The Authors Guild on the Option Clause

Excellent statement from The Author’s Guild analyzing the odious “option clause” in the book contract. Most book contracts are “asymmetrical” in favor of the publisher. I.e. an agreement whereby the publisher gets the right to exploit the work of the author for the term of the copyright, life plus 70 years. In exchange they give the author a very small advance (usually)  against rather small royalties. One of the most asymmetrical conditions is the option clause, which requires the author to submit the next book exclusively to the contracted publisher for a given period of time, but doesn’t require any additional responsibility on the publisher to accept it. Sometimes a very limited option clause is ok. But there are some truly horrible ones out there.  Here is the complete text.

A few authors are lucky enough to sign multi-book deals worth six or seven figures. But many more writers, without really thinking about it, tie themselves to unprofitable multi-book deals in the form of one-sided options or “next book” clauses—and they do it for free.

Option clauses in publishing agreements vary, but generally they give the publisher first dibs on the author’s next book. Some options are relatively benign, granting the publisher rights of first look or first negotiation (i.e., the right to see the next book first and negotiate for a limited period of time after reviewing it). Others are never fair, in our view, such as clauses that grant the publisher a right of last refusal (i.e., even if the publisher turns it down at first, it can come back and match any other publisher’s offer) or the ability to wait until after the first book is published, or the second book completed, to make up its mind. Clauses that do so unfairly impede an author’s ability to write and publish.

We get that publishers want their investments in authors to pay off. When a book does well, it may be a credit to the publisher’s marketing efforts, as well as the author’s. In cases where the publisher actively builds the author’s brand, it may be fair to give it the right to further recoup its investment on the next book. But the terms have to reasonable. We have seen too many option clauses that overreach, binding the hands of an unwitting author for longer than she can afford when it comes time to sell the next book.

Option clauses can wreak havoc on authors’ careers. First, and most obviously, they prevent an author from selling her book on the open market and getting the best deal possible. In cases where the first book sold particularly well, unless and until the publisher passes on the next book, an option certainly precludes an auction from developing. And what if the publisher failed to market the first book effectively, or the author was dissatisfied with the edit? The author is left without recourse.

An option can also hold up the author’s ability to get a new advance—a necessity for full-time authors. Particularly egregious clauses require the author to submit a completed manuscript (as opposed to a proposal) of the next book for the publisher’s consideration. To make things worse, they give the publisher way too long to decide whether to publish the manuscript. The author is not permitted to submit a proposal to other publishers until after delivering an entire new book to the original publisher, which is given ample time to review it and, of course, to reject it. This means that the author is writing the entire book without an advance—defeating the very purpose of an advance, which is to provide an author with money to write the book in the first place.

Even worse are options that give the publisher the right to the author’s next book-length work “on the same terms” as the first. That is, if the publisher elects to exercise the option, the author must sign a contract with the publisher with the same provisions and payment structure as the current contract. This completely eliminates the author’s right to negotiate before the next book’s subject matter, length, and market potential are known. No writer should ever agree to such terms.

For absolute intolerability, option clauses including “last refusal” rights take the cake. These, as discussed above, actually allow a publisher to match a second publisher’s offer, even if the publisher who holds the option declines the author’s work initially. We don’t think a publisher should receive even one bite of this apple. But several? That’s crazy. Once a publisher passes on a book, no author should be obligated to disclose any offers received from others to the original publisher.

One Authors Guild member whose option required submission of an entire manuscript spent ten years without any financial compensation while working on a research-intensive non-fiction manuscript (an early advance for the “next book” is almost never part of the deal). His contract prohibited him from approaching any other publisher until the entire manuscript was done—a decade later. It’s preposterous to ask authors to bear that kind of risk.

Fiction writers aren’t immune. A few years ago, a major publisher used a next-book option (together with a non-compete clause, like the ones we’ve called out here) as an excuse to pull the plug on a novel already scheduled for publication. With her agent’s knowledge and blessing, the author decided to self-publish a previously-written but unpublished short story collection in order to make ends meet before the next installment of the advance for the novel was due. When her publisher—which had already rejected the story collection—found out, the author received a termination letter demanding immediate repayment of the advance, claiming that “by ignoring these essential terms of the Agreement and not informing your editor of your intentions, you have not only breached the Agreement, but also demonstrated your unwillingness to work in good faith with us toward the successful publication of the Work.” The novel clearly didn’t compete with the self-published short story e-book. And earlier, when the author presented the publisher with an outline for her next novel, the publisher had insisted on waiting until after the current novel’s release to see how it was received and whether it was worth picking up the next one.

Or consider the romance novelist who took a break from fiction to write a non-fiction book. Her non-fiction contract required her to submit her next book—a romance novel—to that same publisher, despite the fact that the non-fiction publisher had absolutely no experience with romance novels. The upshot was that the author was required to delay submission of the novel to publishers who would actually know how to handle it.

Fair “next book” clauses do exist and may be appropriate where the publisher invests in marketing, but they must be strictly limited. The clause should grant only a right to negotiate with the author for a next book of similar subject matter for a limited period of time. If the author and publisher can’t reach an agreement in that time frame, it is crucial that the author be free to quickly seek another publisher. Additionally, a fair option agreement generally will:

• require that the publisher base its decision on a proposal or sample chapters of the next book (not on a completed manuscript);
• require the publisher to make a decision within a certain number of days (e.g., 30) of receiving the author’s proposal or sample chapter(s);
• allow the author to go elsewhere if no agreement is made within a limited number of days (e.g., 15) of the publisher’s offer;
• allow the author to submit a proposal or sample from the next book for the publisher’s review when it is ready (the author should never be forced to wait until some period after publication of the first book, which may be way too far out for an author living on book writing alone); and
• provide for new terms to be negotiated for the next book (the second deal should never be based on the terms in the contract for the first book).

If the publisher wants an option in any other circumstances, the publisher should pay an upfront option fee for it. We recognize this is not an industry practice—not yet, at any rate. But it should become one. A publisher should never have the right to prevent or delay an author from selling her next book unless it pays an additional amount to hold up that work for some period of time, as a film studio would when buying film option rights on a book.

Bottom line: option clauses are almost always in the sole interest of the publisher and not the author. In some cases, the option clause can hold the author’s writing career hostage to the publisher’s schedule for years. This amounts to an unacceptable restriction on an author’s freedom to write. If an author is agreeable to providing the publisher an option, it should be subject to the limits described above.

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UNTIL NOW, I WAS THE RIFFRAFF: WHAT IT MEANS TO WIN THE ILA

Tawni Waters accepting the International Literacy Association YA Award for Beauty of the Broken

Below is an essay my client, Tawni Waters, wrote on receiving the International Literacy Association Award for the best debut YA novel. I always thought that Tawni was the most heart wrenching novelist writing today. It turns out that she is also the funniest. Read it and laugh.

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I am sitting next to Meg Cabot eating chicken.  The conversation is going well.  I’m totally playing it cool, like I have no idea she’s a bestselling author.  I even get a little piece of parsley stuck between my teeth, you know,  to solidify my “we are just two regular chicks chatting over chicken” routine.  She says something about her books, and I say, “Oh, are you a writer?”

She smiles graciously.  “Yes, I am.”

“Cool, what do you write about?” I ask, throwing back a swig of tea.

“Oh, princesses,” she says.

“That’s awesome,” I say without missing a beat.  “Are they published?”

“Yes,” she says.

“I should totally look those up,” I say and move on to my potatoes.

I could chock my wonderful performance up to the fact that I’m a trained actress, but that would be dishonest.  My spot-on “I don’t know you are rich and famous” performance actually comes from the fact that I don’t know she is rich and famous.  I guess I should have put two-and-two together.  A man in a tuxedo led me to this reserved table at the front of the banquet hall.  I am here to receive the ILA Book Award for Young Adult Fiction, and Meg Cabot is scheduled to speak at the luncheon.  So when this beautiful, poised, funny woman sitting beside me introduced herself to me as Meg, I should have said, ‘A-ha! This is Meg Cabot, writer of the gazillion-dollar earning Princess Diaries.” But I didn’t.  I didn’t because this whole weekend has been overwhelmingly hard-to-believe, so I seem to be coping by subconsciously deciding not to believe it.  I feel like Dorothy transported to Oz, muttering, “We’re not in Kansas anymore, Toto,” ad nauseam.  I think I may be suffering from mild shock.

