. Context matters.

Finally, you’ll see that the term of the license is likely for the life of the copyright in your book, which is for your entire lifetime + 70 years according to the US Copyright Act. Before you start freaking out that you’ll be under contract with the publisher until your grandkids are your age, don’t worry. There are other mechanisms, such as reversion of rights and out-of-print clauses, that can help you retain your copyright.

. . . .

Royalties and Subsidiary Rights.

The big question on everyone’s mind besides the advance: when do I get my royalties? What percentage are they? Are the numbers good?

I’m not going to go into a deep dive here, but there are a few things you need to know:

  1. “List” royalties vs. “net” royalties. List royalties are easy to calculate in that they are based on the book’s retail price (for example, a 10% royalty on a $10.00 book is $1). However, it gets complicated when you have “net” royalties because these royalties take all of the publishers’ expenses off the top before arriving at your royalty payment. You should ask your agent or lawyer to see if they can narrow down some expenses (for example, photocopying). However, it may be difficult to do such a thing since definitions in the contract are set in stone. Instead, ask your agent to see if your net royalty percentages can be increased (an equivalent net royalty is usually twice that of the list price)
  2. Approximate royalty and subsidiary right percentages:
  3. Hardcover – 10% – 15%
  4. Paperback – 6-8%
  5. E-book – 25%

In addition to these royalties are “subsidiary rights,” which are “subsidiary” to the “primary” right of publishing your book. Some examples (and the royalty share between the author and publisher) are:

  1. Translation – 75%/25%
  2. Audio – 25%
  3. Book club – 90%/10%
  4. Performance (book-to-film) – 80%/20%
  5. Dramatic (book-to-stage) – 80%/20%

Before giving up these rights, see if your agent (or attorney) can separately negotiate these rights for you (for example, book-to-film adaptations). This means more money and revenue streams for you.

Link to the rest at Anne R. Allen’s Blog… with Ruth Harris

PG notes that the author of the OP describes himself as a literary agent and a publishing attorney.

PG has had no interactions with the author and has no knowledge that he is anything but competent to act as an agent and/or an attorney.

A thought which did come to PG’s mind is whether the OP’s author acts as both an agent and an attorney for an author at the same time with respect to a single potential publishing contract.

There are different financial incentives for an agent and an attorney representing an author.

  • An agent doesn’t earn any money unless the author signs a publishing agreement arranged by the agent.
  • An attorney representing an author typically has no financial interest in the author’s decision to sign or not sign a given publishing contract. An attorney not acting as an agent has gets paid the same amount whether or not the author decides to sign the contract after hearing what the attorney says about it.

PG has no reason to believe that the author of the OP has not taken careful steps to distinguish his services as an agent from his services as an attorney for an author with respect to a prospective publishing contract.

Without thinking about this in much detail, because he has never been and never plans to be a literary agent (just a schlubby old brown-shoe lawyer), if PG were to be acting as a literary agent and an author asked PG anything but a legal question that had a clear and undisputable answer (What’s the royalty rate in the contract for ebooks? How are my ebook royalties calculated as described in the contract?), PG would be inclined to send the author to another attorney to avoid any possible appearance of a conflict of interest between PG’s role as agent and his role as attorney.

As any legal malpractice insurance company is happy to tell one and all, a conflict of interest that makes it appear that an attorney is not 100% focused on the welfare of her/his client is one of the best ways available to get a jury angry enough to hit the lawyer with a big judgement if the lawyer is trying to act in her/his personal best interests if those interests carry the slightest hint of disadvantaging a client or harming a client in any way.

PG and 100% of the other attorneys he knows well take careful steps to avoid getting involved in a matter if there is even the slightest appearance of a conflict of interest. It’s always a better idea to say, “I’m afraid I’m not able to take your case,” and, perhaps disappoint a prospective client a little than to deal with the enormous headache and emotional burden of being on the receiving end of a lawsuit from a client who believes the attorney has betrayed him/her/it.

In large law firms where it is impossible for a single attorney to know the details of the legal matters every other attorney is working on (or has worked on in the past going back almost forever), there is a meticulous firm-wide process to make certain that the firm will not have any conflict of interest if it takes on a new client or a new matter from an existing client.

PG will leave it to any others who wish to opine on the agent/attorney question.

BookExpo, Bookstores, and Libraries

From Kristine Kathryn Rus ch:

In 2020, BookExpo finally died. BookExpo was, once upon a time, a convention for booksellers, put on by the publishing industry. Back then, it was called The American Booksellers Association Convention, and honestly, it was marvelous. If you were a book person, it was like the best place ever.

Books everywhere. So many books in such large convention halls that you couldn’t see everything. You couldn’t even try.

Dean and I went as authors a few times, and always hoped to go back with our bookseller friends. If you had a bookseller badge, you got free everything. Free books. Free posters. Free autographs from famous writers. Free admission into fascinating talks. Everything but free shipping—because you got so much free stuff that you had to ship it back home, where you would finally have time to look at it, sort it out, and maybe make purchases.

In one long hallway at the convention, foreign publishers sat and discussed rights sales with agents and a handful of savvy writers. A lot of deals got made right there. And in a separate building, the small and specialty and regional presses lived. On the way, you could run into the new technology wing…which was filled with things that almost never came to fruition.

It was loud and exhausting and fascination. I remember watching a few of my out-of-shape bookseller friends treating their bodies like Christmas trees, hanging book bags off arms, shoulders, around their necks, and waists, staggering out of the convention hall to the even bigger parking lot to drop off the bags, then go back and get even more piles and piles of stuff.

No one does this anymore. In fact, no one has done this in…oh, maybe 10 to 15 years. BookExpo got sold to Reed Exhibitions in 1995, and the convention declined from there. Of course, bookselling changed too. There was too much consolidation in the 1990s, the book distribution system collapsed, and Barnes & Noble and the other chain stores took over. The small booksellers remained, hanging on by their fingertips.

Attendance at BookExpo got smaller and the freebies rarer. Publishers found other ways to introduce new books to the “trade.” And then in the past few years, Reed spun off the rights fair, which was, really the only reason to go. You could meet foreign publishers face to face and actually sell a few things, if you felt so inclined.

Ah, but let’s face it. The rise of the internet meant that all of the information that used to be shared in person could be shared quicker and in more depth over the internet. And it wasn’t as tiring as using your body like a Christmas tree or spending hundreds on shipping freebies that you probably didn’t even want.

For years, everyone in the industry complained about BookExpo, calling it a shadow of its former self. Reed Exhibitions moved BookExpo to the pop culture part of its organization and added BookCon, hoping to bring in “readers” (forgetting, I guess, that booksellers are readers). That didn’t work.

They canceled the convention in the spring, like damn near every other convention, and held a virtual convention on the usual dates, a convention that made little news or impact. And so, in December, ReedPop, the organization that now manages BookExpo announced there would be no BookExpo in 2021 or maybe ever again. BookExpo was “retired.”

The event director, Jenny Martin, issued a surprisingly candid (for this kind of business) statement:

The pandemic arrived at a time in the life cycle of BookExpo and BookCon where we were already examining the restructure of our events to best meet our community’s needs. This has led us to make the difficult decision to retire the events in their current formats, as we take the necessary time to evaluate the best way to move forward and rebuild our events that will better serve the industry and reach more people than we were able to before. We remain committed to serving the book community and look forward to sharing more information in the future.

I don’t really expect to see anything like this again. The annual meeting of a lot of booksellers and a lot of publishers made sense when there were a lot of booksellers and a lot of publishers, thirty or so years ago. Now, though, in the traditional publishing arena, there just aren’t a lot of big traditional publishers.

And after this year, maybe not that many booksellers. The American Booksellers Association reported that 35 member bookstores had closed due to the pandemic as of October. Another 20% are in danger of closing.

Even those that are managing are struggling. They’re holding on through a combination of cost-cutting, online sales, crowdfunding, and PPP loans—which are (as of this writing) no longer available. Between April and June, the Book Industry Charitable Foundation issued $2.7 million in grants, and has given 443% more in grants than last year.

. . . .

Bookstore owners all say they’re working harder for less money. The stores that are open are spending on cleaning and PPE, as well as dealing with the stress of ordering customers to mask. Some stores have gone to curbside pickup and what used to be called special ordering. Others have done fundraisers and are linking with other businesses. They’re hanging on, but just barely.

And they’re all worrying about the supply chain. They are smaller, so they often don’t get the bigger books as early as say, Amazon or Barnes & Noble, because of the limitations in the supply chain.

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.

PG notes that, during a major catastrophe that substantially disrupts the personal, family, social and business lives of many people at the same time, a great many people make predictions about what life will be like after the disruption is complete.

After the disruption is complete, some predictions are wrong and some are right. For PG, the most interesting post-disruption happenings are those that few or no one predicted.

One thing that often occurs is that business enterprises that were in poor or marginal condition prior to the disruption are more likely to be destroyed or, if they survive, substantially changed from their prior form. Often and unfortunately, a great many people employed by those businesses have to find another line of work through no fault of their own.

Examples of many such disappeared businesses will come to mind for most visitors to TPV, so PG will not list examples.

PG will, however, make one prediction that will surprise no one who hangs around these environs very often – the parts of the traditional book business that deal in the now-expensive process of creating and selling physical books will be much-diminished after the economy opens up again.

Traditional publishing and selling physical books are, in the 21st century, narrow-margin operations without a lot of room for error or financial difficulties.

Some may continue because they are owned or funded by those not overly reliant upon the book business for their ongoing financial welfare, but the status of an organization that is an expensive hobby, business or personal, is fraught. It is difficult for such organizations to attract and retain talent or intelligence when other opportunities look like a much better bet.

Morale among the employees of such organizations becomes lower and lower, to the detriment of the organization’s business operations and financial results. Those who can get out, leave.

Perhaps the owners of a business in a declining sector hope to find a greater fool to whom to sell the business, but even fools can often recognize a death spiral.

Considering the future, traditional bookstores are essentially just another retail business. They may sell something regarded as of more cultural worth than a load of gravel, but, ultimately, to quote an old phrase, when their outgo exceeds their income, their upkeep will be their downfall.

A traditional publisher is somewhat different in that its principle assets consist of intangible intellectual property, essentially long-term licenses that permit them to use the words contained in the works licensed to them by authors in a wide variety of ways. Much of the time, the author has only retained the right to be paid by the publisher for “sales” or licenses of the author’s work.

The author may hold the copyright to a book or story, but the publisher has exclusive control over all of the means by which that book or story can be used to generate money.

If someone acquired the assets of a publisher for a good price and that new owner of rights under the typical publishing contracts of hundreds or thousands of authors, if the new owner wanted to maximize its revenue from such contract rights, the owner has a variety of ways of doing so.

Under the provisions of typical publishing contracts used by large publishers and a lot of medium-sized or small publishers, PG opines that an unscrupulous owner could game those contracts in a manner that would minimize or eliminate royalty payments to some or all of its authors.

PG is not going to provide any details because he doesn’t want to see any author being treated poorly or cheated out of income she/he reasonably expects to receive from their art and labors.

He will only say that he has not reviewed a publishing contract that he could not game to the author’s financial detriment if he were suddenly had ownership and control of the publisher’s rights to that contract.

PG has reviewed more contracts of different types and used in different businesses during the centuries of his legal career than he can remember. He has reviewed and negotiated extremely well-written contracts prepared by highly-competent attorneys working for very, very wealthy organizations owned and operated by very, very talented and intelligent individuals. He has also reviewed and negotiated contracts prepared by incompetents and idiots on the other side of the deal.

Based upon that experience, he can say that traditional publishing contracts are close to the bottom in terms of precision, enforceability and a lack of ways a publisher could avoid its expected financial obligations to its authors without the author ever knowing about it. In the event the author discovered what the publisher was doing, if the publisher was careful and willing to game the provisions of the publishing agreement in its financial favor, it might be difficult or impossible for an author to persuade a court to help the author out of the mess.

But, as usual, PG could be wrong or, given the current world situation, have been driven crazy by Covid and its attendant distortions of nearly everything.

(However, through some sort of minor miracle, PG and Mrs. PG did receive their first of two anti-Covid vaccinations earlier today, so PG’s thoughts may be muddled by unreported vaccine side effects in addition to the usual causes.)

Star Wars Novelists Seek Years of Missing Royalty Payments From Disney

From The Wall Street Journal:

Alan Dean Foster was in his late 20s when George Lucas, standing near a model of the Millennium Falcon in a warehouse in Southern California, met him to discuss writing the novel adaptation of his forthcoming movie “Star Wars.”

The original contract called for an upfront payment of $7,500, until Mr. Lucas tossed Mr. Foster a 0.5% royalty on sales that Mr. Foster, now 74 years old, says added up to several times that initial payment. They arrived several times a year as the original 1977 blockbuster set box-office records and the novelization he wrote went on to sell more than one million copies.

Then, in 2012, Walt Disney Co. bought Lucasfilm Ltd.—and the royalty checks stopped.

Now, Mr. Foster and other authors from Disney-purchased franchises are in a heated dispute with Hollywood’s biggest empire, which they say refuses to pay royalties on book contracts it absorbed in the $4 billion Lucasfilm deal and other acquisitions. The amount of money at stake is minuscule to a company of Disney’s size but important to the writers seeking it. While Disney has mined Lucasfilm for new movies that have collectively grossed nearly $6 billion at the world-wide box office, these writers say the company has delayed dealing with their complaints and stiffed them on checks that rarely total a few thousand bucks apiece.

Since Mr. Foster’s dispute was taken public by the Science Fiction and Fantasy Writers of America association, other authors of books tied to projects from Indiana Jones to “Buffy the Vampire Slayer” have come forward with similar stories of royalty checks that stopped after Disney acquired the properties. In each case, Disney threatens to alienate an obscure but vital tentacle of the franchises, as these novelizations helped build and maintain fan loyalty. Complicating matters: The exact amount of money at stake is unknown, since sales and royalties for the books involved have fluctuated wildly over time.

A Disney spokesman said: “We are carefully reviewing whether any royalty payments may have been missed as a result of acquisition integration and will take appropriate remedial steps if that is the case.”

Mr. Foster, who is well-known to longtime Star Wars fans, says Disney is ignoring the workaday players who help build intergenerational connections to beloved characters. He and his wife are both in poor health, and he said the royalty earnings could come in handy for medical expenses.

“I’m not Steve Spielberg. I’m not Steve King. I don’t even have a name that starts with Steve,” he said.

The dispute began in the summer of 2019, when Mr. Foster’s literary agent, Vaughne Hansen, first asked Disney why he had stopped receiving royalty checks on three novels he had written tied to “Alien,” the outer-space horror series produced by Twentieth Century Fox, the studio Disney bought as part of a $71.3 billion deal in 2019.

Mr. Foster and his agent then realized the same thing had occurred to his royalties for two Star Wars books after Disney bought Lucasfilm.

In response to queries about the “Alien” checks, a Disney attorney told Mr. Foster that the company had acquired the rights to these books, but not the obligations to pay out royalties. But in the case of “Alien,” Ms. Hansen said, the rights to Mr. Foster’s novels had been reassigned several times, with no interruption of royalty checks, before Disney bought Fox.

“Disney has acquired a house with a mortgage on it. They want to keep living in the house. They don’t want to pay the mortgage,” Mr. Foster said.

The writers group says a similar pattern has emerged following other Disney acquisitions. At least a half dozen writers across a range of Disney-owned properties have since said they are in the same boat, said Mary Robinette Kowal, president of the Science Fiction and Fantasy Writers of America.

. . . .

Disney has begun reviewing the “Alien” case, but there is a line of writers behind Mr. Foster waiting for a turn at the negotiating table. In total, Ms. Hansen estimates her client had made more than $50,000 in royalties on the original Star Wars novelization alone before the checks stopped in 2012.

If Disney agrees to calculate the missing royalties, it faces a daunting task tracking down sales that cover six years and, in Mr. Foster’s case alone, five novels published in dozens of international markets.

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

PG has posted concerning this interesting Disney legal theory before.

Here’s a short excerpt from a textbook on general business law:

Parties to a contract may transfer their rights and obligations to other people through an assignment or delegation. An assignment involves the transfer of contract rights. A delegation involves the appointment of another to perform one’s duties under a contract.

When an assignment is made, the assignee receives exactly the same rights that the assignor had before the assignment took place. Thus, if the obligor has a valid excuse for not performing for the assignor under the original contract, the same excuse is also good against the assignee. Nonpersonal rights under a contract can be legally assigned without the obligor’s permission, whereas rights to receive personal services may not be assigned without the consent of the person who is to perform the services. Rights also may not be transferred if the parties include a provision in their contract prohibiting an assignment, if the assignment is against public policy or otherwise illegal, if the assignment would violate a statute, or if a court disallowed the transfer.

https://college.cengage.com/business/goldman/business_law/7e/chapters/chapter12.html

PG thinks that Disney’s legal theory is too cute to be legally-enforceable. This will especially be the case if those individuals or entities who/that received compensation from Disney’s acquisition of Lucasfilm are claiming they’re not liable for payments or are effectively unreachable via American legal processes.

PG speculates that The Walt Disney Company, incorporated in Delaware, but having its principal place of business in California, and, thus, likely subject to California laws in these sorts of matters, is likely to attract the attention of more than a few of the many entrepreneurial attorneys who practice in that state.

Given the enormous size of the creative industries located in Hollywood and its environs, an aggressive and innovative law firm (or a group of such law firms) could decide that Disney might represent a big fat target. During the course of what would likely be protracted litigation, plaintiffs’ counsel might discover a lot of additional novel legal theories adopted by Disney’s attorneys to short-change authors and other creators.

While PG is a long-time member of the California Bar and knows many intelligent and competent fellow members, he acknowledges that a lot of crazy things happen in California’s legal world, he has difficulty believing such a transparent technique for avoiding contractual obligations on Disney’s part would survive close examination by California courts.

Plus, if this tactic works for Disney, it should also work for a lot of other California organizations and individuals to the detriment of the many creators in California and elsewhere.

OPEN LETTER: Revocation – How authors and performers can reclaim their copyrights

From the Kluwer Copyright Blog:

The letter addressed to the European Commission and the relevant national authorities of EU Member States, identifies the revocation right as “an historic opportunity to achieve better copyright outcomes for creators”, and calls upon governments to explicitly address the right in their consultations about implementing the Copyright Directive.

The letter builds on a collaborative research project between CREATe and the Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne, with the reCreating Europe consortium. The project maps all provisions allowing authors and performers to reclaim their rights. Such laws are already a part of national laws of many EU Member States in some form.

. . . .

The majority of the EU Member States offer some revocation rights to their creators, but they are often limited to certain types of works or agreements. Termination is only one of possible effects of reversion provisions. Most of the rights are not brought to effect automatically, but require creator’s action to make changes to the contractual relationship, which means that the right can be a starting point for renegotiating contracts. Current provisions typically are modelled on analogue practices, and do not reflect digital uses.

The open letter argues that the right of revocation introduced by art. 22 of the Copyright Directive offers a “once-in-a-generation opportunity” to secure new income for creators, new exploitation opportunities for investors and new access for the public. It could help to reclaim culture that would otherwise be lost and provide creators with meaningful new rights to better their position.

Link to the rest at the Kluwer Copyright Blog and thanks to C. for the tip.

(Kluwer is evidently using a cloud provider to host its blog, but has somehow misconfigured the settings for the blog. PG had to do some messing about with the link to get the OP to appear, but it is there and it isn’t a nasty site, just one operated by people who are less than technically apt.)

The option for the creator of a copyright-protected work, like an author or a photographer, to terminate an unfavorable publishing agreement or other license of the creative work is an important one.

On way more than one occasion, a naïve author has signed a disadvantageous publishing agreement that, in effect, lasts forever, and the author receives nothing more than an advance or the very occasional royalty check even though the book is selling lots of copies and making the publisher very rich.

On occasion, a publisher will represent that the contract says something that it does not say in order to induce the author to sign. On occasion, inexpert literary agents will not understand what a contract means and urge an author to sign an agreement that vastly underpays the author for her/his work.

The right for a creator (or the creator’s heirs under some circumstances) to terminate such an agreement and cause the rights to the book to revert to the author so he/she can earn more money from the book is called the right to revert or a reversion right that brings the rights the author signed away back to the author so the author has another chance to receive a far more equitable reward for the author’s creative work.

Here’s a link to a resource referenced in the OP that provides an overview of the rights an author has to regain control of his/her copyrights regardless of prior publishing agreements.

The Nine Worst Provisions in Your Publishing Contract – Part 2

Click here for Part 1 of the Nine Worst Provisions in Your Publishing Contract

No Minimum Performance Standards – Out of print

Out of print clauses have been in publishing contracts for a long time. The original rationale for them was that, unless a publisher kept printing books that could be sold, the publisher had tangibly abandoned the book and the author should be entitled to regain all his rights so he could find another publisher.

Typically, the clause was structured so that, if the book was out of print, the author had to give the publisher substantial notice so the publisher had time to contract with a printer to print several hundred or several thousand more books. Once having paid the printer, the publisher would be incented to get the books into bookstores and otherwise promote their sale. If the publisher didn’t get more books printed, rights would revert to the author.

What’s the Problem?

Print on demand and ebooks have radically changed the dynamics of keeping books available for purchase by readers. It costs the publisher nothing to keep an ebook listed on Amazon for months and years, regardless of whether it sells any copies or not. When Amazon sells an ebook, the publisher doesn’t have to worry about reprinting another for Amazon to sell. The purpose behind the original clause – to force the publisher to put more financial skin in the game to avoid contract termination is gone.

