Pub Rants

Category: Agents/Agenting

Let’s Continue Talking About Derivative Works

by Kristin Nelson

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

by Kristin Nelson

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

A Manuscript That Stays With You

by Kristin Nelson

STATUS: Spent a little time this evening working through some leftover computer conversion kinks. We are almost there.

What’s playing on the iPod right now? Nothing At the Moment

Because I’m not on twitter, I only found out today that YA author LK Madigan had passed away from cancer.

I have to say that the news made Sara and I rather sad.

Several years ago, I had the pleasure of reading her YA novel FLASH BURNOUT while it was on submission. I remember this vividly because Sara wasn’t taking on clients at the time but she really advocated for this author.

And Lisa was lovely and so professional.

I didn’t take her on as a client and she went on to find a wonderful and enthusiastic agent. And this may sound odd, but over the last two years, whenever we heard news about her debut novel, I’d say, “remember that manuscript? And Sara would say, “I told you so” (not really as Sara isn’t the kind of person to say such a thing) but you get the picture.

It was one of those novels that we remembered vividly, even years later, and could now poke fun at ourselves on being wrong about.

Which leads me to a point I made at the San Miguel Writers Conference last week.

When you get a rejection, you just have to remember that ALL writers received them at least at once in their careers and where you are today as a writer is not necessarily where you’ll be a year from now. That you will always be learning, growing, and maturing as a writer.

Being a writer is about the journey. Embrace it.

Quick & Easy Answers

by Kristin Nelson

Status: Doing Client reading.

What’s Playing on the XM or iPod right now? IS THIS LOVE by Bob Marley

1) What happens if you can’t sell a book to a publisher?
If we have exhausted all possibilities, I’ll put aside and concentrate on the author’s next work. If the next sells, that always allows us to revisit the prior novel. Sometimes the decision is made to let the past be the past and simply move forward.

2) How do you know if a writer’s idea is a good one?
Not a clue really. All I know is what I like and what really resonates with me. I’ve had the good fortune of having what I like generally match up with what editors like and are willing to buy. Just like every other agent in the world, I’m not 100% right all the time. Sometimes I love a book and can’t sell it.

3) If Hollywood has bought the film rights, does the author get a share in the profit?
The sad news is that in general, the author does not get a share in the profit. Although all film deals will have the standard “5% of 100% of net,” most Hollywood films will never show a profit because of how studios manipulate the accounting. It’s worse than the mafia. So agents often build in a lot of ways for the author to make money on the film deal that aren’t tied to “profit” so loosely defined. The option price, the purchase price, bestseller bonuses, box office bonuses etc. These are payments that are not contingent on the film making money.

However, some authors do get a share in the profit. That is not a percentage based on net but a percentage based on a cashbreak point on gross.

A very different thing. Also, it is possible to put merchandizing in a separate pool with a separate percentage. Good money to potentially be made there as well.

4) Can you publish your book yourself or do you have to have a publisher?
Of course you can publish a book yourself! That’s not the right question though. Anyone can self publish; the question is distribution and how to get folks to read what you self publish.

5) How do you decide if the cover art is good?
I have to say that cover art is not my strength as an agent. I have no background in art and not much of a creative vision. However, I do know what I like and what I don’t like. If I don’t like it and neither does the author, I fight like crazy to get it changed.

6) Do publishers show animation for cover concepts?
No. But wouldn’t that be cool?

7) What happens if more than one publisher wants the book?
Then you have an auction my friend! As an author, it’s always the best place to be. However, I do think that writers have a misconception that all auctions equal big money. That is not necessarily true. You can have modest auctions that are in low five figures.

Resist The Temptation

by Kristin Nelson

STATUS: Blessed quiet day. I only spent an hour on the phone.

What’s playing on the XM or iPod right now? BIGGEST PART OF ME by Ambrosia

It’s rare these days but some editors, especially those acquiring in genre fiction (such as SF&F or romance), will accept submissions directly from authors. When that happens, as a writer, know that you can only send the project to an imprint once.

Why might you ask?

For several reasons actually. First being that editors who take submissions directly log those submissions. So if one editor has passed, it will be on record so that pretty much nixes it for any other editor at that imprint.

But you also can’t resend for a more practical reason of how acquisitions occur at publishing houses. Let’s say a senior editor reads and passes on it. Then the writer sends to a new-ish editor at the same place (thinking they are more hungry to acquire).

Well, even if that newer editor loves it, she’s going to have to get second reads and support to take it to ed. Board. Well, if that senior editor nixed it and then it pops up again, well, it’s going to get shot down again. And on top of that, the newer editor is not going to have very warm feelings toward you for putting her in an awkward position.

So, resist the temptation and if you are submitting directly, make sure you pick the best editor first time around as you really only have the one shot. And of course, good luck.

A Contract Whine

by Kristin Nelson

Status: The high tomorrow is going to be 3 degrees. Oh Joy. And Chutney will still not thank me when I make her wear her fido fleece.

What’s Playing on the XM or iPod right now? HEROES by David Bowie

I think this is definitely more of a whine than a rant. I’m finally negotiating the new Macmillan boilerplate because just recently I sold a novel to that publishing house. And yes, I know that they implemented that new boilerplate many moons ago. Even though I reviewed it at that time (to see what I was in for) it’s not relevant until the first negotiation happens at that house. Although many of our boilerplate items were transferred into the new Macmillan contract, so much of the language has changed (or new clauses created), it might as well be brand new.

