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!!

 

Someone Disagrees with PG – Again – The Sequel

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

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.

Here It Comes

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?

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.

 

 

The Inner Voice

From Aeon:

‘I think, therefore I am,’ the 17th-century philosopher René Descartes proclaimed as a first truth. That truth was rediscovered in 1887 by Helen Keller, a deaf and blind girl, then seven years of age: ‘I did not know that I am. I lived in a world that was a no world … When I learned the meaning of “I” and “me” and found that I was something,’ she later explained, ‘I began to think. Then consciousness first existed for me.’ As both these pioneers knew, a fundamental part of conscious experience is ‘inner speech’ – the experience of verbal thought, expressed in one’s ‘inner voice’. Your inner voice is you.

That voice isn’t the sound of anything. It’s not even physical – we can’t observe it or measure it in any direct way. If it’s not physical, then we can arguably only attempt to study it by contemplation or introspection; students of the inner voice are ‘thinking about thinking’, an act that feels vague. William James, the 19th-century philosopher who is often touted as the originator of American psychology, compared the act to ‘trying to turn up the gas quickly enough to see how the darkness looks’.

Yet through new methods of experimentation in the last few decades, the nature of inner speech is finally being revealed. In one set of studies, scans are allowing researchers to study the brain regions linked with inner speech. In other studies, researchers are investigating links between internal and external speech – that which we say aloud.

. . . .

William James had a complete disdain for the study of inner speech, because, to him, it was a ghost: impossible to observe. The French developmental psychologist Jean Piaget insisted that private speech signified simple inability – it was the babble of a child without capacity for social communication with no relation to cognitive functioning at all. Through much of the 20th century, Piaget seized the reigns of child development, insisting that children had to reach a developmental stage before learning could occur. Which came first: the chicken or the egg? Vygotsky said that learning occurred, then the brain developed. Piaget said the brain developed, then learning occurred.

Over years of meticulous experiment behind the Iron Curtain, Vygotsky continued to make his case. One thing he did was study children in the zone of proximal development as they worked with adults to accomplish tasks. In the experiments, the child would be presented with a challenge and a tool for overcoming it. In the zone, Vygotsky observed what he called ‘private speech’ – self-talk that children between the ages of two and eight often engage in. This intermediate stage, he held, was connected on one end to a prior period when we had no thread of memory (and no inner voice) and on the other end to true inner speech so crucial to self-reflection, narrative memory, and development of cognitive skills.

. . . .

By 1970, the push to validate Vygotsky’s ideas had picked up steam. A leader of that era was the American psychologist Laura Berk, professor emeritus at Illinois State University, an expert on childhood play. Berk observed children engage in imaginative, ‘make-believe’ play, and demonstrated that the substitution of objects – say a cup for a hat – requires internal thought (and self-talk) rather than impulse. Her studies show that during imaginative play, children’s self-talk helps them guide their own thoughts and behaviour and exert true self-control. She and many other child psychologists demonstrated the importance of the inner voice, beyond a doubt, elevating Vygotsky and burying Piaget for good.

. . . .

Do people in adulthood experience inner speech in the same way as children – or even as each other? Do most of us even have an inner voice – an internal commentator narrating our lives and experiences from one moment to the next?

These were deeply controversial and introspective questions in the 1970s, and they captured the imagination of Russell Hurlburt, an aeronautical engineer-turned-clinical-psychology graduate student at the University of South Dakota. Hurlburt had envisioned a way to accurately sample others’ random inner experiences. Today a professor of psychology at the University of Nevada, Las Vegas, he’s been honing the technique ever since.

Hurlburt calls his methodology Descriptive Experience Sampling (DES), and it works by sampling the inner thoughts of a given interviewee during those moments when a beeper randomly goes off. After extracting the contents of inner experience from countless interviews, Hurlburt has defined an array of phenomena typically shared by humans – auditory and visual imagery, emotion, awareness of real stimuli and a category of thoughts that occur without words, images or symbols of any kind. The main contribution here, though, is actually DES itself. Before its inception, introspective methods had been shunned for decades, if not centuries, as being too highly influenced by bias to be taken seriously. Now, with DES, Hurlburt believes in the possibility of obtaining unbiased, accurate snapshots of inner experience that includes inner speech.

Freed from the mundane confines of a laboratory, the data come from ‘the wild’, as Hurlburt puts it. A participant wears the beeper, which can go off at any moment throughout the day. They go about their daily activities and are likely to forget its presence. When the beeper does go off, the participant makes a careful note of exactly what their inner experience was immediately beforehand. Subsequently, they are questioned by Hurlburt about that experience in a thorough but open-ended interview.

The interview process itself requires an exacting, friendly yet trial-like probe of what occurred. In one unedited transcript in Hurlburt’s book Exploring Inner Experience (2006), a participant named Sandy is quoted following a beep: ‘I was reading. I was starting with the word “life”… and I had an image in my head – it was a black and white image, by the way – of… OK, I was staring at the word “life” and I had said to myself “life” in my own tone of voice.’

Sandy was referring to inner speech using the word ‘life’. For the next six minutes Hurlburt probed her about this experience. His questions eventually helped Sandy divulge that as she was inwardly speaking the word ‘life’ she simultaneously ‘saw an image of that word in an old-courier like font – black on a white background’ and a moving image of ‘sand pouring’ from a hand of unknown agency below her face.

. . . .

‘There are a lot of people who believe that you talk to yourself allof the time, so that’s a form of external pressure to say you were inner speaking when maybe you weren’t,’ he notes. For example, noted consciousness researcher Bernard Baars has asserted that ‘overt speech takes up perhaps a tenth of the waking day; but inner speech goes on all the time’. Hurlburt’s research shows this isn’t true; he finds that inner speech consumes about 25 per cent of an average person’s day, and thus, he is careful to not communicate any assumption about what type of inner experience a DES interviewee may have had at the time of the beep.

Thanks to the accuracy of DES, Hurlburt has found thought patterns associated with various clinical populations, including those with schizophrenia, bulimia nervosa, and autism. In a sample of bulimic participants, for instance, he’s found the propensity for multiple inner voices experienced at the same time. Take ‘Jessica’, a patient watching television when the DES beep occurred. In the front of her head, Hurlburt explains, she was inwardly saying ‘blond’, ‘skinny’, ‘guys’, and ‘stare’ in what was her own, unspoken voice. At the same time, in the back part of her head, she was saying, in another, quieter inner voice, still her own: ‘Why is it that movies and TV shows always have ‘girls for’, ‘to’, and ‘at’? Importantly, such experiences are not often perceived by the experiencers themselves, let alone revealed to anyone else.

. . . .

Fernyhough calls the most familiar level of inner speech ‘expanded’ because it is basically the same as external speech – grammatical and fully formed, but not vocal. He believes this kind of inner speech is most likely engaged when we are under stress or cognitive pressure. Imagine, for example, while travelling, that you are making an important phone call regarding a lost passport. While on hold there’s a good chance that you’ll mentally rehearse exactly what you are about to say to the official on the other end – your story about how your passport went missing – in language that is full and complete.

. . . .

The second broad category of inner speech defined by Fernyhough is considerably more mysterious and enigmatic. He calls it ‘condensed’ inner speech, borne out of Vygotsky’s belief that as speech becomes internalised it can undergo profound transformations that set it distinctly apart from the expanded version. Condensed inner speech is defined as a highly abbreviated and ungrammatical version of regular speech. Although possibly linguistic – comprised of words – it is not intended to be communicated or even understood by others. For example, as a habit in the winter since my younger days, I often think to myself, ‘passlockmoney’ before heading out the door to go snowboarding. For you to understand what I mean, I’m required to expand this term: Remember your ticket or pass if it is still valid, your snowboard lock, and cash or credit card for getting lunch (and après beer).

Link to the rest at Aeon

While PG was reading the OP, he realized that one of the instances in which he is most aware of his inner speech is when he is composing a legal document, often a contract.

His objective during such exercises is to be extremely precise with the words he uses and their operations in sentences and paragraphs. He actively seeks for possible alternative meanings and changes what he has written to avoid such alternatives and to create an expression that can only be interpreted to mean a single thing.

To this end, PG (and other lawyers) will sometimes insert a sentence that begins with something like, “For the avoidance of doubt”. The purpose of such sentences is to rule out a possible misinterpretation of a prior contract provision.

A greatly simplified use of this technique might be, “Author grants Publisher the exclusive right to publish the Work in hardcopy and paperback form. For the avoidance of doubt, Author retains all rights to publish the Work or derivative versions of the Work in the form of one or more comic books or graphic novels.”

If a single “For the avoidance of doubt” sentence doesn’t do the trick, another sentence beginning with, “For the further avoidance of doubt” can be employed.

The technique is used to state as precisely as possible what rights each party owns or controls and help deal with potential edge cases by describing what each party does not own or control.

PG’s inner voice is, to the best of his knowledge, always hard at work on such occasions and he is actively seeking to discover any ways in which the contract language might be misinterpreted or used to support a double meaning.

You Don’t Own the Music, Movies or Ebooks You ‘Buy’ on Amazon or iTunes

From Two Cents:

When you purchase music, movies or books from Amazon or Apple’s iTunes store, you might be under the impression that that material is yours to enjoy forever; that’s how CDs and paper books work, after all. Why rent You’ve Got Mail for $3.99 every few months when you can “own” it and watch it whenever, forever, for $9.99?

But you’d be mistaken. Anything digital is temporary, even if you clicked “purchase” rather than “rent.” One unfortunate side effect of that you won’t experience with a physical book or record: Your purchases may just disappear if licensing agreements change.

. . . .

As outlined in the Twitter thread, Apple states the content provider of the movies in question removed them from the store. And that removed them from the user’s library, even though he had paid money to buy them. It’s easy to see why that’s frustrating (especially since Apple wasn’t willing to cough up a refund for the purchases he no longer has).

“This wouldn’t happen in the physical world. No one comes to your door and demands that you give back a book,” Aaron Perzanowski, a Case Western Reserve University law professor, who studied these digital purchases, told the LA Times in 2016. “But in the digital world, they can just go into your Kindle and take it.”