An additional problem is all the different ways a publisher can prevent the exercise of out of print rights and the complex and time consuming hoops the author must leap through on the way to enforcing an out of print clause.

What does it look like? (sample language)

A Work subject to this Agreement shall be deemed out of print if no Print Edition or Electronic Version is available for purchase or paid access in the U.S.; however, if only an Electronic Version is available for purchase or paid access, and in any 12-month period (measured from the beginning of an accounting period) fewer than 100 units of the Work have been sold, or the Work has generated less than $100 in revenues for Author, the Work shall be deemed out of print. If the Work is out of print and Publisher receives from Author a written request for reversion of the Rights, Publisher shall within 120 days of Publisher’s receipt of such request either: revert the Rights to Author in writing, confirm that it will make a full-length Print Edition available for purchase or paid access within 180 days from the date of such receipt, or a full-length Electronic Version available for purchase or paid access within 180 days from the date of such receipt if no digital master copy of the Work exists at the time of notice,or within 90 days following the date of such receipt if one does, it being agreed, however, that the Rights will automatically revert to Author if Publisher then fails to do either within such time period; or enter a license providing for the publication of a Licensed Version in the U.S. within one year from the date of the license.or enter a license providing for the publication of a Licensed Version in the U.S. within one year from the date of the license.

Got that? Note all the ways the publisher can avoid the out of print provision. If the publisher avoids the out of print provision one time, the author has to begin the whole process again if the book goes out of print again.

How do I fix it?

Tie the out of print provision to dollars paid to the author and limit the ways the publisher can prevent the book from going out of print to payment of dollars to the author.

If a book starts into the out of print process once, double the payments to the author if the publisher wants to avoid the book going out of print the second time.

Don’t require any notice from the author of an out of print status. If out of print is triggered by a royalty payment of less than $1,000 to the author, a clock automatically starts ticking at the point the royalty is due. If the publisher doesn’t cover the underpayment within 30 days, the book will automatically revert to the author.

Rationale for Change

As mentioned at the outset, over the long run, most authors won’t care how many books they sell, but will be much more interested in how much money they receive.

In an ebook era, it is easy to generate sales of 100 copies of an ebook at 99 cents each, but that won’t result in a meaningful royalty payment to the author. Merely having an ebook listed for sale is a ridiculously simple task for a publisher, so that’s meaningless as well.

The amount of cash received by the author from the publisher is a simple number to track and not subject to multiple interpretations.

Special Note

I have not seen a provision for an adjustment for future inflation in any publishing agreement I have examined.

In the US and other advanced Western nations, we have experienced an unusually long period during which Western economies, as a whole, have not experienced material amounts of inflation.

During a 100+ year publishing contract, periods of significant inflation are almost certain to occur.

Rock-Stars Selling Publishing Rights

From Ultimate Classic Rock:

Bob Dylan, David Crosby and Stevie Nicks are joining the growing ranks of artists who are signing away the publishing rights to the songs they’ve written – even though that’s widely considered to be the most lucrative aspect of the music industry.

Nicks sold an 80 percent stake in her catalog to Primary Wave, covering both her Fleetwood Mac and solo work. Financial details weren’t disclosed, but the Wall Street Journal estimates the agreement netted about $100 million. Dylan’s sale of his entire catalog of more than 600 songs to Universal Music Publishing, revealed today, is believed to be worth more than $300 million, according to the New York Times.

Modern-era changes in royalty payments and tax implications involved with estate planning are likely part of this decision-making process. Crosby, who rose to fame with other Dylan acolytes in the Byrds before co-founding Crosby Stills and Nash, also said the on-going coronavirus pandemic played a key role.

“I can’t work, and streaming stole my record money,” Crosby said via Twitter. “I have a family and a mortgage and I have to take care of them, so it’s my only option. I’m sure the others feel the same.”

Primary Wave and Universal have caused the most recent ripples, but the company making the biggest splashes in the pool is the London-based Hipgnosis Songs Fund. Founded in 2018 by artist manager Merck Mercuriadis, Hipgnosis had a market capitalization of $1.66 billion as of last week. They boast a portfolio of some 60,000 songs, including the catalogs of Journey, Blondie, Richie Sambora, Chrissie Hynde, Nikki Sixx and Steve Winwood, as well as 10 of the Top 30 most streamed songs on Spotify.

The upshot is that these arrangements mean greater exposure for acts by licensing their songs for movies, commercials, television shows and video games. With streaming services putting less money in the hands of artists, these new lump-sum deals, Mercuriadis believes, benefit them more than the corporations.

. . . .

“I’m not in the publishing business; I’m in the song-management business,” Mercuriadis told Rolling Stone. “There’s a paradigm that I’m a catalyst for changing, paradigms that have existed for decades and people think are OK and normal. … The three big recorded-music companies use their leverage of owning the song companies to ensure those companies don’t advocate for songwriters, and they push the economic improvement we’ve seen with streaming so they, not the artist, get the lion’s share of the money at the songwriter’s expense. If nothing else, we’re a catalyst for changing that.”

. . . .

Mercuriadis prefers to work with proven hitmakers who have control over their masters because it gives them greater control in the decisions, as opposed to publishing companies that took advantage of young, unsuspecting acts. “These are the houses that the artists built and paid for and therefore, if they choose to sell their house, that’s on them,” he told Complex. “I’m empowering them when I write them a check and I’m empowering them when I go after improving their place in the economic equation.”

Link to the rest at Ultimate Classic Rock

PG notes that the reasons that these composers are able to cash in, both during their careers and later in their lives is because they retained ownership of the publishing rights to their songs.

Under the standard contracts used by traditional book publishers, the author grants all publishing rights to the book or books listed in the publishing contract.

The Nine Worst Provisions in Your Publishing Contract – Part 1

Several years ago, PG prepared a presentation for an authors’ group and called it The Nine Worst Provisions in Your Publishing Contract. At the time, he included those items in a series of blog posts for TPV.

Today, those posts may be findable in the dusty archives of TPV, but who knows what’s happening down there? Digital termites may have invaded and chewed bits of PG’s wisdom into nothingness.

So, PG has decided to resurrect The Nine Worst Provisions and sprinkle them about on TPVx over the next couple of days.

If an author decides to publish her work with a traditional publisher, she will enter into a publishing contract.

While each contract is different and must be read from beginning to end, there are many types of clauses that will be found in most traditional publishing contracts. Some of these contract clauses are benign and others are toxic. Since toxic contract provisions are more interesting to talk about, I’ll focus on some of the worst ones I see during the course of my legal practice while representing authors.

Your Contract Lasts Forever – Life of Copyright

What is This Provision?

Virtually all publishing contracts from traditional trade publishers include a provision stating that the publishing contract will last for the life for the full term of the copyright.

In the United States, the full term of the copyright lasts for as long as the author lives plus seventy years after the author dies. Copyrights in other western countries also typically last for the life of the author plus a large number of years thereafter.

Let’s do some math.

In the United States in 2017, a thirty-year-old female can expect to live for an additional 51.9 years. A male of the same age can expect to live for 47.7 years.

If a female author signs a publishing contract that includes life of copyright provisions in 2017, that contract will last until the woman dies in the year 2068 and then 70 more years to 2138. The contract will expire more than 120 years after it is negotiated and signed.

What’s the Problem?

A typical commercial license for enterprise software will last 3-5 years. Such a license is granted by the creator of the software to someone who wants to use it. An enormous variety of business contracts other than software licenses fall into the 3-5 year range.

Why such a short time? Why not license the software for 120 years?

The answer is obvious. Things can change drastically in only a few years. The software may become much more valuable or much less valuable. The software industry may have very good reasons to adopt another business model that encompasses a different pricing structure that works better for one or both of the parties.

A contract of any type that is fair to both parties in 2017 will undoubtedly be obsolete by 2138.

Many publishing contracts signed 10-15 years ago are obsolete today because they did not make proper provisions for ebooks. However, because of the structure of many book contracts authors signed during that earlier time period, publishers held practical veto power over the author’s ability to do anything with ebooks or make any money from them other than through the original publisher.

What is a publisher going to do for an author fifty years from today? 100 years? Will anything in the book business change between 2017 and 2138?

What does it look like? (sample language)

The language setting the term of the Agreement can appear anywhere in the publishing agreement. The language can also be divided between two or more paragraphs of the agreement.

The term of this Agreement shall be for the full term of copyright available for the Work in whatever forms and places where Publisher exercised its Rights to the Work.

How do I fix it?

Fixing this language problem is simple. The contract should just state the number of years it will last.

This Agreement shall terminate five years from the effective date of this Agreement.

You and the publisher can agree on a renewal provision to extend the contract, either in the original contract or in a separate agreement.

At the end of each five year term, this Agreement shall automatically renew for an additional five years unless either party gives no less than ninety (90) days’ prior written notice to the other that the Agreement will not renew.

Rationale for Change

One of traditional publishing’s standard revenue assumptions is that almost all books will sell the most during the first one or two years following their release. Thereafter, sales will decline.

An additional fact of traditional publishing is that virtually all meaningful marketing expenditures for most books will take place during the book launch and for a few weeks thereafter.

A term of 3-5 years gives the publisher the opportunity to harvest most of the money a book will earn under traditional publishing practices.

If a book does not follow the traditional sales trajectory and seems to have an evergreen audience that will continue to earn the publisher money, the publisher can certainly negotiate with the author and offer additional payments to induce the author to not exercise the right to terminate and allow the contract to continue for an additional five years.

On the other hand, if a book enters its twilight years, it is extremely unlikely that anyone at the publisher will spend any time or money on activities designed to resurrect the book. Indeed, it is unlikely anyone at the publisher will give any thought to the book.

If rights to the book are reverted to the author, she can pursue self-publishing, seek another publisher that may be interested in spending money on a relaunch of the book and other options that will help the book find new audiences and increase the author’s income from the book.

Special Notes

One of the implications of a contract that can easily last well over 100 years is that, in addition to the author, all of the people who were present at the publisher when the contract was negotiated will be dead long before the contract ends. The agent who assisted the author in contract negotiation will be dead before the contract ends.

Any promises or understandings between the author and publisher which are not clearly described in the contract will be unenforceable. There may be no one living who can say that the author and publisher always operated under this implied understanding of a particular paragraph.

It is also quite possible that the publisher may no longer be owned or controlled by people who are in the publishing business. If, during the extremely long period of time covered by a term of copyright contract, the publisher runs into financial difficulties and is purchased by an individual or organization that deals in distressed assets, the new owner will interpret contract provisions in a way that benefits the owner with no consideration of its impact on the image or goodwill of what was formerly a publisher.

Disclaimer

PG is a lawyer, but nothing you will read here is legal advice. You obtain legal advice by hiring a lawyer, not reading a blog post.

The Golden Age of Book Adaptations for TV

From Publishers Weekly:

Though many novelists yearn for film adaptations of their books, they quite often wind up dissatisfied with the results, and the same holds true for those novelists’ devoted fans. Movie adaptations tend to be unsatisfying. Not every author’s work gets the runtime Margaret Mitchell got for Gone with the Wind, and even that movie had readers disappointed over scenes from the book that hadn’t been included.

The truth is that a movie cannot hope to capture everything in a novel that readers enjoyed. There is simply not enough time, nor is there enough production money. Basic things like locations, supporting characters, and so-called big money shots will be radically modified or even eliminated from film versions of novels. And films are subject to scriptwriters’ and directors’ interpretations of their source material, not to mention the input of some very hands-on producers.

Link to the rest at Publishers Weekly

In the movie business, a screenwriter is not in charge of much of anything. The producer hires the screenwriter, sometimes in consultation with the director, and can fire him/her at any time and bring someone else in to do or finish the job.

The author of a book being adapted for television or motion picture purposes has even less control over what happens unless her name is JK Rowling and maybe not even then.

If the author is traditionally-published, the standard industry publishing agreement gives the publisher the sole right to decide how to exploit/sell movie or TV rights. (Regardless of whether the publisher has ever sold movie/TV/performance rights before.)

The author is just along for the ride. PG is familiar with a couple of cases in which the publisher forgot to notify the author or the publisher notified the author’s agent who forgot to contact the author and the author learned about a movie being made based on the author’s book about the same time as the rest of the world did.

How to Respectfully Disagree in Writing

From Grammarly:

It happens all the time—you and someone you know disagree about something more important than who has the best curry in town, and you need to hash it out. Whether it’s a peer, your boss, your landlord, or your kid’s teacher, you want to err on the side of delicacy and professionalism.

So how do you do that in a way that’s respectful—and ultimately productive? You want to make your perspective clear, confident, and compelling without anyone feeling attacked or at cross purposes. Below, we’ll suggest a few handy phrases and strategies to help you disagree respectfully.

. . . .

Is this the place?

Occasionally, the best way to respectfully disagree isn’t in writing at all. A live conversation may be a better way to ask and answer questions, exchange thoughts, and build consensus. Consider this before getting carried away with a long draft enumerating your righteous points.

It may even turn out what seemed like a disagreement was more of a misunderstanding. Phew.

. . . .

Keep it tight; empathize

Suppose your landlord emails to say while they’d hoped to upgrade your kitchen windows next month, it’s now looking more likely the month after. You could detail your displeasure in a three-page tirade, but that sounds exhausting and may make you seem irrational. One or two sentences should suffice:

“Thanks for the update, Daryl. That’s later than we’d hoped, and I don’t imagine having this process drag on is any fun for you, either.”

Note how that last part acknowledges Daryl has feelings and a point of view in this, too. This shows respect and is key to resolving your disagreement—as is this next item.

. . . .

Ask questions; empathize some more

Questions can politely point to what you want without seeming unduly demanding or unkind. Picking up where we left off with your landlord above, you might next ask this:

“Is there any way to expedite the installation? If not, could we negotiate a reduction to our rent or our portion of the heating bill in the meantime, since our kitchen is so drafty?”

Questions also keep the conversation moving forward and show you value the other person’s input. And if you’re worried the many questions you’re asking will become annoying, a concise way to acknowledge as much is, “Not to belabor this, but…” (That said, do try to read the vibe and avoid belaboring anything you don’t have to.)

Link to the rest at at Grammarly

PG completely endorses the approaches Grammarly recommends.

Unless you suspect a dispute may be coming down the road.

PG isn’t talking about a polite disagreement about when the new stove will be installed, but rather what happens if the new stove is never installed or if it’s installed by an idiot and starts a fire.

In other words, if some sort of a legal dispute is foreseeable.

If there’s a fight that ends up in Small Claims Court or if each side lawyers-up, a statement made for the purpose of smoothing ruffled feathers might be subject to a different interpretation.

In social situations, when discussing a past event with friends, PG might be inclined to say something like, “I might be wrong, but I remember that Chipper had too much to drink and took the first swing, but perhaps I’m confused about what happened.”

If PG were later asked about Chipper, his state of mind and what he did in some sort of formal setting, perhaps with a judge nearby, if he said something like, “Chipper was drunk and tried to punch Buzz in the nose,” Chipper’s counsel might ask if PG had admitted he might be confused or wrong on a prior occasion.

Don’t Do Business with Incompetents

Over many years of practicing law at a very retail level (unlike what he does today), PG developed a couple of aphorisms for his own law business and has since concluded they apply on a broader scale:

  1. Don’t do business with crazy people.
  2. Don’t do business with crooks (unless you practice criminal law and get paid in full up front).

In a small-town law practice, all sorts of people walk in through the door. PG always hired the smartest secretaries/paralegals he could find and paid the good ones more than they could earn anywhere else in the local economy so they would stick around. These wonderful women spared PG a great many encounters with crazy people. (PG wasn’t biased against men, but none ever applied.)

Once in awhile, a crazy person would slip by PG’s sharp watchdogs, however. (A lawyer friend once told him, “The problem with fools is that they can be so ingenious.” Ditto for crazy people.)

On a couple of occasions, a crazy person who slipped by the support staff also eluded PG’s crazy person screen. On a couple of other occasions, the Legal Aid office asked PG to help a poor unfortunate crazy person and PG agreed, sight unseen.

(Legal Aid is a generic name for a variety of organizations in the United States that help provide legal assistance for those who need it and can’t afford an attorney. In many cases, Legal Aid staff attorneys are able to provide the needed help. For other cases, staff attorneys don’t have the necessary expertise or aren’t able to solve the problem for other reasons and practicing attorneys are asked to help, either for no fee or for a fee that Legal Aid pays that is much lower than the attorney would ordinarily charge. Legal Aid organizations generally limit their services to civil matters while Public Defenders, paid by the local, state or federal government, represent criminal defendants who are indigent and unable to afford private counsel.)

While crazy clients make for some colorful war stories that lawyers swap at bar association dinners, they are apt to consume an enormous amount of time and effort on the part of counsel and staff and generally disrupt what is already a very busy business environment. (One crazy client of PG decided she would occupy PG’s waiting room until he agreed to speak with her at length for the thousandth time about what a terrible person her estranged husband was, a topic that wasn’t relevant to the division of marital property under state law. After efforts to persuade her to depart failed, the local police were called and the client screamed, “Rape!” over and over again as she was forcibly removed from PG’s office.)

This long, long prelude to PG’s equivalent advice to authors is over.

For authors:

  1. Don’t do business with a crooked publisher.
  2. Don’t sign long-term publishing agreements with a small-time publisher, regardless of how pleasant he or she is, that will tie up your books for a long, long time unless you don’t really care much about your book or receiving many royalties from its sales.
  3. Don’t do business with an incompetent publisher, regardless of how well-meaning the publisher may seem.

PG will speak briefly [correction – not very briefly at all] about incompetent publishers, based upon a recent encounter about which he cannot divulge details because of obligations of confidentiality to a client.

To the best of PG’s knowledge, there is no law or regulation in the United States that places any limitation on whoever can call themselves a publisher. An individual who has spent her entire adult life as a plumber can retire from plumbing one day and open Plumber’s Publishing the next morning.

There are a surprising number of people who do something like PG’s plumbing hypothetical in the United States. Sometimes a printer or someone who has been in the printing business will decide to become a publisher. Sometimes, the owner of a successful bookstore expands into publishing. Both these people know may be an expert on an aspect of the book business, but that doesn’t make them knowledgeable enough to become a reliable publisher.

While PG takes religion in general and his personal religious beliefs in particular seriously, he doesn’t hesitate to say that more than a few religious publishers fall into this don’t-know-much-about-publishing basket.

One of the common practices of incompetent publishers is to take a copy of a publishing agreement from another incompetent publisher, change the name of the publisher to Plumber’s Publishing, and call it their own.

Then, just like the incompetent publisher before them, Plumber’s Publishing starts rewriting this and adding that.

In the end, an unwitting author is presented with the 15th generation of a publishing agreement that may not have been particularly well-written by the original creator, lawyer or not, and certainly has not been improved by the tweaks and the tweaks-of-tweaks that it has undergone since then.

An unwitting author may believe that a legal document with Plumber’s Publishing Publishing Contract at the top is an official and reliable publishing agreement, especially when Jane Plumber says, “This is our standard publishing contract.”

What reasonable person would question a “Standard Contract” fresh off a cheap inkjet printer?

If an author is smart enough to organize and write a decent book, that author likely possesses a higher level of general intelligence than Jane Plumber does.

PG has seen enough publishing contracts to assure one and all that there is no “Standard Publishing Contract.”

A Random House imprint has a Standard Contract that is regularly modified by savvy lawyers or agents working with an author.

A Simon & Schuster imprint has a Standard Contract that is not the same as a Random House Standard Contract. Simon & Schuster’s Standard Contracts are regularly modified by savvy lawyers or agents working with an author.

As PG has said on more than one previous occasion, if you sign a bad rental contract for an apartment, it may cost you some money, but it won’t last forever. If you sign a bad purchase agreement to buy an automobile, it may cost you some money, but it won’t last forever.

Most unfortunately, a bad publishing contract and 99% of “Standard Publishing Contracts” will last forever, absent expensive legal interventions after the contract is signed.

This is because, in dull legalese, most book publishing contracts give the publisher the exclusive right to publish the book “for the full term of the copyright” or something similar.

Under current US copyright law, “the full term of the copyright” is the rest of the author’s life plus 70 additional years. Copyrights last for similar periods of time in other major Western nations.

Everyone currently working for the publisher will almost certainly be dead long before the “Standard Publishing Contract” expires. The current owners of the publisher will almost certainly be dead before the contract expires.

Anyone working for the publisher can quit and go to work somewhere else, taking their accumulated talents and abilities with them.

But the author can’t “quit” the “Standard Publishing Contract”.

The best book the author has ever written or will ever write will always be published by Plumbers Publishing unless someone persuades whoever owns Plumbers Publishing to give up its rights to the author or the author’s heirs. This persuasion will almost certainly involve money paid to Plumbers Publishing or to expensive lawyers who sue Plumbers Publishing on behalf of the author or the author’s heirs.

Rights Reversion: How to Give an Out-of-Print Book New Life with Self-Publishing

From Writer Unboxed:

Women’s fiction author Densie Webb [asked]:

“The rights to my first book (with a small publisher) revert back to me in January. I’ve thought about self-publishing, but I don’t have a clue how to go about it.” Densie asked for help evaluating the decision, a simple step-by-step process for self-publishing a book, and inexpensive resources to help her navigate the process.

As a creative entrepreneur, I think Densie has an exciting opportunity on her hands, and I’m thrilled to help her consider her options. But before we dive in, I’d be remiss not to acknowledge that rights reversion is a nuanced topic largely dictated by the author’s publishing contract. We’re not going down that rabbit hole today, but to learn more about rights reversion, check out Authors Alliance’s free guide, “Understanding Rights Reversion: When, Why & How to Regain Copyright and Make Your Book More Available.”

