Pub Rants

A Very Nice Literary Agent Indulges in Polite Rants About Queries, Writers, and the Publishing Industry

Tagged Macmillan

Tales From The Contract Wars

Status: It’s pouring rain and the temps feel anything like spring but I’m eating ice cream right now anyway.


What’s Playing on the XM or iPod right now? DON’T GIVE UP ON ME NOW by Ben Harper


Today we officially wrapped up our negotiations on the new Macmillan boilerplate contract. It only took 6 months, 2 weeks, and 3 days from start to finish. It was worth it to get a decent contract.


Oddly enough I was excited to sell yet another book to a Macmillan imprint. THAT contract will only take several weeks. All the heavy lifting is done.


Then I get a new Random House contract in. Basically the same except for 2 rather key clauses that come at the very end of the contract but are referenced throughout.


Great. Publishers will certainly let you reserve rights but are now inserting clauses that hamstring the author from exploiting those reserved rights.


This seems to be the latest fashion.



And I’m Still Talking About Derivative Works

STATUS: My goal today is to work through ALL emails in my inbox. I probably have 8 hours of work ahead of me just on that. It’s very sad when I get a little behind on it.

What’s playing on the XM or iPod right now? WHO’S CRYING NOW by Randy Crawford

I do find it funny that when I talk about contracts, I get the fewest number of comments to the entry. Now I understand that folks may still be reading the blog entry even if they aren’t commenting but I do equate number of comments with general interest in the topic.

But I’ve got one more entry on derivative works before I lay this topic to rest (for a little while anyway). And that’s to talk about fiction. For me, I rarely do nonfiction so I wasn’t as worried about the ramifications of this clause in regards to that. It’s also more conceivable to figure what could be considered a derivative work in the NF realm.

I do fiction. So I’m particularly interested in what might be considered a derivative work in this realm. I had a sneaky suspicion that I already knew.

And I was right.

For fiction, it could be conceivably argued that a comic book or graphic novel is a derivative work based off of the original novel.

Not that I agree even remotely. But it could be argued and that’s exactly what I did not want to hear.

Because to make it clear whether it would or would not be considered a derivative work, my guess is that would have to be challenged and determined in a court of law.

Once again, let me add my disclaimer that I’m not a copyright attorney, and I’m not dispensing legal advice or legal opinions here. These are simply my musings on how this clause could be interpreted.


Let’s Continue Talking About Derivative Works

STATUS: Two years and two months after initial publication, HOTEL ON THE CORNER OF BITTER AND SWEET cracks the top 10 again on the NYT list. Time to celebrate.

What’s playing on the XM or iPod right now? YOU NEEDED ME by Anne Murray

I can tell by the overwhelming number of comments on my last post that discussing copyright is definitely whipping my blog readers into a verbal frenzy.

How many of you used the copyright act as a sleep aid on Monday?

But I do think it’s worth continuing the discussion. As I mentioned Monday, I could see how derivative works could be created for nonfiction work.

For example, and this is just off the top of my head and probably not the best example out there but I think it will give you a sense, is to think of a nonfiction work on decorating for the holidays. In this work, let’s say there is one chapter on table place settings. The publisher than decides to take one aspect of holiday place settings from this chapter and create a whole new gift book on holiday place settings.

That would be a derivative work, created by the publisher and they would own the copyright (at least according to this clause 6.b. in the Macmillan contract.)

In talking to my lawyer, we discussed at length how a derivative work could be a book trailer. Definition of derivative work is based on one or more pre-existing works, such as translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted.

In talking with Macmillan, this is an example they gave as something they could create that would be covered under this clause 6.b.

More on fiction tomorrow. Hopefully I won’t run out of time.


So Let’s Talk Derivative Works

Status: These dang computers. I want to bang my head on my desk.

What’s Playing on the XM or iPod right now? MARRY ME by Train

About two weeks ago I mentioned that the most problematic issue in the new Macmillan boilerplate was the new clause 6. b. that granted the publisher the right to the copyright in any derivative work created by the publisher.

Just for the record, I’m not a copyright attorney and I don’t pretend to be one on TV or if I stay at a Holiday Inn Express. In other words, I’m not dispensing legal advice here; I’m simply sharing with you my general musings regarding the clause.

