Contracts

The Big Secret Why Behind Everything so Far

7 June 2018

From Chuck Palahnuick:

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

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

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

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

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

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

Link to the rest at Chuck Palahnuick’s blog

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

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

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

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

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

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

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

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

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

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

10 May 2018

From The Conversation:

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

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

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

. . . .

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

. . . .

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

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

. . . .

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

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

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

. . . .

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

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

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

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

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

PG’s Standard Retainer Agreement for his Clients:

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

Flesch Kincaid Grade Level – 10.9

PG’s standard introductory email sent to New Clients:

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

Flesch Kincaid Grade Level – 7.1

Amazon KDP Terms and Conditions

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

Flesch Kincaid Grade Level – 9.5

Barnes & Noble Press Author Membership Agreement

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

Flesch Kincaid Grade Level – 14

Big Five Publisher – A

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

Flesch Kincaid Grade Level – 14.5

Major Publisher – B

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

Flesch Kincaid Grade Level – 19.7

Major Romance Publisher

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

Flesch Kincaid Grade Level – 16.7

Perpetual License for Derivative Rights

6 May 2018

From Writer Beware:

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

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

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

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

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

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

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

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

Link to the rest at Writer Beware

In the #MeToo Moment, Publishers Turn to Morality Clauses

4 May 2018

From Publishers Weekly:

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

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

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

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

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

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

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

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

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

. . . .

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

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

. . . .

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

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

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

Link to the rest at Publishers Weekly

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

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

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

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

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

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

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

 

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

26 April 2018

From CNBC:

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

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

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

. . . .

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

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

Link to the rest at CNBC

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

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

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

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

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

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

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

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

 

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

25 April 2018

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

PG is frustrated. The client is frustrated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

13 April 2018

From The Guardian:

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

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

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

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

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

. . . .

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

Link to the rest at The Guardian

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

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

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

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

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

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

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

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

 

French Law’s Principle of Strict Interpretation

4 April 2018

From The 1709 Blog:

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

. . . .

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

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

. . . .

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

. . . .

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

Link to the rest at The 1709 Blog

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

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