. . . .

For example, Amazon notes in the fine print that “Kindle Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Kindle Content.” You also can’t sell or redistribute your ebooks, as you might with a physical copy. Apple’s fine printstates that the licensor “reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.”

. . . .

The best option? If you can, buy a physical copy of a movie or TV show that comes with a digital download. At least you’ll have a backup in case your digital copy disappears—assuming you still have a player to watch it on.

Link to the rest at Two Cents

When PG read the OP, one of the first things to pop into his mind was, “born yesterday”.

The author of the OP apparently discovered licensing of intellectual property shortly before writing the article and assumed at least a portion of the Lifehacker audience didn’t know much about the topic either.

“Born Yesterday” was the name of a Broadway play with two revivals plus three different movies.

Here’s a plot summary of the original Broadway play, Born Yesterday, which premiered in 1946, from Wikipedia:

An uncouth, corrupt rich junk dealer, Harry Brock, brings his showgirl mistress Billie Dawn with him to Washington, D.C. When Billie’s ignorance becomes a liability to Brock’s business dealings, he hires a journalist, Paul Verrall, to educate his girlfriend. In the process of learning, Billie Dawn realizes how corrupt Harry is and begins interfering with his plans to bribe a Congressman into passing legislation that would allow Brock’s business to make more money.

As a general proposition, the creator of intellectual property is its owner. Everybody else who wants to observe, read, listen to, etc., etc., that intellectual property is not the owner of the IP, but only has limited rights created by statute or license to do some things with their copy of the IP.

The owner of a physical book can’t make copies of the book and sell them to others because the book’s owner doesn’t own the IP depicted in the book. He/she is only the owner of the paper, ink and binding of that particular copy of the book. The copyright law (statutory and otherwise) which creates and defines the IP in the first place permits the book’s owner to do certain things with the physical book – read it, lend that copy to someone else, sell that copy to someone else, donate it to a library, deface the book, use excerpts or quotes from the book for various purposes, etc., etc.

The same basic rules, adapted to different media by which IP can be duplicated, transmitted, etc., govern copies of the IP in digital form. Just as making a copy of a book to give or sell to someone else is a violation of the creator’s IP rights, generally speaking, making a copy of a CD, a digital file, a photograph, or other protected medium incorporating such IP to give or sell to someone else is, absent permission from the creator or permission granted via copyright law, a violation of the creator’s IP rights.

Enough of this type of blathering.

The OP caused PG to wonder whether an author self-publishing with Amazon via KDP could make digital copies of his/her ebooks disappear from Kindles everywhere by unpublishing the ebook.

The short answer is probably not.

Here are some excerpts from the current Kindle Direct Publishing Terms and Conditions that describe what rights an author grants to Amazon:

Paragraph 3 Term and Termination (excerpt with PG highlights)

Following termination or suspension, we may fulfill any customer orders for your Books pending as of the date of termination or suspension, and we may continue to maintain digital copies of your Digital Books in order to provide continuing access to or re-downloads of your Digital Books, as well as digital copies of your Books to support customers who have purchased a Book prior to termination or suspension. . . . All rights to Digital Books acquired by customers will survive termination.

Paragraph 5.1.4 Book Withdrawal (excerpt with PG highlights)

All withdrawals of Books will apply prospectively only and not with respect to any customers who purchased the Books prior to the date of removal.

Paragraph 5.5 Grant of Rights (excerpt with PG highlights)

You grant to each Amazon party, throughout the term of this Agreement, a nonexclusive, irrevocable, right and license to print (on-demand and in anticipation of customer demand) and distribute Books, directly and through third-party distributors, in all formats you choose to make available through KDP by all distribution means available. This right includes, without limitation, the right to: (a) reproduce, index and store Books on one or more computer facilities, and reformat, convert and encode Books; (b) display, market, transmit, distribute, sell, license and otherwise make available all or any portion of Books through Amazon Properties (as defined below), for customers and prospective customers to download, access, copy and paste, print, annotate and/or view online and offline, including on portable devices; (c) permit customers to “store” Digital Books that they have purchased from us on servers (“Virtual Storage”) and to access and re-download such Digital Books from Virtual Storage from time to time both during and after the term of this Agreement

It appears to PG that Apple’s agreement with the owners of the copyrights to some iTunes movies did not include anything like the language in the KDP T&C’s and that the movie owners could force Apple to terminate rights of its customers who had paid for licenses to those movies.

It appears to PG that an author or publisher operating under the KDP T&C’s or something similar can’t force Amazon to terminate a customer’s rights to access an ebook they bought through Amazon. Amazon can decide to do so, but an author can’t make Amazon pull a digital move like iTunes did.

As usual, PG is a lawyer, but nothing PG posts on TPV is legal advice. If you would like to obtain legal advice, you need to hire an attorney to give you that advice, not read what a lawyer might post on a blog.

PG invites comments that agree or disagree with his half-baked (or fully-baked) blatherings on this topic.

Universal Music Settling Big Class Action Lawsuit Over Digital Royalties

From Billboard:

An important chapter in the legal history of the music business may be coming to conclusion soon as Universal Music Group is close to submitting a settlement resolving claims that it cheated recording artists of royalties from digital downloads.

The putative class action from artists including Chuck D. of Public Enemy, Rick James (by way of trust), Dave Mason of Traffic, Whitesnake, Andres Titus of Black Sheep, Ron Tyson of The Temptations, among others, alleges that record labels should be treating digital download income off of venues like Apple’s iTunes as “licenses” rather than “sales.” By accounting the other way, the artists get about 15 percent of collected income rather than 50 percent they allege is due.

. . . .

The monetary value of UMG’s coming settlement haven’t yet been disclosed, but The Hollywood Reporter has learned that it will likely cover EMI, which was acquired by UMG in 2012 and has been dealing with its own litigation on the digital download front. Following settlements by Warner Music and Sony, UMG’s deal if approved would mean that all of the record majors have resolved claims following the 2010 appellate ruling in F.B.T. Productions v. Aftermath — dealing with Eminem songs — which suggested that “licenses” rather than “sales” were the more appropriate accounting treatment in an era where record labels no longer spend huge amounts on packaging physical CDs.

According to sales data released this week by the RIAA, digital downloads is the top revenue producer in the music industry. Download sales are at $2.64 billion, which beats physical music sales of $2.27 billion.

. . . .

As streaming gets closer to dominating downloads, the litigation may shift likewise as well.

The digital downloads cases may be on the precipices of conclusion, but scrutiny may follow as to whether record labels are cheating artists on money collected from outlets like Spotify. For instance, on Tuesday, a judge refused to reject claimsthat Sony breached agreements and good faith dealing with 19 Recordings — the label of former American Idol contestants Kelly Clarkson, Carrie Underwood and Jordin Sparks — by allegedly mischaracterizing income from streaming services as as “sales” or “distributions” rather than as “broadcasts” or “transmissions.”

Link to the rest at Billboard

Starting several years ago, PG blogged about this issue before in the context of book publishing agreements. For a great many years, standard publishing contracts included royalty provisions that paid a much lower royalty for books that were sold than for books that were licensed.

PG hasn’t surveyed Terms & Conditions for online ebook sellers for a long time, but the last time he did, the major online retailers all said something to the effect that the publishers were licensing ebooks to readers, not selling them.

Here’s the relevant portion of Amazon’s current Kindle Store Terms of Use, located in Paragraph 1, “Kindle Content”:

Kindle Content is licensed, not sold, to you by the Content Provider.

If you pull up a publishing contract that’s more than ten years old and search for the royalty rates payable when the publisher licenses the book, you may well find that, like the music business, Big Publishing paid much higher royalties for licenses than it did for sales.

AI reveals potential Amazon, Facebook GDPR problems to regulators

From c/net:

AI [artificial intelligence] software reportedly uncovered suspected GDPR breaches by Alphabet, Amazon and Facebook.

The software — created by EU Institute researchers and a consumer group — looked at the privacy policies of 14 major technology businesses in June, the month after the EU’s new data privacy laws went into effect, according to Bloomberg.

Researchers named the software “Claudette” — short for automated clause detecter — and Alphabet (Google’s parent company), Amazon and Facebook were among the companies whose policies were under the AI microscope.

It found that a third of the clauses within the policies were “potentially problematic” or contained “insufficient information,” while a further 11 percent of the policies’ sentences used unclear language, the academics noted.

The software also noted that some policies failed to identify third parties that the company could share data with.

. . . .

Despite the software’s findings, researchers admitted that the results of the automated scan “are not 100 percent accurate” since the software has only viewed a small number of policies.

Google insisted that its policy is compliant and highlighted that the updated version doesn’t expand or make any changes to how it collects or processes users’ information.

. . . .

The EU has been enforcing the General Data Protection Regulation since May 25 and the law requires the companies adopt greater openness about data they have on EU residents, as well as with whom they share the data.

Link to the rest at c/net

PG suspects that AI might not be the best solution for reviewing 14 terms of use or similar documents today (he suspects it took more time and effort to create the artificial intelligence application than simply having lawyers or paralegals simply review the 14 documents would have required).

However, over the longer term, he thinks it quite likely that AI apps will become common tools for creating and reviewing legal documents.

From the MIT Technology Review:

Meticulous research, deep study of case law, and intricate argument-building—lawyers have used similar methods to ply their trade for hundreds of years. But they’d better watch out, because artificial intelligence is moving in on the field.

As of 2016, there were over 1,300,000 licensed lawyers and 200,000 paralegals in the U.S. Consultancy group McKinsey estimates that 22 percent of a lawyer’s job and 35 percent of a law clerk’s job can be automated, which means that while humanity won’t be completely overtaken, major businesses and career adjustments aren’t far off (see “Is Technology About to Decimate White-Collar Work?”). In some cases, they’re already here.

“If I was the parent of a law student, I would be concerned a bit,” says Todd Solomon, a partner at the law firm McDermott Will & Emery, based in Chicago. “There are fewer opportunities for young lawyers to get trained, and that’s the case outside of AI already. But if you add AI onto that, there are ways that is advancement, and there are ways it is hurting us as well.”

. . . .