It all started when I arrived at the Four Seasons in St. Louis after a two day road trip from Minneapolis.  My publisher, Simon & Schuster, had offered to fly me in for the event, but I wanted to bring my friend Polyxeni, you know, for moral support, so I wouldn’t make an idiot of myself in front of Meg Cabot or anything.  Polyxeni is a book buyer for the St. Paul Library System, and from the minute I found out I won the ILA, she told me it was a big deal.  A huge deal.  A life-changing deal.  So did Simon & Schuster. So did my agent, Andy Ross.  I didn’t believe any of them.

“Last year’s winner was Rainbow Rowell,” Polyxeni said slowly over coffee, as if talking to a brain-damaged child.  “Do you get that?  Rainbow Rowell?”

I nodded.  Sure, I knew who Rainbow Rowell was.  Who didn’t?  What did that have to do with me?

“Her book is being made into a Pixar movie now!  This award changes the career trajectory of everyone who wins it!”  Polyxeni enthused.

I wondered why she was being so pushy.  And why was she using big words like “trajectory”?  Did she think I was a scientist or something?  Show off.  Suffice it to say, out of self-preservation, I decided to miss the point.  I think it was because I had been a struggling artist for so many decades, the thought of all that changing seemed impossible to me.  I didn’t want to get my hopes up only to find them dashed.  It was easier not to believe.

We arrived in St. Louis looking just about like people who have been driving and eating Pringles for two days should look, which is to say, dead shmexy.  I knew Simon & Schuster was going to be putting me up at the Four Seasons, but I didn’t know what that meant.  I guessed Four Seasons was sort of like Holiday Inn—nice, clean, probably no roaches in the showers.   When we walked through the doors, I thought four things:

1. Now I know what the phrase “smells like money” means.
2. Maybe I should have put on a fresh T-shirt, one without the Jaws emblem.
3. Is everything here made out of actual marble, or is that pen faux marble?
4. I hope that mini-van-sized chandelier doesn’t fall on my head.

After checking in, Polyxeni and I stepped onto the elevator.  “Why do you have to put your key in?” she whispered.

“To keep the riffraff out,” I said.  “Which is weird, because until now, I was the riffraff.”

We laughed and rode the elevator to the 15th floor where a beautiful woman was waiting for us with our luggage (a very stained polka-dotted roll-along and an army green duffel bag, respectively).  She showed us around our room, making sure to point out the television hidden in the bathroom mirror, just in case we wanted to watch Seinfeld reruns while we were freshening up, after which she offered to bring up bath salts and bubble bath, should we decide to take advantage of the amenities.  She pointed at the marble encased tub, as if we could miss it.  The bathtub was roughly the size of the Aegean Sea.  I suddenly understood why rich people so often drowned in their bathtubs.  I asked Polyxeni if she had brought our life jackets.  She hadn’t.  We decided to take our chances with the drowning and said yes to the bath salts.

After the woman left, Polyxeni and I glanced around our room in awe, commenting on the St. Louis arch glinting in the sun just outside our window.  Then we flopped on the giant bed at its center.

“It feels like a cloud!” Polyxeni giggled.  She was right.  It did.  I was pretty sure we’d been transported to heaven.  We bumbled around for a bit, smelling shampoos and tasting pillow mints and acting like a scene from The Beverly Hillbillies.

That night, Polyxeni and I went to the hotel restaurant for a celebratory dinner.  Our waiter was a lovely girl.  She seemed to know who I was.  As she poured my champagne, she called me Ms. Waters with a sort of reverence I am not used to.  Sometimes, my community college students would say my name that way at the end of a semester, when they deserved an F and wanted a C.  But this felt sincere.  During the course of dinner, every waiter in the restaurant came to meet me.  They brought me a little dessert plate that had “congratulations” written on it in chocolate.  Polyxeni assured me that she hadn’t told them about my award.  That’s when I started to think that maybe, just maybe, Polyxeni and Simon & Schuster and my agent hadn’t been lying when they said this award was a big deal.

The next day’s events were even more surreal.  I had a signing at one.  Rewind with me for a minute: Beauty of the Broken was released almost a year ago.  I have pretty much been on book tour since then.  I am not new to signings.  I have signed books all over the USA, in coffee shops and bookstores and libraries and schools.  What I have learned about book signings is that they are very unpredictable things.  Sometimes, 50 people show up (if you are signing in your hometown).  Sometimes, two people show up, and you take them out for wine and Chinese food because you are embarrassed they bothered to show up when no one else did.  So I warned Polyxeni at lunch.  “Don’t expect much from the signing.  I’m not sure people will show up.”

“Oh, they’ll show up. Trust me,” she said.  Poor Polyxeni.  She just didn’t understand the nuances of the publishing business.

Or maybe she did.  The second I sat down to sign, a line formed.  A long line.  It stretched out of sight.  People gushed as I signed their books.

“You’re my daughter’s favorite author.  I can’t believe I get to meet you!”

“Make it out to my wife!  She’s your biggest fan!”

“Can I get a picture with you?”

I handled all of this with the grace and dignity of a seasoned author, which is to say, I didn’t throw up on anyone.  After 20 minutes, we had to end the signing, not because the line had dwindled, but because we ran out of books.  I don’t know how many books we had to start with, but I can tell you we had bunches.  Bunches and bunches.  I walked away dazed.  Again, it occurred to me that this award might actually mean something.  Could it be that my career was really going to change?

That night, Simon & Schuster hosted a “family dinner,” which meant that they brought a handful of really cool marketing people and authors together in a posh restaurant and fed them amazing food.  (Full disclosure:  I had never been invited to a Simon & Schuster family dinner before.)  It was beautiful.  I ordered steak and three glasses of champagne because I could.  (I noticed another author ordered four neat whiskeys, so I figured I was ok.)  After we were well into the main course, Candice, the extraordinary library and marketing person who had organized the event, suggested we go around the table and introduce ourselves.  We did.  Everyone said his or her name, the title of his or her latest book, and the name of his or her editor.  When my turn came, I said just those things.  Candice looked at me expectantly.  “Don’t you have something else to tell them?” she asked.  What was she talking about?  I looked at her blankly.

“Your award?” she prodded.  “I think we can tell them even though it’s a secret.  No one will say anything.”

My award?  It was a big enough deal that I could say it to this room full of important people and expect them to be impressed?  “Well, Beauty of the Broken won the ILA Book Award for Young Adult Literature,”  I said, feeling almost sheepish, expecting everyone to nod politely and go back to nibbling cheeses.  I probably will never forget that moment as long as I live.  The expressions on the faces at the table changed.  They were impressed.  Amazed even.  Everyone clapped and congratulated me.

“Thank you,” I said, learning to love the attention.

And then, a bunch of naked guys rode by the window on bikes and stole my thunder.  No, I’m not making this up.  There was a nude bike rally in St. Louis that night, and it happened to pass the restaurant where we were eating.  Everyone forgot my award, ran to the window, and started shrieking, “Oh, my god!  Did you see his ______?”  (Sidenote: if you ever want to be cured of the demon of lust, watch a naked bike rally.)  Which made me go, “Ok, now I get it!  This is a dream!”  But it wasn’t a dream.  I don’t think.  Maybe it is.  Maybe I just haven’t woken up yet.

The next day, I accepted my award shortly after I realized who Meg Cabot was.  “Oh, my god!  You’re that Meg!”  I said, looking at the giant screen behind us, onto which was projected a God-sized picture of Meg, along with photos of her zillion best selling novels.

“Yes,” she laughed.

“I’m so sorry,” I said.  “I feel so dumb.”

“Don’t worry,” she said.  “I get tired of that other stuff anyway.”