For the sake of exploring Densie’s situation, I’ll assume all rights will revert to her and she will have complete creative control over her work.

Is There Value in Self-Publishing an Out-of-Print Book?

At some point in your writing career, you might find yourself in a position like Densie’s, weighing whether it’s worth your time, energy, and money to self-publish a title that has reverted to you. I liken the situation to owning a rental property and letting it sit vacant. Your book is an asset, and sidelining it feels like a missed opportunity. Assuming the subject matter is not obsolete, you can leverage your book to expand readership, promote other titles, and generate income for the rest of your life and 70 years after your death (if it was created on or after January 1, 1978; learn more about copyright duration).

Rights reversion can open a world of new possibilities for you and your book, not the least of which is a do over. If you didn’t like your publisher’s cover or title, this is your chance to change it. If the publisher only exploited some of the rights it purchased, you now have the freedom to release the book in new formats, translate it into different languages, and expand distribution to new platforms and geographies. This can also be an opportune time to take a bold new marketing approach—or at least update your book’s front matter to showcase your full list of titles and its back matter with a call to action for readers, such as leaving a review, signing up for your email list, and/or following you on social media.

Can Self-Publishing Rejuvenate Low Sales?

There’s nothing like low sales to shake an author’s confidence. But rather than letting it send you into a negative shame spiral, see it for what it is: a symptom. Your job is to uncover a symptom of what?

Conduct a post-mortem investigation of your book’s previous publication lifecycle to identify what went wrong and build a new plan to increase its chances of success.

Consider questions like:

  • How was your book positioned in the market? Did the previous publisher target the right audience? Was it listed in the right categories on booksellers’ websites? Are there opportunities for you to position it differently?
  • How does the cover compare to competitive titles in your category? Does it stand out and grab readers’ attention, or is it a wallflower among the pack?
  • Is the book’s description as compelling as it could be? Does it sound current or outdated? Does it hook readers and leave them wanting more?
  • What did readers think of the story? Read the book’s reviews to learn what resonated with readers and where they felt the story fell short. Is there an opportunity to strengthen the story?
  • What kind of marketing and public relations activities did the publisher use to promote your book before, during, and after its launch? Did you participate in a book tour or blog tour? Did you guest post on relevant blogs and websites or participate in podcast interviews? Did you hold giveaways or price promotions? What promotional activities earned the best results? What types of activities were missing from your mix?

Link to the rest at Writer Unboxed

PG says the OP is well worth reading for any traditionally-published author. So is the Authors Alliance ebook on rights reversion that is discussed and linked-to in the OP.

However, in PG’s preternaturally-humble opinion, rights reversion provisions in 99.9% of the publishing contracts PG has read are a hot mess.

How does an author know if one or more of his/her/their books are out of “print”? PG doesn’t remember any traditional publishing agreement that required that the publisher to affirmatively notify the author if the author’s book was out of print.

Per the OP – If a hardcopy version is Print on Demand, is the book out of print? If that’s questionable, can the Publisher have twenty copies of the POD book printed, then stash them in a warehouse somewhere and only sell via POD?

Arguably, under the language of some out-of-print clauses would be effectively nullified by having a handful of copies sitting in the warehouse, priced however the publisher decides to price them, not listed in the publisher’s catalog and never mentioned by a publisher’s sales rep when speaking to a book store buyer.

Ebooks listed on Amazon are certainly available for the public to purchase, even if nobody every buys one because it’s priced at $49.95.

For PG, there is an obvious and equitable resolution to this archaic contract language. PG first came up with a nickname for this idea at least ten years ago, maybe longer.

Minimum Wage for Authors

PG’s idea is achingly simple and requires an answer to only one simple question:

“How much did the publisher pay the author in the author’s last royalty check?”

The publishing contract says, essentially (not legalese, but legalese for this concept is very simple):

“If publisher pays author less than $250 in royalties during any royalty reporting period, author may, by written notice to the publisher, terminate this publishing agreement and all rights granted to publisher under this agreement shall immediately revert to author and publisher shall have no further rights to the author’s book or any part of it.”

The key elements/benefits to this provision are simple:

  • There is no question regarding whether the out of print clause has or has not been triggered. How much was the check? Over or under the royalty number in the contract?
  • If the publisher really wants to keep publishing the book, the publisher can simply pay the $250 to the author and maintain the publisher’s rights to publish the book.
  • It would probably be a good idea to add a provision that requires the publisher to send the author a written, dated and signed document attesting that all rights to the book have reverted to the author and publisher has no further rights to publish or otherwise assert any claims to the book. However, even in the absence of such a document, the author could show a new publisher (or Amazon for self-publishing purposes) a copy of the original publishing contract and a copy of the check and/or royalty statement showing that less than $250 was paid.
  • Additionally, while PG isn’t any sort of tax expert, he believes that publishers are required to report payments they have made to authors to federal and state taxing authorities, at least in the US. All sorts of government penalties and fines come into play if the publisher doesn’t file such reports in an accurate and timely manner. A copy of the government filing showing how much the author received would be another way of conclusively showing the author’s rights had reverted.
  • Most publishing contracts saddle the author with the obligation to pay the publisher’s attorneys fees and costs in the event someone sues the publisher claiming the author stole the manuscript to the book and wasn’t the real author, etc., etc., etc. One additional filigree that could be included in a minimum wage for authors provision is that, if the publisher doesn’t promptly release its rights to the book if royalties don’t total $250 or more and author hires an attorney to enforce the author’s contract rights, the publisher pays the author’s reasonable attorneys fees.
  • If you want to relieve the publisher of the burden of paying attention to its business, you could add a provision that says if a publisher fails to pay the minimum royalty, author can send publisher a written notice to that effect and, if the publisher fails to pay the minimum royalty within 30 days of receiving the notice, the contract is terminated.

As mentioned earlier, a long time ago, PG first proposed this type of provision in lieu of traditional out-of-print clauses in publishing agreements.

PG is not aware of any argument or claim that this structure is unworkable or unfair to either the publisher or the author. If one of the many perceptive and highly-intelligent individuals who visit TPV sees a reason this concept might not work or that it would be grossly unfair to anyone, PG would be happy to review those reasons if inserted into a comment to this blog post.

PG has been wrong before and will, at some future date, be wrong again, but he thinks his proposal is pretty bullet-proof and establishes an unambiguous way of dealing with out of print issues.

Creator Groups Respond to Copyright Office’s Proposed Rule Changes to Ease Notice of Termination Requirements

From The Authors Guild:

The Authors Guild submitted comments in response to the Copyright Office’s proposed changes to its requirements for serving and filing notices of termination. Sections 203 and 304 of the Copyright Act give authors the right to terminate any grant of rights or contract after 35-40 years (or 56-61 years in the case of copyrights secured before 1978) by sending the grantee a notice of termination and recording it with the Copyright Office. The recent proposed changes would make the process of recording the notices easier by, among other things, giving the Copyright Office discretion to record notices that are untimely, and setting the date of recordation to the date on which the Office receives a copy of the notice instead of the date it receives the notice, fee, and other elements. Nine other creator organizations joined the Guild’s comments, which you can read below. 

Link to the rest at The Authors Guild

Following are excerpts from The Author’s Guild letter (a link to the entire letter is at the OP):

As the Copyright Office is well aware, the hard-won right to terminate grants of copyright
ownership, control and use after a set number of years, with certain exceptions and limitations,
were included in the U.S. Copyright Act of 1976 over the energetic objections of third-party
assignees. Congress acted in this regard as a result of its recognition of the inherent fairness and
necessity of such provisions in support of the advancement of the American creative community
and national culture, as envisioned under Article I, Section 8 of the U.S. Constitution.
The plain fact underlying that visionary decision in 1976 by members of Congress is that
the accurate valuation of new works in virtually every artistic discipline is by definition an
impossible task. Under such circumstances, the only way to ensure that creators are fairly
compensated for creating works of enormous popularity and value is to legally empower them to
recapture copyright ownership or rights at some reasonable point after the grant. This new and
unique copyright termination rights regime, which commenced in 1978, has proven to be far more
effective in protecting the abilities of authors and their heirs to survive in the always-difficult
economic environment of the arts than the system of bifurcated copyright terms accomplished
under the 1909 Copyright Act.

. . . .

We strongly support the Office’s proposed amendment to restore its discretion to record
untimely notices “if equitable circumstances warrant.” As the Office notes in its 2010 analysis of

gap grants, “[t]ermination rights…have an equitable function; they exist to allow authors or their
heirs a second opportunity to share in the economic success of their works.”3
Considering that refusal to record a notice of termination can extinguish the right of
termination, the Office’s discretion in making equitable judgments to the extent allowed by the
statutes is vitally important. The Office, for its part, has diligently served as an equitable arbiter to
ensure that ambiguities in the termination statutes are resolved in favor of the termination
provision’s intended beneficiaries—authors.4 At the start of the decade, the Office undertook a
comprehensive analysis of “gap grants” to understand the consequences for grantors who sign a
contract years in advance of the work’s creation, something that is common in many creative
industries. In its report, the Office recognized that:

[T]he act of recordation by the Office and the refusal of recordation by the Office
do not carry equal weight under the law. The latter may permanently invalidate a
notice of termination that is otherwise legally sound. This fact and Office’s
obligation to provide clear guidance in its practices and the regulations compel the
Office to record [emphasis added] rather than reject notices of termination filed
under section 203.5

The Office notes in the present notice that the change in wording—from “the Copyright
Office reserves the right to refuse recordation of a notice of termination if….such notice of termination is untimely” to “the Copyright Office will refuse recordation of a notice of termination
as such if…such notice of termination is untimely” [emphasis added]—occurred in 2017 as part of
the parallel rulemaking on modernizing recordation practices without any discussion of reasons or
“whether [the change] was intended to narrow the Office’s discretion in this area.”6 Because this
change did not issue from rulemaking specifically about limiting the Office’s discretion, it’s
reasonable to assume that it does not compel the Office to reject untimely notices of termination
without respect to equitable circumstances even if the apparent ambiguity created by replacing
“reserves the right” to “will” opens one such interpretation. Nevertheless, the alteration that the
Office is now proposing—replacing “will” to “may”—removes the ambiguity and realigns the
wording with the Office’s practice of recording notices with minor errors as long as the mistakes
were made in good faith.

. . . .

Applying the Harmless Error Standard to Recordation Rules

We also support the proposed amendments to § 201.10(e)(1)–(2) to make compliance with
the Office’s recordation rules subject to the harmless error standard. Currently, the Office applies
the harmless error standard with respect to information contained in the notice to excuse good
faith errors that do not affect the adequacy of notice to the grantee. As such, the harmless error
standard adequately balances the equitable importance of the termination right for authors with
the practical necessity of providing enough information to the grantee to make them aware that
their rights in the work will expire on a certain date. A stricter compliance standard would burden
the ability of grantors to reclaim their rights, while a looser standard excusing even errors that
grossly misidentify the title or dates would defeat the purpose of the notice requirement. We think
this is a sensible approach that should apply to all requirements pertaining to termination notices.

. . . .

Identification of Work

We think that allowing remitters to identify the work by either title or registration number
or both makes good sense, and we support the proposed changes to § 201.10 (b)(2)(iv). We agree
with the Office that there is a greater risk of material errors being made by mistakes in the
registration number that could affect the adequacy of a notice (such as a transposition error in the
registration number that identifies another work), and that this risk should be noted in the
Office’s instructions for remitters. The Office might also consider issuing a circular specifically
discussing common errors that can materially affect the adequacy of a notice, with examples of
material and harmless errors.

. . . .

Optional Form for Remitters

We strongly support the Copyright Office’s creation of a form or template to assist
remitters in creating and serving notices of termination to help ensure that all of the required
regulatory and statutory elements are included. An online form that creators could fill out to
generate a letter would be ideal. The creator could simply print out the termination notice letter
for physical service (or serve it by email if and when the Office starts allowing service by email).
The Office might even consider integrating the termination form into the Enterprise Copyright
System (ECS) to harness the power of a centralized and interlinked database. For instance, the

Office could consider programming automated alerts that would pop up if any information
entered by the user in the termination form conflicts with information in the registration record (if
one exists), thereby giving the notice-filer a chance to correct the erroneous information before
service. The feasibility of additional functionalities, such as allowing users to serve the notice on
authenticated grantees (for example, those grantees who have used the ECS to record the transfer
and/or registered the work, and opted in for service in this manner), could be considered further
down the line. In short, the integration of a fillable form into the ECS has a lot of potential to
make the recordation of termination notices more efficient. The Office, however, should make it
conspicuously clear at all times that using the form to generate and serve a notice does not
guarantee recordation, and that ultimately the notice-filer is responsible for locating, entering, and
verifying the accuracy of the information contained in the notice of termination.

Link to the rest at The Authors Guild

PG found a lot of good changes described in the original proposal. The AG’s support for the Copyright Office to prepare a template of the form necessary would also speed up the job of creating a form that included all the requisite elements required under the law.

Attorneys that do a lot of this sort of work (well, there are not actually a lot of authors or heirs of authors who know about their right to terminate, so, compared to the number of publishing contracts signed, the number of notices of termination of those contracts are miniscule) have developed (or copied) form templates that address all the current requirements.

But, providing an online form template would allow more authors to do the job themselves and/or cost authors less because more attorneys would be able to provide assistance in filling out the forms.

There are a number of IP/Copyright/Publishing attorneys who visit TPV on a regular basis. PG encourages any of them who have thoughts about this topic to share them in the comments.

PG has written about the statutory rights of authors to terminate publishing agreements they have signed on several occasions, the first time in 2011. Here’s a link to a general explanation of the process and requirements. Basically, for publishing contracts executed by the author on or after January 1, 1978, the right to terminate opens 35 years after a publishing contract was signed (or, more commonly for book contracts, 35 years after the date of first publication) and continues for five years thereafter.

There are some other elements and exceptions, but the gist for most authors of books is the option to terminate starts 35 years after first publication and extends for 5 years to 40 years after first publication.

Under its current rules, everything the author does and every document Copyright Office needs to receive needs to be perfect or made perfect before the 40-year closing of the window. Among other changes, the proposed rules allow the author (or red-faced attorney for author) to make an effective filing, even with some relatively small errors, before the window closes, then fix fix the errors thereafter.

For the math-impaired, 2020 minus 35 is 1985.

1985 New York Times Bestsellers included:

THE HUNT FOR RED OCTOBER, by Tom Clancy

THE CIDER HOUSE RULES, by John Irving

CHAPTERHOUSE: DUNE, by Frank Herbert

TEXAS, by James A. Michener

LONESOME DOVE, by Larry McMurtry

SECRETS, by Danielle Steel

FAMILY ALBUM, by Danielle Steel

LUCKY, by Jackie Collins

PROOF, by Dick Francis

THE MAMMOTH HUNTERS, by Jean M. Auel

LAKE WOBEGON DAYS, by Garrison Keillor

THE TALISMAN, by Stephen King and Peter Straub

THINNER, by Richard Bachman (Stephen King)

CONTACT, by Carl Sagan

THE ACCIDENTAL TOURIST, by Anne Tyler

THE VAMPIRE LESTAT, by Anne Rice

MEXICO SET, by Len Deighton

IF TOMORROW COMES, by Sidney Sheldon

MINDBEND, by Robin Cook

THE SICILIAN, by Mario Puzo

A LIGHT IN THE ATTIC, by Shel Silverstein

SON OF THE MORNING STAR, by Evan S. Connell

LOVING EACH OTHER, by Leo Buscaglia

MOSES THE KITTEN, by James Herriot

Books Published in 1985 that were not bestsellers in that year:

THE HANDMAID’S TALE, by Margaret Atwood

ENDER’S GAME, by Orson Scott Card

THE ACCIDENTAL TOURIST, by Anne Tyler

IF YOU GIVE A MOUSE A COOKIE, by Laura Joffe Numeroff

SARAH, PLAIN AND TALL, by Patricia MacLachlan

Harnessing the Power of Coauthoring

From Writers Helping Writers:

I always knew coauthoring had benefits – half the workload, and twice the platform to launch from are the obvious bonuses. Sure, you have to split your royalties, but you also share the costs. But I had reservations (how do you allocate who writes what? What if you don’t like each other’s ideas or writing?), so it was relegated to something other authors did.

Until a fellow author approached me, asking me to cowrite an urban fantasy series. I was nervous. I was intrigued. I asked some questions. I hesitantly agreed. Not long later, I approached another author friend wondering if we should do the same with an idea I had percolating. One that felt like it could be far better served if it was molded and cultivated by more than just one mind.

And so my coauthoring journey began.

And it’s been such a delightful adventure that it sparked the very words you’re reading. With a highly successful dystopian series (which may or may not have interest to option the film rights…), and a twelve book urban fantasy series releasing next year, I discovered the benefits of sharing the writing and marketing process. 

. . . .

At this stage, Amazon only allows authors to publish under a single name. That means one person from your writing duo (or trio, or septuplet if you’re feeling ambitious!) will be publishing your books on their KDP dashboard. It will be their role (aka headache) to split the royalties each month for the lifetime of your books. 

What’s more, another writer is going to see your work at varying stages of draft (personally, this was a challenge for my perfectionism tendencies). If I didn’t trust my coauthors to be positive and constructive, it would’ve been a much more difficult process. 

Ask yourself:

  • Who will be publishing the books? How will you report earnings and costs? 
  • Do you feel the feedback you’d be getting is valuable? Do you think it strengthens your writing?
  • Are you willing to be tied to this author for the life of your books? 

. . . .

In the same way you’ll need differences and contrasts with your coauthor/s, you’re going to need similarities because these commonalities will be the foundation for your writing endeavors. A shared passion for the story concept and its characters. A desire to see your books succeed, even when life gets busy or the kids get sick. Ultimately, writing a book takes dedication and hard work. If you’re writing a series, then the workload and timeframes just multiplied. 

Link to the rest at Writers Helping Writers

PG read the article hoping he would see one word – contract.

Actually, two words – written contract, followed by by four more words – signed by all authors.

Partnerships, joint working arrangements, etc., can be wonderful as the OP indicates.

However,

  • Somebody’s gonna die first
  • Somebody’s gonna die second and the copyright to the jointly-written book will continue on and on
  • Some delightfully normal people have weird heirs
  • Not all relationships, working, marital, etc., endure over the long run
  • Any lawsuit costs more than any agreement between two writers
  • Even a slow lawyer is likely to finish a partnership agreement much sooner than a fast litigator can finish a lawsuit

Simon & Schuster’s Mary Trump Book Temporarily Blocked by Restraining Order

From Publishing Perspectives:

Even as John Bolton’s The Room Where It Happened: A White House Memoir continues to roil the American political scene, its publisher, Simon & Schuster, now has seen yet another move against it on the month’s upcoming release, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. by Donald Trump’s niece Mary.

Publishing Perspectives readers will remember that an attempt to block Mary Trump’s book was lodged late in June in the Queens County Surrogate’s Court. The judge quickly rejected the case and the book is set for a release on July 28. You may recall the growing level of interest in the world publishing community in this, as the International Publishers Association issued a statement of support for Simon & Schuster.

On Tuesday afternoon (June 30), however, a new court action temporarily blocked publication of the book.

We’ll walk through the pertinent steps here because, as Simon & Schuster’s attorneys at Davis Wright Tremaine led by Elizabeth McNamara are writing overnight, a successful halt to publication of the Mary Trump book “would be unprecedented in this country,” a violation of what the world publishing community refers to as the “freedom to publish.”

. . . .

As Maggie Haberman and Alan Feuer wrote at The New York Times on Tuesday, “Judge Hal Greenwald of the New York State Supreme Court issued the temporary restraining order until a hearing on July 10 to decide whether [Mary] Trump’s book … violated a confidentiality agreement she signed with other members of the Trump family in connection with a dispute over the estate of Fred Trump Sr., the president’s father.”

Following the news of the court’s action, the publishing house released to various news media a short statement of regret about the temporary restraining order (sometimes called a “TRO”), reading: “We are disappointed that the court has granted this temporary restraining order. We plan to immediately appeal this decision to the appellate division, and look forward to prevailing in this case based on well-established precedents regarding prior restraint.”

Similarly, an attorney for author Mary Trump also filed a statement, objecting to the move as “a prior restraint on core political speech that flatly violates the First Amendment.”

. . . .

In the newly filed opposition to the temporary restraining order—a document called a memorandum of law—Simon & Schuster writes that the action “identifies no misconduct by Simon & Schuster.

“Instead, Mr. Trump”–Robert Trump, the president’s brother who is leading the family’s court action–”believes that simply because he alleges that Ms. [Mary] Trump violated a nondisclosure agreement, one that Simon & Schuster did not know about and was not a party to, he may force Simon & Schuster to stop the presses and throw the brakes on the delivery trucks, halting publication of the book.

“Such an outcome would be unprecedented in this country. Mr. [Robert] Trump has not even attempted to make the requisite showing that the public would be harmed by the publication of the book and, absent that showing, his requested injunctive relief must be denied.”

As the Times’ Haberman has pointed out on CNN’s New Day this morning (July 1), it’s in that statement that we learn that the publishing house was unaware of a nondisclosure agreement relative to Mary Trump.

She has pointed out that the publishers’ filings also reveal that “the book is already in its printing.”

