Contracts

What Writers Need to Know About Morality Clauses

3 August 2019

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against authors, including best-sellers like Junot Diaz, James Dashner, and Bill O’Reilly, has led to author boycotts, rescinded or canceled prizes, and plunging sales.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!!

 

Someone Disagrees with PG – Again – The Sequel

22 July 2019

For background on this post, see Amazon’s Upcoming Audible Captions Feature = Unhappy Publishers, and Someone Disagrees with PG – Again. And do read the many excellent comments to each post.

So Audible has stepped into a hornet’s nest with its plan to provide audiobooks with captions. PG has stepped into a related hornet’s nest by saying he thinks it’s a good idea. The hornets claim it is an unauthorized rights grab by Audible.

PG says, “Let’s look at the contract.”

PG has no access to contracts between Audible and major publishers. However, all the world has access to Audible’s Audiobook License and Distribution Agreement which is available to indie authors and publishers of all sizes and shapes. The agreement includes a notation that it was last revised on June 1, 2017. The version PG will refer to has been downloaded today.

The license uses the term, Audiobook frequently. In the second paragraph of the Agreement (unnumbered) we see a definition of the term as it will be used in the Agreement:

the audio recording of the book(s) you have identified on ACX for the grant of distribution rights (any such audio recording as submitted by you or as modified pursuant Section 3(a) below, an “Audiobook“)

[Begin PG aggravated monologue]

There is no Section 3(a).

PG suspects that, at some point, perhaps the last revision, some sort of legal stylist played with the contract, formatting it in a font with Audible’s corporate orange and changing the numbering scheme, and nobody in legal carefully reviewed the modified piece of art for designer-caused errors.

In PG’s superlatively humble opinion, contracts should present a boring appearance. Font stylists and brand experts should be kept far away from contracts, online and otherwise.

Additionally, the last person to review contract language should be an attorney and one of the tasks of that person is to always, always, always check each and every cross-reference in the contract. PG understands that you didn’t go to Harvard Law School to check cross-references, but an error in a cross-reference could be disastrous.

[End PG aggravated monologue]

Generally speaking, when a court construes a contract, rather than adopting a view which converts a portion of the contract into a nullity, the court will attempt to determine what the contract draftsperson was trying to accomplish.

In this case, PG thinks the reference to Section 3(a) originally was a reference to what, in the restyled agreement is currently Section 4.1.

Right to Edit. Audible may modify, reformat, encode, adapt and edit the Audiobook to make the Audiobook compatible with the Audible service, including but not limited to by (a) adding Audible’s standard intro and outro, and (b) removing flaws or audio elements that are, in Audible’s judgment, incompatible or inconsistent with the Audible service (e.g., playback instructions, microphone bumps, distortion, ambient sound, etc.).

Even if a judge determines that the reference to 3(a) is a nullity, Section 4.1 is still part of the agreement and grants Audible the extensive rights described therein. The section 3(a) reference would have clarified that the defined term, Audiobook, included products arising under Audible’s Right to Edit provision.

End of all of PG’s nittery-pickery, let’s get back to whether Audible is permitted to create captioned audiobooks or not.

Again, on the first page of the contract, we find Section 2.1.:

You grant Audible the exclusive license to use, reproduce, display, market, sell and distribute the Audiobook throughout the Territory in all formats now known or hereafter invented from the date you accept this Agreement until the date that is 7 years from such date (such 7 year period, the “Initial Distribution Period”). [emphasis supplied by PG]

Section 2.1 covers audiobook licenses by which the author/owner grants Audible exclusive audiobook rights. Section 2.2 covers non-exclusive audiobook licenses granted to Audible:

You grant Audible the non-exclusive license to use, reproduce, display, market, sell and distribute the Audiobook throughout the Territory in all formats now known or hereafter invented from the date you accept this Agreement until the date that is 7 years from such date (such 7 year period, the “Initial Distribution Period”). [emphasis again supplied by PG]

Alert readers will note that the other than the change from an exclusive to a non-exclusive license, the wording is identical.

So, where does the “rights grab” accusation leveled at captioned audiobooks end up after considering the quoted provisions?

Is a captioned audiobook a form of audiobook that was either known at the time the author signed the contract or invented after the author signed the contract?

PG thinks the answer to this question is affirmative.

Is a captioned audiobook something other than an audiobook, some sort of ebook with sound hybrid? Perhaps, but PG thinks it’s hard to make a persuasive argument that escapes the contract language discussed.

Section 4.1 grants Audible the right to modify, reformat, encode, adapt and edit the Audiobook to make the Audiobook compatible with the Audible service.

Is Audible “modifying, reformatting, encoding, adapting and editing” the original audiobook to create a captioned audiobook?

PG thinks the answer to this question is affirmative.

If Audible is going to offer a captioned audiobook as part of a new or improved Audible service, PG suggests that part of Section 4.1 is satisfied.

PG will note that Section 10 does include the following language: “All rights in the Audiobook not granted in this Agreement to Audible are expressly reserved by you.”

However, if the contract grants rights all audio formats “all formats now known or hereafter invented” and also permits Audible to “modify, reformat, encode, adapt and edit the Audiobook” for its new captioned audiobook offering, PG suggests the Audible authors have granted Audible that right.

