I have another guest post up at The Fictorians today. As a part of their month long look at the business side of writing, I discuss book contract clauses that potentially give publishers rights in your future works. Go take a look at what you need to watch out for before signing that contract.
Tag Archives: publishing industry
Nancy DiMauro on Reversion Clauses
Friend, writer, and lawyer Nancy DiMauro is over at The Fictorians today telling you what you need to know about reversion clauses.
Okay, let’s look at it this way. I was recently shopping a story to some E-publishers. Before submitting, I checked out the contract terms as stated on the webpage. Buried in the mumbo-jumbo about submission guidelines and other facts was this gem: “Length of grant of publishing rights: Life of copyright.” What the heck?
A copyright lasts your life and another 70 years (in the US and UK. There some other countries which the copyright only lasts 50 years after your death, but it’s still a darned long time.). If you signed a contract with this “reversion” clause your publisher OWNS YOUR STORY for your life, the life of your kids, and a good chunk of your grandchildren’s life. The publisher can do whatever it wants with your story until it has no commercial value (i.e. is in the public domain) and, most likely, not pay you a penny more.
Now do you see the problem?
You might shake your head and say that “well, that was an e-publisher, the traditional houses aren’t like that.” Oh yes, they can be. If you let them. Publishers of all kinds are trying to grab as many of your right as possible, keep them for as long as possible and return as few of them to you as possible. This doesn’t make the publishers “evil.” It just means they are better at looking out for their businesses interests than most writers are. After all, they make money off the stories other people write. Of course, the publisher wants to keep those words for as long as possible.
“But wait!” you say. “Isn’t there something about my getting the rights back if the work goes out of print?”
Yep. That’s the reversion clause. And Nancy goes on to tell you what you need to make sure is in there to avoid getting burned.
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Superstars: from writer to professional writer
The Superstars Writing Seminar is one of the only seminars I know of that focuses on the profession as opposed to the craft. You can find craft seminars right and left, but finding one that focuses on the business side of writing is a little more difficult. And the 2014 edition is fast approaching (February 6–8, 2014).
From the Superstars website:
Superstars Writing Seminars, founded in 2010, is unique among writing seminars. The curriculum is focused on teaching writers the business of being successful in the publishing industry. The instructors are chosen from the top of the industry and include International Bestselling Authors, Top Editors, Indie Publishing Platform Managers, and many more. The only focus at Superstars is to teach you how to have a successful writing career by sharing how those at the top of the industry manage their careers.
The 2014 instructors are Kevin J. Anderson, Brandon Sanderson, Rebecca Moesta, James A. Owen, David Farland, and Eric Flint. There’s a couple of published books between those guys. And this year they will be joined by three guest instructors: Mark Leslie Lefebvre of Kobo, Lisa Mangum of Shadow Mountain, and Diana Gill of Harper Voyager.
I separate the benefits of Superstars into three categories. First, it teaches you how to be a professional. In other words, not just a writer, but a professional writer. Second, it teaches you about the radically changing landscape of the publishing business. In fact, change is happening so fast that many attendees of the seminar come back year after year. The industry is changing so much even from year to year that getting together once year to talk about it with a group of such accomplished professionals seems like a minimum to keep up with it. Third, it provides an already built network of professional writers at different points in their careers and with different views that a writer can call on to deal with all the challenges brought these changes.
If you are looking for a seminar about the business of being a writer, then this is the one I recommend.
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Listen to this: Self-Publishing Podcast – Killing the Sacred Cows
Episode 71 of the Self-Publishing Podcast features Dean Wesley Smith and Kristine Kathryn Rusch, talking about the new world of publishing. It’s always worth your time to listen to what Dean and Kris have to say.
From the SPP website:
We spoke to two very well-known names in indie publishing (which they refer to as “the new world of publishing,” Dean Wesley Smith and Kristine Kathryn Rusch. I’ve been wanting to talk to Kris and Dean for a while and we’ve gotten a lot of listener requests about it, so finally Mark from Kobo (poor guy, we’ll never be able to call him by his full name because he’s forever “Mark from Kobo”) made the introduction.
It might be worth checking out the YouTube video for this episode to watch Sean’s antics as he vehemently agrees with 99% of what they say, going so far as to make hugging and other gestures the whole time.
SPP is Johnny B Truant, Sean Platt and Dave Wright. If you are new to SPP, it is worth your time to dig through their old episodes.