Indeed, the memorandum of law asserts, “Simon & Schuster did not learn anything about Ms. [Mary] Trump signing any agreement concerning her ability to speak about her litigation with her family until shortly after press broke concerning Ms. Trump’s book about two weeks ago, well after the book had been accepted, put into production, and printing had begun.”

The memorandum goes on to say that as of June 30, 75,000 copies already were printed and bound, “and thousands have already shipped to sellers.”

. . . .

Simon & Schuster CEO Karp—a former journalist with the Washington Post, the Miami Herald, and the Providence Journal—recounts in his affidavit, filed overnight with the memorandum of law, that S&S won an auction for Mary Trump’s book. He says he understands that nine or 10 other publishers were in contention for it.

In signing an “individual guarantee” with Simon & Schuster as part of her deal, Karp writes, “Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement

“The agreement also includes Ms. Trump’s representation that these warranties are ‘true on the date of the execution of this agreement’ and ‘true on the date of the actual publication’ of the book. Further, the agreement provides that the ‘publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.’”

Karp goes on to say that nothing has given Simon & Schuster any reason “to doubt the accuracy” of Mary Trump’s warranties and that in a meeting with her about her proposal for the book, “She revealed that she was the primary source for the Pulitzer Prize-winning New York Times article “Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father.”

Update

An appellate court has reversed a New York trial court’s order stopping the publication of the Trump book, so S&S has told its printers to keep running the presses 24/7 and shipping books as soon as they’re boxed to flood the world copies with before another judge stops it from publishing.

Link to the rest at Publishing Perspectives

From various and sundry online publications, it appears that Simon & Schuster won an auction for the book on May 14. In its filing yesterday, six weeks following the end of the auction, Simon & Schuster reported that “75,000 copies already were printed and bound” and “thousands” have been shipped.

Is the publisher’s inventory/shipping system so crude that it doesn’t know how many books it has shipped? That might cause a Simon & Schuster authors to question the accuracy of their royalty reports.

The quoted publishing contract language:

“Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement”

So, apparently Ms. Trump may have conveniently forgotten about her previously-signed nondisclosure agreement that the Trump heirs claim prohibits her from making some information in the book public.

Simon & Schuster is shouting about the First Amendment, but the only right it has to publish Ms. Trump’s book is because Ms. Trump purportedly gave S&S the right to do so. S&S has no independent right to publish and the magic of publishing doesn’t give it the right to publish something when the author didn’t have the right to publish that same document.

The S&S contract conveniently includes a clause in the Trump contract stating “publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.”

In effect the publisher is saying it will rely solely on the author’s representations and warranties in the publishing agreement and won’t look at anything that might seem fishy about whether the author is prohibited from writing the book and giving S&S the right to publish it.

Ms. Trump is certainly bound by what PG will describe as a “willful blindness” clause, but the Trump heirs are not. The fact that Ms. Trump has previously involved in litigation with other heirs would raise a red flag for any attorney representing a publisher who was planning a tell-all book about the Trump family if the publisher were trying to avoid litigation with a notoriously litigious family.

S&S is essentially arguing that it is an innocent bystander that has spent money to publish a book and waving the First Amendment to protect itself.

However, PG contends there are only so many red flags that S&S can ignore and still claim its sanctity under the First Amendment.

PG would argue that the OP description makes S&S appear to be acting much more like a co-conspirator with the author to assist the author in violating the privacy of the Trump family and commit an act that the author apparently promised not to do – open the family secrets to the whole world – and for which the author received a lot of money from family members who wanted privacy and the family secrets kept secret.

PG is far from a fan of President Trump, but confidentiality agreements are quite common in American business and personal contracts.

Should a person desire to work for Apple or Microsoft or CitiBank or Goldman Sachs or General Motors or The United States Army or Simon & Schuster in a position that would permit that individual to access important information about the organization that would benefit competitors of the organization, that person would be expected to sign the sort of confidentiality and non-disclosure agreement that Ms. Trump apparently signed.

If a person violates a confidentiality agreement with the Army, that person could charged with treason. PG doesn’t know if treason still merits a firing squad or not, but whatever the punishment, he expects it would be severe.

To be clear, PG is not suggesting that Ms. Trump or anyone at Simon & Schuster be executed or sent to prison.

However, PG does suggest that the knowing behavior of both of those parties is not the sort of thing The First Amendment should reward with a lot of money or anything else.

Suing Hollywood

From CrimeReads:

No writer wants to sue a Hollywood studio. It’s expensive, it’s terrifying, and it’s emotionally exhausting  You’ll be publicly called out as a crank, a liar, a money-grubber, a loser, an opportunist, and a troll. You’ll hear that age-old threat: you’ll never work in this town again. 

And you’ll almost certainly lose. 

In their article “Death of Copyright, The Sequel”, entertainment attorneys Steven Lowe and Daniel Lifschitz reviewed over fifty copyright infringement cases filed in the Ninth Circuit by writers against studios and networks between the years 1990 and 2010. Every single writer lost. Those fifty lawsuits represent just the tip of the iceberg; no doubt there are many other justifiably aggrieved writers who didn’t have the money to hire a lawyer, or the emotional stamina to charge into battle against a studio. As Reed Martin writes in his book about filmmaking, The Reel Truth:

One respected journalist who covers the film industry has described screenplay theft as such a regular occurrence – almost as rampant as file sharing – that it has become a sad rite of passage for aspiring screenwriters, “proof that they can write screenplays worth producing.”

Most writers who work in the industry understand that suing a studio, no matter how justified their lawsuit, is a losing proposition—and it’s the writer who almost always loses. Knowing this, why would any writer risk everything to charge into battle as David against Goliath? 

I’ll tell you why: because we’re angry and refuse to let them get away with it. I know, because I’ve been there and done that. I’ve seen the dark side of Hollywood.

. . . .

My journey started on a joyous note. It was 1999 and I had just finished writing my space thriller novel Gravity, about a female medical doctor/astronaut who is stranded alone aboard the International Space Station after the rest of her crew is killed in a series of accidents. Sick and dying aboard ISS, she fights to survive, while on earth, her astronaut-husband desperately hunts for a way to reach her. Heavy on technology, with extensive details about orbital life, ISS, and shuttle operations, the novel took me two years to research and write. I compiled thousands of pages of notes, interviewed dozens of NASA sources, and made site visits to NASA facilities in Texas and Florida. 

A mere week after I mailed the finished manuscript to my editor at Pocket Books, I received a baffling phone call from a Variety reporter asking for my reaction to the movie buzz about my novel Gravity. I had no idea what he was talking about because, as far as I knew, my manuscript was still on my editor’s desk. I later learned that “hot” new novels are sometimes sneaked out of publishers’ offices and quickly land in the hands of movie producers before they’re officially submitted.

Gravity was just such a “hot” new novel, and studios were already circlingNew Line Cinema made a pre-emptive bid to buy the rights, and the seven-figure deal was splashed across the front page of Daily Variety:

New Line and Artists Management Group (the production company) view “Gravity” as a major event pic and look to move quickly to put the elements in place, with a release in either summer of 2000 or 2001.  AMG will likely package the project with as many of the banner’s clients as possible, and Rick Yorn told Daily Variety that he expects to have most major above-the-line talent in place within the coming weeks.

It was one of those “pinch me I’m dreaming” moments in a writer’s career. Gravity would be a major event pic, and veteran screenwriter Michael Goldenberg (Contact) was hired to write the screenplay. The finished script was a faithful adaptation of my novel—perhaps too faithful, as my novel’s climax didn’t have a visually cinematic finish. The third act needed reworking, I was told, and until that happened, nothing could go forward.

Since I already had experience as a screenwriter (my original script “Adrift” aired as a CBS TV Movie of the Week in 1993) I decided to jump-start the stalled Gravity project by rewriting the last fourteen pages of Goldenberg’s script. 

. . . .

In May 2000, Daily Variety reported that the script would be sent out to directors that week, with filming expected by the end of the year, but Gravity became mired in development. Months went by. Feature film rights passed (briefly) to Twentieth Century Fox, then bounced back to New Line. The project faded into oblivion.

In 2008, Warner Bros. acquired New Line in a takeover that “ended New Line’s 40 years as an independent studio.”  While this was big news in the film industry, I wasn’t even aware of it because I was too busy writing books. “Rizzoli & Isles,” the television series based on my crime novels, was a smash success on TNT (it would go on to a seven-season run) and my novels were regularly hitting bestseller lists around the world. As far as I knew, my Gravity film project was dead and buried, and I didn’t give it another thought.

Until 2010, when fans began to email their congratulations about the upcoming Warner Bros. space movie Gravity, which they assumed was based on my novel.

The new movie would be directed by Alfonso Cuaron, and the original screenplay was written by Cuaron and his son Jonas. Online, I found a description of the plot:

The movie’s plot revolves around astronauts repairing the Hubble telescope who are hit with an avalanche of satellite junk. In a plot akin to “Cast Away,” the surviving astronaut must fight her way back to Earth, where she hopes to reunite with her daughter.

I felt a twinge of nausea which only worsened when I found a more detailed description of the plot and learned that Cuaron’s heroine ends up stranded aboard the International Space Station. I knew of no connection between Cuaron and my Gravity project ten years earlier, but the shooting down of a satellite, the debris destroying ISS, the female astronaut desperate to reunite with a loved one on earth, the series of Titanic-like catastrophes leaving her stranded aboard ISS, and the identical title added up to a whopping series of coincidences. True, Cuaron’s tale had none of my novel’s medical details or my long lead-up to the crisis, but there was enough there to give me a jolting sense of familiarity. It’s as if the screenwriters threw out the first three-quarters of my novel and based their entire film on my final chapters.

Had Cuaron heard about my story and reworked it into his script?

. . . .

In October 2013, Cuaron’s Gravity, produced by Warner Bros., was released to great fanfare and went on to gross more than seven hundred million dollars at the box office. Sitting in the theater wearing 3-D glasses, I was awed by the movie’s spectacular visual effects, but that sick feeling of familiarity was back. The satellite debris destroying ISS—that was the scene I’d written in my re-write of the third act. The Sandra Bullock character who worked eighteen-hour shifts in a hospital—wasn’t that the MD astronaut from my novel? The script had changed since the earlier descriptions in the press—the heroine’s daughter was now dead—but I could still see the bones of my story on that movie screen.

Days later, while I was speaking at an Indiana library event, readers again congratulated me on “my” movie. 

. . . .

New York, my literary agent gets a startling phone call, from a Reliable Source who’d worked with the original production team that tried to develop my Gravity into a movie back in 1999-2000. The Reliable Source had a bombshell piece of information to share: Back when my Gravity movie was still in active development, a director had been attached to the film.

That director was Alfonso Cuaron.

“Now I think you need a lawyer,” my agent said.

. . . .

The Reliable Source signed a sworn affidavit and told us where we could find the supporting documents should we go to discovery, but I was still not certain I wanted to sue. My attorney advised me that if I did sue, it could not be for copyright infringement, because of one simple fact: I did not own the film rights. I had sold those rights to New Line Cinema in 1999, and because Warner Bros. had acquired New Line in 2008, Warner Bros. was now in control of my Gravity film rights. Warner Bros. held the copyright, so they had the legal right to make the movie.

“If you do sue them,” he told me, “It will be for breach of contract.”

. . . .

To prevail in a copyright infringement lawsuit, a writer must demonstrate there is substantial similarity between his creation and the defendant’s, and in court this standard proves to be almost impossible to meet. If a producer steals the plot of a novel, changes the character’s names and locations and re-orders a few scenes, those changes alone may be enough to make it impossible for the novelist to win a copyright infringement lawsuit.

But “Buchwald vs. Paramount” established that in breach-of-contract lawsuits, a different standard applies. If a contract exists between the writer and the studio, and if the movie shares only a material element or is merely inspired by the original work, then the movie is considered “based upon” that work—even if adaptation has drastically changed the story. This explains why so many movies adapted from novels may end up wildly different from the original stories, yet retain the “based upon” label.

. . . .

My contract also had an assignment provision (something every film-rights contract should include):

ASSIGNMENT: Owner agrees that Company may assign this Agreement, in whole or in part, at any time to any person, corporation, or other entity, provided that unless this assignment is to a so-called major or mini-major production company or distributor or similarly financially responsible party or purchaser of substantially all of Company’s stocks or assets which assumes in writing all of Company’s obligations, Company shall remain secondarily liable for all obligations to Owner hereunder.

In addition, it included a Continuing Guaranty, requiring a “full and faithful performance” of the studio’s obligations to me, even if film rights to Gravity passed to another studio:

No assignment permitted by the Agreement will relieve Guarantor of its obligations to (Author) with respect to Guaranteed Obligations.

No matter where my Gravity film rights ended up, those clauses ensured that what was promised to me in the contract would be delivered. What I coveted most in the contract was the “based upon” credit. Like every novelist, I want to be recognized for my work—and I want to sell books. If my novel Gravity had been re-released as an official movie tie-in book, how many hundreds of thousands, even millions, of additional copies could I have sold around the world? 

. . . .

Then I came across an article about how the Cuarons had written their screenplay.

They regrouped in the elder Cuaron’s London home one afternoon and began talking about the theme of adversity, about knowing when to fight and when to give up, and the theme of rebirth. And two images drove them: an astronaut spinning into the void and someone getting up and walking away. “Gravity was a metaphor, the force that keeps pulling us back to life,” says Jonas Cuaron.

A first draft was written in three weeks.

I thought about the two years of full-time research and writing I’d devoted to Gravity. I thought of my obsessive attention to details about ISS, the shuttle, EVAs, astronaut training, NASA lingo, aerospace medicine, and everyday life in orbit. I thought about how hard I’d worked to describe a scenario so accurately that even a NASA engineer would not find fault. And here the clever Cuarons had gone from “image of astronaut spinning in space” to a finished screenplay in a mere three weeks.

That’s when I got angry.

. . . .

A jury trial is what every plaintiff hopes for. And it’s what a studio will try to avoid at all costs.

“The best scenario is for this to be settled out of court,” my lawyer said. “But let me warn you now, they will never give you a based-upon credit, because that would be a public slap in Cuaron’s face. They won’t allow that.”

“Whatever happens,” I said, “I want to be able to talk about this. I refuse to sign any nondisclosure agreement.”

I’m sure he must have sighed at that point, because nondisclosure agreements are part of most Hollywood settlements. Lawsuits that make a big splash in the newspapers will suddenly vanish from sight, never to be heard of again, because plaintiffs are paid to shut up, or threatened with financial penalties if they don’t.

Warner Bros. attorneys quietly inquired if I was willing to go to mediation. I said I was. Perhaps this will be handled in a civilized manner after all, I thought. Perhaps they understood that money wasn’t even necessary, just acknowledgment of my grievance. Judge Margaret M. Morrow was assigned to my case, and I hoped she could convince us all to sit down and talk together.

Instead, Warner Bros. hired outside law firm O’Melveny & Myers, known for its ruthless defense of studios, to oppose me. “This means they intend to fight you every step of the way,” my lawyer warned. Alfonso Cuaron’s reputation was at stake and the studio was gong to protect him at all costs. Which meant I had to be destroyed.

The game was about to get ugly.

Link to the rest at CrimeReads

PG says if you want a calm and peaceful life, don’t do business with crooks. Even if you win, the mental and emotional cost is likely to be huge.

Not that anyone in Hollywood is or ever was or will be a crook, just a general observation concerning humankind as a whole.

Copyright and Collective Authorship: Locating the Authors of Collaborative Works

From IPKat:

[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands.
Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship.
The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.

. . . .

(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here).
(2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns.
(3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish.
(4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point. 

. . . .

Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.

. . . .

These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples. 

Link to the rest at IPKat

PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.

As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.

Then And Now

From Kristine Kathryn Rusch

Recently, Dean told me about a conversation he was having on Facebook with a group of writers who, in the 1990s, shared the table of contents in an anthology featuring stories about the X-Men. Apparently, that anthology has just gotten an audio edition, and one of the authors in the anthology was thrilled about that.

Then Dean threw some cold water on the excitement. Who’s getting the royalties? he asked. No one knew.

Yes, the project was work for hire, but the writers weren’t paid a flat fee. They were paid an advance against royalties, for all forms of the book.

Dean hadn’t heard about the audio edition ahead of time. Nor had the other authors. I’m pretty sure the writer who announced it just stumbled on it. And once Dean asked the question, the others began wondering as well.

This project—twenty years old—has a somewhat tortured history. It was packaged by a packager so notorious that when he died unexpectedly, the people who had worked with him weren’t upset about his death at all. In fact, when a certain sf convention tried to hold a memorial for him, they couldn’t get anyone to speak at it.

This packager had lied and cheated and abused his writers so badly that they had nothing kind to say about him, even if they were the type of people who would have been inclined to make nice after a death. He stole and embezzled and sold his companies—to himself, sometimes—and managed to always come out smelling…okay, I guess.

When he died, his financial affairs were such a tangled mess that I heard about the troubles the estate had untangling them. I’m not sure how that ended up.

But here’s the thing. X-men is part of Marvel which is part of Disney. Someone still believed they had the rights to that anthology, and could license it in audio. That audio money probably went straight into licensor’s pocket, not realizing that the authors had contracts that stipulated royalties and not a flat fee.

With the arrival of the audiobook came the realization that the book is still in print, which meant it’s still earning money. I’ll wager, although I haven’t checked, that it has an ebook edition (which it didn’t originally have). All of this means it’s been earning royalties steadily for twenty years, which, at least in our household, have not been paid in (ahem) twenty years.

Does that mean Dean and the other writers are owed millions? Naw. Probably not even thousands. Maybe a few hundred each maximum. But that’s nothing to sneeze at.

And therein lies a dilemma for writers. Do they pursue those few hundred dollars? Do they hire an attorney to figure out who actually is exercising the rights? Or do they just shrug and say, Them’s the breaks, and move on to other things.

. . . .

A few weeks before this debacle surfaced, I wrote a sticky note for my pile of possible blog topics. It says, succinctly:

Old system = make $$ for others. Pittance for you.

New system = make $$$$$$$ for you, and some for others.

I’ve been thinking about that in the connection with licensing for writers. If we maintain our own intellectual property, and if we publish the work ourselves, we own every part of that copyright. We license it to various companies which then make some money off the derivative product they produce.

Link to the rest at Kristine Kathryn Rusch

Over his long and varied business life, PG has been exposed to a wide variety of industries and companies large, medium and small operating in those industries.

PG has helped clients who had problems because they dealt with shady characters. As a general proposition, even when the client was able to win in court, even with a generous award of damages, the client was never made whole. The whole episode became a dark and disturbing period in the client’s life that was difficult to put behind her/him. In that respect, dealing with a bad business associate had some parallels with marrying the wrong person.

PG will state that, as a whole, traditional publishing is a weird business. There are some nice and sane people in the business, but there are some very strange and maladjusted people as well, not the kind of people one would expect to find in most well-managed business organizations.

As just one example, practically every other business on the planet pays its contractors on a monthly basis if not more often. PG cannot think of any other major business segment that pays its bills to outside materials/service providers every six months. Undoubtedly there are some, but they are the exception rather than the rule. Of course, Amazon manages to pay self-published authors every month. Ditto for paying Random House, etc. However, Random House, etc., is somehow unable to remit royalties to authors more often than every six months, even royalties for sales made on Amazon for which the publisher is paid monthly.

One of the reasons authors sometimes lose track of the non-payment of royalties is that payments appear at such widely-spaced intervals. If an author were paid royalties earned on a monthly basis, he/she would be more likely to note the omission of an expected payment.

PG was about to begin a rant about the problems caused for authors by unskilled and unschooled literary agents who are yet another intermediary between an author and the author’s royalty payments, but he’s running out of time.

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.

Contest Caution: The Sunday Times Audible Short Story Award

From Writer Beware:

Founded in 2010, The Sunday Times Audible Short Story Award bills itself as “the richest prize for a single short story in the English language.” And indeed, the prize is major: the winner receives a cool £30,000 (no, I did not add extra zeroes.)

With judges yet to be finalized, the selection process will include a 20-story longlist announced in May 2020, a six-story shortlist unveiled in June 2020, and the winner revealed on July 2. The shortlisted stories will be published in an Audible audiobook, with included writers receiving “an extra £1,000 fee, on top of a prize payment of £1,000”. To be eligible, writers must previously have had at least one work published in the UK or Ireland by an “established print publisher or an established printed magazine”

. . . .

So what’s the catch? — because you know I wouldn’t be writing this post if there weren’t one. Well, as so often happens, it’s in the Terms and Conditions. Specifically:

To summarize this dense paragraph: simply by entering the competition, you are granting a sweeping, non-expiring license not just to Times Newspapers Limited (The Sunday Times‘ parent company), but also to Audible and any other licensees of TNL, to use your story or any part of it in any way they want, anywhere in the world, without payment to or permission from you.

This is far from the first time I’ve written about “merely by entering you grant us rights forever” clauses in the guidelines of literary contests, some of them from major publishers or companies that should know better. Sure, in this case the license is non-exclusive, so you could sell your story elsewhere–but only as a reprint, because by granting non-exclusive rights to one company, you remove your ability to grant first rights to another, at least for as long as the initial rights grant is in force.

It’s not uncommon for literary contests that involve publication to bind all entrants to a uniform license or grant of rights–so that, when winners are chosen, the license is already in place. But ideally, the license should immediately expire for entries that are removed from consideration–or, if the contest sponsor wants to retain the right to consider any entered story for publication (as TNL clearly does–see Clause 4.2, below), rights should be released within a reasonable period of time after the contest finishes–say, three or six months. There’s simply no good reason to make a perpetual claim on rights just in case, at some unspecified point in the future, you might just possibly want to use them.