I don’t know if I will ever be Meg Cabot.  I don’t know if I will ever get enough of this “other stuff” to get tired of it.  Right now, two days after coming home from the ILA Conference, I’m still blown away that any of that “other stuff” is coming my way at all.  Already, people care about Beauty of the Broken in a way they never have.  People I don’t know are Tweeting about me.  I’ve already been asked to speak at a major conference. Facebook, the litmus test of all that is good and likable in this world, tells me that people like me way more than they did two weeks ago.  And this is just the beginning.

After the banquet, I attended a panel where a brilliant professor taught people how to teach Beauty of the Broken in the classroom.  I looked down at the worksheet she handed me, taking in phrases like “feminist critique” and “Marxist analysis” in relation to my characters.  Stay with me here: Those weird little figments of my imagination are now going to be used to torture high school and college students everywhere.  Someday, a few months from now, a year from now, some poor NYU freshman will be popping No-Doz, analyzing the socio-economic implications of Iggy’s quilt.  “Why do you think the author used Iggy’s quilt so often in the text?” some well-meaning teacher will ask, and the student will write an essay about this, a terrible essay, an essay that mixes up “you’re” and “your” and postulates that Iggy’s quilt is a symbol of the various facets of bourgeois oppression in the 21st Century.

And I will be sitting at home saying, “Ha, suckers!  The author used Iggy’s quilt so much because she knew she needed to write a few physical details to help readers visualize the scene, and she was way too hopped up on caffeine to think of anything fresh, so she referenced the dumb blanket again!”

Maybe I shouldn’t write that down.  Maybe I should just pretend I meant all the profound things students will someday say I meant.  Thanks to the ILA, I am a serious writer.  But the transition is hard.

After all, up until now, I was the riffraff.

The Authors Guild on E-book Royalties

On June 17, we posted a statement by The Authors Guild about their new Fair Contract Initiative, in which they would be clarifying the issues in the typical book contract that are unfair to authors. Today The Authors Guild issued  their first analysis having to do with e-book royalties, which are substantially lower than the royalties on hardbacks, even though the costs of production and distribution of e-books is substantially lower. It’s worth reading. Here is the text in its entirety.

We announced our Fair Contract Initiative earlier this summer. Now our first detailed analysis tackles today’s inadequate e-book royalties. At the heart of our concern with the unfair industry-standard e-book royalty rate is its failure to treat authors as full partners in the publishing enterprise. This will be a resounding theme in our initiative; it’s what’s wrong with many of the one-sided “standard” clauses we’ll be examining in future installments.

Traditionally, the author-publisher partnership was an equal one. Authors earned around 50% of their books’ profits. That equal split is reflected in the traditional hardcover royalty of 15% of list (cover price, that is, not the much lower wholesale price), and in the 50-50 split of publishers’ earnings from selling paperback, book club, or reprint rights. Authors generally received an even larger share than the publisher for non-print rights (such as stage and screen rights) and foreign rights.

But today’s standard contracts give authors just 25% of the publisher’s “net receipts” (more or less what the publisher collects from a book sale) for e-book royalties. That doesn’t look like a partnership to us.

We maintain that a 50-50 split in e-book profits is fair because the traditional author-publisher relationship is essentially a joint venture. The author writes the book, and by any fair measure the author’s efforts represent most of the labor invested and most of the resulting value. The publisher, like a venture capitalist, invests in the author’s work by paying an advance so the author can make ends meet while the book gets finished. Generally, the publisher also provides editing, marketing, packaging, and distribution services. In return for fronting the financial risk and providing these services, the publisher gets to share in the book’s profits. Not a bad deal. This worked well enough throughout much of the twentieth century: publishers prospered and authors had a decent shot at earning a living.

How the e-book rate evolved

From the mid-1990s, when e-book provisions regularly began appearing in contracts, until around 2004, e-royalties varied wildly. Many of the e-rates at major publishing houses were shockingly low—less than 10% of net receipts—and some were at 50%. Some standard contracts left them open to negotiation. As the years passed, and especially between 2000 and 2004, many publishers paid authors 50% of their net receipts from e-book sales, in keeping with the idea that authors and publishers were equal partners in the book business.

In 2004, we saw a hint of things to come. Random House, which had previously paid 50% of its revenues for e-book sales, anticipated the coming boom in e-book sales and cut its e-rates significantly. Other publishers followed, and gradually e-royalties began to coalesce around 25%. By 2010 it was clear that publishers had successfully tipped the scales on the longstanding partnership between author and publisher to achieve a 75-25 balance in their favor.
   

The lowball e-royalty was inequitable, but initially it didn’t have much effect on authors’ bottom lines. As late as 2009, e-books accounted for a paltry 3–5% of book sales. Authors and agents ought to have pushed back, but with e-book sales so low it didn’t make much sense to risk the chance of any individual book deal falling apart over e-royalties. We called the 25% rate a “low-water mark.” We said, “Once the digital market gets large enough, authors with strong sales records won’t put up with this: they’ll go where they’ll once again be paid as full partners in the exploitation of their creative work.”

E-books now represent 25–30% of all adult trade book sales, but for the vast majority of authors the rate remains unchanged. If anything, publishers have dug in their heels. Why? There’s a contractual roadblock, for one: major book publishers have agreed to include “most favored nation” clauses in thousands of existing contracts. These clauses require automatic adjustment or renegotiation of e-book royalties if the publisher changes its standard royalty rate, giving publishers a strong incentive to maintain the status quo. And the increasing consolidation of the book industry has drastically reduced competition among publishers, allowing them more than ever to hand authors “take it or leave it” deals in the expectation that the author won’t find a better offer.

The elephant in the room

And then there’s the elephant in the room: Amazon, which has used its e-book dominance to demand steep discounts from publishers and drive down the price of frontlist e-books, even selling them at a loss. As a result, there’s simply not as much e-book revenue to split as there was in 2011when we reported on the e-book royalty math. At that time, publishers made a killing on frontlist e-book sales as compared to frontlist hardcover sales—at the author’s expense—because, as compared to today, the price of e-books was relatively high.

When we analyzed e-royalties for three books in the 2011 post, “E-Book Royalty Math: The House Always Wins,” we found that every time an e-book was sold in place of a hardcover, the author’s take decreased substantially, while the publisher’s take increased.

Since 2011, we have found that publishers’ e-gains have diminished. But the author’s share has fallen even farther. Amazon has squeezed the publishers, to be sure. The publishers have helped recoup their losses by passing them on to their authors.

These were our calculations for several books in 2011. The trend was obvious. Compared with hardcovers, each e-book sold brought big gains to the publisher and sizable losses to the author when the author’s royalties are compared to the publisher’s gross profit (income per copy minus expenses per copy), calculated using industry-standard contract terms:

Author’s Royalty vs. Publisher’s Profit, 2011

The Help, by Kathryn Stockett

Author’s Standard Royalty: $3.75 hardcover; $2.28 e-book.

Author’s E-Loss = -39%

Publisher’s Margin: $4.75 hardcover; $6.32 e-book.

Publisher’s E-Gain = +33%

Hell’s Corner, by David Baldacci

Author’s Standard Royalty: $4.20 hardcover; $2.63 e-book.

Author’s E-Loss = -37%

Publisher’s Margin: $5.80 hardcover; $7.37 e-book.

Publisher’s E-Gain = +27%

Unbroken, by Laura Hillenbrand

Author’s Standard Royalty: $4.05 hardcover; $3.38 e-book.

Author’s E-Loss = -17%

Publisher’s Margin: $5.45 hardcover; $9.62 e-book.

Publisher’s E-Gain = +77%

What’s happening now? We ran the numbers again using the following recent bestsellers. Because of lower e-book prices, the publishers don’t do as well as they used to, though they still come out ahead when consumers choose e-books over hardcovers. But authors fare worse than ever:

Author’s Royalty vs. Publisher’s Profit, 2015

All the Light We Cannot See, by Anthony Doer

Author’s Standard Royalty: $4.04 hardcover; $2.09 e-book.

Author’s E-Loss= -48%

Publisher’s Margin: $5.44 hardcover; $5.80 e-book.