So far, AI-powered document discovery tools have had the biggest impact on the field. By training on millions of existing documents, case files, and legal briefs, a machine-learning algorithm can learn to flag the appropriate sources a lawyer needs to craft a case, often more successfully than humans. For example, JPMorgan announced earlier this year that it is using software called Contract Intelligence, or COIN, which can in seconds perform document review tasks that took legal aides 360,000 hours.

These programs are, simply put, changing the way legal research is carried out. Workers used to have to trudge through stacks of dusty law books and case files to find relevant information.

. . . .

People fresh out of law school won’t be spared the impact of automation either. Document-based grunt work is typically a key training ground for first-year associate lawyers, and AI-based products are already stepping in. CaseMine, a legal technology company based in India, builds on document discovery software with what it calls its “virtual associate,” CaseIQ. The system takes an uploaded brief and suggests changes to make it more authoritative, while providing additional documents that can strengthen a lawyer’s arguments.

“I think it will help make [entry-level lawyers] better lawyers faster. Make them more prolific,” says CaseMine’s founder, Aniruddha Yadav. “If they are handling a couple cases at a time, they will learn the law faster.”

. . . .

Other legal tech startups with AI at their core have been gaining steam as well. Kira Systems, which makes a contract review platform, counts four of the top 10 American law firms, as well as several international firms, as clients. Meanwhile, investors plowed $96 million into Zapproved, a startup that makes a cloud-based electronic discovery tool. Overall, it’s been a banner year for new legal tech companies, with funding up 43 percent in the first three quarters of 2017 compared with the same time last year, according to a report by the research firm CB Insights.

. . . .

There are, however, still obstacles to further adoption of AI in the legal profession. Chief among them is a lack of accessible data to use in training the software. Take the contract analysis company Legal Robot. In order to train its program, a team of developers built their own database of terms and conditions by collecting examples from major websites. But that wasn’t enough—the company also had to strike deals with law firms to gain access to their private repositories. In total, they compiled over five million contracts.

Link to the rest at the MIT Technology Review

PG notes that the MIT article is not the only one about the legal profession which is primarily based upon the methods of practice followed by large American law firms. He doesn’t blame the authors of the article or the firms profiled therein because most of the large sales opportunities for these technical products or services will be in major law firms.

However, only a small percentage of practicing attorneys work for major law firms in the US. About 85% of American attorneys work in firms of 50 lawyers or fewer and about half of all American attorneys are sole practitioners. The legal “market” is really fragmented into business organizations that may have less in common than non-experts first assume.

In PG’s experience, the most technically-savvy lawyers are either in very small firms (many with a single attorney) or as small groups in very large firms (fewer than 5 lawyers in a firm of 500 attorneys, for example).

Tech companies and venture capital firms typically misjudge the true size of the legal market for advanced tech products. The average gross revenue (not profit) per lawyer (not including paralegal, secretary, other support staff, etc.) for the 100 largest law firms in the United States was somewhat less than $1 million in 2017 and about $850K in 2016.

Additionally, the management structure of many major firms is not well-suited for supporting the acquisition of major technology products via a capital spending budget. A typical industrial firm will calculate profits after including all costs, including salaries and bonuses.

Generally speaking, a law firm’s “profits” don’t include all salaries and bonuses the firm routinely pays year in and year out. These law firm “profits” are divided among the long-term partners or major shareholders of law firms and distributed each year rather than retained or accumulated to fund long-term growth.

It is not unusual for the controlling partners/shareholders to take relatively small salaries or draws against distributions based on equity compared to their end-of-year distributions. Using money to acquire new technology products or services typically means that each of the firm’s big shots takes home less money at the end of the year.

The bottom line is that, as a group, major law firms are not big-time purchasers of new technology products and services because of the immediate hit to the partners’ income. For example, it took many years for the original computer-assisted legal research services, Lexis and Westlaw, which had a clear and compelling value proposition for lawyers, to achieve any sort of respectable penetration of and associated revenue from these firms.

Morality clauses: are publishers right to police writers?

From The Guardian:

When the American Libraries Association awards its Andrew Carnegie medals in New Orleans later this month, there will be no winner for excellence in non-fiction. Sherman Alexie, the poet and novelist who was due to receive it for a memoir, You Don’t Have to Say You Love Me, has declined the award following allegations of sexual harassment.

Last month, the novelist Junot Díaz withdrew from the Sydney writers’ festival and from chairing the Pulitzer prize board after being confronted by his own accusers. As the allegations swept through social media, another writer, Mary Karr, joined the fray, tweeting of her distress that her testimony to DT Max, the biographer of her one-time partner David Foster Wallace, about Foster Wallace’s abusive behaviour had been marginalised. “Deeply saddened by the allegations against #JunotDiaz & I support every woman brave enough to speak. The violence #DavidFosterWallace inflicted on me as a single mom was ignored by his biographer & @NewYorker as ‘alleged’ despite my having letters in his hand,” she wrote.

Such high profile cases are far from rare as the #MeToo movement spreads across the creative industries. They come at a time when writers are facing increasingly draconian attempts by publishers to police their behaviour, calling into question centuries old assumptions about the desirability – or even the possibility in today’s networked world – of separating writers’ lives from their work.

. . . .

Morality, or morals, contracts have existed in the film industry since 1921, when Universal Pictures introduced them in response to Fatty Arbuckle’s trial for manslaughter, but they are relatively new in the publishing industry. One such clause, introduced by HarperCollins in the US, stipulated that the publisher could terminate a contract in cases of “conduct [that] evidences a lack of due regard for public conventions and morals”, or in the case of a “crime or any other act that will tend to bring the Author into serious contempt, and such behaviour would materially damage the Work’s reputation or sales”. Caroline Michel, a leading literary agent, said this week that the use of morality clauses had doubled in the US over the past year. In a recent speech, Royal Society of Literature president Marina Warner warned that “being good” should not be conflated with “good writing”. But where is that line drawn?

Clearly, reputation doesn’t matter to a controversialist in the way it does to literary authors such as Alexie or Díaz, who are facing serious damage to their careers. In the weeks since 10 women came forward with accusations against Alexie, the Native American author has been subjected to a cascade of punitive measures. His name has been stripped from a scholarship awarded by the Institute of American Indian Arts, all references to him have been “deleted or modified” in the blog Native Americans in Children’s Literature, bookshops and libraries are destocking his books and his US publisher has said that it will be postponing the paperback of his memoir (though his UK publisher, Penguin Random House, says it will continue to reprint his work as required).

. . . .

The high emotions surrounding the behaviour of writers are starkly exemplified by the case of Foster Wallace. Though Karr feels understandably aggrieved that her experience wasn’t taken more seriously by his biographer, she would be wrong to think it wasn’t noted. In a blog written at the time, Kristen Roupenian – who went on to write the New Yorker short story sensation “Cat Person” – described her dismay at discovering in Max’s book that the literary hero she worshipped as a student would probably have dismissed her as “audience pussy”.

She wasn’t looking for a boycott of his work, she wrote. “All I expect is a quiet, un-showy disqualification for the role of hero, mentor or saint. I would like the ‘statue’ (Wallace’s word) of his public image to be carefully dismantled, for the overblown ideas we have of him and what his life meant to slowly begin to deflate. I would like him to become just another writer, imbued with no moral authority beyond what is contained in his words on the page.”

. . . .

As the pressure has mounted, London-based authors’ agent Lizzy Kremer has taken pre-emptive action – drawing up a new, industry-wide code of conduct on behalf of a coalition of authors, booksellers, agents and publishers. The voluntary code was partly inspired by London’s Royal Court theatre, which constructed one in reaction to its own sexual misconduct scandal involving a former artistic director. Among the theatre’s first responses was a call out for testimony about sexual harassment to help it to identify “patterns and scenarios”. In a detail that chimes strongly with the publishing industry, the report drew attention to the dangers of a “blurred social context”: “13.3% of reported incidents happened at work parties … with alcohol.”

“Publishers feel an obligation to use their personal social media accounts to publicise books and to go out for drinks,” says Kremer. “People forget that these are not friendships, they are friendly business relationships. You have to understand what’s off limits.”

In a personal blog, she recalled meeting up with a younger woman who told her of several “small yet frightening liberties” that men in publishing had taken at parties and in offices over the years. “One of the things that interested me about the [Royal Court] report was its emphasis on the vulnerability of the creative person,” says Kremer. “Obviously it’s not the same in publishing – you don’t have to get changed in communal dressing-rooms – but it’s another industry with a culture of asking employees to give something personal of themselves.”

Link to the rest at The Guardian

The Big Secret Why Behind Everything so Far

From Chuck Palahnuick:

On the plus side I’m not crazy.  For several years my income has dwindled.  Piracy, some people told me.  Or the publishers were in crisis and slow to pay royalties, although the publishers insisted they’d sent the money.

More recently, the trickle of my income stopped.  Not that there wasn’t always a good excuse.  Someone’s mother was suffering from Alzheimer’s and needed constant looking after.  The bank’s wire transfer system wasn’t secure, and hackers were a new threat.  You don’t question someone who claims to be the caregiver for a mother with dementia.  You let it slide.  I let it slide.

That’s why my big shows on book tour stopped.  Because the payment for Fight Club 2 and the two coloring books and Adjustment Day never seemed to arrive.  Years of income.  Each of those big shows cost north of ten grand to stage.  Money I paid.  For the glowing beach balls, the severed arms, the $150 leather-bound books as prizes, not to mention the dog toys, the shipping, the candy.  So much candy.  For each event, shopping carts full of candy.  It was justified in my mind because most of my readers had never attended an author reading, and I wanted their first to be exceptional.  But when my income stopped, when I had to choose between health insurance and autographed rubber arms… the shows stopped.  There, I’ve said it.

In comics, you pay your own way.  Invitations arrived from Comic-Cons, Dragon Cons, Wizard Worlds, but my money for travel had dried up.  Instead of income, I got excuses.  But this entire time an idea nagged at me:  What if someone’s stealing?

But that, that was insanity.  I’ve worked with the same team of people since 1994.  To suspect anyone was stealing, I had to be crazy.