. . . .

There’s a couple of other things to be aware of. Shortlisted authors enter into a 12-month exclusive contract with Audible, for which they are given a “one-off” lump-sum payment (the £1,000 noted above). But thereafter, Audible retains the right “to record, distribute and market such audio version for at least ten (10) years.” Again, this right is non-exclusive–but there’s no indication that Audible has to pay these authors for potentially exploiting their work for a decade. (If you don’t consent to these terms, you can’t be shortlisted.)

Finally, although publication is guaranteed only for the shortlist, TNL reserves the right to publish longlist and non-listed entries as well. Great! Except…there’s nothing to suggest these writers would be paid either.

Link to the rest at Writer Beware

PG says this is tacky to the max (but, unfortunately, not rare).

You need to read all terms and conditions whenever you submit anything you write online, be it for a contest, consideration for publishing, publishing, etc., etc., etc.

Audible should know better. PG recommends loud complaints directed to anyone you know in Amazon or anyone you don’t know who has an Amazon email address. Jeff@amazon.com is one (no, PG doesn’t know if he ever reads email that comes to this address.).

How to Read a Book Contract – Somebody’s Gonna Die

Per a request in the comments, from an earlier post on The Passive Voice

Let’s assume you are an author represented by a literary agent. If Passive Guy asks you who your agent is, you’ll respond with something like “Suzanne Jones” or “James Davis.”

Passive Guy is certain Suzanne and James are wonderful people, but they’re going to die.

This is not a threat, simply a statement of biological reality.

Who will your agent be after Suzanne dies? Will it be someone you choose or not?

You selected Suzanne because she had a great reputation for helping authors build good long-term careers. Your career isn’t built yet. Who’s going to help build your career if she’s gone?

These are not hypothetical questions. One of the comments to a recent essay about agents by Kristine Kathryn Rusch described the story of Ralph Vicinanza, a literary agent for Stephen King, the Dalai Lama and others, who died in September, 2010, at age 60.

Here’s a bullet-point description of what has happened since Mr. Vicinanza’s death, according to the comment (which fits with other accounts PG has found):

  • The other two agents in the Vicinanza agency quit their jobs
  • A letter was sent to all authors advising them to find other agents and promising to continue to pay royalty checks
  • The executor of the Vicinanza estate intends to keep receiving payments from publishers and collecting agency fees from the authors
  • Other agents are asking Vicinanza authors for more than 15% to handle titles the Vicinanza agency handled, presumably because the estate will claim the first 15%

Contracts with a large organization should differ from those with an individual or small organization. A large organization, like a big publisher, is not going to disappear. It may go bankrupt or be sold, but it will have enough value so someone is likely to keep it running in some form or fashion.

However, if somebody in a large publisher dies, another person will replace the dear departed and business will continue as usual. An author has a relationship with a big publisher because the publisher can jam a lot of books into bookstores, airports, Wal-Mart, etc. The jammers may change, but the jamming continues. (PG knows about author/editor relationships, but you can hire an editor without hiring Random House.)

In a small organization, like a literary agency, a death of an individual can result in the death of the agency. PG would suspect many of the clients of Mr. Vicinanza’s agency signed the agency contracts because of Mr. Vicinanza, and quite possibly, only because of Mr. Vicinanza. PG would have signed if Mr. Vicinanza promised to turn him into another Stephen King.

It appears the executor of Mr. Vicinanza’s estate is his sister, Louise Billie. Passive Guy did a quick Google search and couldn’t find any evidence that Ms. Billie is a literary agent or has any experience in that business. Yet, under the agency’s contracts with authors, Ms. Billie, acting on behalf of the estate, is handling royalties and, presumably, retaining 15% plus, perhaps, expenses.

What’s the contractual solution to problems like this? It’s much simpler than stating the problem.

If the services of a particular individual are a key value to you, include a provision in the contract that gives you the right to terminate the contract:

  • if that person dies,
  • becomes disabled and unable to perform his/her normal work, or
  • leaves the agency for any reason

As far as what happens to the agency percentage on book contracts the agent negotiated while alive or working at the original agency, PG would push for a provision that says those end when your agent goes.

A possible compromise would be that the agency percentage continues to be paid to the agency for one or two years after termination, but PG doesn’t like that because, at least according to the hypothetical value proposition of an agent, the agent’s services are continuing and overlap from book to book. The work an agent puts into your third book also enhances sales of books one an two.

The Vicinanza experience demonstrates that other agents are not willing to accept authors under standard compensation terms if they have to share compensation.

If agents boohoo about this, Passive Guy would simply point out that, if an attorney dies, the attorney is entitled to fees earned up until he takes his last breath and no more. A client is always free to hire another attorney at any time, whether the attorney is alive, partly dead or all the way dead.

Someone is bound to ask why the author should receive royalties forever while the agent who negotiated the publishing contract doesn’t receive agency fees forever.

The answer is that when the author wrote the book, she created an asset, recognized under copyright law, that will exist for a long time and is capable of generating income in a variety of different ways over its lifetime, some of which are recognized today and others of which won’t be conceivable for another 50 years.

The author owns the asset, the agent does not. The agent was paid for a service provided. PG would argue if the ongoing services of a particular agent were the key value to the author, when those services are no longer provided for any reason, the author shouldn’t be required to make any additional service payments.

How to Read a Book Contract – Agency Coupled with an Interest

A reprise of an earlier PG post about Agency Contracts per the request of a couple of visitors to TPV.

In an earlier post showing an Author/Agent agreement, the sample clause included a claim by the agent that the 15% fee was “an agency coupled with an interest.”

This term has rightly caused concern among many authors. Done right, an agency coupled with an interest could well give an agent a piece of the copyright to the author’s book or books and could make the agency agreement irrevocable.

However, we have an opinion from the Supreme Court of New York County, New York, on this very topic based upon an agency clause that appears to be very similar to the one we reviewed yesterday. (A quick explanation about New York state courts – unlike almost every other state and the federal court system, the “Supreme Courts” in New York are the trial courts. This decision is currently being appealed to the New York State Court of Appeals, but if PG were a betting man, he would bet the appellate court will confirm the trial court’s decision.)

Here are the facts:

  1. Beginning in 1996, the Peter Lampack Agency (PLA) represented Martha Grimes, mystery novelist supreme.
  2. Ms. Grimes earned over $12 million during the 12 years PLA represented her.
  3. PG assumes that PLA never had an Agency Contract with Ms. Grimes because they didn’t talk about it in the lawsuit they filed later.
  4. In 2005, PLA negotiated a four-book agreement with Penguin.
  5. The 2005 Penguin contract included an Agency Clause very similar to the one we discussed yesterday.
  6. The Penguin agreement included an “option” – basically a right to negotiate – for Ms. Grimes’ next book.
  7. In 2007, Ms. Grimes fired PLA and hired another agent.
  8. In 2009, Ms. Grimes’ attorney sent Penguin the manuscript for The Black Cat and later signed a publishing contract for that book.
  9. PLA sued Ms. Grimes, Penguin and a bunch of Penguin subsidiaries, claiming it was owed agency fees on The Black Cat and other books of Ms. Grimes published by Penguin, based on the 2005 option clause and the fact that other books of Ms. Grimes were published under “extensions” of contracts PLA had negotiated before it was fired which contained standard agency clauses.

Here’s the version of the PLA agency clause the court included in its opinion:

The Author hereby appoints [PLA] irrevocably as the Agent in all matters pertaining to or arising from this Agreement . . . . Such Agent is hereby fully empowered to act on behalf of the Author in all matters in any way arising out of this Agreement . . . . All sums of money due the Author under this Agreement shall be paid to and in the name of said Agent . . . . The Author does also irrevocably assign and transfer to [PLA], as an agency coupled with an interest, and [PLA] shall retain a sum equal to fifteen percent (15%) of all gross monies due and payable to the account of the Author under this Agreement.

Ms. Grimes’ attorneys argued that she owed nothing because she terminated the agency relationship with PLA in 2007 and contended that PLA did not have an agency coupled with an interest.

The Court ruled on a Motion to Dismiss and Ms. Grimes was a big winner. Winning on a Motion to Dismiss is the trial attorney’s equivalent of a slam dunk right in the face of opposing counsel. Essentially, it means the judge concluded PLA had no case on most of its claims.

The Court’s opinion first stated the general rule that an agency for no definite term is revocable at will. The court then stated the second rule that when an agency authority is coupled with an interest, it becomes irrevocable. PG will spare you a lot of legalese, but the following is from the opinion:

An agency is coupled with an interest where, as a part of the arrangement with the principal, the agent receives title to all or part of the subject matter of the agency. . . .

[t]o make the power irrevocable, there must be an interest in the subject of the agency itself, and not a mere interest in the result of the execution of the authority . . . .]). Words alone are not enough to establish an agency coupled with an interest.

What does this mean?

In order to have an “interest,” the agent probably has to have a claim on the copyright to the book itself, not a claim against the stream of income generated by licensing a publisher to publish the book. The words in the agency clause stating that PLA had “an agency coupled with an interest” were insufficient to give it such an interest.

The words in the agency clause stating, “The Author hereby appoints [PLA] irrevocably as the Agent in all matters pertaining to or arising from this Agreement,” did not create an irrevocable agency agreement.

Since PLA did not have an agency coupled with an interest, its agency was revocable at will. PLA was not entitled to a commission from monies earned under publishing agreements made after its term as an agent had ended.

PLA argued that the language giving it the right to “fifteen percent (15%) of all gross monies due and payable to the account of the Author under this Agreement,” meant that, in addition to monies generated by the original four-book contract, it also had the right to monies generated under the option clause.

The Court found this language did not specify that PLA would receive a commission from the new publishing agreement made after the Agency’s termination. The option clause was not an agreement. The agreement for The Black Cat was separate from the original contract.

As to the claims that PLA was entitled to commission under other agreements that were “extensions” of those negotiated by PLA, the Court used the same reasoning to deny those claims.

PG will note that Penguin got dragged into this litigation because of the Agency Clause it permitted to be inserted into the publishing contract.

As mentioned, the case is under appeal and it will be awhile before the appellate court hands down its opinion.

We learn three things that one New York judge in one court believes about Agency Clauses:

  1. A contractual claim to commissions based on future publisher royalties is not the same as having an “interest” in the book, which is the subject matter of the agency.
  2. Stating an agency is “irrevocable” has no effect whatever in the absence of a specific interest in the book.
  3. Stating that the agent has an “agency coupled with an interest” does not prevent the author from terminating the agency at any time.
  4. Once the agency is terminated, the agent has no claim against royalties paid under later contracts absent a specific contractual clause to that effect.

Here’s a link to the court opinion.

Agency Clauses

Based on some questions from clients, PG thought it might be a good idea to republish this earlier post he wrote and published here several years ago.

Agency Clauses

An agency clause may be inserted into a publishing contract between an author and a publisher. In essence, a typical agency clause provides that the agent may receive royalty payments on behalf of the author and has authority to act in the name of the author with respect to the contract.

Here’s an example:

All sums of money due to the Author under this Agreement shall be paid to the Author’s agent, Annie Agent, of 321 Applesauce Avenue, New York, NY 10023, U.S.A. (hereinafter called “the Agent”) and receipt by the Agent shall be a good and valid discharge of all such indebtedness and the Agent is hereby empowered by the Author to act on the Author’s behalf in all matters arising in any way out of this Agreement.   For services rendered and to be rendered the Author does hereby irrevocably assign and transfer to the Agent the sum of 15% (fifteen percent) as an agency coupled with an interest out of all monies due and coming due to and for the account of the Author under this Agreement.

To understand this beast, you need a teensy bit of legal background info. (I promise this won’t hurt too much.)

Since the agent doesn’t usually sign the publishing contract, the agent is a Third Party Beneficiary of the contract.

The classic Third Party Beneficiary example is a life insurance policy. Grandpa George buys a life insurance policy for $100,000 from Cornpone Mutual when he’s only Pa George. He names his three chillun, Bo, Lucille and Little George, as the beneficiaries. (Hint)

Grandpa George pays all the premiums on time, but gets careless around the hay baler one day and goes to meet his Maker. In pieces. The chillun tell Cornpone Mutual it’s time to pay up, but Cornpone says its policies do not cover hay baler accidents.

The parties to the life insurance policy are Grandpa George and Cornpone Mutual. The chillun never signed anything. Indeed, if they were under 18 at the time the policy was purchased, they were legally unable to enter into contracts.

The usual rule is that only parties to a contract can sue for enforcement or damages. This raises a problem. Grandpa George was a good man, so there are very few lawyers in the place where he has gone. There is also no email and Fedex guys who take packages there never return.

The children were named in the insurance policy, however. Although they didn’t sign, they are Third Party Beneficiaries so they can sue Cornpone Mutual in their own names.

Outside of a few clearly-defined fields, Third Party Beneficiaries are quite rare in the business world. When Passive Guy was practicing law, he would negotiate dozens of contracts with nary a Third Party Beneficiary in sight. The standard practice was to have everybody sign the contract if they had any rights under the contract.

However, in the wild and wacky world of publishing, agents are Third-Party Beneficiaries to a lot of publishing contracts. As will become clear during our discussion, Passive Guy thinks Agency Clauses only benefit the agent and can cause problems for both the author (obviously) and the publisher (don’t know if they’ve thought much about this).

So, in general terms, what does the presence of an agent as third-party beneficiary to a publishing contract mean? This is a weird area of the law, filled with lovely Latin phrases, serving primarily to fill out the semester in a Contracts Law class (which is one reason to have everybody sign the contract). PG will boil it down into fundamentals as they relate to an Agency Clause.

  1. If one or both of the parties to a contract violate the terms of the contract to the detriment of the Agent, the Agent can sue to enforce the contract.
  2. The Agent’s rights are subject to the terms of the contract.
  3. The Author and Publisher have obligations to the Agent to perform under the terms of the contract.

Isn’t this fun? Don’t you wish you could be a Third Party Beneficiary too?

Before we go further, let me make clear that Passive Guy is not anybody’s lawyer anymore. As much as he may love and admire you, PG is not your lawyer. Most publishing contracts will have a clause saying New York law applies to the interpretation of the contract. PG is not a New York lawyer either. Any legal discussions will be general in nature and New York or other state or federal laws may conflict with PG’s generalities. Hire your own lawyer if you want legal advice.

So, let’s start dissecting the Agency Clause so see where we have some wiggle room. Some agents just use an Agency Clause without a separate Agency Agreement between the Author and Agent. Our analysis will assume this is the case. If there’s a separate Agency Agreement, things can become much more complicated.

Passive Guy wants you to see this clause through PG’s magic contract vision glasses.

What does Passive Guy’s super-power vision see here?

1. Purple highlights – Unsurprisingly, the Agency Clause is about money only. Potential benefits or compensation other than money are not covered by this clause. Something that could be easily converted to money or is a money equivalent – a Visa gift card, for example – might be covered. PG is assuming “money” is not a defined term in the Publishing Contract. (For you persnickety types, super-power vision is not perfect. The purple “an” is a mistake.)

2. Blue highlights – Only money payable to the Author is covered. Money payable to other people or entities is not covered. The assignment clause, if any, in the Publishing Contract would make for interesting reading.

3. Yellow highlights – The Agent is authorized to act on Author’s behalf. In the oh-so-ever-humble opinion of PG, this gives rise to the classic obligations that an agent owes to a principal. These include always acting in the principal’s best interests, disclosing conflicts of interest, etc., etc.

Arising in any way out of the Agreement is broad.

For services rendered and to be rendered is interesting in light of the Ralph Vicinanza agency matter discussed previously. This implies an ongoing stream of services and is specifically worded as consideration for the ongoing 15% agency fee. If no more services will be rendered, there’s an argument no more agency fee should be paid.

4. Green highlights – PG never likes irrevocable agreements where one party is providing services to the other. The services may start out just fine, but if they go bad, you want to be able to stop paying for them.

If this is the only written description of the Agent’s agreement with the Author, then no term – time period – for the agency exists. It’s not one year or five years or a hundred years. Generally speaking, an agency agreement that doesn’t have a term is revocable at will by the principal.

Agency coupled with an interest is an agency in which the agent has an interest in the property regarding which he or she is acting on the principal’s behalf. PG has another post on this ominous-sounding term coming out tomorrow, but, for our discussion today, essentially, it means the same thing as irrevocable. It’s a belt-and-suspenders approach to try to keep the Author from revoking the agency agreement. Absent a separate document actually describing the interest of the agent, it probably doesn’t add much.

5. Red highlights – Payments to the Author under other agreements, even other agreements with this particular Publisher, are not covered by the Agency clause.

So, putting all this together, what do we have?

Following are a few (but not nearly all) possibilities:

1. The Agent is empowered to act on the Author’s behalf respecting this Agreement, but nothing prohibits the Author or someone else – an attorney or agent – from also acting on behalf of the Author. The Agent doesn’t have an exclusive right.

2. All the Agent’s rights are tied to this specific Publishing Contract. New or separate agreements are not included. If the original agreement includes options for additional books in a series, PG thinks there is a good argument that if the Author insists on a separate agreement for subsequent books, the Agency Clause in the first agreement would not necessarily give the Agent a commission on subsequent books. (Again, we’re not dealing with situations in which there is a separate Agency Agreement.)

3. Since everybody is bound by the Publishing Contract, if that Contract has an out-of-print clause, the Publisher can declare the book out of print and enter into a separate agreement with the Author for something like an enhanced and revised version of the original book. There will likely be many other clauses in the Publishing Contract that allow the Publisher to effectively terminate the commercial life of a particular book.

4. If the Author receives an ebook amendment or rider to the original contract, and the Author no longer desires to use the Agent’s services, the Author might want to insist on a separate Publishing Contract for the ebook. Under the terms of the Agency Clause, the ebook contract might not be commissionable.

5. PG is sure the attorney who first came up with the for services rendered and to be rendered language thought he/she had done a cool thing in providing for future consideration from the agent for future commissions. However, if future services by the Agent are not satisfactory to the Author and the Author terminates the relationship for that reason, this contract language strengthens Author’s argument that the Agent’s commissions should end.

6. If the Author gives the Agent specific instructions, preferably in writing, about what the Author wants the Agent to do or not to do respecting the Publishing Contract, PG believes the Agent cannot act contrary to the Author’s instructions unless the Author asks the Agent to do something illegal or totally ridiculous.

7. If there is a fight between the Agent and the Author based on the Agency Clause, PG thinks it quite likely the Publisher would be dragged into ensuing litigation, particularly if the fight was about a separate contract between the Author and the Publisher for which no commissions were payable. PG wonders why a Publisher would open itself up to this possibility when the Agency Clause provides no discernable (at least to PG) benefit to the Publisher.

Passive Guy will close this very lengthy post by admitting puzzlement and worry.

When PG heard these Agency Clauses described before he saw one, he expected to find a serious lock-down legal provision. Instead, there appear to be lots of holes in the one used to illustrate this post. Others PG has received for his Contract Collection (Thank You!) are almost identical.

The reason PG worries is whenever it appears too easy to get out of what’s supposed to be a tight contract, PG fears he has missed something big or obvious.

Since we have a large number of informed publishing veterans visiting The Passive Voice, let me know if I’m really off-base in my analysis.

Contract Collection

If you have a publishing contract you would like to share with PG, he would appreciate you’re forwarding a copy to him. You can feel free to blackout/whiteout/cover up the names of any individuals or publishers involved in the contract prior to sending the copy of the contract.

PGContracts@thepassivevoice.com

Dolly Parton inks book deal with indie publisher

From Page Six:

Dolly Parton has inked a book deal, sources exclusively told Page Six.

But the hot property by the singer went to smaller indie publishers Chronicle Books and Recorded Books in a joint pact, despite interest from the larger publishing houses.

Publishing insiders said the country-music superstar had interest from major imprints — but that she went with Chronicle and ­Recorded so she could get better terms on the tome’s audio rights.

“She would not go with a major publisher — though many were interested,” a source said.

The source added that Parton opted for the smaller imprints because, “no major publishers are willing to part with audio rights. Dolly wanted a term license that could revert [back to her] in 10 years.”

Link to the rest at Page Six and thanks to Judith for the tip.

Despite what her public persona may imply to some, PG remembers reading that Dolly Parton is a very savvy businesswoman. For PG, the OP adds evidence that this is true.

Authors Guild Says Cengage Failed to Renegotiate Contracts

From Publishing Perspectives:

The Authors Guild in New York has today (August 23) issued a statement on the class action lawsuit filed against Cengage by a group of writers for the service.

As Publishing Perspectives readers will recall from our mention of this case on August 19 that this is the second time writers have challenged the Cengage Unlimited subscription offer for students and educators, alleging that it violates the author agreement the company has had with its writers.

The new case, as charges that Cengage’s switch to the subscription model changes the royalty formula by which authors were on contract to be paid.

As the legal team at the guild is describing it, the authors now are in court against Cengage “for violating the terms of their contracts by unilaterally changing their payment structures from a traditional per-sale royalty to a relative-use share, thereby lowering their income dramatically.

. . . .

Throughout the first round of legal action, which led to a settlement in October, Cengage’s leadership, under CEO Michael E. Hansen, maintained that its writers were informed and that its development of the subscription model didn’t violate their contracts. In one interview with us, Hanson suggested that authors could well benefit in their usage-based payments as students and instructors explore more subjects and information they can find on offer.

By the end of April this year, Cengage Unlimited was announcing more than 1 million subscriptions since the launch of Unlimited in August 2018.