Publisher’s E-Gain: +7%

Being Mortal, by Atul Gawande

Author’s Standard Royalty: $3.90 hardcover; $1.92 e-book.

Author’s E-Loss= -51%

Publisher’s Margin: $5.10 hardcover; $5.27 e-book.

Publisher’s E-Gain: +3.5%

A Spool of Blue Thread, by Anne Tyler

Author’s Standard Royalty: $3.89; $1.92 e-book.

Author’s E-Loss: -51%

Publisher’s Margin: $5.09 hardcover; $5.27 e-book.

Publisher’s E-Gain: +3.5%[1]

Exceptions to the rule

It’s time for a change. If the publishers won’t correct this imbalance on their own, it will take a critical mass of authors and agents willing to fight for a fair 50% e-book royalty. We hope that established authors and, particularly, bestselling authors will start to push back and stand up to publishers on the royalty rate—on behalf of all authors, as well as themselves.

There have been cracks in some publishers’ façades. Some bestselling authors have managed to obtain a 50% e-book split, though they’re asked to sign non-disclosure agreements to keep these terms secret. We’ve also heard of authors with strong sales histories negotiating 50-50 royalty splits in exchange for foregoing an advance or getting a lower advance; or where the 50% rate kicks in only after a certain threshold level of sales. For instance, a major romance publishing house has offered 50% royalties, but only after the first 10,000 electronic copies—a high bar to clear in the current digital climate. But overall, publishers’ apparent inflexibility on their standard e-book royalty demonstrates their unwillingness to change it.

We know and respect the fact that publishers—especially in this era of media consolidation—need to meet their bottom lines. But if professional authors are going to continue to produce the sort of work publishing houses are willing to stake their reputations on, those authors need a fair share of the profits from their art and labor. In a time when electronic books provide an increasing share of revenues at significantly lower production and distribution costs, publishers’ e-book royalty practices need to change.

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[1] In calculating these numbers and percentages for hardcover editions, we made the following assumptions: (1) the publisher sells at an average 50% discount to the wholesaler or retailer, (2) the royalty rate is 15% of list price (as it is for most hardcover books, after 10,000 units are sold), (3) the average marginal cost to manufacture the book and get it to the store is $3, and (4) the return rate is 25% (a handy number—if one of four books produced is returned, then the $3 marginal cost of producing the book is spread over three other books, giving us a return cost of $1 per book). We also rounded up retail list price a few pennies to give us easy figures to work with.

Likewise, in calculating these numbers and percentages for the 2015 set of e-books, we are assuming that under the agency model—which is reportedly the new standard in the Big Five’s agreements with Amazon—the online bookseller pays 70% of the retail list price of the e-book to the publisher. The bookseller, acting as the publisher’s agent, sells the e-book at the price established by the publisher. The unit costs to the publisher are simply the author’s royalty and the encryption and transmission fees, for which we deduct a generous 50 cents per unit.   

 

The Author’s Guild on the Book Contract

Most of us who have ever negotiated a book contract will tell you that these agreements are unfair to authors. Contracts are classic asymmetrical agreements whereby the publisher gets the rights to exploit your writing in all possible manner and in all possible venues for the term of the copyright (life plus 70 years). They have the right to keep you from publishing any other book that they deem will compete against the contracted work. They will attempt to restrain you from showing your next work to another publisher until they have had an exclusive opportunity to look at it and make an offer. They will claim the right to reject the book for any reason and require you to return the advance paid. In exchange, they will give you a teeny bit of money. No wonder authors are claiming that they are better off self publishing.

To combat this, The Authors Guild, my favorite author organization, has developed a new program to shine a light on the unfair elements of the book contract. Today they published an outline of the Fair Contract Initiative and describe the areas that they will be analyzing going forward. It’s worth a read.

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“On May 28 we announced the Authors Guild Fair Contract Initiative. Its goal is to shine a bright light on the one-sided contract terms that publishers typically offer authors and to spur publishers to offer more equitable deals. This is not an abstract issue: today’s contracts directly affect authors’ livelihoods and ability to control their works. As standard terms have become less favorable to authors in recent years, their ability to make a living has become more precarious.

Authors are among our more vulnerable classes of workers. Book authors receive no benefits, no retirement income or pension, and there are no unions to protect them. They live or die by copyright—their ability to license rights to publishers in exchange for advances and royalties. While copyright is meant to give authors control of how and on what terms others can use their works, publishing agreements tend to be negotiable only around the edges, and even then only by well-represented authors.

“Standard” contracts—the boilerplate offered to un-agented (or under-agented) authors—are even worse than those that most authors with agents or lawyers sign. That’s because agented agreements traditionally start off with the many changes that the agent or lawyer has previously negotiated with a particular publisher. One agented contract we’ve seen includes at least 96 changes from the original “standard” language, plus seven additional clauses and two additional riders. Every one of those changes is a point that the agent has negotiated in the author’s favor.

Why do publishers insist on offering their newest partners more than a hundred conditions so dubious that they’ll quickly back down on them if asked? It largely boils down to unequal bargaining power and historic lethargy. Anxious to get their works published, authors may wrongly believe that the contract their editors assure them is “standard” is the only deal available, take it or leave it. And much of that “standard” language has been around for years thanks to institutional inertia; as long as somebody signs an unfair clause that favors the publisher, the firm has no interest in modifying it. But even contracts negotiated by agents and lawyers often include longstanding “gotchas” that live on only because “it’s always been that way.”

It’s time for that to change. We’ll be highlighting particular clauses in the weeks to come. For now, here are just some of the issues we’ll be looking into:

Fair Book Contracts: What Authors Need

Half of net proceeds is the fair royalty rate for e-books
Royalties on e-books should be 50% of net proceeds. Traditional royalty rates reflected the concept that publishing is a joint venture between author and publisher. But despite the lower production and distribution costs associated with e-books, publishers typically offer only 25% of net. That’s half as much as it should be.

A publishing contract should not be forever
We think contracts should expire after a fixed amount of time. Publishers may pretend to consider this an unreasonable request—yet it’s precisely what they demand when they license paperback rights to others. Today’s contracts are generally for the life of copyright (meaning they essentially last at least 35 years, at which point copyright law gives the author the right to terminate the agreement). That’s too long.

Thanks to clever contractual language, it has become increasingly difficult for authors to get their rights back if the book goes out of print. “Out-of-print” clauses may be easily manipulated in this day of e-books and print-on-demand technology. At the same time, it’s more important than ever for authors to reacquire their rights so they can make e-book and print-on-demand titles available from their backlist. Unfortunately, we have heard too many stories of publishers refusing to revert rights or to make their authors’ books meaningfully available. Publishers should not be allowed to hold a book hostage; their contracts should provide clear language stating that if a specific royalty minimum is not paid within a certain period of time, then the book is defined as “out-of-print.”

A manuscript’s acceptability should not be a matter of whim
In standard contracts, whether a manuscript is acceptable or satisfactory is often in the “publisher’s sole judgment”; that means a new editor or management can reject a book on a whim and refuse to let the author publish it elsewhere until the entire advance is refunded. This can happen after an author has invested several years of work in the book, foregoing other opportunities in the meantime. Under some contracts, the publisher can even have the book rewritten at the author’s expense, decide whether or not to credit the new author, and maintain its own copyright to the additions and revisions. This is patently unfair. A publishing agreement based on a proposal is not an option, it is a contract to publish and pay, assuming the author delivers.

Advances must remain advances
Once upon a time, advances were typically split into two payments: one on signing of the contract, and one on acceptance of the manuscript. In recent years, we’ve seen three-part payment schedules: one-third on signing, on acceptance, and on publication. Now we’re seeing four-part payments: signing, acceptance, publication, and paperback publication. Slower payments shift risk from publisher to author. They also defeat the whole purpose of advances: to enable authors to devote themselves to completing their books without having to take on other work to make ends meet.