 

Amazon’s Upcoming Audible Captions Feature = Unhappy Publishers

19 July 2019

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

27 June 2019

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

21 June 2019
Comments Off on 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.

Here It Comes

8 June 2019

From Kristine Kathryn Rusch:

[F]or years, I’ve been wondering why big traditional publishing companies aren’t licensing their backlist. There’s a million ways to make money off copyright licenses, and the most obvious is to keep books in print. Yet so many big traditional publishing companies don’t keep their books in print.

Or, worse, in my opinion, those companies don’t publish ebook versions of their catalog. All of their backlist in their catalogs. Realize that this isn’t thousands of titles for them. In the case of some of the larger companies, the title list has to be closer to a million.

But the companies have no idea which books they still can license, whether or not the old contracts have clauses in them that allow ebooks, or even who handles the estate of those old books. I had just read a Daphne Du Maurier novel, My Cousin Rachel,  which had recently been made into a movie, and it took me a lot of scrolling to find that book. I want to read more of her work, but I’m going slowly in ordering it or buying it.

. . . .

We’ve hit the point in the ebook revolution—the online revolution really—where we expect everything (and I do mean everything) to be at our fingertips.

So back to Led Zeppelin. The band is fifty years old this year. And yeah, jeez, that hurts. Because I remember when they were the epitome of cool (and being young and not being understood by the old fogies). Anyway, the folks at Warner Music Group which apparently owns or licensed most of Zeppelin’s catalog, were planning some kind of celebration of the band.

Instead of issuing a retrospective album, they set up a website with a logo name generator. You plug in your name, and it comes up in the Zeppelin iconic font. That’s not the coolest thing about the website, though. The coolest thing is the playlist generator, which allows users to compile their own playlist of Zeppelin songs or covers of Led Zeppelin songs, and then share those playlists on social media.

Think about that for a moment: the website, if set up properly, will help Warner Music Group know what songs from the Led Zeppelin catalog (and related catalogs, like Jack White’s, are the most beloved). That information can be used in marketing later.

This little landing page, with its logo generator and its playlist generator, will then direct users to the Zeppelin website, where you’ll find all the fiftieth anniversary goodies, including the ubiquitous best-of collection and an authorized book about the band.

. . . .

According to Rolling Stone:

The [logo] site received more than 200,000 unique visitors in its first 10 days, with users making 230,000 logos and 20,000 custom playlists. The “biggest uplift” was from White’s playlist, branded as “Led Zeppelin x Jack White,” which drew thousands of users each day — which translates to hundreds of thousands of streams, which translates to a steady stream of cash to Warner and Led Zeppelin without the band lifting a finger.

Hundreds of thousands of streams, “without the band lifting a finger.” Passive income, based on one idea. Yes, streaming services don’t pay a large amount for streams, but they pay. And even a small amount of money adds up when it is multiplied by hundreds of thousands. Not counting the visibility, discoverability, and all those other “abilities” that come from the social media shares, and the links between the various playlist generators. They all play into the streaming services algorithms, which results in even more recognition, and more plays.

Once upon a time (maybe as recently as three years ago) working with what we call the backlist and what the recording industry calls “catalog marketing” was the unlit basement of the industry. No one wanted that job. It wasn’t glamorous, and it barely earned its way.

But that’s changing, and changing rapidly. Apparently, consumers no longer care about the latest and greatest thing. They want what’s new to them. More than that, they want something that they like.

This is where sync marketing comes in. A lot of younger consumers buy music because they heard it on their favorite TV show or in an important scene in a blockbuster movie. From the Rolling Stone article:

Tiffany’s 1987 cover of “I Think We’re Alone Now” has seen 42 percent of its all-time Shazams come after it appeared in Netflix’s 2019 series The Umbrella Academy, and several tracks from the 1940s to 1970s climbed up the company’s global charts after floating into people’s ears from the background of Avengers: Endgame.

. . . .

I’ve noted for years now that traditional publishers have become reluctant to let go of a license once they receive it. In other words, books don’t go out of print anymore, no matter how badly the publisher is mismanaging the book. (In the past, if the book wasn’t in stores, the writer could get her rights back. Not anymore.)

Someone in that megaconglomerate knows that these rights are worth money. They’re worth a lot as assets on a balance sheet, but in the music industry, anyway, they’re also being turned into active revenue streams.

When this starts happening to books—and it will—writers are going to have to be vigilant about their contracts. They’re going to have to see if the contract’s vague 1997 language covers things like streaming rights or omnibus rights or any one of a dozen other ways to license that print book into something new.

What will probably happen is that publishing companies will do what they always do—figure it’s easier to ask forgiveness than it is to ask for permission. They’ll also not want to make payments, so writers are going to have to start auditing their publishers (which no traditionally published writer will do for fear of being blacklisted—because that’s what agents tell them to do. Sigh.

. . . .

So…be warned. Changes are coming, traditionally published writers. Within five years or so, expect a department of back catalog management in your publisher’s offices (if that department doesn’t already exist now). Expect to have every inch of your contract exploited by that department—and maybe some rights you didn’t license as well.

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 says that many authors have so much emotional energy (and more than a bit of insecurity) tied up with their publisher that they desperately want to believe that publisher will always be honest and considerate of their welfare. Unfortunately, such is not always (or even frequently) the case.

Are You Self-Publishing Audio Books?

21 May 2019

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?

2 April 2019

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.

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