But a year earlier, the company had been engaged in an effort to defend the efficacy of the subscription model for authors, stating that it was “disappointed” to find some of the writers filing a complaint.

At the time, the company stated, “We have communicated clearly with our authors that the subscription service is consistent with the terms of their contracts, which we continue to honor. … Our authors, like those at our competitors, have seen declining royalties as a result of high prices that lower demand. The subscription service addresses students’ concerns and enables a more sustainable business model for the company and our authors.”

Now, the Author Guild’s legal assessment of the situation is that the change in Cengage’s approach–”to relative-use of an author’s title as compared to other titles in the same revenue pool, instead of paying the author a traditional per-sale royalty provided for in the publishing agreement”–is problematic in ways the company knows from the first court contest.

. . . .

“Rather than negotiating the terms in good faith and giving authors a chance to bargain for their fair share of digital subscription revenues, Cengage unilaterally decided what its authors’ contributions were worth. In doing so, Cengage took advantage of authors, hedging that few authors would have the resources to mount a lawsuit.”

. . . .

[I]n the fall of 2017 [Cenage CEO Michael Hansen] surprised much of the industry–and even his own sales staff, in his telling of it to Publishing Perspectives–by announcing that some 22,000 pieces of content would be made available by subscription. “I’m not in the business of getting standing ovations,” Hansen said to us at the time with a laugh. “But at this last sales conference when we announced it in Texas, the reaction was, ‘This is bloody brilliant. This solves the price objection, it just solves it.’”

. . . .

And as early as 2016, Hansen had worried aloud in making an address to Klopotek’s Publishers’ Forum in Berlin under Rüdiger Wischenbart’s direction that “We as an industry didn’t care about students.”

By that, he meant that faculty members had become the consumer-targets of the educational industry. Cengage had seen a single quarter drop of 23 percent of sales once students had rejected $150 to $200 textbooks. Facing $5.5 billion in debt, Hansen said, “was the least of our problems. We had never designed a textbook with a student sitting next to us.”

. . . .

Update, August 26: In response to Publishing Perspectives’ request, Cengage has sent this statement:

“We are disappointed to see these complaints against our efforts to improve students’ access to affordable, quality learning materials.

“Since its inception in March 2011, the MindTap learning platform has consistently helped students achieve higher retention, grades and confidence. However, despite significant investments in proven products, it became increasingly apparent that students were not able to afford them. Our authors, like those at our competitors, saw declining royalties as a result of high prices that lowered students’ demand.

“The Cengage Unlimited subscription service was created to address this longstanding problem. It also enables a more sustainable business model for the company and our authors.

“We have communicated clearly with our authors that the subscription service is consistent with the terms of their contracts, which we continue to honor. Since the service launched, we are in regular communication with them about the impact of the subscription on their royalties.

“We look forward to vigorously responding to these complaints as we remain steadfast in our belief that our industry must do more to contribute to affordable higher education.”

Link to the rest at Publishing Perspectives

Of course, it’s all about the students. Over many years, textbook publishers have reduced their prices year after year to help rein in the escalating cost of obtaining a college education and allow students to minimize the long-term burden of paying back large student loans.

From Vox:

Hannah, a senior at a private university in New York City, can’t think of a single semester when she bought all the books she needed for her classes. “Even when I was studying abroad,” she said, “there was no way for me to get through the semester without dropping $500-plus on textbooks, which I couldn’t afford.”

So she didn’t buy them. That semester, Hannah, who asked that her name be withheld due to privacy reasons, found most of the books she needed on Scribd, an e-book subscription service. “I used my free trial to do pretty much all my work for the semester and to take screenshots of things so I could access everything once the trial ended,” she said. If she couldn’t find them there, then she would do without.

Hannah’s tuition and housing is covered by scholarships, but she has to use student loans to pay for her health insurance; she pays for other necessities, including textbooks, out of pocket. In other words, her generous financial aid package isn’t enough to cover the essentials. Her situation is far from unusual: A 2014 report by the Public Interest Research Groups found that two-thirds of surveyed students had skipped buying or renting some of their required course materials because they couldn’t afford them.

Textbook publishers, for their part, have begun acknowledging that textbooks and other course materials have become so expensive that some students simply can’t afford them, even if it means their grades will suffer as a result. Publishers claim that new technologies, like digital textbooks and Netflix-style subscription services, make textbooks more affordable for all. But affordability advocates say that if anyone is to blame for the fact that textbook costs have risen more than 1,000 percent since the 1970s, it’s the publishers — and, advocates claim, these new technologies are publishers’ attempt to maintain their stranglehold on the industry while disguising it as reform.

. . . .

Some professors don’t assign textbooks at all, instead opting to fill their syllabi with a combination of journal articles and other texts, some of which cost money, some of which don’t. Thanks to the advent of textbooks that come bundled with online access codes — a single-use password that gives students access to supplementary materials and, in some cases, homework — other professors can rely on one textbook for almost everything.

As a general rule, though, the amount of money students are expected to spend on course materials has rapidly outpaced the rate of inflation since the ’70s. Affordability advocates point to two major factors behind this: a lack of competition in the higher education publishing industry, and the fact that professors, not students, ultimately decide which texts get assigned. Four major publishers — Pearson, Cengage, Wiley, and McGraw-Hill — control more than 80 percent of the market, according to a 2016 PIRG report. Major publishers also tend to “avoid publishing books in subject areas where their competitors have found success,” which ends up limiting professors’ options for what to assign.

Digital textbooks, especially those that come with access codes, have also contributed to rising costs. When students buy a textbook, they aren’t just paying for the binding and the pages; they’re paying for the research, editing, production, and distribution of the book. And when that book comes with an access code, they’re also paying for the development of — and, as the name suggests, for access to — all kinds of supplementary materials, from lessons to videos to homework assignments.

Access codes, the PIRG report notes, also undercut the resale market. Since the codes can only be used once, the books are essentially worthless without them. They can also prevent students from turning to other cost-saving measures like sharing a book with a classmate.

Kaitlyn Vitez, the higher education campaign director at PIRG, told me she’s met students who couldn’t afford to buy books that come with access codes, even if they knew their grades would suffer. “One student at the University of Maryland had to get a $100 access code to do her homework and couldn’t afford it, and that was 20 percent of her grade,” Vitez said. “So she calculated what grade she would have to get on everything else to make up for not being able to do her homework.”

“On a fundamental level,” Vitez said, “you shouldn’t have to pay to do homework for a class you already paid tuition for. You shouldn’t have to pay to participate.”

. . . .

Student advocates don’t expect the move toward truly affordable course materials to be led by publishers. Instead, they’re encouraging professors to adopt — and help develop — free, open source textbooks. Kharl Reynado, a senior at the University of Connecticut and the leader of PIRG’s affordable textbooks campaign, told me she’s had to pay “upward of $500” for books and access codes and has dropped courses because she couldn’t afford the costs. “I’ve had friends who spend entire paychecks on just their textbook costs in the beginning of the semester and had little money left over to cover food, gas, and sometimes, in extreme cases, rent because of it,” she said.

“We work closely with students and campus partners such as the UConn Library to promote open textbooks to different professors and educate students on their options,” she added.

The real challenge is getting professors, who are ultimately responsible for which books get assigned, to adopt the free options. Professors don’t assign books by major publishers or books with access codes because they want students to suffer — they do it because, more often than not, it’s easier.

As Vitez noted, an increasing number of universities are replacing full-time, tenured staff with adjunct professors. Adjuncts, many of whom are graduate students, are paid by the course, typically don’t receive benefits, and occasionally find out they’re teaching a class a few weeks before the semester begins. In other words, they don’t necessarily have the time or resources to spend the summer developing a lesson plan or to work alongside librarians to find quality materials that won’t come at a high cost to students.

That’s where books with access codes come in. These books come loaded with vetted, preselected supplementary material and homework assignments that can be graded online. They require a much smaller time investment from underpaid instructors.

Link to the rest at Vox

What Writers Need to Know About Morality Clauses

From Electric Lit:

In 1921, the silent film star Fatty Arbuckle was accused of raping and murdering the actress Virginia Rappé at an illicit gin party he’d thrown in his hotel room. Though Arbuckle was acquitted in court, the damage to his reputation ended his career and cost his employer, Universal Studios, a lot of money. As a result, Universal began to protect its investments by including morality (or morals) clauses in their contracts, which allowed the studio to simply fire any actor who acted badly off-set.

While morality clauses became standard in Hollywood, the publishing industry never really followed suit. An author’s obligation has been to deliver their work, not uphold a certain standard of behavior. It was never a secret, for example, that Norman Mailer stabbed his first wife or that William S. Burroughs murdered his second. It didn’t need to be; for better or worse, an author’s book was seen as a thing apart from their personal life. Or insofar as their personal life was relevant, moodiness and depression or even abusive tendencies have long been considered part of the “artistic temperament” and didn’t detract from sales.

But cultural standards are changing, and customers are more likely to let an author’s personal behavior determine whether or not they will read their book. This shift has become more visible since the beginning of the #MeToo movement, when allegations of sexual assault, harassment, or misconduct against authors, including best-sellers like Junot Diaz, James Dashner, and Bill O’Reilly, has led to author boycotts, rescinded or canceled prizes, and plunging sales. The stakes in publishing aren’t Hollywood-level high (in 2018 Netflix announced it had lost $39 million for unreleased content “related to the societal reset around sexual harassment”), but they can be considerable: O’Reilly was earning seven-figure advances for his best-selling Killing series before his decades-long sexual harassment history came to light. In an era where publishers are still making big bets on individual writers but overall profits are strained, a single scandal can harm their bottom line, and publishers—especially big houses like Simon & Schuster, HarperCollins, and Penguin Random House— have increasingly turned to morality clauses to protect themselves.

These clauses are meant to empower publishers to easily terminate contracts without going to court. That means that they are manifestly set up to protect the publisher, not the writer. You only need to look at a morality clause’s vague language to see how wide the net is for an author’s misconduct: for example, if an author’s conduct results in “sustained, widespread public condemnation…that materially diminishes the sales potential of the work” (in the words of one publisher’s contract) or “ridicule, contempt, scorn, hatred, or censure by the general public or which is likely to materially diminish the sales of the Work” (in the words of another), a publisher can cancel a book and, in some cases, demand the return of any advance payments.

. . . .

But as much as I would like for such misconduct to have consequences, this isn’t the way to go about it. For one thing, the self-protectively vague nature of the offenses described in morality clauses means that there’s no reason to assume they will only be used to punish harassment or assault. Even more difficult to swallow is that morality clauses are triggered by allegations, not guilt. A publisher can let go of a writer who has been accused of a crime like sexual harassment or libel without there ever being formal charges, much less a conviction in court.  And the alleged misbehavior doesn’t have to have happened anytime recently.

. . . .

Penguin Random House specifies in their contract that they can fire any author whose “past or future conduct [is] inconsistent with the author’s reputation at the time this agreement is executed.” Given that publishers aren’t hurt by the actual misconduct but by the backlash that undermines book sales, it’s irrelevant to them when the deed occurred—and anything in an author’s life becomes fair game.

Because morality clauses are relatively new to publishing and agents often handle contract negotiations, some writers aren’t even aware that they’re in their contracts.

. . . .

The Authors Guild of America, which is vocally against morality clauses, points out that women and people of color, who are subject to more online trolling, are especially vulnerable and “may choose not to speak out in their own defense for fear of drawing internet fire that might result in a contract termination.” The wording of a morality clause is so vague that a publisher spooked by a coordinated online pile-on could theoretically cut and run even if the author says nothing.

Link to the rest at Electric Lit

The list of reasons not to deal with traditional publishers seems to grow longer by the day.

However, if an author is trapped in a for-life-and-beyond publishing agreement, he/she might cook up a project for her/his local writing group to create a faux event to trigger a publisher’s morality clause, then announce the hoax later.

Please note that this is an instance of black humor deriving from the ongoing debasement of authors by major publishers through increasingly unfair contract terms and PG does not recommend that any author actually try this stunt.

Although he admits, such a scheme could provide great fodder for a self-published book:

How I Ruined My Reputation Just To Get Out of

My Publishing Contract with Random House – A Black Comedy

I Categorically Deny That I Ran Naked Through the Offices of The Authors Guild!!

 

Amazon’s Upcoming Audible Captions Feature = Unhappy Publishers

From The Verge:

Earlier this week, Audible revealed that it was working on a new feature for its audiobook app: Audible Captions, which will use machine learning to transcribe an audio recording for listeners, allowing them to read along with the narrator. While the Amazon-owned company claims it is designed as an educational feature, a number of publishers are demanding that their books be excluded, saying these captions are “unauthorized and brazen infringements of the rights of authors and publishers.”

On its face, the idea seems useful, much in the same way that I turn on subtitles for things that I’m watching on TV, but publishers have some reason to be concerned: it’s possible that fewer people will buy distinct e-book or physical books if they can simply pick up an Audible audiobook and get the text for free, too.

And Audible may not have the right to provide that text, anyhow.

In the publishing world, authors and their agents sign very specific contracts with publishers for their works: these contracts cover everything from when the manuscript needs to be delivered, how an author is paid, and what rights to the text a publisher might have, such as print or audio. As an audiobook publisher and retailer, Audible gets the rights to produce an audiobook based on a book, or to sell an audiobook that a publisher creates in its store. Publishers say that a feature that displays the text of what’s being read — itself a reproduction from the original text — isn’t one of those specific rights that publishers and authors have granted, and they don’t want their books included in Audible’s feature when it rolls out.

. . . .

Audible tells The Verge that the captions are “small amounts of machine-generated text are displayed progressively a few lines at a time while audio is playing, and listeners cannot read at their own pace or flip through pages as in a print book or eBook.” Audible wouldn’t say which books would get the feature, only that “titles that can be transcribed at a sufficiently high confidence rate” will be included. It’s planning to release the feature in early September “to roll out with the 2019 school year.”

Penguin Random House, one of the world’s five biggest publishers, told The Verge that “we have reached out to Audible to express our strong copyright concerns with their recently announced Captions program, which is not authorized by our business terms,” and that it expects the company to exclude its titles from the captions feature.

Other publishers have followed suit. Simon & Schuster (disclosure: I’m writing a book for one of its imprints, Saga Press), echos their sentiments, calling the feature “an unauthorized and brazen infringements of the rights of authors and publishers, and a clear violation of our terms of sale,” and has also told Audible to “not include in Captions any titles for which Simon & Schuster holds audio or text rights.” A Macmillan spokesperson said that “the initiative was not authorized by Macmillan, and we are currently looking into it.”

The Authors Guild also released a statement, saying that “existing ACX and Audible agreements do not grant Audible the right to create text versions of audio books,” and that the feature “appears to be outright, willful copyright infringement, and it will inevitably lead to fewer ebook sales and lower royalties for authors for both their traditionally published and self-published books.”

When asked about the feature squares up against the existing audio rights that are granted to it, an Audible spokesperson told The Verge that it does “not agree with this interpretation,” but declined to comment further on whether or not the company actually has the right to go through with it.

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

This looks like one more instantiation of Big Publishing’s ancient credo, “New is bad, old is good.” Heaven forfend that books of any sort be improved without more money going to legacy publishers.

Absent a problem with the definition of “ebook” in the contracts between Amazon and the publishers, PG thinks what shows up in Amazon’s video at the end of this post is clearly distinguishable from an ebook.

PG suggests complaining publishers are attempting to extort more money from Amazon.

He predicts it won’t work.

If Amazon wants to play serious hardball, it can begin to delist audiobooks from major publishers which don’t agree to permit the new feature.

If Amazon wants to play a step-below-serious hardball, it can penalize audiobooks that don’t offer the new captioning feature in Amazon search results or tag those audiobooks with a warning to potential purchasers that the audiobooks are only available in an outmoded format or some such thing.

Back to even more serious hardball, how about declining to sell new print and ebooks released by publishers unless the accompanying audiobooks include the captioning feature?

If the publishers want to continue their snit fit, who are they going to turn to for sales, Barnes & Noble?

Rethinking the Writing Business

From Kristine Kathryn Rusch:

When the disruption hit the publishing industry ten years ago, I watched with a wary eye. After I finished The Freelancer’s Survival Guide in the summer of 2010, I repurposed this weekly blog to help me understand the changes the publishing industry was undergoing. It seemed, in those heady days, that everything changed daily. And there was a large contingent of brand-new writers who knew so much better than the rest of us how revolutionary this indie publishing thing would be.

Most of those writers—the hoards that used to come screaming (literally) to this site every Saturday to denounce me and tell me what an idiot I am and how wrong I was—are gone now. They quit the business not because they weren’t earning money—most of them earned a boatload—but because they couldn’t handle what they had set up.

Many of them published rapidly and followed an insane publishing schedule that couldn’t be maintained in the face of real life. Some based everything they had and everything they knew on Amazon algorithms, only to be shocked when Amazon persisted in changing up those algorithms.

Others couldn’t handle the financial ups and downs of freelancing and some, frankly, didn’t give themselves a chance to succeed. They saw others making thousands every month while they were making coffee money, and decided that they’d never succeed and quit without ever completely learning their craft or building up an audience.

. . . .

New, hot, and trendy has a shorter shelf life these days than it did, and I wasn’t sure why. There’s a lot about this new world of publishing, as I called it, that I couldn’t figure out.

. . . .

We’ve been doing this wrong.

By this, I mean the writing business post-Kindle. We’re all approaching our business like we’re still in the publishing business. But we’re not. We’re part of the entertainment industry, and that entails a lot more than we think it does.

Let me see if I can retrace some of this thinking, so that I don’t just spring my ideas on you and have you balk at them.

I signed up for the Licensing University classes connected to the [Las Vegas Licensing] Expo. I saw those last year, and felt that I would miss a huge opportunity if I failed to attend.

This year, I looked at the roster of classes, and promised myself I could leave any class that was too basic for me. The “Is Your Brand Ready For Licensing” was a case in point (although I didn’t realize it until later). That was a copyright/trademark basics course that falls into the well-duh category for me, but is probably necessary for most first-time attendees at the Expo (and for most writers as well).

But the Basics of Licensing class? Holy Crap-Poodles. I figured I’d sit there for ten minutes before going out to the floor to look around. Instead, I took 30 pages of notes. (In future posts, I will deal with much of what I learned on a detail level.)

That class laid out the basics of a licensing deal, while acknowledging that each deal is different.

Let’s back up. We writers are creators of intellectual property. We have the property to license. We are the licensors. We’re looking for licensees. Okay? Got that?

The terms of a basic licensing deal includes these elements:

  • A Royalty
  • An Advance Payment Against That Royalty
  • Net Sales Definition
  • Some Kind of Reporting Process
  • Termination
  • Insurance/Warrantees/Indemnification
  • Jurisdiction

A basic licensing deal includes a lot more than that, things like minimum royalty guarantees, an audit schedule, minimum performance threshold, quality and approvals, advertising and marketing requirements, and so on.

The licensor is a participant in all of that. An active participant, who can terminate if, for example, the quality of the product (based on the sample) doesn’t come up to snuff after several tries.

I remember thinking in the middle of that class that the publishing agreements that I signed back in the 1990s had a lot more in common with a standard licensing agreement than standard publishing contracts do now. In fact, there was a lot in the old publishing contracts that were just like a licensing agreement. In fact, the old publishing contracts were licensing agreements with the pro-licensor stuff (the stuff that benefits the licensor/writer/creator) taken out.

. . . .

Fast-forward through the afternoon to the class on How To Negotiate A Licensing Deal, which was listed as a negotiation class, without the “licensing deal” part added in. I wrote a book on negotiation, for godssake. I’m damn good at negotiating. I figured I’d be leaving this one early as well.

Nope. Another 30+ pages of notes. With two surprises added in.

First, from a passing comment on royalty rates.

In licensing, the royalty rates can vary from 2% to 20% of the net sales price (usually wholesale, but that’s changing depending on distribution). One of the instructors (an agent) mentioned that really big brands with a lot of clout like Disney can get the 20% royalty without a lot of pushback because their brand is so valuable.

. . . .

Once upon a time, I was a work-for-hire writer, and one of the properties I wrote work-for-hire was Star Wars. I got a 2% royalty on the books published (see above).

In most work-for-hire publishing projects, the royalty rate gets split between the licensor who created the intellectual property and the writer who does the actual work on writing the novel. I do not know what Bantam paid LucasFilm for those early books. It might have been 10%, it might have been 15%. I do know it was less than 20%. At the time, you see, Star Wars was considered moribund. The books, Tim Zahn’s first trilogy in particular, led the entertainment industry to realize that there was a hungry audience for more Star Wars. The revival of the brand dates from that very first publication.

So I know that, in those days, LucasFilm didn’t have the Disney-level clout that it would later achieve. Which had an impact. Because, when it came time to renegotiate the license with Bantam, LucasFilm asked for a 20% royalty.

Bantam balked. They claimed they couldn’t make a profit. They claimed they couldn’t pay their writers. They claimed they wouldn’t get writers.

So, LucasFilm threatened to pull out, and the dance began. LucasFilm came down to 19% which still didn’t give Bantam enough room to pay the writers from the royalty rate (the standard way that writers did/do business in traditional publishing).

Bantam came with a compromise. Rather than a 2% royalty, they’d pay the authors $60-90,000 for the book, which was what those books earned out at in those days. Those payments would be guaranteed, but they’d be a flat fee. So if the books sold better than that, the writers would get no more money. If the books sold less, the writers would get more than they usually would.