And then I wasn’t.  You may have read about this over the weekend in the New York Post.  All the royalties and advance monies and film option payments that had accumulated in my author’s account in New York, or had been delayed somewhere in the banking pipeline, it was gone.  Poof.  I can’t even guess how much income.  Someone confessed on video he’d been stealing.  I wasn’t crazy.

Link to the rest at Chuck Palahnuick’s blog

PG is interested to see a couple of articles describing the literary agency, Donadio & Olson, as a victim of the wholesale theft of client funds.

If a community bank closes because of financial improprieties that have continued for years, is the president of the bank regarded as an innocent bystander? Can he/she credibly point to a clerk and say, “It was all her fault! I had no idea this was happening over all these decades.”

In a criminal trial held in a court of law, the president is presumed innocent until proven guilty. In the court of public opinion, the president is presumed to be part of the scheme or too incompetent to be responsible for running a bank.

PG suggests that in the court of public opinion, the agents that own (and have owned) and operated Donadio & Olson during the lengthy period of time over which client funds were stolen from authors should be similarly judged.

In the  event of a bank failure or financial difficulties, typically, an aggressive federal agency swoops in late on a Friday afternoon and takes over the books and records and operations of the bank. All the bank’s employees walk out the  door while the government agency figures out what went wrong and who is entitled to how much money. The bank reopens on Monday morning under the direct management of the Federal Deposit Insurance Corporation. (Similar enforcement actions by other government agencies if a bank is not federally insured or a savings & loan has problems.)

It is PG’s impression that, like California, New York’s legislature has passed a law about nearly every subject imaginable. New York City prides itself as being the center of the traditional American publishing industry.

Where is the government regulation requiring that, if literary agencies are receiving and holding money that really belongs to someone else – authors – the literary agencies act like banks that receive and hold money belonging to other people and be treated as custodians of funds held to the highest standard of care?

If Big Publishing really cares about authors and doesn’t take them for granted, why don’t the standard terms of a traditional publishing contract include provisions that pay royalties directly to authors and agency fees directly to agents? Publishers will do this if asked by an attorney for the author. Why not make it the default?

As PG has stated before, nothing that is good for the author happens when an agency receives royalty payments to which the author is entitled. Passing funds through the agency bank account adds no value whatsoever and only provides an opportunity for something bad to happen to those royalties.

If small print ‘terms and conditions’ require a PhD to read, should they be legally binding?

From The Conversation:

You may not realise it but you are signing legal agreements all the time. Think of all those “terms and conditions” boxes you tick when you buy new software or travel insurance. How many times have you tried to read these and not really understood that they were saying?

You’d not be alone in that. Our research outlines how insurance policies are incredibly difficult to understand. So difficult that you need a PhD to understand them.

Yet consumer law requires legal agreements to be transparent. This means that they need to be in plain, easy to understand language. If legal documents are not written in plain English, then they may not be legally binding – or at least the parts that are not transparent won’t be. So does this apply to those contracts you sign on a regular basis? And, if so, how do we measure how readable something is?

. . . .

Over the years, hundreds of different readability measures have been created for English and other languages.

. . . .

The choice of measures is complicated by the fact that different measures calculate readability in different ways. But broadly speaking the measures that we used are based on the number of words in a sentence, as well as the number of syllables or number of letters in the words. If a document has lots of words with multiple syllables and sentences with more words, then its readability will be less than one that has words with fewer syllables and shorter sentences.

There are lots of online tools to calculate readability. Even tools that try to produce the same measure, like the Flesch-Kincaid reading scores, can have significant discrepancies. One of the reasons for this is how the software counts number of words and syllables. For example, does the program count hi-tech as one or two words?

. . . .

All of the policies we tested needed a very high level of education to be fully understood. The most readable policy required almost 14 years of education (high school plus one year of university), while the least readable needed 19 years (PhD level). This suggests that at least some parts of these policies could be challenged on grounds of their transparency – no matter whether they are fair or not. This has important implications for consumers.

Based on these common measures, a reasonable conclusion might be that these policies are not written in clear and plain English. Not so in the UK. Readability scores do not have any legal effect in the UK – there isn’t a target score to beat.

This is because European case law requires courts to consider whether the contract clearly communicates its effects. A reading score may be good evidence that the effects cannot be understood by a consumer, but are not seen as the determining factor.

. . . .

In the US, however, there is a trend towards using reading scores to assess contracts. In Texas, for example, consumer banking contracts have to meet prescribed Flesch-Kincaid reading scores calculated by Microsoft Word. Similarly, in South Carolina loan contracts have a Flesch-Kincaid score of no higher than seventh grade.

Link to the rest at The Conversation and thanks to Nate at The Digital Reader for the tip.

PG decided to check some readability scores. He checked several documents by calculating their Flesch Kincaid Reading Ease scores. Fortunately, he quickly located a helpful website that did the calculations for him – here’s the link.

MS Word 2016 and Office 365 have an Editor feature, but, like the early versions of so many Microsoft features when first released, they’re a little clunky.

So, here are the documents and their Flesch Kincaid Reading Ease Score and Flesch Kincaid Grade Level Scores:

PG’s Standard Retainer Agreement for his Clients:

Flesch Kincaid Reading Ease – 47.4 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 10.9

PG’s standard introductory email sent to New Clients:

Flesch Kincaid Reading Ease – 66.8 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 7.1

Amazon KDP Terms and Conditions

Flesch Kincaid Reading Ease – 54.8 (0 to 100, higher is better)

Flesch Kincaid Grade Level – 9.5

Barnes & Noble Press Author Membership Agreement

Flesch-Kincaid reading ease score – 40.3 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 14

Big Five Publisher – A

Flesch-Kincaid reading ease score – 38.8 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 14.5

Major Publisher – B

Flesch-Kincaid reading ease score – 27.5 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 19.7

Major Romance Publisher

Flesch-Kincaid reading ease score 33.1 (0-100 scale, higher is better)

Flesch Kincaid Grade Level – 16.7

Perpetual License for Derivative Rights

From Writer Beware:

SFWA’s Contracts Committee has recently been seeing a proliferation of contracts from small magazines, and a very few established markets, that license all derivative rights in perpetuity.

This is a red flag for a number of reasons, even if these rights are licensed non-exclusively. A derivative work is defined by copyright law as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” This sort of rights grab is by no means normal; magazines generally only take very limited first publication and archival rights for a limited time. Licensing the right to create derivative works can and mostly likely will interfere with the author’s right to exploit their right to create or license derivative works to others.

The risks of signing such contracts can be serious. To give examples of some of the negative impact of these rights grabs.

1) Dramatic rights are compromised, limiting the author’s ability to sell works for TV and film use because the author can no longer offer exclusive rights to the story, which means movie or TV producers who want exclusive dramatic rights are not likely to be interested in the work. The best case scenario is that the author may end up having to give the publisher of the magazine a cut of any income.

2) Marketing rights are compromised, in that any marketing deal could be undercut by the publisher, who would also have the ability to market those rights.

3) The ability of the author to publish sequels is compromised. The Publisher could commission sequels to the work from another writer, in competition with the author. Even if the Publisher were required pay a fee to the author for a sequel written by another writer, the existence of such competitive sequels would likely seriously hurt the author’s own sequels.

4) The author would have a de facto business partner for the rest of the author’s life and beyond for the life of copyright. Whether or not a clueless publisher would even realize what they’ve acquired or have any idea how to exploit it, the specter would hover over the author’s further use of any elements in the original story. In addition, if the publisher files for bankruptcy, any rights the publisher held would likely become part of its assets sold during the bankruptcy process. The author would then end up with a completely unknown business partner.

5) Even with a perfectly drafted contract, which seems unlikely with a publisher who would propose such a contract in the first place, it could easily take years of legal action to unscramble the competing rights.

Link to the rest at Writer Beware

In the #MeToo Moment, Publishers Turn to Morality Clauses

From Publishers Weekly:

Until recently, the term “moral turpitude” is not one that crossed the lips of too many people in book publishing. But Bill O’Reilly, Milo Yiannopoulos, Sherman Alexie, Jay Asher, and James Dashner changed all that.

A legal term that refers to behavior generally considered unacceptable in a given community, moral turpitude is something publishers rarely worried themselves about. No longer.

Major publishers are increasingly inserting language into their contracts—referred to as morality clauses—that allows them to terminate agreements in response to a broad range of behavior by authors. And agents, most of whom spoke with PW on the condition of anonymity, say the change is worrying in an industry built on a commitment to defending free speech.

“This is very much a direct response to #MeToo,” said one agent when asked about publishers’ growing insistence on morality clauses. Most sources interviewed for this article agreed with this sentiment, citing the way sexual misconduct allegations and revelations are ending careers and changing the way companies do business. But it’s not just sexual harassment charges (which embroiled bestselling authors O’Reilly, Alexie, Asher, and Dashner) that publishers are scrambling to protect themselves against. It’s also the fallout that can come from things their authors say.

The situation with Yiannopoulos highlights this. S&S’s purchase of his book Dangerous in December 2016 caused a backlash in certain circles of the industry, with some complaining that the right-wing provocateur peddled in hate speech and should not be given a platform by a major publisher.

In February 2017, after the deal received bad press and several of S&S’s authors threatened to leave it, the publisher canceled Yiannopoulos’s book. The cancelation coincided with the resurfacing of an old interview Yiannopoulos gave, in which he appeared to condone child abuse.

S&S said that it canceled Dangerous because the manuscript was not to its liking. (The language in most author contracts gives publishers quite a bit of latitude in determining what constitutes a suitable manuscript.) Some felt, however, that the publisher was looking for a reason to drop the “alt-right” bad boy. Yiannopoulos sued S&S but wound up dropping the case earlier this year.

The controversy surrounding Dangerous highlights the stakes for publishers at a moment when platforms and reputations can be built, or destroyed, with a tweet. For agents, the Yiannopoulos case underlines some of the biggest concerns about morality clauses: the threat of muzzling speech.

“The gist of it,” one agent said in reference to a clause in Penguin Random House’s boilerplate, “is that [the publisher] wants the right to cancel an author’s book anytime the author says or does something the publisher doesn’t agree with. It’s crazy.”