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Copyright Law and the Availability of Books
One of my goals for this blog is to expose writers to other views of copyright law and policy. Writers, in my experience, tend to view copyright as akin property and as having a moral justification – “I created it, therefore I should own it.” I know that is an oversimplification; most writers’ views contain more nuance than that. But it is, I think, an accurate representation of the core of those views.
While one can find a thread of that view, the natural rights view, in copyright law and cases throughout the history of US copyright law, it is not the dominant or explicit justification for copyright in US law. It is a view more commonly associated with the continental European approach to copyright.
The Anglo-American approach to copyright has expressed a different narrative. In most explicit discussion of the theory underlying copyright law, copyright is about incentives. On the surface, this fits with the writer’s view. A creator would not invest the time and effort into writing a book unless the law provided a means to capitalize on that work. And if that were the extent of it, then we wouldn’t see many if any divergences between the natural rights view and the incentive view. However, the incentive view goes deeper when we examine the goals toward which those incentives are pointed.
The enumerated powers in the US Constitution includes the following in Article I, Section 8, Clause 8:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
This is commonly referred to as the IP clause and it serves as the basis for federal legislative power covering patent and copyright laws.* Note that it sets forth as the goal “to promote the progress of science and useful arts” and not to promote the creation of works. The Constitution was drafted at the end of the 18th Century, a century featured a long debate in England about copyright and patent law. The Founders would have been quite familiar with the policy arguments.
The goal of the incentive structure set up by copyright law, so it is argued, is to promote benefits to society. That is done primarily by providing creators with economic incentives, but those economic incentives are not the ultimate goal. They are merely a means to an end.
This is where balancing comes in. In pursuit of that end, the economic incentives might be limited and balanced against the good of society. More specifically, copyright is seen as limiting the benefit to society by increasing costs of access to the works and at times reducing access to the works.
A theorist looking at the incentive theory would say that we want to maximize societal benefit. That means a couple of things. First, we should only give the bare minimum of copyright protection necessary to guarantee production, and not one bit more. Of course, there is no single line in the sand so to speak. It is a continuum in which more protection theoretically leads to more works, and less to less. Finding that optimum point for societal benefit is the incentive theorist’s goal. An incentive theorist only gives the bare minimum necessary to insure production because every increase in protection theoretically comes at a cost to society – some times literally, as in the works cost more. Second, most theorists would include not only production of a work but also access to the work as a necessary component of societal benefit. Greater and longer protection can in certain circumstances decrease the availability of a work.
It is this second point – the relationship between copyright law and access to works – that is the subject of a recent study that generated quite a bit of interest in academic copyright circles (and beyond – does The Atlantic qualify as beyond?):
How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)
Heald’s study is nicely summarized by Rebecca Rosen in The Atlantic. Her summary features the tagline: “A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.” Some high points from the article:
There were as many books available [on Amazon] from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.
. . .
“Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”
. . .
Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades.
With beginning of the semester fully upon me, I haven’t had the time to go through the full study and likely won’t anytime soon. However allow me to play the TL;DNR devil’s advocate.
First, I wonder if the game has changed. Has the recently emerged ability to keep any book in stock without warehousing costs (eBooks, POD) changed what will happen to books in the future? Perhaps this dip is a thing of the past. In pre-Internet days, shelf space was at a premium and the costs of physical books over their lifespans perhaps contributed to the effect seen in the study. In that world, it made sense for publishers to maintain supplies of the most recent books if those were going to produce the most sales in the short-term. And keep in mind, that the lack of these books availability in eBook or POD formats may in large part be due to the inability of publishers to undertake the digitization process for massive backlists and due to a simple loss of information on who owns the copyrights for the lost books (orphan works).** In a world where maintaining the availability of books is virtually costless, we may not see such a decrease in availability moving forward.
Second, I wonder how much influence school reading lists have on the availability of some of these older works. Is that list of canonical works skewing the data?
Third, even taking this effect into account, it may not indicate that current copyright law’s incentive calculus is off. Even if lengthy copyright duration is reducing the relative availability of works, the net creation and value produced by copyright incentives could still be ideal or at least positive. The number of available works is just one small part of the measurement of copyright’s results.
* Though perhaps counterintuitive to our modern word usage, “science” refers to copyright and “useful arts” refers to patents.
**The orphan works problem and proposed “solutions” could fill several more blog posts.
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Can I? – Thinking about legal questions
Frequently, authors ask what I call “Can I?” questions. Basically – “Can I do X without getting into legal trouble?”