Business-minded writers realized this: that if they took their upfront payment (which Bantam was offering in four payments) and banked it, they’d make more than they would off the 2% royalty rate. (Money in hand is worth more than money promised. Money in hand allows things like paying down credit cards rather than charging them, and having an emergency fund, rather than borrowing, and so on.)

A bunch of us agreed, our contracts were in the works, and then the idiots at the Science Fiction Writers of America got their undies in a bundle and denounced the entire deal and faxed a protest letter to LucasFilm, naming every single Star Wars writeras agreeing, even those who didn’t agree (and had threatened them if they used our name, like me) and even those who weren’t members (like me). That piece of idiocy cost me at least $90,000 if not more, because I was slated to write a bunch of books, and LucasFilm canceled all communication with me and cut me out of everything, just like they did with all the other authors named.

The books went on without us. And I just thought it a weird deal—that LucasFilm wanted 20%–believing what Bantam put out there (that LucasFilm was greedy) and what SFWA put out there (that LucasFilm was greedy) rather than understanding that LucasFilm was treating the books as a standard licensed product.

My brain was spinning as the negotiation class went on, because I finally understood the other side—the other side not being Bantam Books, but LucasFilm. I was just a sorry little contractor caught in the middle of a negotiation for a licensing deal, with a stupid idiotic third-party organization sticking its ignorant foot into the mess.

. . . .

The royalty rates class looked at all kinds of things that can have an impact on royalty rates, including net sales.

In that discussion, one of the agents on the panel clicked the next slide in the deck, which showed Publishing. She made a face, and said, with great disbelief, In publishing, the product is 100% returnable, so you have to figure out how to cap the losses.

She went on to talk about how difficult traditional publishing was to work with because of all the quirks in its contracts.

But I sat there and found my brain spinning again. When I was a baby writer, my book agents could get a minor cap on returns, limiting them to only two or three years. After that, the publisher had to eat the returns.

A standard licensing deal has a three-year term, which meant that publishers were already set up to cap returns earlier than that.

The licensing agent also went on to talk about how she had to explain basic licensing to her publishing partners, and how she had to hold them to the fire to get them to agree to a full royalty for all the participants (meaning that if the brand was say, a star quarterback for the NFL, the NFL would get its share of the royalty and the star quarterback would get his—so maybe a 50-50 split of a 20% royalty—meaning the author would write for a flat fee).

I immediately got retroactive anger.

Licensors from outside the publishing industry—that is, nonwriters. Celebrities. Grumpy Cat—got not just an advance against a substantial royalty, but a term-limited contract, and minimum royalty payment guarantees, and guaranteed marketing/advertising budgets, and the ability to easily and routinely audit the publisher, and, and, and…

. . . .

The licensing professionals who worked for a nonwriter licensor, like LucasFilm, got a licensing deal that would make writers and their book agents fall over in stunned surprise. Simply by using industry standard.

Okay, got all of that?

In the past, writers have gone begging to book agents, to publishers, to comic companies, to gaming companies, hoping to get someone to “take a chance” on their writing.

Writers weren’t acting as brand owners, licensors, people in control of their IP, asking for a standard licensing arrangement. Writers were beggars, which put them in a terrible long-standing position with the publishers.

. . . .

The book, the published book, is not the holy grail.

The story, the thing that the writer has created, is the holy grail. Before publication of any kind.

Because publication is a license. Whether you do it yourself and upload to Amazon (Direct to Retail, is what that’s called) or whether you go through a traditional publisher (Business to Business, is what that’s called {and notice that the businesses are on equal footing in that definition}),  you are licensing a tiny portion of your copyright to make distribution of some product (in this case a book) possible.

We’ve been teaching for years that publication is a license. Not a “sale” because you don’t lose the copyright. You license it.

But Dean and I and damn near every other writer out there (with only a handful of exceptions throughout the last 100 years) have not gone any farther than that. We haven’t thought about the published book as being a single licensed product.

We’ve been conditioned by our upbringing in the business culture of the previous century to think of the published book as the be-all-and-end-all of everything we did.

. . . .

We are not in the publishing industry. We are in the entertainment industry.

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.

For PG, Kris is one of the most interesting commentators on the publishing business, traditional and modern, and he always appreciates her Business Musings posts.

In these posts, Kris often looks above and beyond agents and publishers, KDP, etc., etc. in a way most authors do not.

In a former legal life, PG represented some software and technology companies whose products were sometimes licensed to very large business organizations, including Goldman Sachs, Morgan Stanley, Merrill Lynch, Fidelity Investments, Apple, IBM, Oracle, Disney, Hallmark, Intel, Hewlett-Packard, and American Express.

(For context, at an earlier stage in his legal career, PG also represented abused spouses, dairy farmers, the tenants of small-time slumlords, people who wanted a divorce and/or needed to file for bankruptcy, a couple of arsonists, drunk drivers and people who couldn’t afford to pay an attorney and got help from Legal Aid.)

PG provides the big business list not to show what a big deal he is or was, but simply to demonstrate the variety of different licensing agreements he has seen outside of the traditional publishing business.

From a legal standpoint, as Kris says, a publishing contract is not a special snowflake, it’s a license of intellectual property, specifically, the copyright to a book which is owned by the author. Copyrights to software are what Microsoft owns and licenses to everybody who buys and uses MS Word, Excel, Windows, etc.

Although PG has not seen very many publishing contracts that acknowledge the fact, a traditional publishing contract also includes a sort-of implied license to the author’s right of publicity, sometimes called personality rights (which may include individual’s image, personal data and other generally private information).

However, most publisher-provided publishing contracts don’t look much like licensing agreements used elsewhere in the business world. Publishing agreements have little quirks that would seem strange to any attorney accustomed to seeing licensing agreements for technology or almost anything else.

PG understands the principle of customs of the trade, assumptions that govern niche businesses and the agreements they make. For example, in another case from PG’s olden days, he learned all about the New York City garment business and the strange ways it operates.

However, trade publishing and, to an even greater extent, academic and professional publishing still operate as if ebooks and other epublications have never existed. Even more important for authors, many publishers operate as if the cost of publishing was still based upon the expense and compensation structure that existed when printed books and journals were the only way to disseminate knowledge and long-form writing.

PG suggests that even for traditionally-published authors, Amazon has provided a great service by offering both self-publishing and Amazon Press as alternative methods of reaching readers. Absent Amazon’s influence, publishers would still be operating as if it were 1955 and today’s authors would be earning much less and accepting it as the author’s burden in life.

Yet, from a legal and commercial viewpoint, traditional publishing is still a screwy business and authors bear most of the burden of its bizarre practices.

PG repeats the admonition of Kris in the OP –

The book, the published book, is not the holy grail. We are not in the publishing industry. We are in the entertainment industry.


Alice Oswald Elected Oxford Professor of Poetry

From The Guardian:

Alice Oswald has won the race to be Oxford’s latest professor of poetry. She will be the first woman to serve in the position, established more than 300 years ago.

Speaking to the Guardian after the announcement, Oswald said that after a “distinctly unsettling process” she was “very pleased, daunted, grateful to my nominators”.

“I look forward to thinking about all forms of poetry,” she said, “but particularly the fugitive airborne forms.”

Celebrated for their exploration of nature and myth, Oswald’s nine books of poetry have already brought her prizes including the TS Eliot, Griffin and Costa poetry awards. The former poet laureate Carol Ann Duffy has hailed her as “the best UK poet now writing, bar none”, while Jeanette Winterson has called her Ted Hughes’s “rightful heir”, a poet not “of footpaths and theme parks, but the open space and untamed life that waits for us to find it again”.

. . . .

Established in 1708, the Oxford position is one of the UK’s top accolades for poetry, with former professors including Seamus Heaney, Robert Graves and WH Auden. Candidates must win the support of at least 50 Oxford graduates and be “of sufficient distinction to be able to fulfil the duties of the post”, which include one lecture a term during an appointment lasting four years.

. . . .

The contest was marred by controversy surrounding [poet and Oxford contestant Todd] Swift, who founded the independent poetry imprint Eyewear Publishing in 2012. Last year the Bookseller reported that the firm’s contracts included clauses forbidding authors from contacting the Society of Authors, with the imprint’s behaviour on social media also attracting criticism. The poets Claire Trevien and Aaron Kent wrote to Oxford University suggesting Swift should be removed from the contest, arguing that he was “unsuitable for the role of Oxford professor of poetry, and the level of prestige it offers”.

Link to the rest at The Guardian

From The Bookseller, July 25, 2018:

Independent press Eyewear Publishing has drawn criticism from the Society of Authors (SoA) over its treatment of poets, including contracts “constituting an unwarranted interference with their civil rights”.

Poets have complained about some of the London-based press Eyewear’s contracts, seen in full by The Bookseller, demanding its authors not engage with the SoA which it said was “biased against small press publishing and unduly aggressive”.

. . . .

The contract clauses, seen in a contract from this year, state: “Under no circumstances shall the author refer these matters to ‘The Society of Authors’ as the publishers consider them biased against small press publishing and unduly aggressive.

“The author may not claim any breach on the grounds of ‘irreconcilable’ or ‘personal’ differences, unless these can be clearly documented over a period of time and only if the grounds are such as would normally end a marriage or other serious relationship – ‘rude emails’ or ‘hurt feelings’ are not enough.”

Solomon described the clauses as “extraordinary” and unprecedented and revealed that Eyewear poets had contacted the society in the past in need of assistance.

“To prohibit authors from contacting the SoA is to prevent them from taking independent advice from their trade union,” she told The Bookseller. “Not only is this unenforceable, it constitutes an unwarranted interference with their civil rights. The termination clause is also extraordinary – the fact that it explicitly mentions the possibility of the publisher sending ‘rude emails’ that cause ‘hurt feelings’ speaks for itself.

“The SoA’s role is to defend writers’ interests, and poets contacting us in the past about Eyewear contracts have always been grateful for our input. We have not seen a clause before now forbidding the author to speak to us. I would advise any author not to sign such a contract.”

Swift told The Bookseller the contract clauses were often deleted if a writer objected to them.

“Each contract we have signed since 2012 is bespoke, we try and base on industry standard templates,” he said. “They are all discussed with the authors. We are very short on resources and usually if authors object to a clause we delete.

. . . .

Last week Eyewear prompted a strong reaction on social media from its poets when it published a tweet saying: “In light of the decision by several Eyewear poets to happily announce new books with rival presses today without warning director [Todd Swift] has suspended all further poetry projects. Poets who abandon their debut presses do severe damage in terms of sales and funding to them.”

However, Swift told The Bookseller the since-deleted tweet had been “misread” and the poetry list would not be suspended.

Link to the rest at The Bookseller

PG is not familiar with any of the parties mentioned in either of the stories quoted above and cannot provide any personal reactions to the events described therein.

However, as a general proposition, when advising his clients, PG suggests that authors not sign contracts with any sort of overreaching provisions.

In the US, these include noncompete clauses by which an author agrees not to write, “any work which might compete” with the work the publisher is licensing from the author. Since the term of the associated contracts is typically “for the full term of Author’s copyright to the Work,” (which, in the US, is the life of the author plus 70 years) this is an attempt to effectively prohibit an author from ever writing another book on the same subject or within the same genre as the book subject to the publishing contract.

PG further suggests that, if a publisher is overreaching in its contracts, it may also treat an author badly in other aspects of the publisher/author relationship.

Are You Self-Publishing Audio Books?

From Just Publishing Advice:

It takes total concentration to read a book or an ebook. But with an audio book, a listener can multitask.

This is the key attraction for so many younger readers in particular, as it allows for the consumption of a book while driving, commuting and playing a game on a smartphone, knitting or even while grinding out the hours at work.

The popularity is on the move and according to recent statistics, audiobooks are now a multi-billion dollar industry in the US alone.

. . . .

In another report, it estimates that one in ten readers are now listening to audiobooks.

While the data helps to gain a small insight into the market, it is still easy to draw an assumption that it is the next logical step for self-publishing authors and small press.

Ebook publishing is now the number one form of self-publishing. Many Indie authors then take the next step and publish a paperback version.

. . . .

An audio version offers an opportunity for self-publishing authors to extend their sales potential, and at the same time, diversify revenue streams.

Well, only a little at present as it is really an Amazon Audible and Apple iTunes dominated retail market. However, in the future, this may change.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

. . . .

If you live in the US, you are in luck.

Amazon offers production and publishing through Audio Creation Exchange, ACX.

For authors outside of the US, things are not quite so easy.

This is a very common complaint about Amazon and its US-centric approach, which creates so many hurdles for non-US self-publishers.

The following quote is taken from Amazon’s help topic regarding ACX.

At this time, ACX is open only to residents of the United States and United Kingdom who have a US or UK mailing address, and a valid US or UK Taxpayer Identification Number (TIN). For more information on Taxpayer Identification Numbers (TIN), please visit the IRS website. We hope to increase our availability to a more global audience in the future.

If you live in the UK, Amazon can help you, but you will need to have a TIN. If you are already publishing with KDP, you probably have one.

For the rest of the world, well, Amazon, as it so often does, leaves you out of the cold.

. . . .

There are a growing number of small press and independent publishers who offer to produce and publish audio books.

Distribution is most often on Amazon Audible and iTunes.

Do your research and look for publishers who accept submissions or offer a production service using professional narrators and producers.

As with any decision to use a small publisher, be careful, do your background research and don’t rush into signing a contract until you are totally convinced it is a fair arrangement concerning your audio rights.

While some may charge you for the service, it is worth looking for a publisher that offers a revenue split. This is usually 50-50 of net audio royalty earnings.

It might seem a bit steep, but Amazon ACX offers between 20 and 40% net royalties, so 50-50 is not too bad.

Link to the rest at Just Publishing Advice

As with any publishing contract, PG suggests you check out the contract terms carefully before you enter into a publishing agreement for audiobooks.

Speaking generally (and, yes, there are a few exceptions), the traditional publishing industry has fallen into a bad habit (in PG’s persistently humble opinion) of using standard agreements that last longer than any other business contracts with which PG is familiar (and he has seen a lot).

He refers, of course to publishing contracts that continue “for the full term of the copyright.”

Regular visitors to TPV will know that, in the United States, for works created after January 1, 1978, the full term of the copyright is the rest of the author’s life plus 70 years. Due to their participation in The Berne Convention (an international copyright treaty), the copyright laws of many other nations provide for copyright protections of similar durations — the author’s life plus 50 years is common.

PG can’t think of any other types of business agreements involving individuals that last for the life of one of the parties without any obvious exit opportunities. The long period of copyright protection was sold to the US Congress as a great boon to creators. However, under the terms of typical publishing contracts, the chief beneficiaries are corporate publishers.

While it is important for authors to read their publishing agreements thoroughly (Yes, PG knows it’s not fun. He has read far more publishing agreements than you have or ever will and understands what it is like.), if you are looking for a method of performing a quick, preliminary check for provisions that means you will die before your publishing agreement does, search for phrases like:

  • “full term of the copyright”
  • “term”
  • “copyright”
  • “continue”

Those searches may help you immediately locate objectionable provisions that allow you to put the publisher into the reject pile without looking for other nasties. However, if the searches don’t disclose anything, you will most definitely have to read the whole thing. The quoted terms are not magic incantations which must be used. Other language can accomplish the same thing.

Until the advent of ebooks, book publishing contracts used Out of Print clauses to give the author the ability to retrieve rights to his/her book if the publisher wasn’t doing anything with it.

With printed books, even dribs and drabs of sales would eventually deplete the publisher’s stock of physical books. At this point, the publisher would likely consider whether the cost it would pay for another printing of an author’s book was economically justified or not. If the publisher was concerned about ending up with a pile of unsold printed books in its warehouse for a long time, the publisher might decide not to print any more.

Once the publisher’s existing stock was sold, the book was out of print – it was not for sale in any normal trade channels. The author (or the author’s heirs) could then retrieve her/his rights to the book and do something else with them.

Of course, once an electronic file is created, an ebook costs the publisher nothing to offer for sale on Amazon or any other online bookstore with which PG is familiar.

The disk space necessary to store an individual epub or mobi file is essentially free for Amazon and it doesn’t charge anything to maintain the listing almost forever. (There may be a giant digital housecleaning in Seattle at some time in the distant future, but don’t count on it happening during your lifetime.) Print on demand hardcopy books are just another kind of file that’s stored on disk.

So, in 2019 and into the foreseeable future, an infinite number of an author’s ebooks are for sale and not “out of print”.

So, the traditional exit provision for an author – the out of print clause – remains in existence in almost all publishing contracts PG has reviewed, but it provides no opportunity for the author to exercise it to get out of a publishing agreement that has not paid more than $5.00 in annual royalties in over ten years.

 

Are the Humanities History?

From The New York Review of Books:

Who is going to save the humanities?

On all fronts, fields like history and English, philosophy and classical studies, art history and comparative literature are under siege. In 2015, the share of bachelor’s degrees awarded in the humanities was down nearly 10 percent from just three years earlier. Almost all disciplines have been affected, but none more so than history. According to the National Center for Education Statistics, the number of history majors nationwide fell from 34,642 in 2008 to 24,266 in 2017.

Last year, the University of Wisconsin–Stevens Point, facing declining enrollments, announced it was eliminating degrees in History, French, and German. The University of Southern Maine no longer offers degrees in either American and New England Studies or Modern and Classical Languages and Literatures, while the University of Montana has discontinued majors and minors in its Global Humanities and Religions program. Between 2013 and 2016, US colleges cut 651 foreign-language programs.

The primary cause of these developments is the 2008 financial crash, which made students—especially the 70 percent of whom are saddled with debt—ever more preoccupied with their job prospects. With STEM jobs paying so well—the median annual earnings for engineering grads is $82,000, compared to $52,000 for humanities grads—enrollments in that area have soared. From 2013 to 2017, the number of undergraduates taking computer science courses nationwide more than doubled. A study of Harvard students from 2008 to 2016 found a dramatic shift from the humanities to STEM. The number majoring in history went from 231 to 136; in English, from 236 to 144; and in art history, from sixty-three to thirty-six, while those studying applied math went from 101 to 279; electrical engineering, from none to thirty-nine; and computer science, from eighty-six to 363.

University donors and public officials, hoping to duplicate the success of Stanford and Silicon Valley, are flooding STEM with money.

. . . .

Few comparable investments are occurring in the humanities. The contempt many officials feel for them was expressed most bluntly in 2011 by then-Florida governor (now senator) Rick Scott: “You know, we don’t need a lot more anthropologists in the state… I want to spend our dollars giving people science, technology, engineering, math degrees,” so that “when they get out of school, they can get a job.” It’s not just Republicans who feel this way. In 2014, President Obama, speaking at a GE gas-engine plant in Wisconsin, extolled the virtues of learning a vocational skill: “I promise you, folks can make a lot more potentially with skilled manufacturing or the trades than they might with an art history degree.”

Defenders of the humanities generally emphasize what the field can do for the individual: they promote self-discovery, breed good citizens, and teach critical thinking. In a 2017 essay in The Washington Post, “Why We Still Need to Study the Humanities in a STEM World,” Gerald Greenberg, the senior associate dean of academic affairs at Syracuse, maintained that by studying the humanities, “one has an opportunity to get to know oneself and others better.” Such study “opens one to the examination of the entirety of the human condition and encourages one to grapple with complex moral issues ever-present in life.” His argument was recently echoed by a writer for the Harvard Business Review: “A practical humanism, paradoxically, is of little use. When we turn to them for tips, but not for trouble, the value of the humanities is lost.”

No doubt the humanities do broaden the mind and deepen the soul. In one form or another, they have been at the heart of higher education since the founding of the university itself in the thirteenth century, and they remain a repository of a society’s cultural and creative values. But to dismiss their practical worth seems both short-sighted and self-defeating. Far from lacking material value, the humanities are economic dynamos. The arts and entertainment industry that plays such a central part in people’s lives today is largely the creation of people who have studied literature, history, philosophy, and languages.

Link to the rest at The New York Review of Books

PG respectfully demurs from the Gospel of STEM.

He doesn’t recall disclosing his undergraduate major on TPV on an earlier occasion, so this may be a. historic moment.

PG majored in The Oral Interpretation of Literature. (Undoubtedly, if this major still exists, it includes the word, “Communications” somewhere in its title because “Communications” is a Good Thing. The world needs more.)

For those with any questions, PG’s major was the antipode of a STEM degree then and now.

However, some of the skills he learned as an undergraduate have been very helpful in his legal career. A couple of examples:

  • PG was very effective in a courtroom. (He’s humble about it, but PG is not alone in his assessment. Others paid him very nicely for the benefits of this talent.) Being able to persuasively present a message like, “The quality of mercy is not strained” can come in handy with both judge and jury.

 

  • One of the elements of an assignment in the Oral Interpretation of Literature was a detailed written analysis of the piece to be performed. If you can effectively dissect, understand and analyze the subtleties of a collection of Spenserian stanzas (See, for example, Childe Harold’s Pilgrimage, The Eve of St. Agnes and, of course, The Faerie Queene), you can untangle the most complex contractual provisions ever written.  No Copyright Licensing, Choice of Law and Forum or Force Majeure clause can match the linguistic complexity of eight lines of iambic pentameter followed by a ninth line of iambic hexameter in an end rhyme structure of ababbcbcc repeated a zillion times.

One of the benefits of a law degree and of other advanced degrees is that they can serve to take the curse off an undergraduate major that is unfashionable during a certain era.

PG has known enough engineers who were dissatisfied with their work life to state that STEM studies are not an unfailing key that opens the gates of happiness.