. . . .

 “There are obviously a lot of very complex things going on here,” he said, speaking to the way publishers are reacting to the shifting social climate. He also noted that most publishers he’s dealt with have been open to changing these clauses. “When you go back to [publishers] and remind them that authors are allowed protected speech, political or otherwise, my experience is that they’ve been very responsive.”

But the agent who called these clauses “crazy” said he felt that more nefarious possibilities lie ahead. “Once Medusa’s head is removed from the box, a whole series of events can occur,” he complained. “Maybe [the publisher] signs up three books for $1 million, and the first book doesn’t do so well, and they use this clause to get around what’s legal and fair. This is like dropping a pebble in a pond: there are a lot of ripples.”

. . . .

“There are instances where it is appropriate to cancel a contract with someone—if, say, they are writing a book on investing and they’re convicted of insider trading.” But Rasenberger has concerns about the new boilerplates she’s been seeing. “These clauses need to be very narrowly drawn. The fear is that clauses like these can quash speech that is unpopular, for whatever reason.”

Another agent admitted to being distressed by the fact that some of the morality clauses she’s seen “are going very far.” She said that though she and many of her colleagues think it’s “not unfair for a publisher to expect an author to be the same person when it publishes the book as when it bought the book,” she’s worried how extreme some of the language in these new clauses is.

“If you’re buying bunny books or Bible books, these clauses make sense,” said Lloyd Jassin, a lawyer who specializes in publishing contracts, referring to deals for children’s books and Christian books. He wondered, though, about a publisher trying to hold authors of any other type of book to a moral standard. Noting that morality clauses are about money, not morality (specifically, they’re about a publisher’s ability to market an author), he posed a hypothetical. “Is the author of The El Salvador Diet, which touts a fish-only regimen, allowed to be photographed eating at Shake Shack? That goes to the heart of the contract.” He paused and added: “This is definitely a free speech issue.”

Link to the rest at Publishers Weekly

PG is old enough to remember when morality clauses aka morals clauses were considered unacceptably puritanical.

Morality clauses are standard practice in some Texas divorces. (They may also be used in some other states, but PG has only heard about the Texas variety.)

PG understands that courts in several Texas counties automatically issue orders including morality clauses on a temporary basis when a divorce petition is filed and there are minor children. Morality clauses can also be permanent and continue after the divorce. Since a divorce court may have continuing jurisdiction over custody matters, if the custodial parent and children move out of state, a custodial parent who violates the morality clause elsewhere may be hauled back into a Texas court for enforcement purposes.

PG further understands that a typical Texas morality clause will prohibit a custodial parent from having any adult to whom the custodial parent is not married be present in the home from 10:00 pm to 7:00 am if the children are also there. Grandparents and similar relatives are permitted, but on at least on occasion, a morality clause has been enforced to prevent a lesbian lover from spending the night with a custodial parent.

On many more occasions, a “friend” of the custodial parent may walk out of the door at 9:59 pm and quietly return at 10:30 pm after the children are in bed. In the morning, when the alarm clock sounds at 6:30 am, the friend gets up, gets dressed and leaves, only to return at 7:01 am with donuts.

As might be assumed, if the non-custodial parent asks for a change of custody because the morality clause was violated, the kids are usually the principal witnesses in such litigation.

PG has not made these comments to denigrate the great state of Texas, its laws, judges or citizens. He is merely pointing out that the same types of legal provisions that might be considered hopelessly retrograde in the context of a Texas divorce are now absolutely right, proper and essential in a Manhattan publishing contract.

 

Facebook admits it did not read terms of the app that harvested data of 87 million

From CNBC:

Facebook did not read the terms and services of the app that improperly shared user data with Cambridge Analytica, the company’s chief technology officer said Thursday.

“We require that people have a terms and conditions and we have an automated check there at the time — this was in 2014, maybe earlier,” Mike Schroepfer told U.K. lawmakers at a parliamentary committee hearing. “We did not read all of the terms and conditions.”

Aleksandr Kogan, a Cambridge University researcher, created an app that collected data on millions of Facebook users. Kogan’s company, Global Science Research, then shared that data with political analytics firm Cambridge Analytica.

. . . .

Kogan said on Tuesday that Facebook did not pull it up on its terms of services until after The Guardian newspaper reported early informationabout it harvesting user data.

Facebook CEO Mark Zuckerberg told U.S. lawmakers earlier this month that Kogan was “in violation” of his agreement with the platform and that this was a “big issue.” But the data scientist hit back at the company’s boss, arguing that tens of thousands of other developers were employing similar practices to his app.

Link to the rest at CNBC

PG has lost track of the number of Terms of Service, Terms and Conditions, Terms of Use, etc.,  documents he has read or reviewed or written since the lovely little contracts started popping up online over thirty years ago. Had he known where the internet would go, he would have counted.

Apples iTunes’ TOS reportedly runs to over 20,000 words.

A website called TermsFeed provides both free and “premium” terms of service you can just copy and paste into your online business’s website. It has a nice article about “I agree to” Checkboxes so you can appreciate the full range of possibilities.

PG is certain Facebook’s “automated check” is an interesting program, but PG suggests it will require the highest form of artificial intelligence to avoid being fooled by the lengthy and impossibly dense language contained in a great many TOS documents.

Unfortunately, TOS documents are legally binding – sort of, maybe, up to a point.

Legally binding or not, when people depend upon a company for a significant portion of their income (like KDP) and KDP receives the money and passes some of it through to those people, the TOU document can be rather important, particularly when the violation of its terms can stop the money flowing.

PG just checked KDP’s Terms and Conditions, which Amazon helpfully indicates were last updated in September 2016. Since he has looked at them since September, 2016, he doesn’t have to look at them. No, PG is not aware of any case involving a modification of a TOU where someone forgot to update the “date last modified” information. He is certain this mistake has occurred on at least a few occasions, however.

(Legal minutia tip – If you want to know what changes from revision to revision, save a copy somewhere on your computer that you’re not using for something more useful and do an MS Word document comparison with the prior TOU when a new TOU shows up. If you have your own website with your own TOU, keep the old ones somewhere. If you don’t, you’ll be embarrassed like the Facebook guy if anyone claims they didn’t violate the old ones and you improperly changed them.)

 

Do Romance Authors Receive Worse Treatment from Publishers Than Anyone Else?

PG is trying to extricate a client from a nasty publishing contract with a large romance publisher. Both the client and the publisher shall remain nameless.

PG is frustrated. The client is frustrated.

PG has conducted extrications from enough publishers to have come to a conclusion.

Across the broad range of different types of books and different varieties of publishers with which PG has dealt, as a group romance publishers are the worst. Worst contracts, worst behavior, worst attitude towards writers.

A public event PG can talk about began in 2012 when a class action was filed against the company on behalf of Harlequin authors who signed book contracts with Harlequin between 1990 and 2004. The suit was filed in 2012 and settled in 2016. You can find information about the settlement of the class action at Harlequin Class Action Settlement.

The lawsuit was based on Harlequin’s practice of sublicensing e-book rights through a Swiss subsidiary, which resulted in authors receiving 3% to 4% of net profits from their works rather than the 50% Harlequin agreed to pay in its publishing contracts.

PG has previously blogged about this case. You can see prior posts, including some court documents, by Clicking Here

Basically, the story was that HQ didn’t mention ebook royalties in its publishing contracts. Those contracts included a catch-all clause which essentially said HQ could license other rights and split the proceeds on a 50/50 basis with the author. The contracts also included a provision which said if HQ licensed the other rights to an affiliated entity, the royalties paid to the author had to be equivalent to market rates for licensing those other rights to a company not affiliated with HQ.

When ebooks appeared on the scene, rather than asking its authors to sign new contracts or ebook addenda to their existing contracts, HQ decided to license ebooks to a related Swiss company for a royalty of 6% of the cover price. The Swiss company then sublicensed each book to HQ print and ebook companies to distribute, so HQ-Switzerland kept 94% of the ebook proceeds and paid 6% to HQ-SorrySucker.

Under the “other rights” clause in the publishing contract, the author would be paid 50% of the amount of the license fees received by HQ-SorrySucker. HQ-SorrySucker paid the authors 50% of 6%. Even English majors know that results in a royalty paid to the author of 3% of the cover price each ebook.

This was at a time when Amazon would license ebooks from authors under KDP for royalties of 70% of the cover price. If HQ-SorrySucker had taken the normal route taken by other publishers, HQ authors would have received royalties at the rate of 35% of the cover price.

The following is from an Amici (the plural of Amicus or Friend of Court) Brief filed in the case by Romance Writers of America and the Authors Guild:

In the spring of 2011, Amicus The Authors Guild began receiving reports from its members that their e-book royalties from Harlequin were extremely low. These members believed Harlequin was self-dealing by licensing e-book rights to one of its corporate affiliates for 6% of the cover price (i.e. suggested retail price). Because the royalty payable to the author under the “all other rights” clause is 50% of the amount received by the publisher, a 6% royalty to the publisher results in a royalty to the author of only 3% of the cover price – far below the customary range for sales in secondary media. The Authors Guild contacted Harlequin to voice these concerns and to request a copy of Harlequin’s inter-affiliate license agreement. Harlequin declined to provide the document on the ground that it was proprietary.

During the same timeframe, Amicus RWA was also in communication with Harlequin regarding e-book royalty issues. Harlequin  provided to its authors, RWA, and other industry participants the following explanation of Harlequin’s inter-affiliate licensing practice:

Our authors contract with Harlequin Books SA (“HBSA”), our related Swiss company.  HBSA licenses  the right to publish an author’s work in print and digital to our operating companies and to third-party publishers, which then bring books to market in their country (incurring costs of translation, production, distribution, marketing, branding, etc.). In return, HBSA receives a license fee.

The NAR [net amount received by the Publisher] is the license fee. For editions where the author is to be paid 50% of NAR, the author’s royalty is therefore 50% of the license fee received by HBSA. The license fees are expressed as a percentage of cover price. Historically they ranged from 6% to 8%. The author’s 50% share of that fee would then equal 3% to 4% of the cover  price.