Publishers should share legal risk
No author can afford to put his or her entire net worth on the line, but that’s what many authors do when they sign publishing contracts. Authors are asked to assume the risk of suits for infringement or libel. This is true even where the publisher has lawyers who have vetted the book. Investigative journalists are most at risk. Forcing authors to assume the risk of a lawsuit can amount to a restraint on their speech. Publishers’ liability insurance should also cover authors. The author’s share of the risk, if any, should never exceed the total amount of the author’s advance.

Non-compete clauses must let the authors write
Authors must be free to write. The non-compete clause—an attempt to restrict the author from publishing work elsewhere that might cut into the current title’s sales—is no longer reasonable in the era of instant publishing. The clause should be simple: only the publisher can publish the current title, long excerpts from it, or a substantially similar work. Anything more is an unfair restriction on the author’s livelihood.

Options must be fair and paid for
Anything that keeps writers from publishing is simply unacceptable. That means option clauses should disappear. If a publisher wants an option on a future book, it should offer a separate payment for it and a quick decision on whether to offer a contract on it. Today’s standard option clauses often let the publisher delay the option decision until the current work is published. That can keep the author in limbo for years; it’s deplorable.

The author must have final say
When it comes to the text of the book, the author should have the final cut—that is, no changes in the text should be made without the author’s approval. The publisher should submit jacket flap and advertising copy to the author for approval. And the author should have the chance to approve any biographical material used in the book and/or publicity produced by or for the publisher.

Payments must move into the 21st century
Publishers’ methods of accounting have inevitably favored the publisher. Royalty statements and payments to authors typically appear only twice a year on income the publisher received between three and ten months previously. And the publisher can delay payment still further by invoking what is inevitably called a “reasonable reserve for returns”—that is, an estimate of how many books it will get back—without ever defining what “reasonable” means. The result is that it can be up to two years before an author is paid royalties for a sale. We think it’s time for royalties to be paid at least every three months with a limited delay and that every contract should clearly define “reasonable.”

“Special” book sales must not be at the author’s expense
Book contracts include a variety of royalty rates for different types of sales. Contracts routinely allow high-discount deals (such as selling a bulk load of books to a big-box store or a book club) to reduce the basis of the author’s royalty from the list price of the book to the much smaller net amount the publisher receives. Crossing the discount threshold from “normal” to “high” can magically reduce the author’s cut by more than fifty percent, giving the publisher a strong incentive to take that step. Why should an author accept this?

The above is just a taste of what we’ll address in the coming months. In addition to the standard book contract, we’ll also be identifying unreasonable provisions in self-publishing and freelance journalism agreements.

We’d like to hear from you. If a publisher has handed you especially egregious contract terms, please let us know. You can contact us here. But if your contract includes a non-disclosure clause, please don’t violate it. By the way, we don’t like those clauses, either.

Ultimately, we hope this initiative will create a climate of “just say no” to egregious contractual terms. We’d like you, the authors, to understand what you’re giving away when you sign your contracts, what you’re getting in return, and to make self-interested judgments about what’s fair. Of course, you just want to sign that agreement and get on with writing, but in the long run it’s in your interest to take a deep breath and to stick up for your rights, and for those of your fellow authors.”

The PEN – Charlie Hebdo Award Controversy

I’m so angry I could spit!

This year the PEN America Center, a writers’ organization whose mission is to defend the free expression of ideas in literature decided to bestow it’s Freedom of Expression and Courage Award to the staff of Charlie Hebdo.

In protest, six prominent authors: Rachel Kushner, Peter Carry, Michael Ondaatje, Francine Prose, Teju Cole, and Taije Selasi announced that they would not attend the ceremony. Thus began one of those periodic literary dust ups that only we few band of brothers in the book world care about. But, as they say, “ the politics is so vicious because the stakes are so low.”

Low, indeed, but I’m still so angry I could spit.

None other than Salman Rushdie launched the counter- attack. He said, “What I would say to both Peter and Michael and the others is, I hope nobody ever comes after them.”  Salman got down and became a little earthier on Twitter when he characterized the PEN 6 as “Just 6 pussies. Six authors in search of a bit of Character.”  [hear, hear Salman!]

Francine Prose responded on Facebook by throwing out red herrings expressing her shock that Rushdie would use the sexist term “pussies.”

Meanwhile short story writer Deborah Eisenberg weighed in with a letter to PEN executive director, Suzanne Nossel opposing  PEN’s giving the award to Charlie Hebdo. Depending on how you feel about the subject, her letter was either nuanced or unintelligible. I prefer the latter characterization.

During this entire affair,  when the world rallied in outrage over the Charlie Hebdo murders, when the leader of Hezbollah and the Likud Party in Israel both agreed on something for the first time in history, there was an ugly current among some left wing intellectuals that insisted on defining the offending caricatures in Charlie Hebdo as Islamophobic and undeserving of – well- anything. Most of them, like Deborah Eisenberg, were at pains to point out that they don’t believe in murder. And I’m sure this is true and also beside the point. But, as Salman points out, I wonder how deep is their commitment to free speech.

My favorite comment by an author and the one that I feel most reflects my opinion and feelings was by Geraldine Brooks. She said:” The point of free speech is that it’s free. Free to be offensive, to be misguided, to be crude or wrong. If you start to cherry pick which kind of speech is worthy of defending, you might as well be ISIS. I’m thoroughly shocked that a group of writers I admire have castigated a free speech organization for recognizing artists butchered because of their commitment to free speech.”

I  decided to say my peace on the subject. I wrote this letter to PEN executive director Suzanne Nossel:

“Dear Ms. Nossel,

I want to express my support for PEN in honoring Charlie Hebdo and also my indignation at the authors who have decided not to attend the awards in protest. I read the exchange of letters between you and Deborah Eisenberg. I thought her opinions that she expressed were unintelligible and indefensible.

The issue isn’t just a matter of abstract principle for me. I’m a literary agent. But before that I was the owner of Cody’s Books in Berkeley for 30 years. In 1989, Cody’s was bombed for carrying The Satanic Verses. It was another creative work that satirized religion and was no doubt extremely offensive to certain people. We were probably the first victim of Islamic terrorism in the United States. Afterwards the Cody’s staff had to decide whether we should continue carrying Satanic Verses. It wasn’t an easy choice at all. No one wanted to be martyrs to the cause. But the staff voted unanimously to keep carrying the book. Rushdie and the entire writing community stood united with us, and gave us courage.

I am glad you have honored Charlie Hebdo for showing their courage as well. I’m sorry those six writers have such short memories and such a weak and confused commitment to the values that PEN exists to defend.

I hope you will reaffirm your commitment to those values and to your decision to honor the courage of Charlie Hebdo.

Andy Ross”

Suzanne Nossel responded to my letter by saying: “Don’t worry. We are hanging tough.”

PEN has put up a website, a forum where people can make their own opinions known. I encourage you all to do so.

Mary Norris, The Comma Queen

Several years ago we interviewed Mary Norris, copy editor at The New Yorker.  It was our most popular blog post ever with over 50,000 views.  I think the success of the blog partially inspired Mary to put her thoughts and experiences on paper. This week, Mary’s book, Between You and Me: Confessions of a Comma Queen was released by W. W. Norton. An excerpt of the book   recently appeared  in The New Yorker.  Mary tells us of the titanic battles over the elements of style: who vs. whom, that vs. which, the fate of the hyphen in the modern world, and all things having to do with the comma. It’s also very funny. I squealed with glee as Mary succeeded (as many in the past have failed) to explain the difference between restrictive versus non-restrictive clauses. She also includes lots of stories describing the punctuation battles at The New Yorker with such great writers as: Pauline Kael, Philip Roth, and George Saunders.

Andy: Mary, congratulations on Between You and Me. Every writer I know has been waiting for this book to get published. OK. Let’s not beat around the bush. Let’s begin with the mother of all punctuation battles, the controversy that has been causing the end of lifelong friendships, the issue of the Oxford Comma. Where do you and The New Yorker stand on this?

Mary: Hi, Andy. I can’t believe how passionate people are on this subject. I prefer to call it the serial comma, because the Oxford comma sounds sort of upper class, and though the use of the serial comma may mark a person or a publication as somehow particular or formal, it is really a down-to-earth practice, which keeps you from having to think about whether or not a series is ambiguous. It probably isn’t ambiguous, but that final comma before the “and” gives structure to a series, in my opinion. The use of the serial comma is The New Yorker’s preferred style, and I am sticking with it.