Since I don’t have the expertise, I sent it to my IP attorney. Now he’s not a copyright attorney either but his law firm certainly has an expert in-house so we looped him on the conversation as well.

A virtual copyright party at NLA!

His biggest concern was the broadness of the clause and how derivative works is not clearly defined. If you’d like some light reading before you go to bed tonight, feel free to click here. This will link you to the copyright act in all its glory. You’ll want to click on Chapter 1 and peruse sections 102 and 103 that particularly discuss derivative works.

He also let me know that there are currently lawsuits in process that examine the scope of derivative works and what can or can’t be defined as such. Fun.

So two thoughts:
1. It’s obviously better to remove the clause and any reference to derivative works from the contract. And, if you have leverage, it can be done. But if you don’t…

2. How best to restrict this clause in such a way to make pursuit of derivative works impossible without expressed approval of the author?

Now we’re talking. My lawyer gave me some good insights and if you want to pay my lawyer fees, then I could share them on the blog. *grin*

This is why you have agents by the way.

My other big question was this: I get how a derivative work could be done fairly easily with a nonfiction project, but I wasn’t certain how it would apply to fiction. Now I am.

More on that tomorrow. Stay tuned.

More Train music on iLike

By Far The Biggest Issue

STATUS: It gently snowed all day—which made Anita and I feel quite cozy here at the office.

What’s playing on the XM or iPod right now? BLUE SKIES by Tom Waits

In the new Macmillan contract is clause 6. (b) Copyright on Derivative Works. To state bluntly, this clause gives the Publisher the right to create “derivative works” based on the work they are buying from the author. And to add insult to injury, the publisher owns the copyright to any of these “new works.”

Eyebrow raise.

Yes, it is as bad as what you are thinking it means.

First, this is actually in direct contradiction to US copyright law and can’t be legally enforce but hey, what do I know.

Second, no way an author can sign a contract without amending or deleting this clause although I know some poor soul is going it alone and will end up doing just that.

For goodness sake, at the very least, get in touch with the Authors Guild before doing anything so detrimental to your intellectual property rights.

More Tom Waits music on iLike

The Latest On Macmillan-Amazon

STATUS: A bit frustrated with all this Amazon stuff.

What’s playing on the iPod right now? NEVER THERE by Cake

Which is to say the latest is not much. The links are still not on. February 16 is fast approaching for my author Paula Reed and the debut of HESTER.

As authors, if you are impacted, I think it’s important to have your voice heard on the Amazon Kindle forum where there is a lot of chatter going on. The average everyday customer really doesn’t know much about the ins and outs of publishing and what the hoopla is about.

This in from John Sargent earlier today….

To: Macmillan Authors and Illustrators
cc: Literary Agents
From: John Sargent

I am sorry I have been silent since Saturday. We have been in constant discussions with Amazon since then. Things have moved far enough that hopefully this is the last time I will be writing to you on this subject.

Over the last few years we have been deeply concerned about the pricing of electronic books. That pricing, combined with the traditional business model we were using, was creating a market that we believe was fundamentally unbalanced. In the last three weeks, from a standing start we have moved to a new business model. We will make less money on the sale of e books, but we will have a stable and rational market. To repeat myself from last Sunday’s letter, we will now have a business model that will ensure our intellectual property will be available digitally through many channels, at a price that is both fair to the consumer and that allows those who create and publish it to be fairly compensated.

We have also started discussions with all our other partners in the digital book world. While there is still lots of work to be done, they have all agreed to move to the agency model.

And now on to royalties. Three or four weeks ago, we began discussions with the Author’s Guild on their concerns about our new royalty terms. We indicated then that we would be flexible and that we were prepared to move to a higher rate for digital books. In ongoing discussions with our major agents at the beginning of this week, we began informing them of our new terms. The change to an agency model will bring about yet another round of discussion on royalties, and we look forward to solving this next step in the puzzle with you.

A word about Amazon. This has been a very difficult time. Many of you are wondering what has taken so long for Amazon and Macmillan to reach a conclusion. I want to assure you that Amazon has been working very, very hard and always in good faith to find a way forward with us. Though we do not always agree, I remain full of admiration and respect for them. Both of us look forward to being back in business as usual.

And a salute to the bricks and mortar retailers who sell your books in their stores and on their related websites. Their support for you, and us, has been remarkable over the last week. From large chains to small independents, they committed to working harder than ever to help your books find your readers.

