Music Streaming and The EU Digital Single Market Copyright Directive

From The IPKat:

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

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

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

In particular, the agreement includes the following,: 

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

• A guaranteed minimum advance of €1,000; 

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

• A fixed remuneration for the benefit of all musicians; 

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

• Increasing minimum fees for session musicians 

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Copyright Fun Part 2

From Kristine Kathryn Rus ch:

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

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

And

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

With that in mind…

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

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

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

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

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

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

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

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

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

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

Link to the rest at Kristine Kathryn Rusch

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

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

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Requesting Rights Reversion From Your Publisher

From Writer Beware:

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

Again: keep it professional, businesslike, and unemotional.

Link to the rest at Writer Beware

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

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

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

Creation from imagination is the basis of intellectual property

From The Creative Penn:

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

. . . .

Transcript

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

. . . .

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

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

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

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

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

. . . .

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

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

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

[Joanna: You have written:]

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

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

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

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

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

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

Link to the rest at The Creative Penn

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

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

How sensitivity readers corrupt literature

From UnHerd:

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

. . . .

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

Link to the rest at UnHerd

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

Phony Provision for Sensitivity Review

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

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

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

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

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

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

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

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

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

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

THIS IS NOT LEGAL ADVICE.

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

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

What Can Happen When Your Agent Decides To Become Your Publisher

From Writer Beware:

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

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

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

. . . .

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

. . . .

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

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

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

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

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

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

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

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

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

Link to the rest at Writer Beware

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

He will make a few points, however.

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

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

Inside the Realms of Ruin

From TechCrunch:

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

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

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

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

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

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

Link to the rest at TechCrunch

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

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

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

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

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

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

From The Wall Street Journal:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From The Creative Penn:

Language is powerful.

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

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

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

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

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

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

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

In this article, I cover: 

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

Link to the rest at The Creative Penn

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

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

Here are a couple of excerpts PG fully endorses:


Rights licensing is usually based around: 

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

OUR ADDRESS

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

And a little farther down, he found this:

HOW TO SERVE A SUBPOENA OR OTHER LEGAL PROCESS

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

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

And farther down he found this:

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the Contract!

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

From Writer Beware:

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

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

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

Link to the rest at Writer Beware

Either Bardsy is malevolent or filled with idiots.

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

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

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

The curious case of the midsized publishers

From Nathan Bransford:

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

Link to the rest at Nathan Bransford

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

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

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

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

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

Public Domain

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

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

From The New York Times:

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

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

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

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

. . . .

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

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

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

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

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

. . . .

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

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

. . . .

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

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

. . . .

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

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

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

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

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

. . . .

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

. . . .

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

Link to the rest at The New York Times

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

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

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

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

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

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

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

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

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

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

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

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

From Writer Beware:

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

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

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

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

. . . .

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

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

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

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

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

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

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

Link to the rest at Writer Beware®

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

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

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

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

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

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

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

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

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

Bad Contract Alert: Bytedance’s Fictum Reading/Writing

From Writer Beware®:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Link to the rest at Writer Beware

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

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

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

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

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

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

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

Author Complaints at City Limit Publishing

From Writer Beware:

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

. . . .

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

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

Link to the rest at Writer Beware

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

Author copies are a large expense for the company.

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

Undercapitalized

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

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

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

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

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

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

From The Free Dictionary:

handwaving

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

. . . .

See also:

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

Link to the rest at The Free Dictionary

How Getting Canceled on Social Media Can Derail a Book Deal

From The New York Times:

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

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

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

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

. . . .

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

. . . .

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

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

. . . .

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

. . . .

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

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

. . . .

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

. . . .

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

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

. . . .

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

Link to the rest at The New York Times

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

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

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

PG’s three potential responses for an author:

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

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

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

Three Authors’ Associations Address Status of Audible.com Talks

From Publishing Perspectives:

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

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

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

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

. . . .

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

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

. . . .

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

. . . .

The original ask, the coalition reiterates, was:

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

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

. . . .

Ability to Terminate Audible Distribution

Quoting the coalition:

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

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

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

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

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

. . . .

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

Link to the rest at Publishing Perspectives

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

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

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

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

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

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

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

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

Congratulations!

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

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

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

. . . .

Grant of Rights

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

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

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

Licensing

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

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

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

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

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

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

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

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

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

. . . .

Royalties and Subsidiary Rights.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BookExpo, Bookstores, and Libraries

From Kristine Kathryn Rus ch:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Star Wars Novelists Seek Years of Missing Royalty Payments From Disney

From The Wall Street Journal:

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

PG has posted concerning this interesting Disney legal theory before.