Andy: And while we are talking about commas, you seem to think that the world of writers can be defined by the general attitude toward the comma. There appears to be two schools on this, right?

Mary: Commas are for clarity. There are writers who use punctuation for cadence and writers who use it to reinforce grammar, and there are writers who blend the two approaches. There are many conventional uses of the comma that people waste time arguing about. I know it sounds stuffy to say that we use the comma because we’ve always used it—in a date, say (between the date and the year, and then again after the year, the second comma finishing what the first comma started; the British write the date before the month to avoid that comma), or between title and author (I’ll go with the obvious: Between You and Me, by Mary Norris)—but there really is no reason for some commas besides tradition. Untraditional punctuation can be fun, but it can also be distracting.

Andy: Since joining The New Yorker more than 30 years ago, what are the most interesting changes you have witnessed in grammar and usage?

Mary: I think the most persistent effort at change is going into trying to solve the problem of the genderless third-person singular pronoun. It is unlikely that a new pronoun will catch on, and people find it cumbersome always to say or write “he or she,” “him and her,” “his or hers.” Some have started using the feminine pronoun once in a while to fight sexism, and I’m for that. Others are talking about the “singular their,” which we use all the time in conversation (“Everybody takes their time on the subway stairs”) but try to avoid in print, because the grammar calls for a singular that doesn’t exist. The spoken language forges ahead while the written language, when carefully edited, is more restrained. I think it’s going to go on this way for a while, but the spoken language—common usage—seems to be winning, and some venerated copy editors are even trying out the “singular their” to see if anybody notices.

Andy: Give us writers some advice. If we have only one reference book on style, which do you recommend?  And the best dictionary?

Mary: I like Garner’s Modern American Usage. It’s thorough and clear on all the issues, and it has backbone: Garner is a conservative in matters of usage, yet he gives space to other points of view. His citations are numerous, and he uses an asterisk to mark the faulty passages, so that you don’t get mixed up. When I read Fowler, I sometimes can’t tell whether he’s citing a passage in approval or denigrating it. And Merriam-Webster’s is the great American dictionary. I still like to look things up in a desk dictionary, but the new online Webster’s Unabridged is superb.

Andy: Can you describe for us what a typical day is for you at The New Yorker?

Mary: The hours at The New Yorker are from ten to six, and I try to be on time, as it is embarrassing to be chronically late when you don’t have to be at the office till ten. We have a weekly schedule for closing the contents of an issue in an orderly fashion: fiction closes early in the week, critics at midweek, and the longer, more demanding pieces near the end of the week; Talk of the Town and Comment go to press last, on Friday. The head of the copy department, Ann Goldstein, parcels out the week’s tasks, matching up who is available with what needs to be done. If the lineup changes, we readjust.

There are four full-time O.K.’ers, as well as a team of about six proofreaders, some of whom act as O.K.’ers when we need them. Basically, on the day a piece closes, you read it, and give the editor your query proof, which will also contain the queries of a second proofreader, and after the editor has entered all the acceptable changes and sent the new version to the Makeup Department, you read that new version. There will sometimes be a “closing meeting,” when the editor, the writer, the fact checker, and the O.K.’er sit down together over the page proof and discuss final changes. The O.K.’er then copies these changes onto a pristine proof called the Reader’s (to keep the paper trail) and enters them into the electronic file, and sends the revised piece back to Makeup. The next version is read against the Reader’s proof by another layer of proofreaders, the night foundry readers. The system is full of redundancy and safety nets.

Andy: You have worked under William Shawn, Robert Gottlieb, Tina Brown, and David Remnick. Do you have a sense that there was a “golden age” of TNY or are we living in it now?

Mary: Hmmm. Sometimes when I have occasion to look back at an issue from the Shawn days, I am moved by the beauty of those vintage magazines: the lines of type were fitted character by character, the hot type is very alive, the black-and-white columns of print have a classic purity. Bob Gottlieb was careful to maintain that, though he introduced some changes. Tina Brown brought in color and photography, and shortened the length of pieces (and probably the attention span of the general reader). I think that what David Remnick has done is bring his newsman’s nose to the job. Remnick has succeeded in making The New Yorker a vital part of the national conversation. We seem to have found our voice after 9/11.

On the other hand, you find fewer quirky pieces that may not be particularly newsworthy but that readers love. For instance, “Uncle Tungsten,” by Oliver Sacks. (I still regret making him spell “sulfur” our way, with the “f,” when he wanted to spell it the old-fashioned British way, “sulphur,” which he’d grown up with.) Ian Frazier’s two-part piece on his travels in Siberia is a good recent example of a beautiful, funny, interesting, old-fashioned piece of writing. A good writer can make you care about anything.

Andy: What do you think are the most common mistakes writers make with style and punctuation?

Mary: Now that I am on the other side of the pencil, having my prose scrutinized instead of scrutinizing the prose of others, I think people should be more tolerant. You can be too rigid in matters of punctuation, and I continue to be bemused by how much people care about it and how sometimes a sentence’s punctuation gets more attention than its meaning. The letters I’ve gotten about an extraneous comma between the two elements of a compound predicate! The letters I’ve gotten about using “gotten” instead of “got” for the past perfect of the verb “to get,” and vice versa! (Some people can’t stand “had got” and prefer “had gotten,” which The New Yorker style book characterizes as “country style.” That is a usage I have started to defy.) But here I am, using up my lifetime quota of exclamation points, so I’ll just say thank you, Andy, for getting the ball rolling (cliché!). It’s heartening to see that there is such passionate interest in matters of style. Sometimes it looks as if everyone wants to be a copy editor.

Attorney Helen Sedwick on Legal Issues for Book Authors

Today we are going to interview Helen Sedwick, business attorney and author of Self-Publisher’s Legal Handbook: The Step-by-Step Guide to the Legal Issues of Self-Publishing [Ten Gallon Press, 2014]. The book is available in paperback and as an ebook. It’s geared toward self-published authors, but the information equally applies to authors who are considering publishing with a small or large commercial publisher or a hybrid publisher. It has great advice. It’s easy to read. If you are intimidated by lawyers (or agents), this book will be indispensable.

Andy: Helen, welcome to “Ask the Agent”. Let’s start out by you telling us what you see as the biggest legal risks for writers?

Helen: Many writers assume their biggest risks are defamation and privacy claims, but I disagree.

Every year, hundreds of thousands of books are published, and only a few hundred defamation or privacy cases hit the courts. But tens of thousands of writers have signed on to unfavorable contracts they come to regret.

I have seen contracts where the author grants a self-publishing company or small publisher an exclusive license to exploit a manuscript in print, digital, audio and any other format, in any language for the life of the copyright. No reversion, no termination provision, little or no advance!

Yet, many writers don’t even read their contracts. One told me a contract looks like 5000 words run through a blender!

I am something of fanatic about this. I believe any writer who can master plot, character, and voice is capable of understanding key provisions of a contract, particularly the grant of rights clause. All they need is the right information. In the Appendix of Self-Publisher’s Legal Handbook, I include a line-by-line explanation of key contract terms.

Andy: But many writers are afraid to show their manuscripts to agents, editors and film producers because they are sure their work will be stolen. Isn’t that a big risk?

Helen: In reality, industry professionals are not likely to steal someone’s work. Being accused of stealing work would damage their reputations, and maintaining a good reputation is worth more than an untested manuscript.

Protecting ideas is a different matter. The basic idea of a work is not protected by copyright. In some industries, ideas are protected by Non-Disclosure Agreements, but in the publishing industry these agreements are rare. From what I have heard, anyone who asks for an NDA is seen as a newbie. Andy, is that your experience?

Andy: I agree with you there, Helen. Sometimes I get clients who want me to represent them, but don’t want to tell the publisher what the book is about. I always tell them that  we can’t play “no peaky” when we are asking them to pay an advance.  How else can writers protect their copyrights?