Raverinlaw failed to get off the ground when I could not find a glow stick-based wordpress theme.
No, I’m not talking about ecstasy. This isn’t Raver-in-Law. When I say “can I do X,” X refers some action by an author that might lead to legal problems. For example, it might be “can I include song lyrics in my novel?” or “can I use another author’s character in my story?” or “can I write a story about a sentient Barbie doll?” or “can I use a celebrity as a character in my novella?”.
When I hear a question like that, I actually think about it as three different related-but-separate questions, and I encourage you to do the same. Those three questions are:
- Question #1: Will a court rule against me for doing X?
- Question #2: Will a gatekeeper react negatively to my doing X?
- Question #3: Will I get sued for doing X?
So, let me explain why you want to consider each of these three anytime you ask a “Can I?” question. I will assume you are in the world of traditional publishing. At the end, I’ll briefly go into the differences in the self-publishing context.
Question #1: Will a court rule against me for doing X?
At its core, this question asks about how the law judges X. Is X copyright infringement? Is X an infringement of a celebrity’s right of publicity? Is X trademark infringement? Another way to rephrase the question is will I win or lose a lawsuit about X.
My impression is that this is what most writers have in mind when they ask a “Can I?” question. Although the answer to this question influences the answer to the other two questions, it may ultimately be the least important of the three questions in a writer’s decision-making process.
It is also my impression that this is what most lawyers, particularly newer lawyers, think when they hear a “Can I?” question. It’s certainly where my mind goes first. You see, this is what lawyers are trained to do – i.e., turn facts into legal conclusions. Answering question #1 is a lawyer’s core competency, and therefore it is the realm in which they feel most comfortable.
It’s not the only competency a lawyer can offer. An experienced lawyer should also be able to offer you guidance on question #3, and more experienced lawyers will offer counsel on question #3 without your prompting.
Question #2: Will a gatekeeper (e.g. an editor) react negatively to my doing X?
If your goal is to get published in a magazine or by a traditional book publisher, then you will have to get past at least one gatekeeper. This gives the “Can I?” question a new dimension, namely question #2. If an editor thinks your doing X creates too great a risk of incurring liability or of merely getting sued or of creating resistance within their own company, then your having done X may lead them to reject your story or novel. Regardless of its other wonderful qualities.
This is what Writer-in-Law thinks fantasy editors look like.
The answer to question #1 might be that you would win any resulting lawsuit, but the answer to question #2 might still be negative in terms of your getting past the gatekeeper and reaching your goal of getting your story or novel published. In fact, since the answer to question #1 is rarely if ever given in absolutes (“You would win”) and is more commonly given in probabilities (“You would likely win”), you can see how a gatekeeper might be unwilling to take the risk. Further, most gatekeepers are unlikely to seek out legal advice while considering your manuscript. So their impression of the risk or even their not wanting to have to go through the trouble of getting legal advice may lead to a rejection of your manuscript – a rejection not based on its overall quality but simply on your having done X.
Of the three questions, question #2 is also the least likely to be answered by a lawyer. It is not really within their area of expertise unless they have a lot of experience in the publishing industry (precious few lawyers do, even among those who specialize in intellectual property law). You really have to get answers to this question either by talking to people with experience in the industry or by examining what has gotten past gatekeepers.
Question #3: Will I get sued for doing X?
As I pointed out in an earlier post about the Midnight in Paris case, whether you win a case or not is not the only consideration. Defending a lawsuit can cost you a lot of money, and if you are in the US, you have to pay your own costs and attorneys even if you successfully defend your work. Your total outlay can get into six figures just to get you through a trial. It will also cost you time across multiple years. It can keep your work in legal limbo for years. And that does not even factor in the psychic drain caused by years of fighting and uncertainty.
So the question “Will doing X get me sued?” may be just as important as “Will a court rule against me?”. Of course, the likelihood of winning a lawsuit theoretically influences the risk of being sued. Theoretically. Again, remember the Midnight in Paris case. No one though that was a winner, but the Faulkner estate still sued and Sony still had to defend themselves. There is no question that some rights owners will pursue anyone who comes even close to their rights. Many of them have such extensive resources and the willingness to use them that most smaller entities just stay away from their rights even where the law would likely allow a particular use.
In other words, even if you are legally in the right, do you want to expend the money and energy defending your “doing X”? I submit to you that the answer is most often going to be no. The only exception I can think of is where the entire expression, what you are trying to say, depends on the use likely to anger a rights holder. The Wind Done Gone is an example. They had to be fairly certain that Margaret Mitchell’s estate would sue, but went ahead with publication anyway.