As noted, the publishing contracts at issue require that in any affiliate licensing arrangement the “Publisher” must receive license proceeds that are “equivalent to the amount reasonably obtainable by Publisher from an Unrelated Licensee for the license or sale of the said rights.” Based on their considerable reservoirs of knowledge and industry data sources regarding royalty rates in the publishing industry, the Amici confidently represent  to this Court  that  the  6% to 8% royalty that Harlequin Enterprises elects to pay to  its Swiss “Publisher” subsidiary is a small fraction of the proceeds that the “Publisher” could obtain from an unaffiliated licensee in the open market for e-books.

. . . .

Generally speaking, a book publisher makes money by exercising the rights that it has licensed from the author of a given work, through the sales of books or sub-licenses of publication rights in various sales and distribution channels.

Historically, the primary sales channel for print book publishers was through retail book stores. In the modern era of e-books, publishers sub-license their digital copyright rights to online “e-tailers.” The most well-known e-tailers of e-books are Amazon, Barnes & Noble, and Apple, but there are many others in the field.

There is no hard and fast rule or convention in the publishing industry on the royalty rates or license fees paid by e-tailers to publishers for e-books. There are, however, numerous sources ofdata on the market’s behavior. In the experience and collective knowledge of the Amici, publishers are almost universally able to extract from an e-tailer at least 50% of the cover price of an e-book. A 70% split for the publisher is quite common and can be obtained even from industry power­ houses such as Amazon and Apple.

It is clear to the Amici that if the Harlequin’s Swiss “Publisher” subsidiary operated as a normal market participant, it could readily license the new e-book versions of its backlist for license fees of 50% to 70% of the cover price of each work sold. In this scenario, the 50% royalty payable to authors under the 1990 to 2004 publishing agreements would be 25% to 35% of the cover price of each work sold. Instead, however, the Swiss “Publisher” licenses the e-books to its parent, Harlequin Enterprises, for 6% to 8% of the cover price, and the authors’ 50% royalty is thus only 3% to 4% of the cover price. From the perspective of the Amici, it appears that Harlequin Enterprises has simply siphoned off 42% to 64% of the cover price before the money reaches the Swiss “Publisher” subsidiary, so this amount will not have to be split with the authors.

PG has calmed down now, but he still wonders whether romance authors are treated worse than other authors by the publishing establishment.

PG does know Amazon loves romance authors and it shows its love by paying them money.

PG has never had a client ask him whether he thinks the author can make more money from HQ than from Amazon.

PG was not a math major, but he could probably figure out his answer to that question without a spreadsheet.

Boy Who Came Back From Heaven author sues book’s Christian publisher

From The Guardian:

Alex Malarkey, the American boy who disavowed his bestselling account of meeting Jesus after an accident, has launched a lawsuit against the book’s Christian specialist publisher. While the publisher has “made millions of dollars”, the suit alleges, it has “paid Alex, a paralysed young man, nothing”.

The car accident that almost killed Malarkey happened in 2004 in Ohio, when he was six years old. Two months later he woke up from a coma to find himself paralysed from the neck down. He and his father, Kevin, a Christian therapist, wrote The Boy Who Came Back From Heaven together. According to Chicago’s Tyndale House, the firm that brought the book out in 2010, Malarkey wrote of “the angels that took him through the gates of heaven itself. Of the unearthly music that sounded just ‘terrible’ to a six-year-old. And, most amazing of all … Of meeting and talking to Jesus.”

But when he was 16, Malarkey revealed on his blog that he had made it all up. “I did not die. I did not go to heaven,” he said. “When I made the claims, I had never read the Bible. People have profited from lies, and continue to. They should read the Bible, which is enough.”

Tyndale House pulled the book, which had already sold a reported one million copies, saying in a statement that it was “saddened to learn [Alex is] now saying that he made up the story of dying and going to heaven”.

Malarkey, who is now 20, filed a lawsuit against the publisher earlier this week, claiming his father “concoct[ed] a story that, during the time Alex was in a coma, he had gone to Heaven, communicated with God the Father, Jesus, angels, and the devil, and then returned”, and alleging that while Tyndale House has “made millions of dollars off Alex’s identity and an alleged autobiographical story of his life, [it has] paid Alex, a paralysed young man, nothing”.

. . . .

“Despite the claims in Alex Malarkey’s lawsuit,” the [Tyndale House] statement continued, “Tyndale House paid all royalties that were due under the terms of our contract on his book … Tyndale took the book out of print in 2015 when Alex said that he had fabricated the entire story. Any books still available from online vendors are from third party sellers.”

Link to the rest at The Guardian

Here’s a link to the Complaint. (Corrected link now)

It appears that, while Alex was a minor, his father wrote the book and entered into the publishing contract. The book lists the authors as Alex’s father and Alex.

The publisher stopped selling the book in 2015 after Alex revealed that the events described in the book as taking place while he was in a coma never happened.

The lawsuit is claiming damages for violation of Alex’s Right of Publicity under the Illinois Right of Publicity statute claiming that the publisher’s use of Alex’s identity in the book and related materials violated Alex’s rights.

Additional counts include invasion of Alex’s privacy by giving publicity to his private life when there was no legitimate public interest because the book was false, placing Alex in a false light, intrusion on the seclusion of Alex and his private affairs, defamation, violation of Illinois’ statute prohibiting deceptive trade practices, and financial exploitation of a person with disabilities in violation of an Illinois statute.

PG says it will be interesting to see how this suit proceeds. While he’s not an expert on Illinois law, in the US, a parent is generally empowered to act on behalf of a minor child in legal matters, including entering into contracts on the child’s behalf, including contracts involving depictions of the child in books and elsewhere.

If Alex’s father was the sole author of the book, he may have had the right, as Alex’s father, to grant the publisher the right to publish a book describing Alex’s experiences or supposed experiences.

On the other hand, Alex is certainly a sympathetic plaintiff – paralyzed and living on government benefits.

 

French Law’s Principle of Strict Interpretation

From The 1709 Blog:

One of the cardinal principles of French copyright law is the principle whereby any license/assignment of a copyright interest by an author is to be strictly interpreted such that any right not expressly mentioned is not granted.

. . . .

A professional photographer had licensed the rights to one of his photographs to an advertising agency for use in a real-estate promoter’s brochure and website for the price of 844 euros.

He later learned that the photograph was used, without his authorization (but with credit, such that there was no issue regarding his right of attribution) in an advertising campaign, appearing inter alia in Paris Match, the well-known magazine.

. . . .

The Court started by recalling the provisions of Section L.131-3 of the French Intellectual Property Code pursuant to which the license (or assignment) of copyright is subject to the condition that each right be distinctly mentioned and that the license (or assignment) be delineated with respect to its scope, purpose, territory and duration.

. . . .

The license relates to the illustration of a brochure and there is no express mention of a press advertisement, such that use in Paris Match goes beyond the authorization that was given.”

Link to the rest at The 1709 Blog

PG says this is a refreshing change from the creative approach some publishers employ to conjure up the inclusion of electronic rights in old publishing contracts created on Selectric typewriters.

The Publishers and the Public – a psychological drama

From Kenilworth Books:

There is a great deal of social pressure in the book industry to be smiley and gushingly positive all the time – and we are, when it is appropriate. The many authors whose work we love, and the many small publishers in particular whose work adds so much to what we offer as an independent bookshop, we will support with all our strength. But every now and then someone has to find both the courage and the words to explain that something is not right (even if they are damned for it) and to try to make suggestions as to what needs to change.

. . . .

The British Book Industry has a monstrous fair-trade and exploitation issue skulking beneath the surface which is slowly suffocating everything – it needs to be dragged in to the light and be seen for what it is.

Discussion about having a fair-trading arrangement for the production and selling of books needs to be moved up a gear; we need a pricing agreement that is coupled with a covenant about the fair treatment of authors. I’ve spoken to authors and illustrators who have been told off and threatened by their publishers for commenting on, or even just for sharing our previous blogs – making all but the bravest less willing to add their experiences to the discussion, except privately. Oddly perhaps, I’ve had the same experience with publishers; half a dozen publishers, both large publishing houses and small independents have contacted me privately with words of encouragement, telling me that the pressure on them to release books to Amazon, WH Smith and the supermarkets at extremely high discounts is embarrassing, crippling to their profit margins and has been the catalyst that has changed the nature of their business and not, they feel, for the better.

. . . .

Our friends in indie bookshops across the country are heading to Parliament soon to meet and discuss the plans put forward by The Big Green Bookshop for an Alliance of Independent Bookshops. The initial proposal included a plan for indie bookshops also to secure higher discounts from publishers – enabling them to compete in a low-price war. It is important that all booksellers understand what happens when a book is discounted, and who it is who feels the burden of this discount culture the most.

. . . .

The moment I go to the publisher and request a higher discount, the royalty rates for the author start to creep lower. When the Net Book Agreement was removed we were in a pre-digital world, no one had anticipated the arrival of e-readers (even though the first model of the Kindle in 2007 sold out within just a few hours) or the growth of leviathan that is Amazon – and as a result no one expected that trade discounts, even when ‘liberated’ from the constraint of the Net Book Agreement, would go above 55%. But they rocketed to much higher, and in cases now some retailers are demanding more than 70% discount on books from the publisher – meaning that the royalties back to authors, which are tied closely in to the rate of discount, are also decreasing year on year.

. . . .

Many authors however are struggling; writers with thirty years’ experience and many dozens of important and successful books to their name, are living on their over-drafts, taking second jobs to make ends meet, surviving by their partner’s incomes, or realising that they can earn more money by not writing but by doing events based on previous books. I spoke to one prominent, award-winning writer who told me ‘I have produced more than 200 books in 30 languages; many of my titles have sold over 1 million copies, I have a stack of awards – and yet I have not yet earned out the £10,000 advance I was given to cover two years’ work, and struggle to make ends meet‘. I’ve met writers who, just to enable them to continue in their chosen profession, are borrowing money from relatives, who have moved abroad for a lower cost of living and many whose thoughts of giving up are so dominant that I think it is fair to say that there is a prowling mental health risk too.

. . . .