Helen: Writers should understand that they own the copyright in their work as soon as they put it down on paper or a hard drive. It’s automatic, whether or not the work is published or the copyright is registered.

But it makes sense for U.S. writers to register their copyright with the U.S. Copyright Office. Registration establishes a record of the work and is required before an infringement suit is filed. Registration within three months following publication increases the damages recoverable in an infringement action. Online registration is $35 and easy. No lawyers required.

Andy: I should point out that a lot of the book contracts from commercial publishers obligate the publisher to register the work with the Copyright Office. But some publishers require the author to do this.  Let’s go to back the problem of defamation and privacy claims. How can writers use real people in their work without ending up in court?

Helen: Writers use real people in their writing all the time, either as models for fictitious characters or by name in nonfiction. If they couldn’t, I suspect 95% of books would disappear.

But there are legal risks in using real people; defamation, unauthorized disclosure of private facts, and misappropriation of the right of publicity. Here are a few measures writers can take to minimize the risks.

For starters, writers should not print, tweet, or post anything they would not say in a room full of lawyers, at least without consulting with a lawyer.

Fiction writers should mask distinguishing characteristics and avoid retelling life stories too closely. The more villainous the character, the more the writer should mask. They should also use the standard disclaimer in their novels: “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”

Non-fiction writing involves more risk. Writers should take the time to educate themselves about the elements of defamation and disclosure of private facts. I summarize these claims on my blog.

For instance, writers should not say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. They should stick to verifiable facts, and let readers come to their own conclusions. In other words, show, don’t tell.

Andy: Let’s look at a real situation. I represented an author, a former paparazza, who took a photo of a famous movie star smoking hash by her front door. The picture was all over the tabloids. Would the author have legal exposure if the picture were in the book?

Helen: Unlikely.

Writers may be liable for disclosing private facts about an identifiable person if the facts are “offensive to ordinary sensibilities” and “not of overriding public interest.” What is offensive and what is public interest? Ultimately, a judge or jury decides, but generally the information must be very private and damaging.

As a preliminary any conduct in public is not protected, particularly today when everyone carries a camera. Public figures have almost no reasonable expectation of privacy. The starlet in your client’s image should not have been surprised that cameras are pointing her way.

Information in publicly available court documents and news reports are also not private.

However, writers should be careful about the misappropriation of the right of publicity; namely, using someone’s name or image for advertising or promotional purposes. Writers should never use anyone’s name or image on a book cover, advertisement, or in any way that implies an endorsement without express permission. Using someone’s name or image within a book as part of the editorial or creative expression is different; writers have more leeway.

Only living people (and in some states companies) can make defamation and privacy claims, but in many states the right of publicity survives death. In California, for 70 years. In Indiana, 100 years.

When in doubt, writers should engage an attorney for one-on-one advice.

Andy: Writers love to use song lyrics as part of setting a scene. Is it safe for a writer to use only a line or two of lyrics buried deep in the body of the book?

Lyrics are intellectual property, like text and images. If a writer uses someone’s property without permission, whether it’s a car, a bicycle, or the words to a popular tune, he is violating their property rights.

Using lyrics is particularly risky, not because they are special in the eyes of the law, but because they are owned by music companies that aggressively protect their rights. A writer could get a “cease and desist” letter from some big law firm. Translation–shred every copy of the book, even though the infringing words are 25 out of 95,000. Worse, a writer could be liable for monetary damages.

There is no need for writers to take these risks. Asking for permission is not difficult or expensive in most cases.

On my website, writers can download a PDF with instructions on how to identify who owns a song and how to ask for permission, How to Use Memorable Lyrics Without Paying a Fortune or a Lawyer. I have a similar PDF for using images.

Andy: Helen, I’m a little surprised by this. I represent a biography of a recently deceased songwriter and performer. The title of the book is the title of one of songwriter’s most famous songs. And the author wants to use an occasional line or two of lyrics as chapter headings. Isn’t there a Fair Use Doctrine that allows you to use a minimum amount of lyrics or other copyrighted material without a permission? What about the title of the song being the title of the book?

Helen: I would encourage the writer to seek permission. If that’s not possible, then this is a perfect example of when someone should consult with an attorney on how to minimize risks. Sorry to punt here, but there is no one answer fits all.

While we are talking about titles, what if another  writer releases a book using the same title as mine? Are there any legal claims?

Most writers are surprised to hear that titles are not protected by U.S. copyright law.

It’s ironic, really. Anyone who has written a novel will tell you how difficult it is to come up with a title that is resonant and eye-catching. Yet titles are not protected under copyright law, because they are considered too short to contain sufficient “original expression.”

A very famous title or the title of a series may become a trademark however. If a writer’s title becomes as famous as The Da Vinci Code, then it’s time for to consult with an attorney about trademark protection. This a problem of success. I hope all our readers have this problem.

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Writer and lawyer Helen Sedwick uses 30 years of legal experience to show writers how to stay out of court and at their desks. ForeWord Review gave her Self-Publisher’s Legal Handbook Five Stars, calling it “one of the most valuable resources a self-publisher can own…well-written and authoritative yet unhampered by legalese.” Her blog coaches writers on everything from protecting copyrights to hiring freelancers to spotting scams. For more information about Helen and her work, check out her website at http://helensedwick.com

Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.

 

The Grateful Dead: A Cultural History

 Today we’re interviewing Peter Richardson, whose new book, No Simple Highway: A Cultural History of the Grateful Dead, was released in January by St. Martin’s Press. There have been a number of books about the Dead over the years, but this one is special. From the beginning, I called it Thinkingman’s Dead. It’s a history of an iconic group, which is interesting in its own right, but it also helps us understand a distinctive strain of American culture in the second half of the twentieth century.

Andy: Peter, I love the fact that you organized the book around three utopian themes that have characterized aspects of American history and culture. Could you describe those themes, how they have played a role in our history, and how they help define the experience of the Grateful Dead?

Peter: My goal in highlighting those themes was to move toward a more interpretive history of the Dead and their project. Specifically, I wanted to account for their long-time success. To do that, I think you have to look outside of their songbook, albums, and concert tapes.

The first theme I identify is the drive for ecstasy, or the experience of total rapture. The Dead’s models (including the Beats) placed enormous importance on intense experience, and the advent of LSD supercharged that emphasis. Their penchant for ecstasy informs, but certainly doesn’t exhaust, the book’s discussion of the 1960s. Once the Dead had several successful albums in the early 1970s, they built their touring machine and incorporated mobility, another Beat preoccupation, into their operation but also into their mythology. In doing so, they tapped the American fascination with the open road. I highlight the third theme, community, in the final portion of the book. It’s very important throughout, but the Dead were especially successful at growing and consolidating their community in the 1980s. Of the three utopian ideals, community is probably the most important factor in explaining the Dead’s success.

Andy: You often describe the Dead as “tribal.” That is a word we used a lot in the sixties. What does it really mean and why is it important?

Peter: Much of the Dead’s success lay in growing the party, beginning with the Acid Tests in the mid-1960s. Even when they were selling lots of albums, they couldn’t support their scene through royalties alone. The community they built through nonstop touring underwrote their operation as well as their musical journey.

The Dead’s tribalism, by the way, presents authors with tough choices. When you’re writing about the band and their experience, you have this enormous cast of potential characters to consider. If you introduce too many characters, the major ones get lost in the shuffle. So I looked for characters who could advance the story at several different points or on multiple levels. I was looking for characters who paid their own way, so to speak.

Andy: What do you mean by “paid their own way”? Tell me about some of these characters.

Peter: I just mean that I was trying to avoid secondary and tertiary characters who appear one time and disappear. That makes for tough reading, even though it does reflect the Dead’s emphasis on community. But some characters, even those who aren’t strongly associated with the Dead, can help readers at several different points. Much to my surprise, one of those characters turned out to be Ronald Reagan. He was a perfect foil for the Dead and their project.

Andy: I’m glad you mentioned Reagan, because that brings up the important question of the Dead’s attitude toward politics. People sometimes criticize them for being apolitical.