Lastly, my deepest thanks to you, our authors and illustrators. Macmillan and Amazon as corporations had our differences that needed to be resolved. You are the ones whose books lost their buy buttons. And yet you have continued to be terrifically supportive of us and of what we are trying to accomplish. It is a great joy to be your publisher.

I cannot tell you when we will resume business as usual with Amazon, and needless to say I can promise nothing on the buy buttons. You can tell by the tone of this letter though that I feel the time is getting near to hand.

All best,
John


Amazon Macmillan Kerfuffle

STATUS: Well, the above is all I’ve been dealing with this morning.

What’s playing on the iPod right now? SMOOTH by Rob Thomas

Normally Saturdays and Sundays in Publishing are a little quiet. Not so for this weekend. My goodness. I had emails coming at me from left and right on Saturday. I was actually in the office working so I heard the news almost immediately as it was hitting the wires.

To make a long story short, John Sargent, CEO of Macmillan, met with Amazon last Thursday to discuss moving to the agency model/commission split structure for Macmillan eBooks starting in March 2010. Amazon was in disagreement in terms of that being the only structure.

In response, Amazon pulled the buttons for all Macmillan titles on Amazon.com. Buyers could still purchase the books from third parties but not directly from Amazon. The buttons were pulled for ALL books—not just the eBooks. To make matters worse, all Macmillan Kindle books disappeared from customer wish lists. Oh shades of last summer when Amazon pulled the illegal eBook from customers’ kindles. As one Macmillan editor said to me, “what a sh*tstorm.”

Yes, Amazon is flexing a muscle but whether it’s going to impress the general populace remains to be seen. For my part, I’m trying to fathom their thinking in terms of the PR for this. Perhaps they think their customers are completely wed to the $9.99 price point and will salute their action. Rumor has it that Amazon has been inundated with chatter and emails complaining about the action and thus their step back late on Sunday.

Bottom line, it’s authors who get hurt the most here. I’m really feeling for authors who have on-sale dates for today and maybe tomorrow. I have an author releasing in two weeks in hardcover from St. Martin’s Press (HESTER by Paula Reed) so I’m particularly anxious to see a resolution.

Talking with Macmillan editors, I hear that John Sargent has a meeting this afternoon with Amazon and that the company is “optimistic” that links will be back up by tonight or tomorrow morning. I’ve been assured that the conversation is continuing.

Below is the string of communications from the weekend. Also, Nathan Bransford, Ashley Grayson, and Richard Curtis have excellent detailed entries about this showdown if you want more understanding.

I’ll update if I hear more news.

It begins with New York Times breaking the story late on Friday, Jan. 29 at 11:19 p.m.

Publishers Lunch did an email blast Saturday afternoon:

The Battle Over the Agency Model Begins, As Amazon Pulls Macmillan Buy Buttons
As originally reported last night and many readers know by now, sometime yesterday evening the buy buttons for apparently all of Macmillan’s books–including bestsellers and top releases, and Kindle editions–were removed from Amazon’s site. Macmillan books remain listed but can be bought only through third-party Marketplace sellers, while Macmillan Kindle titles all lead to pages that read, “We’re sorry. The Web address you entered is not a functioning page on our site.” It is the first shot across the purchasing bow in big publishers’ efforts to reset ebook pricing above the loss-leader $9.99 price point and retake control over that pricing by moving from the wholesale selling model to an agency selling model (first reported exclusively in Lunch Deluxe on January 19), at least for ebooks published simultaneously with new hardcover releases. Kindle customers further reported on Amazon forums that any Macmillan books that were on their “wish lists” disappeared from those lists with no explanation, as apparently did Macmillan sample chapters that had been downloaded previously.

More story here.

John Sargent issued this statement Saturday afternoon:

To: All Macmillan authors/illustrators and the literary agent community
From: John Sargent

This past Thursday I met with Amazon in Seattle. I gave them our proposal for new terms of sale for e books under the agency model which will become effective in early March. In addition, I told them they could stay with their old terms of sale, but that this would involve extensive and deep windowing of titles. By the time I arrived back in New York late yesterday afternoon they informed me that they were taking all our books off the Kindle site, and off Amazon. The books will continue to be available on Amazon.com through third parties.