The royalty arrangements for authors are so complex that the vast majority of authors do not even claim to understand them. If you know an author well enough to ask, please get them to show you their royalty statement – what you’ll see is a standard 10% of the recommended retail price for a new hardback book but then a separate and much lower rate for ‘discounted sales’ and another lower rate for ‘online sales’ (Amazon). When you have a complex contract, a lot can be hidden, intentionally or otherwise. That 10% as a full price royalty is only for hardbacks. On paperbacks it is, as a standard, 7.5% – with variations. And royalties are different again when a book is prepared for export. Royalties can go up according to sales and over time – but only once an author has earned out the advance on a royalty (if there is an advance).

. . . .

On ‘Special Sales’ (of which more later) the terms are, as standard, 10% of publisher’s net receipts, but when that book is so heavily discounted, that equates to about 3% of rrp – so for a £1 book, and author gets between 2p and 3p. It is important too that we start to question the level of transparency when out-dated agreements underpin the entire industry.

. . . .

In economic terms the issue is not only one of fair apportionment but also of clarity of who takes the risk. I can already hear publishers and trade magazine writers shouting ‘The publisher! The publisher takes the risk’. Yes, certainly the publisher is taking much of the financial risk, and many of the smaller publishers are making very modest profits indeed as a result. However, they are not taking all the risk. By firing out huge numbers of books, placing marketing behind a few and leaving the others to sink or swim, the culture of large-scale publishing is pushing a huge part of the risk back on to the authors, whose remuneration is already low. On the face of it writers, as a producer of goods, have a low production cost – they work largely alone, at home, with minimal tools. And this is the way that the publishing industry generally views authors now – they are cheap producers. And if one gives up because they can’t make ends meet, there will always be another easily and cheaply obtained.

. . . .

The largest retailers seem to be in control of pricing and the perception of value, while the large publishers place themselves in importance far above the authors and illustrators on whose work they rely.

. . . .

Large retailers are demanding higher and higher discounts from the publishers and the publishers are protecting profits by using the antediluvian complexity of authors’ contracts and royalty arrangements as a cushion. Royalties are not protected in any way against either a publisher’s decision to discount, or a retailer’s demand for a discount. I hear from publishers that presence on Amazon is now prerequisite for sales success – a lack of presence there now seems to mean that other retailers won’t take it and reviewers won’t cover it; so publishers would say that they have little choice but to fall in with the demands made for 53-70% discounts. If the net revenue by the publisher then is only 30% of cover price, the author will get 30p of a £10 book, not the 60p they would have got had it been sold at a standard 40% trade discount.

. . . .

Many authors struggle to make any claim to their back catalogue of work, even when the publisher has no intention either of supporting the development of that author, or of ever re-publishing older books. Authors are having their perceived value, along with their incomes, reduced year on year. Few rights, dubious contracts, low income.

. . . .

In addition to this there are several murky areas of publishing about which we should all be concerned – ‘Special Sales’ is one that leaps to mind. This is when a publisher can sell on an author’s backlist (the author having little choice because of, again, contractual arrangements) to a company that will then produce the book to sell at very low price at discount stores, through catalogues or at book fairs. In this case, the author’s royalties are even lower: just 2-3%, while the publisher will take 60-70% of the profit with the books being printed at extremely low cost.

Link to the rest at Kenilworth Books

Kenilworth Books is a small bookshop located in Kenilworth, England. Kenilworth is located in Warwickshire, about 6 miles from Coventry in the West Midlands.

.

.

Neither the OP or the bookshop’s website identifies the author of this piece, but PG’s best guess is that the author is either an owner or manager of the bookshop.

In either case, PG found the OP to be quite insightful and well-written. Clearly, the author of the piece understands the book business very well and is familiar with the way authors are commonly treated by traditional publishers.

The gravamen of this article and the previous one PG posted from The Bookseller that appears immediately below is that publishers are killing their own industry by the way they treat authors and most booksellers.

A book industry comprised mainly of large publishers and Amazon is not a place in which publishers would find quiet lives.

On the one hand, Amazon pays indie authors much higher royalties than traditional publishers do. On the other hand, Amazon always wants to be the lowest-priced seller of goods, so the publishers’ margins will come under greatly-increased pressure.

If publishers’ short-sited pricing tactics squeeze physical bookstores out of the market, the publishers’ main advantage in the eyes of most traditionally-published authors – access to physical bookstores – will be gone. Barnes & Noble is teetering on the edge of collapse so, in the US, publishers won’t have any large customer who can purchase a wide range of physical books in large numbers other than Amazon.

PG suggests that, in early 2018, smart authors will keep as many options open as possible.

He further suggests that an author signing a traditional publishing contract:

  • with non-compete and option clauses and
  • royalty provisions structured to make it likely the author’s effective royalty rate will be well below the “standard” royalties that are always listed first in these contracts and
  • that will last the rest of an author’s life and then some
  • is the archetype of an author failing to keep her options open.

And, of course, traditional publishing contracts are always subject to assignment and sale, so the dedicated and experienced book people working for the publisher who romance the author into signing the publishing contract won’t last long if the publisher is acquired by a venture or distressed property financial type. If an author thinks present-day royalty statements are difficult to understand, wait until she sees the statements the new owners create.

Hachette to Honor Weinstein Books Contracts

From Publishers Weekly:

Following a New York Times report exposing decades of sexual assault allegations against Hollywood producer Harvey Weinstein and his subsequent removal by the board of the company he co-founded, Hachette Book Group has addressed the future of writers signed to his book publishing imprint, Weinstein Books.

“Hachette Book Group will honor its contracts with writers who have come to us via Weinstein Books,” a spokesperson for the company told PW. “We will consider all of our options going forward, keeping support for our authors foremost.”

. . . .

Weinstein Books is a joint venture with The Weinstein Company, but its author contracts are with HBG, not Weinstein. Its authors include Morning Joe co-host Mika Brzezinski, who recently wrote on Twitter that she has “a three-book deal with Weinstein Books, through Hachette. I can’t go forward with those books unless Harvey resigns.”

Link to the rest at Publishers Weekly

The OP doesn’t provide the dollar total for the advances Hachette has paid to Weinstein. PG opines that any number of Hachette executives can’t forget that number. But, of course, supporting authors is always the most important priority.

Freight asks authors to buy own books

From The Bookseller:

Troubled publisher Freight Books has been accused of “rubbing salt in the wound” by sending an email to writers asking if they wanted to buy their own books.

Founded as an imprint of Freight Design in 2011 by Davinder Samrai and Adrian Searle, operations at publisher Freight Books have been thrown into disarray since the abrupt departure of Searle in April due to “irreconcilable differences over strategic direction”.

Last month, authors and agents called on Freight Books to provide more transparency about its financial status after it emerged its writers had not been paid for several months. It has also been reported that Freight has been in talks to sell the book side of the business, following an “unsolicited” request to buy the press, but last month the publisher was taken to court by Glasgow-based printing company Bell and Bain Printers over unpaid work dating back to the beginning of the year.

In an email to authors seen by The Bookseller, Samrai highlighted the “extremely uncertain” future the publisher faced and invited authors to buy their own books, saying that it “may be possible to set stock against any monies you are owed”.

Samrai said that during a “recent legal process”, it was explained that should the court’s decision go against him or Freight Books, then “matters relating to Freight Books […] could be taken out of my hands”.

“If you would like to buy stock of your titles, it may be prudent to act sooner rather than later”, Samrai said. “I appreciate this may cause unease but depending on quantities, I may be able to supply at a better discount than the regular author discount. If you would like to secure books – please email me your requests and I’ll do all I can to ensure you receive your books.

He added: “If any author is owed monies by way of royalties/advances etc. it may be possible to set stock against any monies you are owed. Also, if you are owed royalties an invoice should be submitted, in order to be registered on our accounts system (even if you not interested in books as payment).”

. . . .

A Freight author, who wished to remain anonymous, told The Bookseller: “I am utterly disgusted that a company in which so many writers put their trust thinks that selling an author discount copies of their own work can do anything but rub salt in the wound. The behaviour and mismanagement of Freight is an affront to everything the publishing industry should be about.” He added: “I for one hope I never hear of them again, and wish I had never had anything to do with them.”

Another Freight author, Alan Murray, said the offer was “a bit bonkers”. He said: “Authors who have not been paid are offered their own books at a discount – presumably allowing revenue raised to pay authors (and others) who haven’t been paid and whose contracts have probably been breached. Thanks, but no thanks. Count me right out.”

Link to the rest at The Bookseller

PG wonders if this story should be catalogued under “How Publishers Nurture Authors”.

Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights

From Talking New Media:

The issue of digital property ownership recently, and surprisingly, came to the forefront during Hurricane Irma. Select Florida Tesla car owners received a notice that there was a software update available for their vehicles. The update, once applied, suddenly allowed gave their vehicles about a 30 mile increase in range. The idea was to help Floridians get out of harm’s way. But what it really did was remind the Tesla owners just who owns the software in their cars. It turns out that the only thing that had separated out two different models of Tesla — one that offered more range between charges, and one that didn’t — was the software in the vehicle, something that Tesla could change at any time.

In a way, this is the issue at the heart of Joshua A.T. Fairfield’s book Owned: Property, Privacy, and the New Digital Serfdom, from Cambridge University Press.

. . . .

“We own and control fewer and fewer of the products that we must use to function in modern society,” Fairfield writes. “Many computing devices (iPads, for instance) run only those programs approved by the device seller. We cannot even tell our devices not to reveal our personal data.”

“This is an untenable position in an information-age society,” Fairfield believes, and so he urges readers to promote changes in the laws governing such things, believing that right now we are living in a digital rights environment closer to feudalism than freedom.

. . . .

“First, internet technologies created an unprecedented ability to copy intellectual property — file sharing services spread pirated music like wildfire and fueled the music industry’s fears for its own future — before they created the ability to track and verify individual copies of electronic information,” Fairfield writes.

Then, the rise of free content created a situation were “software providers needed a revenue model that circumvented internet users’ refusal to pay for content that they could obtain — usually illegally, but with some degree of safety — for nothing. So software providers monetized information about their customers by surreptitiously monitoring everything their users typed, clicked or did, and selling that information to advertisers who could use it to extract more and often costlier deals from their customers.”