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

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

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

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

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

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

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

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

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

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

From the Kluwer Copyright Blog:

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

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

. . . .

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

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

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

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

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

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

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

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

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

The Nine Worst Provisions in Your Publishing Contract – Part 2

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

No Minimum Performance Standards – Out of print

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

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

What’s the Problem?

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

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

What does it look like? (sample language)

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

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

How do I fix it?

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

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

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

Rationale for Change

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

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

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

Special Note

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

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

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

Rock-Stars Selling Publishing Rights

From Ultimate Classic Rock:

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

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

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

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

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

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

. . . .

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

. . . .

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

Link to the rest at Ultimate Classic Rock

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

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

The Nine Worst Provisions in Your Publishing Contract – Part 1

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

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

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

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

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

Your Contract Lasts Forever – Life of Copyright

What is This Provision?

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

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

Let’s do some math.

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

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

What’s the Problem?

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

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

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

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

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

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

What does it look like? (sample language)

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

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

How do I fix it?

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

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

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

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

Rationale for Change

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

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

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

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

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

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

Special Notes

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

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

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

Disclaimer

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

The Golden Age of Book Adaptations for TV

From Publishers Weekly:

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

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

Link to the rest at Publishers Weekly

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

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

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

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

How to Respectfully Disagree in Writing

From Grammarly:

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

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

. . . .

Is this the place?

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

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

. . . .

Keep it tight; empathize

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

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

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

. . . .

Ask questions; empathize some more

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

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

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

Link to the rest at at Grammarly

PG completely endorses the approaches Grammarly recommends.

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

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

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

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

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

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

Don’t Do Business with Incompetents

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

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

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

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

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

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

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

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

For authors:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Writer Unboxed:

Women’s fiction author Densie Webb [asked]:

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

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

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

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

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

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

Can Self-Publishing Rejuvenate Low Sales?

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

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

Consider questions like:

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

Link to the rest at Writer Unboxed

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

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

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

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

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

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

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

Minimum Wage for Authors

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

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

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

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

The key elements/benefits to this provision are simple:

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

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

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

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

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

From The Authors Guild:

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

Link to the rest at The Authors Guild

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

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

. . . .

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

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

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

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

. . . .

Applying the Harmless Error Standard to Recordation Rules

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

. . . .

Identification of Work

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

. . . .

Optional Form for Remitters

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

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

Link to the rest at The Authors Guild

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

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

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

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

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

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

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

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

1985 New York Times Bestsellers included:

THE HUNT FOR RED OCTOBER, by Tom Clancy

THE CIDER HOUSE RULES, by John Irving

CHAPTERHOUSE: DUNE, by Frank Herbert

TEXAS, by James A. Michener

LONESOME DOVE, by Larry McMurtry

SECRETS, by Danielle Steel

FAMILY ALBUM, by Danielle Steel

LUCKY, by Jackie Collins

PROOF, by Dick Francis

THE MAMMOTH HUNTERS, by Jean M. Auel

LAKE WOBEGON DAYS, by Garrison Keillor

THE TALISMAN, by Stephen King and Peter Straub

THINNER, by Richard Bachman (Stephen King)

CONTACT, by Carl Sagan

THE ACCIDENTAL TOURIST, by Anne Tyler

THE VAMPIRE LESTAT, by Anne Rice

MEXICO SET, by Len Deighton

IF TOMORROW COMES, by Sidney Sheldon

MINDBEND, by Robin Cook

THE SICILIAN, by Mario Puzo

A LIGHT IN THE ATTIC, by Shel Silverstein

SON OF THE MORNING STAR, by Evan S. Connell

LOVING EACH OTHER, by Leo Buscaglia

MOSES THE KITTEN, by James Herriot

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

THE HANDMAID’S TALE, by Margaret Atwood

ENDER’S GAME, by Orson Scott Card

THE ACCIDENTAL TOURIST, by Anne Tyler

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

SARAH, PLAIN AND TALL, by Patricia MacLachlan

Harnessing the Power of Coauthoring

From Writers Helping Writers:

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

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

And so my coauthoring journey began.

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

. . . .

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

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

Ask yourself:

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

. . . .

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

Link to the rest at Writers Helping Writers

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

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

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

However,

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

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

From Publishing Perspectives:

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

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

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

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

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

. . . .

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

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

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

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

Update

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

Link to the rest at Publishing Perspectives

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

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

The quoted publishing contract language:

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

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

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

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

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

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

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

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

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

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

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

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

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

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