Experienced lawyers should be able to advise you on many entities who are known for vigorously defending their rights, even when the use in question is likely within the letter and spirit of the law. However, they can’t predict what every rights holder will do. Again, observing what is already out there and whether a rights holder has sued in the past can give you some, but not complete, guidance.
Self-publishing and the questions
The questions and my discussion on them has so far assumed traditional publishing. How do they change for self-publishing?
The primary difference is that the gatekeepers disappear. You don’t need to get past an editor worried about your “having done X.” However, that doesn’t mean question #2 goes away, because you still have an intermediary who is in control of the availability of your work. Amazon or some other online retailer can still pull your book or website when a rights holder complains to them (through a notice and takedown procedure or a threat of suit against the retailer). Do you think Amazon has a big interest in fighting for you? Nothing against Amazon or any other retailer, but it’s not really their fight. Recall what happened with the recent ‘Spots the Space Marine‘ kerfuffle. Games Workshop did not sue the author; they got Amazon to pull the book. Now, eventually Amazon put it back up, but only after a fairly big rights advocate (EFF) entered the fray on the side of the author.
So question #2 becomes: Will an intermediary pull my work because someone complained about my doing X?
The other difference with self-publishing is that you miss out on some of the protection the gatekeepers provide. Their reluctance to push boundaries may be a negative in your attempt to get your work traditionally published, but it also protects you from unwittingly getting yourself into trouble.
Take away: When asking “Can I do X?” your most important consideration may not be whether you would win in court. It will probably be whether you want to fight gatekeepers, intermediaries and litigious rights holders – or whether you want to spend your time and energy writing.
(And remember, each circumstance is different. I don’t know yours. So this is not legal advice!)
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United States vs. Apple (and the Big Six, I mean Five)
I’m not going to go into any depth on the Apple ruling. It wasn’t really a close case or even an interesting bit of law. Just straight-forward collusion on price fixing. I do however have a few comments and recommendations.
Don’t worry. I’m not going to let the motto drag me into another Latin discussion.
First of all, I recommend that you read the fact section of the opinion. You can find it, and just about everything else involved with the case if you have a couple of days to kill, on the DOJ website here. Look for “Opinion & Order.” The factual portion is written in narrative form and is pretty accessible to anyone. The reason I recommend reading it is it gives you a glimpse into the business and minds of big publishers. Read it to get a glimpse at the motives of the publishers in all of this. And I’m not trying to imply judgment of those motives, just that seeing through their eyes is interesting.
Let me add one caveat though. This was written by a judge as findings of fact – to support the conclusions of law. In other words, it has a slant – to make the legal conclusions look obvious.
If you want a quick summary, take a look at Professor James Grimmelmann’s post. He correctly points out what many flew past – that the publishers’ motives were not just about setting higher price expectations, but also about protecting the physical retail sector (that is their last trump card in the whole thing we call book publishing).
The Atlantic breaks it down into “6 bullet points.” While the article does provide a quick summary, it’s a bit light on Amazon an a bit heavy on Apple. For example, it states “Amazon was actually losing money on ebook sales, but it didn’t care. The long-term goal was to get people to buy Kindle e-readers.” Selling more Kindles may be a goal for Amazon, but in the long-term, selling more Kindles is just a means toward accomplishing its true goals (e.g. locking customers into Amazon through hardware-DRM combinations).
Later, the article refers to “Apple’s plan to raise ebook prices overall” which I think is a little unfair in its characterization of Apple’s goals. Apple did not just decide one day that eBook prices needed to be higher. Apple wanted to open an eBook store to help sell iPads, and Apple wanted to make money off eBook sales in that store. Giving publishers a way to accomplish their goals – which was to raise eBook prices – was simply Apple’s quickest option to get the publishers on board and its iBookstore off the ground. I’m not saying their actions were not illegal. I’m just saying that raising eBook prices was not their “plan.”
The article does a good job overall and provide an excellent summary of the publishers’ thinking processes:
With Amazon’s aggressive pricing, the publishers reasoned, the Internet company might grow so powerful as to be able to drive down prices for all books, even the hardcovers sold in mom-and-pop stores. Amazon might even begin to negotiate directly with authors and cut out the publishing houses altogether.
For a slightly different take on the ruling, see this Forbes article describing the potential downsides for the industry and consumers.
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Writer-in-Law 