Fairfield’s observations are somewhat self-evident, we see examples of them every day, but the author gives the readers the background information, the cause and effect, and then lays out what needs to be done about, best summed up in the line “ordinary property ownership should apply to digital and smart property.”

Link to the rest at Talking New Media

PG suggests there are a lot of click-to-accept terms of use that might not hold up to well-lawyered litigation based on fraud, intentional misrepresentation, various consumer protection statutes and the like. He further suggests that smart lawyers will rein in their corporate clients’ overreach when establishing their legal relationship with their customers/users based on a mouse click instead of a signature at the bottom of several pieces of paper.

In PG’s litigating days, he observed that if, during the course of a trial, the judge decided one party or the other was a bad guy/gal, things didn’t go well for that party in the courtroom or in the judge’s decision.

Of course, a losing party can always appeal the trial court’s adverse decision. However, PG once heard an experienced trial judge say, “I know how to write an opinion that will never be reversed by an appellate court.” Knowing that judge, PG was inclined to believe him.

In PG’s experience, trial judges overwhelmingly want to do the right thing regardless of the legal arguments of the parties. Most good judges ascended to the bench because of a desire to do the right thing and could have earned more money by staying in their former practices. At the end of the trial, they want to walk out of the courthouse feeling like they helped make the world a little fairer with their decision.

In a fight between a giant corporation and the little people, most judges tend to identify with the little people.

De Gruyter Will Digitize the Entirety of its Backlist. All the Way Back to 1749.

From No Shelf Required:

De Gruyter has taken the decision to digitize the entirety of its backlist all the way back to 1749. The decision to make this significant investment to complete the prestigious archive was taken earlier this year and the digitization process will begin shortly.

Many treasures are among works to be digitized, including Noam Chomsky’s “Syntactic Structures” as well as versions of “Grimm’s Fairy Tales” to name but two. The project is expected to conclude in 2020 with 3,000 additional titles to be available by the end of 2017. Of those titles digitized during the rest of this year, up to one hundred of the most important series will have priority, to allow librarians to complete their holdings.

. . . .

De Gruyter’s desire to secure its backlist for generations to come stems from the publishing house’s long tradition as a family-owned company which not only has a commitment to the past, but also a keen interest in shaping the future.

Link to the rest at No Shelf Required

PG sometimes tells his author clients before they sign typical legacy publishing contracts that those contracts will effectively last forever if the publisher wants them to do so.

Writers, Scam Artists, Agents, And More (Sigh)

From Kristine Kathryn Rusch:

Just when I thought it was safe to get back into the water…

I’m editing a lot these days. I only edit short fiction projects. Anthologies, anthology series (Fiction River), the occasional nonfiction book, and some magazines. I’m also consulting with the fine folks at WMG Publishing, because they’ll be handling the contracts for the revival of Pulphouse next year. Dean’s vision for Pulphouse includes reprinting some of the older stories, which means we have to deal with estates.

Too often, estates mean agents.

But even some lazy-ass living writers give their agents control of everything. It took me one year—one year—to get my hands on a non-fiction reprint that I wanted for a project of mine. The centerpiece for that project was an editorial written more than 20 years ago by a writer who had forgotten they had even written it. This writer, a friend of mine, doesn’t do email, and mostly stays off-line. (I know, I know.) I didn’t know about their tech phobia when I started into this, and had sent five different emails before I asked another editor friend how to reach this writer.

The editor advised snail mail.

Before I resorted to that, though, I called. The author and I are friends, after all. On the phone, the author told me that their agent handles everything. I do mean everything. The author—one smart cookie otherwise—can’t be bothered to concern themselves with touching anything to do with business. I had no idea this author was an Artiste, but I guess I know that now.

I also know why most anthologists refuse to reprint this author’s work.

I was pretty excited about this non-fiction project when I started it. I missed the publication window because of this agent and this writer. Fortunately, my publisher pushed the deadline back. We’ve pushed it back again, and again, and again. And frankly, I’m not feeling it any more. I have completely soured on the project.

The big bad agent, by the way, negotiated a horseshit deal for the writer that essentially gave me more rights than I would ever need. I offered the usual fee, which the agent did not negotiate up (although he could have). By that point, I was too pissed to give a break to these people. The amount of money—on publication, if there’s a publication—to the agent and the author will be negligible.

. . . .

Who the hell gives over control of everything, I mean everything, to an agent?

Oh, most writers. Never mind.

Still, I expect better. And if a writer is going to give control of the business side of her work to an “expert” then the expert better be damn good at negotiating and taking care of the writer’s interests.

So far, all of the agents I’ve encountered who handle everything are the worst negotiators in the business. They let things slide, they don’t care about being paid, they don’t ask for the right kind of language in a contract, they license the wrong rights or sell those rights outright.

. . . .

On one of the many projects I worked on recently, I contacted a writer to reprint one of their stories. I wrote a standard email letter, requesting permission to reprint, and the writer wrote back that they had no idea if the rights were available. The writer said I should contact the editor who originally published the story and ask.

I was taken aback. I had never had a writer say such a thing before in all of my years of editing. I knew the editor in question, and had worked with him many times. Never once did that editor, in all his various projects, try to control all the rights to a project. It wasn’t in his standard contract, the one he used for his anthology projects. It wasn’t in his special contracts, for other projects. It hadn’t ever happened, not in years of dealing with this man.

Honestly, this is where Writer Me and Editor Me had a conflict. Writer Me decided that Editor Me should get clarification from that writer before going to the writer’s editor. You see, Writer Me figured the editor in question would be confused at best or insulted at worst by the suggestion that he controlled the rights.

I did not want to offend him—as a person, not as an editor I might work with.

So I asked for clarification from the writer on the problem and added, as I do with many writers—bestsellers and nonbestsellers alike—that I would be happy to look at the clauses or contract in question (with the pertinent information like SSN and payment blacked out) to see what rights the author had actually sold. After all, the author clearly had no idea. Frankly, I figured the author didn’t know how to read a contract, and certainly didn’t know copyright law. I’ve seen that dozens of times before.

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.

Actor recites all 9 hours of Amazon Kindle T&Cs

From CNet:

Do you read the terms of service for every service you sign up for? Stop lying, you don’t. But you have a very good reason. They’re very long and very boring, and you just want to get stuck into whatever you’re signing up for.

. . . .

To highlight just how ridiculous it is, Choice hired an actor named Laurence to read aloud all 73,198 words of Amazon’s Kindle terms and conditions.

Based on the estimation that 500 words is one A4 page, that’s 146 pages, and it took poor Laurence nine hours to slog through the whole thing.

Link to the rest at CNet and thanks to G.P. for the tip.

.

.

Having written, rewritten and read more Terms of Use than he cares to remember, PG says such “Agreements” always begin as shorter documents, then grow over time. They never seem to shrink.

Unless a provision is determined by a court or government agency to be illegal or unenforceable, it stays in the Terms of Service (or Terms of Use or Terms and Conditions) forever. These three titles (abbreviated as ToS, TOU or T’s & C’s when lawyers communicate with one another) tend to be used interchangeably to refer to the same type of document embedded somewhere on a corporate website or printed in tiny, tiny type on a much-folded piece of paper inserted into product packaging.

On occasion, stories arise about someone who inserts a provision at about the 80% point in a corporate TOU that offers to pay whomever reads the provision a reward of $100 with an email address to claim the reward. Months pass, then years, and the reward is never claimed.

While PG would never recommend treating the contractual provisions included in a TOU lightly, as a general proposition, most large organizations with lengthy TOU’s threaten violators with great vigor, but seldom seem to take enforcement actions to trial before a judge or (heaven forefend!) a jury.

In PG’s experience, TOU’s tend to be much, much longer than agreements on similar subjects that are negotiated between two parties who are each represented by counsel.

PG stumbled across an article in The Telegraph which indicates the islands from which the foundations of American law originated may have a more sensible view of TOU’s than the US does. It’s official: you don’t have to read the Ts & Cs

How a PR man became a giant of children’s literature

From The Christian Science Monitor:

Two decades before The Cat ever donned a hat, Theodor Seuss Geisel was an oil industry ad man who was also the architect of a wacky navy, named for himself – a sort of PokemonGo of the late 1930s.

On March 2nd, fans will celebrate the 113th birthday of Dr. Seuss, as Geisel is now known, but precious few will recall the Seuss Navy, Geisel’s biggest success as an ad man and the tipping point of his life as he moved from illustrator to children’s author.

It was all about drumming up publicity for a client. “Back in 1935, while working in the ad department of the Standard Oil Company, Geisel was tasked with creating a campaign to launch Esso Marine Lube for the New York International Boat Show that was coming up in 1936,” Bruce Wells, curator for the Oil and Gas Historical Society in Washington, D.C., said in an interview, ” Esso (which still exists in Europe today) was part of Standard Oil which today is part of Exxon Mobil.

Geisel and his colleagues created an interactive campaign that engaged adults in boat races, games, contests, and an annual “Seuss Navy Luncheon and Frolic.” All manner of merchandise and prizes were created by Esso, some of which still haunt eBay today.

. . . .

The pivotal point of Geisel’s PR career came with his decision to generate three, 30-page, Seuss Navy story booklets with rhyming text and his crew of characters, says collector and Seuss expert Gregg Philipson of Austin, Texas, in a phone interview. Geisel later said his experience working at Standard Oil “taught me conciseness and how to marry pictures with words.”

. . . .

So how did Seuss move from doing PR for an oil company to becoming an icon in the field of children’s books? “I would like to say I went into children’s-book work because of my great understanding of children,” Seuss quipped in the Dartmouth interview. But actually, he continued, “I went in because it wasn’t excluded by my Standard Oil contract.”

Link to the rest at The Christian Science Monitor

PG says that far too many of today’s employment contracts would have precluded Geisel from writing or publishing anything derived from his work as an employee.

Logan Composer Is Getting Sued Over Allegedly Stolen Lucifer Theme Song

From i09:

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

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

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

Link to the rest at i09