Publishing Contract Red Flag: When a Publisher Claims Copyright on Edits

From Writer Beware:

It’s not all that common, but I do see it from time to time in small press publishing contracts that I review: a publisher explicitly claiming ownership of the editing it provides, or making the claim implicitly by reverting rights only to the original manuscript submitted by the author.

Are there legal grounds for such a claim? One would think that by printing a copyright notice inside a published book, and registering copyright in the author’s name or encouraging the author to do so, publishers are acknowledging that there is not. It’s hard to know, though, because it doesn’t seem to have been tested in the courts. There’s not even much discussion of the issue. Where you do find people talking about it, it’s in the context of editors as independent contractors, such as how authors hiring freelancers should make sure they own the editor’s work product, or how freelance editors might use a claim of copyright interest as leverage in payment disputes.

In 2011, Romance Writers of America published a brief legal opinion on its website (still on the website, but unfortunately no longer accessible by the public), indicating that the claim would probably not prevail in court. But that’s the only legal discussion I’ve been able to find.

The legal ambiguity of a copyright claim on editing is good reason to treat it as a publishing contract red flag. But that’s not all.

It’s not standard industry practice. No reputable publisher that I know of, large or small, deprives the author of the right to re-publish the final edited version of their book, either in its contracts or upon rights reversion. One might argue that in pre-digital days, this wasn’t something publishers needed to consider–books, once reverted, were rarely re-published–whereas these days it’s common for authors to self-publish or otherwise bring their backlists back into circulation. But publishers haven’t been slow to lay claim to the new rights created by the digital revolution. If there were any advantage to preventing writers from re-publishing their fully-edited books, you can bet it would have become common practice. It hasn’t.

Link to the rest at Writer Beware and thanks to The Digital Reader for the tip.

PG says this is a carryover from olden days when publishers felt they could bully authors and authors would have to take it.

PG thinks most judges would look askance at an editor’s claim that he/she owned the copyright to the completed work, especially in a situation in which the author had provided an editor with a complete draft of the book and the editor made editorial corrections and suggestions.

Additionally, if a fee for the editor’s services was negotiated in advance and paid according to the agreement of the parties, PG thinks a broad license to use any part of the editor’s work that was provided per the agreement would be implied by the relationship.

You can also look to the custom of the trade, whether, prior to starting work, anyone had mentioned anything about the editor retaining a copyright interest in and to the work, etc.

Additionally, what, exactly, does the editor’s copyright include? A period that replaces a semi-colon in the original ms. and the capital letter that replaces the lower-case letter in the first word following the period?

If, according to US copyright law, the author owned a copyright to whatever the author sent to the editor, how does the editor overcome an argument that, if the editor’s work is potentially copyrightable, it is a derivative work based on the author’s copyrighted original work. Absent some sort of agreement with the author, how does the editor gain an ownership interest in a derivative work?

Here’s what part of what the US Copyright Office says about derivative works in its Circular 14:

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work. The derivative work right is often referred to as the adaptation right.

. . . .

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The owner of a copyright is generally the author or someone who has obtained the exclusive rights from the author. In any case where a copyrighted work is used without the permission of the copyright owner, copyright protection will not extend to any part of the work in which such material has been used unlawfully. The unauthorized adaption of a work may constitute copyright infringement.

So, when did the author grant the editor permission to use the author’s copyrighted work to create a derivative work? If the editor used the author’s work without the author’s permission, none of the editor’s work is entitled to copyright protection.

The Beginning of the End for Patreon

From The Digital Reader:

There comes a time in the life of many companies when the owners (or investors, or vulture stockholders) decide that they want to extract more profit than is healthy for the company to survive. This is one of the things killing American newspapers, and it’s even impacting B&N, and now it’s about to kill Patreon.

Patreon is fairly healthy, but apparently not profitable enough for its capital investors.

From CNBC:

The number of active patrons supporting artists on the platform in 2019 has seen significant growth, up 1 million over the last year, the company said. The company is also on track to pay out $500 million to content creators in 2019, pushing the company to surpass $1 billion in payouts since its inception in 2013.

Under the company’s current business model, 90 percent of funds are paid directly to content creators. Patreon takes 5 percent, and the remaining 5 percent covers transaction fees.

Patreon CEO Jack Conte said in an interview with CNBC that the platform will soon be facing the challenge of maintaining a profitable model as the company continues its growth.

“The reality is Patreon needs to build new businesses and new services and new revenue lines in order to build a sustainable business,” Conte said.

The company does not currently provide contracts, which allows users to retain 100 percent ownership of their work and full control of their brand.

The company plans to provide creators with new “value services,” like options for merchandising, to generate new revenue. Creators will be given the opportunity to participate in these services, and it could ultimately reduce Patreon’s generous 90 percent pay-out model.

What this means is that Patreon’s investors want the company to be more profitable, and if necessary they’re going to force the company to pay its users less.

. . . .

I do not currently use Patreon; I closed my account when they tried to jack up costs in late 2017. But I had been thinking about going back to Patreon in order to fund the blog through donations and pledges.

Now I think I’ll just still with Paypal (not exactly a nice company either, but beggars can’t be choosers).

The thing about Patreon not being profitable enough is that Paypal has a very similar model and they turn a profit on a smaller cut of the funds they transfer. Paypal only collects payment processing fees (the 5% transaction fees mentioned above) and yet Paypal is so profitable that they spun off Ebay as not being worth the hassle.

Of course, Paypal had a unique advantage when they were starting out; they were acquired by Ebay, which then forced buyers and sellers to use the service (when you’re growing your business, there’s nothing like having a captive audience who can’t say no).

. . . .

Folks, Patreon’s attempts to increase its profitability are doomed not because this is going to drive away users but because their niche is too damn small. Patreon only handles one small segment of payment processing (what are essentially charitable fundraising campaigns); in comparison, Paypal covers dozens of segments.

Link to the rest at The Digital Reader

PG suggests that, unless an internet-based business has some sort of moat around it (patents, must-have technology, unique voices or expertise, etc.), raising prices is very difficult because someone else is always ready to clone the business plan and offer the service for less.

PG is only passingly familiar with Patreon, but is not aware of any patents or similar limits to those who might build a similar platform for the same purposes – providing an online means for people to help fund various creative endeavors.

However, while PG was looking at Patreon’s Terms of Use to see if there were any mentions of patents, trade secrets, etc., he did find a rights grab that may be troubling to authors and other creators:

You keep full ownership of all content that you post on Patreon, but to operate we need licenses from you.

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

You may not post content that infringes on others’ intellectual property or proprietary rights.

Patrons may not use content posted by creators in any way not authorized by the creator.

On the front page of Patreon’s site, the company makes a representation that some might construe as conflicting with the quoted portion of the Terms of Use:

You own your content

There are no contracts to sign and you retain 100% ownership of your work. You made it, not us.

Under Patreon’s equivalent to an FAQ, the following is a question and answer about ownership of creative works:

Wait, does Patreon own my content?

Nope! Your content is 100% yours, unless a record label or studio owns part of it, in which case it’s partly theirs too, but it’s definitely not Patreon’s — not even a little.

PG suggests that Patreon’s Terms of Use are, in fact, a contract between Patreon and its creators. It is a “click-to-accept” contract with an electronic signature by the creator which is not physically “signed”, but is still enforceable by Patreon against the content creator.

In the United States, the Electronic Signatures in Global and National Commerce Act (15 U.S. Code Chapter 96) explicitly authorizes electronic signatures in interstate commerce and makes electronically-signed contracts enforceable. Here are the first paragraphs of the law:

(a) In general Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce—(1)a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and
(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

In particular, the quoted portion of the Terms of Use above explicitly create a license, which is most definitely a species of contract, between the content creator and Patreon.

Furthermore, the license cannot be unilaterally canceled by the content creator – it is a “perpetual, irrevocable”, “sublicensable, worldwide” license.

What about all the “you own your content” messages on Patreon?

In a traditional publishing contract granting a publisher all rights to an author’s book, the author continues to “own the content” in that the author is the owner of the copyright to the book. However, the publishing contract grants the publisher the exclusive worldwide right to print, publish and sell the book in all its various forms, including the right to license subsidiary rights for movies, television shows, etc.

Under such a contract, the author owns the content, but can’t do anything with it because the publishing contract grants the publisher all rights to exploit the contract.

Let’s briefly unpack the licensing paragraph:

By posting content to Patreon you grant us a royalty-free, perpetual, irrevocable, non-exclusive, sublicensable, worldwide license to use, reproduce, distribute, perform, publicly display or prepare derivative works of your content. The purpose of this license is to allow us to operate Patreon, promote Patreon and promote your content on Patreon. We are not trying to steal your content or use it in an exploitative way.

PG suggests that the first sentence is inconsistent with the second sentence in tone and, perhaps, in the manner in which it may be enforced.

The portion of the first sentence beginning with “you grant” is precise and definitive. The second sentence is squishier. “The purpose of this license is to allow us to” . . . .

Under general principles governing the interpretation of contracts, if there is a conflict between a specific and a general provision, the specific provision will govern. If PG were representing a content creator, he would suggest that the second sentence above be reworded for clarity:

“The license granted in the preceding sentence is expressly limited to grant Patreon the ability to include content created by the author in various ways that are reasonably calculated to promote the author’s content on Patreon’s website. All other rights of author in and to the content are expressly reserved to author, including, without limitation, the exclusive right to grant others the right to print, publish, license and/or sell the content and/or any derivative rights arising from the content to any third party. After termination of this Agreement for any reason, at author’s request, Patreon will provide a document disclaiming all rights to author’s content if reasonably requested by author disclaiming any and all rights in and to the content.”

 

 

The Growing Importance of Intellectual Property

From Kristine Kathryn Rusch:

I need to be clear as I start this post. We writers create intellectual property. We license our copyrights. We do not sell stories. In fact, the stories we tell, along with their titles, are often not copyrightable. The form in which we tell that story—the order of the events, the order of the words we use,—those things are copyrightable, but the basic boy meets girl, boy loses girl, girl discovers she’s fine on her own storyline can and does fuel a thousand books and movies. (That’s why so many memes over the holiday season made fun of the romance movies on Hallmark. Because the movies—all copyrighted in their own right, all different in the copyright sense—share a lot in common.)

If you don’t understand copyright and you consider yourself a professional writer, then you do not understand the business you are in. If you have published a novel, traditionally or indie, and you do not understand copyright, you are volunteering to get screwed over and over and over again. I say this often, and I’m saying it loudly again, because the trend for 2019 and beyond is that every organization you do business with will try to take a piece (if not all) of your copyright on each and every one of your projects.

Your job is to protect that copyright.

. . . .

Forbes actually published an article in fall of 2018 titled “What Authors Should Do When Their Publisher Closes.” You can click over there if you want. The advice isn’t good, because as someone in the article says, what an author should do varies based on the author’s contract. And if the author has an agent, then they’re probably screwed. If the author doesn’t understand copyright, then they’re definitely screwed.

. . . .

I recommend publishing indie, because that’s the best way to protect yourself and your writing income. You’ll have a career if you do that. Your career might vanish on you if you try to remain traditional. Or, rather, you will write as a “hobby” while you make your living doing something else.

Yes, I’m being harsh, but that’s because the intellectual property apocalypse that I’ve been warning you about is upon us. The trends are there, and the signs that traditional publishing (and all of the other big entertainment organizations) know about the value of intellectual property are becoming clearer and clearer.

. . . .

For years now, the Big 5 traditional publishers have had contracts that essentially transfer the entire copyright of a novel from the author to them. The contracts don’t say that explicitly, but when you read the contract as a complete document (which is how you should read it), you realize that the sum total of what the clauses mean is that the writer retains no part of the copyright, and is only entitled to a tiny percentage of the money that copyright earns.

The reason these contracts changed about a decade ago had nothing to do with publishing and everything to do with mergers. As these publishing companies became part of big international conglomerates, many of them entertainmentconglomerates, the legal teams redrafted the contracts to do the copyright grabs.

Most writers had no idea what they were signing, and most of their agents didn’t either. Agents are not trained lawyers. A handful of the big agencies have lawyers on staff, but most of those agencies are concerned with making the agency money, not with making the writer money. So a lot of the contracts are structured to pay and protect the agent, while bilking the writer.

. . . .

Up until a year or so ago, most of the Big Five continued to operate like traditional publishing companies have since the 1990s—a focus on publishing a lot of titles, hoping that some will stick and become bestsellers. But that strategy isn’t working, and sales are down precipitously.

. . . .

[Simon & Schuster] has been in a media conglomerate since the 1980s. I’m not going to go through its tortured history, which runs from Paramount to Viacom and beyond, but realize this: It became part of the CBS Corporation officially in 2005. Around then, it became impossible to get book rights reverted, which is one of the tricks that is recommended for writers in the Forbes article I cited above. (How 1995. Sigh.)

S&S has experimented with electronic books since the 1990s. Dean and I personally made a lot of money in the early 2000s when S&S realized they hadn’t licensed e-rights for Star Trek books. (Dean and I wrote a bunch of them in the 1990s). S&S has tried to have a self-publishing arm since 2012, and they’re doing a lot of things that require writers to pay for services that publishers used to provide.

. . . .

The more IP a company acquires, the more its value goes up. Even if they don’t create anything from that IP. Acquiring a novel’s copyright—with all its potential spinoffs, TV shows, toys, comics—increases a company’s value tremendously.

Read that paragraph again, because the information therein is the key to this whole piece.

The more IP a company acquires, the more its value goes up. Your novel is IP. If they acquire it, their bottom line goes up, even if they never do anything with that IP. Got that?

That’s why S&S stopped, in 2000 or so, reverting the rights to the novels they acquired. Those novels equal more earnings potential—and they allow the company to maintain a value that it wouldn’t have otherwise.

I’ve been warning writers about this copyright grab by corporations for some time, but it was easy to ignore me because the Big 5 have not been (for the most part) exploiting (the legal term for developing or making use of) that copyright.

S&S finally is. That’s what Simon & Schuster’s CEO Carolyn Reidy’s heady year-end report was really all about. She called 2018 “the most successful year in Simon & Schuster’s history,” and yet she didn’t cite a single print bestseller as something that caused the success.

Instead, she touted the rise in audio . . . as well as a mention that sent a little shiver through me.

She wrote:

…[backlist sales now] comprise a higher portion of our revenue than at any time in memory…while readers wanting the tried and true is an industry-wide phenomenon, our concerted effort during the last few years to acquire books with the potential for long-term backlist sales has yielded dividends.

This article does not specify what exactly she means by “backlist sales.” Does she mean actual ebook and print sales, or other licensing, such as foreign rights and so on? Clearly S&S is exploiting the audio rights clauses in their contracts.

What is clear, however, is that a big traditional publisher has finally figured out that not only does their backlist have value in raising the company’s worth, but it also has earnings potential that can be exploited in 2019.

Why does this send a chill through me? Because if one traditional publisher learns it, the others will learn it as well. And the ability of writers who have sold their work into traditional publishers to get the rights reverted will go down to almost nil.

Big traditional publishers will finally join their counterparts in the entertainment industry—the movie/TV companies, the music studios, the game companies—in demanding control of every aspect of the copyright from the original author.

Which means that if an author signs one of those agreements, the author will get pennies on the dollar (if that) for any rights—audio, movie, TV—rather than the kind of earnings writers could have gotten as recently as 10 years ago.

. . . .

And those of you who licensed mass market rights a few years ago, thinking you’d get your ebooks into stores, you probably already signed away most of the copyright, particularly if you went with Harlequin or Simon & Schuster.

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.

As usual, Kris incorporates a lot of intelligent business thought and advice into the OP (and her other posts in this series).

As PG has mentioned before, he has negotiated, drafted and/or reviewed a great many contracts during his legal career, including some large technology copyright and patent licensing agreements. As he has also mentioned before, the typical contracts between authors and traditional publishers are some of the most unfair and one-sided agreements he has seen.

In a prior era during which it was impossible for an author’s works to reach any sort of meaningful audience without a publisher to cover the costs of printing books and provide meaningful access to buyers for large numbers of physical bookstores, perhaps the value of a publisher’s services was an extremely large portion of the income generated by sales of a book.

However, in an age in which:

  • Amazon is the largest English language bookseller in the world; and
  • Opens its electronic doors to self published authors on terms substantially equivalent to those it provides commercial publishers; and
  • Ebooks have the highest profit margin of any edition of a book a publisher sells; and
  • Ebook editing, formatting and cover design of a quality comparable to that provided by a commercial publisher can be had for a few hundred to a few thousand dollars;

the real value of a publisher for a typical author compared to the effective cost of a publisher to that author has declined precipitously.

PG was about to discuss the value of branding for either an ebook or a printed book, but he will be uncharacteristically brief.

Does anyone go to an online or offline bookstore seeking out a Random House book? Of course not. They’re looking for an author, a genre, etc.

With respect to promoting and selling books, which brand name is most valuable, James Patterson’s or Little, Brown and Company’s?

Without singling out any particular literary agent or agency, PG will say, as a general observation, that agents famous and obscure don’t do anything significant to improve the contract terms for publishing contracts other than increasing the amount of the advance on some occasions. In particular, agents rarely if ever do anything to address the issues Kris discusses in the OP.

In some types of contracts — consumer loans, for example — federal and/or state legislatures have passed laws that prevent commercial lenders from including some contract provisions that are unfair or harmful to borrowers. Compared to the number of individuals who take out loans to purchase a house, automobile or dishwasher, however, authors are a tiny constituency and elected officials have much bigger fish to fry than commercial publishers.

However, perhaps as a result of such consumer protections, some authors may believe they are somehow protected from  unfair provisions in publishing contracts between themselves and large publishers. That belief is incorrect.

Some of the most unfair provisions in a typical publishing contract are presented in the most innocuous manner imaginable.

 

 

Finally, there is nurturing. Publishers don’t just produce books. They nurture. Literary agents also provide nurturing in case publishers fall short in any way.

Like a baby duckling, a baby author needs to be nurtured and petted and encouraged and gently guided if she/he is to grow into a beautiful swan.

Who better to nurture such a delicate creature than a Kommanditgesellschaft auf Aktien headquartered in Gütersloh?

Off the top of his head, other than publishing, PG can’t ever remember ever having a business discussion that included the word nurture or any of its variants.

PG is reminded of a quote attributed to former president Harry S. Truman, “If you want a friend in Washington, buy a dog.”

PG suggests that if you want someone to watch over you, steer clear of the publishing business.

.



Publishers Endanger Free Speech

As PG has mentioned before, unlike many other places of online discussion, TPV is not about politics.

The cited article includes political commentary, but the portions PG is excerpting may be of significant importance to authors regardless of their personal political preferences.

From National Review:

The First Amendment has never been stronger. Yet freedom of speech is under dire threat. Both of these things can be true, and both are.

. . . .

Publishers are presenting authors with contracts containing clauses that essentially say, “We will cut you loose should a Twitter mob come after you.” It’s a revolting, shameful trend.

As Judith Shulevitz writes in the New York Times, Condé Nast, publisher of The New Yorker, Vanity Fair, and many other magazines, recently started burying in its standard writers’ contracts a landmine. If the company should unilaterally rule that the writer has become “the subject of public disrepute, contempt, complaints or scandals,” the publisher can void the contract. Shulevitz mislabels such stipulations “morality clauses.” To paraphrase Mae West, morality has nothing to do with it. “Cowardice clauses” would be nearer the mark.

. . . .

Book-publishing giants Simon & Schuster, HarperCollins, and Penguin Random House have added cowardice clauses to their standard book contracts, and Shulevitz says she’s heard that Hachette Book Group is considering doing the same. (Penguin, to its credit, allows authors to keep their advances, but others don’t, says Shulevitz.) Penguin’s clause justifies itself with a reference to anticipated adverse impacts on business, warning authors not to do anything that might cause “sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.” That rationalization won’t withstand much scrutiny. Bill O’Reilly’s latest book stands at number four on the Times’ nonfiction bestseller list, and he was not only pilloried for years but actually fired by Fox News Channel due to scandal. Ann Coulter, Dinesh D’Souza, Tucker Carlson, and many other commentators who are vilified daily on social media (and in D’Souza’s case, actually spent time behind bars) sell books by the truckload. If anything, “being the subject of public disrepute, contempt, complaints or scandals” seems to boost sales, and publishers are well aware of this. Calumny, contumely, and controversy sell. I’m On the Fence About Trump is not a title Simon and Schuster wants to publish.

. . . .

So why are book and magazine publishers putting such language in their contracts? Because they fear rebuke themselves. They don’t want to get dragged by association. “@PenguinRandom are you okay with what your author Mac McSmartypants just said to Chris Cuomo???” is not a comment a book publisher wants to see issuing from the Olympus of Alyssa Milano’s Twitter account and retweeted so many times it reaches more people than the population of France. The temperate response — “Publishing an author does not constitute an endorsement of his or her ideas” — will be ignored, laughed at, swept away in the tide of outrage, even though it’s true.

Link to the rest at National Review

Yet one more reason for authors to read their contracts very carefully.

PG hasn’t seen any political chastity clauses in contracts his clients have asked him to review. He would love to see any that visitors to TPV would like to send to him.

Although PG will not disclose the identity of those who submit such contracts to him, he would prefer that such contracts he receives omit or remove the names of the authors, book titles, or any other information that might be used to identify the author or book(s) in question.

PG will also note that just like no one knows you’re a dog on the internet, no one knows that you are a jealous rival, former spouse, partner, etc., on the internet, so the wildest accusations, well designed, can trigger internet outrage.