Pub Rants

Category: publishing contracts

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

-12 Degrees

STATUS: We’ve got the heat cranking. Poor Sara in the loft needs a fan!

What’s playing on the XM or iPod right now? TALKIN’ BOUT A REVOLUTION by Tracy Chapman

Quite frankly, I think this entry’s title sums up the day.

Here I am with Chutney about to brave the 15-minute walk to the office with a wind chill of -20.

Is that a Dog in your pocket or are you just happy to see me? *grin*

New York is going to get hit tomorrow so we are anticipating two nicely quiet days where the phone doesn’t ring. I’ve been averaging about 3 hours a day on the phone for the last week.

Plenty of time to tackle the Macmillan contract again. With luck, I’ll make it to page 20 this afternoon! The words “electronic media” are making me nervous.

A Contract Whine

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?

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.

Most Favored Nations

STATUS: Just finished up two contracts today. Always a great feeling.

What’s playing on the XM or iPod right now? CHRISTMASTIME by Stevie Wonder

With all the changes in the publishing world, this might be a buzz word you’ve heard thrown around lately. Agents are often including Most Favored Nation clauses in publishing contracts where it relates to electronic books.

It’s actually an odd term for it but including it often protects our clients. A quick stop at Wikipedia will give you an in-depth definition of the term. It’s most often used in international economic relations. In short, it means that if the US has a most favored nation status with a state, that state will not be treated less advantageously than any other country the US has trade relations with. They would get the same tariffs, quotas, or breaks etc.

And yes, it’s more complicated than that but you just need the cliff notes version for how I want to talk about it. Great. Most Favored Nations. International economics. What does this have to do with publishing and electronic books?

I’m getting to that. There are various ways to structure the clauses but in general, when an agent includes a most favored nations clause, it means the author will not be subject to a less advantageous electronic royalty rate than any other author at that Publishing house.

TGIF! Have a great weekend.

If You Think A Publisher Will Be Filing…

STATUS: First day of fall. Makes me kind of sad. I want summer to stay awhile longer.

What’s playing on the XM or iPod right now? WONDER by Natalie Merchant

…for bankruptcy, what is the best thing an author can do?

My answer? Get your rights reverted before the filing so the books aren’t tied up indefinitely by the court as non-reverted titles will be deemed assets of the company.

By the way, this is true even if you have a bankruptcy clause in your contract specifying that rights automatically revert. Bankruptcy courts don’t perceive it that way and they trump contract clause.

I also suggest you get a full accounting, if you can, of what is owed to you. You want this for several reasons: 1) if you have to file a claim as a creditor in the bankruptcy, you’ll know for how much. 2) you might be able to take the amount loss as a tax deduction (but ask a tax expert first).

Sometimes It Pays to Pay…

STATUS: Life in the fast lane…not. Sheesh. Where has this day gone? I’ve got three more things I absolutely must do before leaving tonight.

What’s playing on the XM or iPod right now? AMERICAN PIE by Don McLean

For professional advice. Having been an agent for 8+ years, I’ve certainly dealt with interesting events in publishing. Bankruptcy is just one of them.

A couple of years ago, an independent sports publisher filed for bankruptcy to re-organize. One of the first books I sold in my agency’s infancy was impacted.

What I learned? Most publishing contracts have bankruptcy clauses and ALL of them are useless. If a company files for bankruptcy, even if your contract stipulates that rights revert automatically, the bankruptcy court sees it differently and the rights can be tied up—sometimes for years.

Luckily for my author, I was able to negotiate the rights back with the help of my IP attorney and another attorney specializing in bankruptcy.

Sometimes it pays to pay for a professional assistance when it comes to specialized events like the one I describe above. If you’re an author facing similar and going it alone (sans agent), don’t ask friends or google the web. Get the facts. And in a lot of cases, it’s information only an expert can provide so you might want to consider it.

Why You Can’t Buy An eBook In English Outside The U.S.

STATUS: Oh, I’ve got a lot to accomplish today.

What’s playing on the XM or iPod right now? LIFE IN TECHNICOLOR by Coldplay

A couple of weeks ago we got an email from a rather upset reader in Denmark. He wanted to buy Gail Carriger’s SOULLESS as an eBook in English for his eReader. According to this fan, he is Danish but reads most of his novels in English. He could see that it was available in the US without a problem but why couldn’t he buy it?

I imagine this fan is not the only non-US resident with this question so I’m going to tell you why he can’t buy the US English eBook version in Denmark (or wherever outside of the US). And yes, we did send a letter to this person explaining why.

It’s a sticky situation folks. As eBooks have global capacity in the English language, the reason why it may or may not be available resides in the initial rights/territories granted to the publisher when the deal was made for the print edition.

I know, not exactly what you wanted to hear when you live in Timbuktu and you just want to buy the dang eBook. Doesn’t the author and the publisher get the money?

So let me see if I can explain more clearly because trust me, it’s causing headaches for agents, for authors, and for publishers, and there is no easy fix-it solution.

If I sell Title X for North American rights only, then that means the US publisher is only allowed to sell its English version in the US, Canada, US territories (aka Philippines etc), and non-exclusive in select countries in the rest of the world (clearly listed in the contract). Print or ebook. The reason for this is that we want the ability to sell English to UK or ANZ (Australia) separately and UK/ANZ insists on certain “exclusive territories” for its print and electronic edition.

Are you starting to see the problem? If UK/ANZ hasn’t been sold, then no eBook version in English is available in let’s say Denmark because Europe is considered exclusive to UK in terms of selling the English edition.

Now, if an agent and author has granted World English or World rights to the US publisher, then there is the possibility for the US publisher to sell its English version world-wide in print or eBook. I say “possibility” as the US publisher may still want to sublicense property to UK or do a deal internally with a sister-UK/ANZ company who will want its version exclusively in certain territories.

So, it’s not just a matter of the author or US publisher giving Amazon or Apple or BN or Whoever a thumbs-up to sell away the English language eBook from their distribution channels in other countries. It all depends on the contract.

And yes, we ALL understand that with the electronic book there is now a greater global market for the English language version that needs to be exploited but with all English-speaking territories wanting to protect their exclusive sales area for their version, it’s a bit of tangle with no easy solution.

And yes, I get that avid readers may simply pirate an eCopy when the legal/legitimate one is not readily available. We aren’t stupid but the industry is not shifting fast enough to implement a quick solution.