I regret that we have reached this impasse. Amazon has been a valuable customer for a long time, and it is my great hope that they will continue to be in the very near future. They have been a great innovator in our industry, and I suspect they will continue to be for decades to come.

It is those decades that concern me now, as I am sure they concern you. In the ink-on-paper world we sell books to retailers far and wide on a business model that provides a level playing field, and allows all retailers the possibility of selling books profitably. Looking to the future and to a growing digital business, we need to establish the same sort of business model, one that encourages new devices and new stores. One that encourages healthy competition. One that is stable and rational. It also needs to insure that intellectual property can be widely available digitally at a price that is both fair to the consumer and allows those who create it and publish it to be fairly compensated.

Under the agency model, we will sell the digital editions of our books to consumers through our retailers. Our retailers will act as our agents and will take a 30% commission (the standard split today for many digital media businesses). The price will be set for each book individually. Our plan is to price the digital edition of most adult trade books in a price range from $14.99 to $5.99. At first release, concurrent with a hardcover, most titles will be priced between $14.99 and $12.99. E books will almost always appear day on date with the physical edition. Pricing will be dynamic over time.

The agency model would allow Amazon to make more money selling our books, not less. We would make less money in our dealings with Amazon under the new model. Our disagreement is not about short-term profitability but rather about the long-term viability and stability of the digital book market.

Amazon and Macmillan both want a healthy and vibrant future for books. We clearly do not agree on how to get there. Meanwhile, the action they chose to take last night clearly defines the importance they attribute to their view. We hold our view equally strongly. I hope you agree with us.

You are a vast and wonderful crew. It is impossible to reach you all in the very limited timeframe we are working under, so I have sent this message in unorthodox form. I hope it reaches you all, and quickly. Monday morning I will fully brief all of our editors, and they will be able to answer your questions. I hope to speak to many of you over the coming days.

Thanks for all the support you have shown in the last few hours; it is much appreciated.

All best,
John

Amazon retorted with this:

Dear Customers:

Macmillan, one of the “big six” publishers, has clearly communicated to us that, regardless of our viewpoint, they are committed to switching to an agency model and charging $12.99 to $14.99 for e-book versions of bestsellers and most hardcover releases.

We have expressed our strong disagreement and the seriousness of our disagreement by temporarily ceasing the sale of all Macmillan titles. We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books. Amazon customers will at that point decide for themselves whether they believe it’s reasonable to pay $14.99 for a bestselling e-book. We don’t believe that all of the major publishers will take the same route as Macmillan. And we know for sure that many independent presses and self-published authors will see this as an opportunity to provide attractively priced e-books as an alternative.

Kindle is a business for Amazon, and it is also a mission. We never expected it to be easy!

Thank you for being a customer.

Late Sunday night, it looks like Amazon is going to step back from their stance via The Consumerist.

And the Association of Authors’ Representatives just issued this statement about 10 minutes ago.

A message from the AAR Board of Directors concerning the sale of e-books:

The AAR strongly believes that the future of the digital book market requires a business model that is sustainable over the long term, and is fair to retailers, publishers and our authors. To be in the best interests of our clients, such a model must respect the high value of book-length work, and adhere to the long-held practice in all media (and most retailing) that new and exciting work bears the highest prices. We have never believed that a model that incurs a per unit loss on every sale, and sets an unrealistically low price on the most popular bestselling books, can possibly be in the best long term interests of our clients or the publishing industry. Therefore we applaud Macmillan’s stance on e-book terms; and Amazon’s stated intention to work within Macmillan’s model. We hope and assume other publishers will soon follow suit.

It is unclear at the moment the extent to which the ‘agency model’ sales terms will work to the advantage of our clients. But it is clear that having access to our authors’ work used as a weapon in negotiation is an unacceptable turn of events that we roundly condemn. Regardless of the content of the negotiations between Amazon and Macmillan, about which we have no information beyond what has been reported publicly, we believe that Amazon’s punitive choice to stop selling print editions of work by all Macmillan authors was a blow to the industry and to authors. We certainly hope to see Amazon rectifying this situation with regard to our Macmillan authors immediately. We and our clients have been hugely supportive of Amazon’s innovative, indeed groundbreaking efforts since its inception, and we hope that going forward the spirit of partnership between Amazon and our authors can be once again something we can depend upon.

Gail Hochman, President
For the AAR Board of Directors


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