So to be generous, I reserved 4 hours to give it a solid read and to write up my requested changes letter. After 2.5 hours of diligent labor, I had only hit page 11 of the 28 page contract.

Oh, this is going to be fun one to negotiate.

More David Bowie music on iLike

The Great Contract Delay?

by Kristin Nelson

Status: Freakish. It’s going to be 60 degrees tomorrow in Denver. Uh, winter, what is that?

What’s Playing on the XM or iPod right now? ALWAYS ON MY MIND by Willie Nelson

In the last 6 months, there has been a radical shift in the amount of time it will take to complete a publishing contract. At first, I chalked it up to the new contract boilerplates publishing houses are feeling the need to implement. Any time an agent has to pretty much negotiate from scratch, it’s going to take a lot more time to establish a new agency boilerplate that is fair and reasonable for the author.

But that’s not always the case. For example, for one recent deal, it took (literally) three months to get the first draft of the contract—and the publisher had not changed the boilerplate. Having recently done 4 or 5 contracts with this house, I rather assumed this latest one was going to be a quick process. It took 6 months before the author signed the final contract.

And it’s not like I’m snoozing at my desk. This is after repeated calls, emails, follow up, and constant nagging on my part to prod the process along.

Agent job description: Nag.

Trust me, I didn’t know that was part of the job qualifications when I got into this biz.

For another contract from a publishing house that has always been very prompt in the past, I was stunned to have to wait 4 weeks between responses. (By the way, I responded within 3 days from any communication from the publisher; it was not languishing on my desk.)

It’s enough to make you wonder if it’s me! So I started bringing it up in conversations with other agents I chat with. Lo and behold, they had the same complaint!

So I don’t know what’s up. Are the contracts departments besieged? Understaffed? Combination of of things? Is this the great contract delay conspiracy? If you’ve recently sold a novel, get ready to hurry up and wait in order to sign on the dotted line.

Fun Facts On NLA Clients—Take 4

by Kristin Nelson

STATUS: I have an auction unfolding later this week so busy busy.

What’s playing on the XM or iPod right now? DOG DAYS ARE OVER by Florence and The Machine

Kristina Riggle—literally lives on the street one block over from where my husband grew up in Michigan. Talk about a small world…

Sherry Thomas—English is Sherry’s second language. She didn’t start learning English until she was thirteen years old. If you’ve read her, you’ll know she has a beautiful way with language that’s really stunning.

Linnea Sinclair—came to me via a referral from the amazing Deidre Knight. How cool is that for a fellow agent to recommend an author to then to have that author have such a great career? Deidre and I toast it every time we get together.

Helen Stringer—has a gorgeous British accent and a little known fact is that she has a background in film/tv. This doesn’t happen often but she auditioned for and landed the narrator job to read her own novel SPELLBINDER for the audio book version. She’ll be doing THE MIDNIGHT GATE as well. So if you’ve listened to the books, you are actually hearing her. If you haven’t picked up the audio version, I highly recommend it.

Fun Facts On NLA Clients—Take 2

by Kristin Nelson

STATUS: Hey, winter decided to show up, briefly, in Denver today. It snowed. I already miss out near 60 degree weather already.

What’s playing on the XM or iPod right now? GIVE PEACE A CHANCE by John Lennon

The Gals of Killer Fiction (all former Dorchester authors) are giving away free eBooks because finally, it’s their books to give away. Two of my authors, Jana DeLeon and Leslie Thompson are participating. Nothing wrong with the word “free” in this case so you might want to check it out.

And that leads me to back to some more fun facts to share.

Lucienne Diver—was already publishing under a pseudonym when I convinced her to do the Vamped Series in her own name.

Carolyn Jewel—has never missed a deadline (which has me convinced that she has mastered the art of cloning)

Leslie Langtry—was skeptical of literary agents and gave me the most detailed questions I’ve ever received when offering representation. And if you know Leslie, who is probably the author most likely to buy you a beer and hug you, you’d realize just how strange that is!

Marie Lu—was an attendee I met at the Pikes Peak Writers Conference. She submitted sample pages to her first novel which I passed on (sensing a theme here!). Then I took her on for a novel that I wasn’t able to sell. Now her debut YA, LEGEND, is one of Penguin’s big books for this fall. Talk about paying some dues.

Time for bed but more tidbits tomorrow!

Every Topic Under The Sun

by Kristin Nelson

Status: New Macbook at home is messing with the font size on blogger. I’ll keep fiddling.

What’s Playing on the XM or iPod right now? SECRETS by One Republic

I’ve been blogging for four years going on five. Some days, it just feels like I’ve covered every topic there is to talk about in Publishing. Most questions we receive have already been answered once on the blog and can be found in the archives.

Seriously, some days when I’m walking Chutney to work, I’ve gotta dig deep for a blog topic. *grin* But in all my years of agenting, NLA has never given a first pages workshop. Now I’ve done an occasional one at a conference but never through the blog or the agency directly.

Which is why Sara decided to take it on! Remember when I decided to do a Writers Digest Webinar a couple of months ago? We got great feedback and participants said it was valuable.

So given the positive response, Sara decided to give a webinar she has long wanted to entitled START YOUR STORY RIGHT. And the bonus? After the webinar, you get to submit the first 3 pages of your manuscript for a critique to see if your opening pages make the cut.

When we did the query Webinar, we had over 200 participants and we read every query submitted for critique. That took hours.

I think she might be crazy but hey, if you’ve ever wanted feedback on your opening, here’s your chance!

Click here to register for Sara’s Webinar.