Peter: Let me be clear about this, because it’s easy to get the Dead’s politics wrong. The Dead were constantly asked about politics, and they usually deflected those questions. They were outspoken about the environment, they criticized the war on drugs, and you can unpack their politics by reviewing their philanthropy, for example. But they rarely talked about electoral politics or politicians as such.

Garcia made an exception for Ronald Reagan, whom he ribbed repeatedly in the media. Also, the Dead were never more popular than when Reagan was in power: first in Sacramento and then again in the White House. Did the Dead have a long, bitter blood-feud with Ronald Reagan? No, of course not. But I don’t think their success in the 1980s, with Reagan’s militarized drug war and “Just Say No” message, was a coincidence. The Dead recruited many new fans when the Reagan message was to say no to drugs, but also to rapture, adventure, bohemianism, and other things the Dead stood for.

Consider the lyrics to “Touch of Grey,” the Dead’s only top-ten single. It’s an anthem to the Dead’s own survival in the Age of Reagan. And Dead Heads wanted to hear it, because it was about their survival, too. And it was also about Garcia’s survival—literally, since he was in a life-threatening diabetic coma the year before. So Reagan was, as I said, a character who paid his own way, first as the anti-hippie governor of California, and then as commander-in-chief in the war on drugs.

And for those who are still skeptical about the political dimension of the Dead’s story, consider the hit pieces on Jerry Garcia when he died. I mention three in the book: by George Will, William F. Buckley, and Mike Barnicle. Those pieces weren’t really about Jerry Garcia. They were about the legacy of the 1960s counterculture, which Garcia and the Dead had come to symbolize. That legacy was still being contested in the mid-1990s, a quarter-century after Woodstock, when the Dead’s popularity was peaking. Those hit pieces suggest that the iconic power and media stereotypes that attached to the Dead were—and still are—distorting our picture of them. No Simple Highway was meant to challenge those stereotypes and replace them with a fresh portrait.

Andy: You mention the Age of Reagan, the war on drugs, and the Cold War. What other cultural backdrops are especially important in your book?

Peter: One backdrop that I never tired of researching was the back-to-the-land movement: Maybe because I still entertain fantasies about it. I mean, what good Californian doesn’t want to leave the city and move to a hip Mayberry? And of course Mayberry was a product of that period, a kind of televised hallucination, along with the Beverly Hillbillies and Green Acres and all the rest of it.

For the Dead, the back-to-the-land movement offered recourse to their roots in folk music as well as a path to commercially successful albums. In the late 1960s, they were hanging out with David Crosby and his new collaborators, who hit it big with Crosby, Stills & Nash. That album and their next one, Déjà Vu, really caught the back-to-the-land spirit—a connection to a simpler, more organic way of life. It was deeply nostalgic, but the nostalgia differed from Reagan’s, for example. And then the Dead scored big, too, with Workingman’s Dead and American Beauty.

And once you start talking about that movement, you have to mention Stewart Brand and the Whole Earth Catalog, which was a love letter to that pre-modern, agrarian America. Brand is another example of a secondary character who pays his own way. He was a Prankster who organized the Trips Festival, published the Whole Earth Catalog, and then founded the WELL, the first online community that attracted lots of Dead Heads in the mid-1980s.

The back-to-the-land movement also gave me a chance to write about Marin County. Some big battles over open space were waged during that time, and the Dead loved Marin’s pastoral element, which was a movement ideal. And even though most people think of the Dead as a San Francisco band, they didn’t live in the city very long. Less than two years, actually, compared to decades in Marin.

Andy: How do you explain the continuing popularity of the Dead? A lot of the fans are one or even two generations removed from the original fan base.

Peter: It turns out people want some ecstasy, adventure, and community in their lives. And I think the continuing popularity you mention testifies to the third thing in particular. The Beatles didn’t foster community, and Bob Dylan, for all his other points of contact with the Dead, most emphatically didn’t do that. Quite the opposite, in many ways; he was always the solitary artist who cultivated mystique.

Many critics didn’t understand that Dead concerts were an opportunity for that community to commune. That urge didn’t perish with Jerry Garcia, and its members still draw a lot of identity and significance from their association with the Dead. I’m pretty sure you’ll see that in action this summer in Chicago.

Andy: Thanks, Peter. People, you should go out and visit your local independent bookstore and pick up a copy of No Simple Highway: A Cultural History of the Grateful Dead. I think you will like it.

 

 

Questions About Literary Agents Asked and Answered

I attend lots of writers conferences all over the United States. Almost all of them have “agent panels” where participants ask agents to address their questions. Here are some of the most common. And if you have other questions, send them to me and I’ll try to answer them.

1) Can I send my book to a publisher without being represented by an agent?   The legendary publisher, Alfred Knopf, once said “An agent is to a publisher as a knife is to a throat.”  Things have changed since then. Now the largest publishers will only accept agented submissions. They expect agents to filter out the  projects that are unsuitable for commercial publishing. Publishers  believe, probably correctly, that  agented submissions as a group  are more likely to be of higher quality. Many of the smaller publishers don’t require agent representation.

2)  Can an agent get me a bigger advance? Most writers think that an agent is in possession of secret alchemical powers that will get them more money. This is true to a certain extent. Going into negotiations  publishers usually have a sense of how much they are willing to pay for a book. An experienced agent will be more likely to know what the publisher’s bottom line is and secure it for you. Otherwise you might find yourself accepting  a very modest offer. Book deals and book contracts are loaded with “roadside bombs”.  You need to be aware of them or work with someone who is.

3) Other than helping me get more money, what will an agent do? A good agent will earn her commission in a myriad of ways. There are dozens of publishers, big and small, who would serve as good homes for your book. A good  agent knows which publishers are appropriate and which editors within the publishing houses would be most open to your project. You don’t want to send your literary novel to an editor who specializes in science fiction.

Most novels and non-fiction book proposals aren’t ready for submission when an agent receives them. A good agent will work editorially on a client’s novel and will improve a book proposal to make it more convincing to a publisher. A good agent will work to enhance a client’s career as a writer and serve as an ally throughout the publication process and after.

A bad agent will do none of these things.

4) How can I tell a good agent from a bad agent? Sometimes you can’t, but here are some things you ought to be aware of. An agent should work for a commission only. If the agent can’t sell your book, he will receive nothing. The biggest red flag signaling   bad agents is that they charge money up front for such items as editorial services or  reading fees. Don’t work with these agents. Check out the website “Author Beware”. It has good advice about how to avoid unscrupulous agents.

More difficult to assess are agents who are simply too lazy or too busy to provide you with the kind of support you need to find a publisher. Many of these agents are very successful and have a large number of high profile authors they represent. I have frequently worked with extremely talented writers who had been previously represented by one of these “celebrity” agents. Those authors were not served well. One of them, for instance, had written a fine literary novel, a genre difficult to sell. His first agent sent it out to the usual 10 big houses. When the book was turned down, the agent gave up. I loved the book and decided to represent it. I found another 30 publishers who would have made a good home for the book. When you are looking for  agents, it is a good idea to ask them if they will go the mile to get  your book published, even if the likely advance will be modest.

5) How do I do the research to find the right agent for me? I wrote a blog about this called: “11 Steps to Finding an Agent”   which will give you more details. There are several good websites that provide resources for finding agents. My favorite is Agentquery.com.  It allows you to do searches based on defined criteria. You can specify that you only want agents who are actively seeking projects in your genre. Once you develop a list of possible agents, you want to go to each one’s website and try to evaluate further whether this agent seems right. Always look for their submission guidelines on their websites but also check out their list of books and authors to see if you are going to be compatible. Watch out though. Agents are inveterate name droppers. And just because they have some big name authors doesn’t mean they won’t be interested in your book.

6) How important is it to have a New York agent, a “celebrity” agent, or an agent from a big agency?  As we said above, having a “celebrity” agent may not be right for you. It’s impressive dropping their names at literary parties,  but that’s probably not your main objective.

Some authors still think that there is some advantage working with agents in New York. This isn’t true either. In the old days we heard that most book deals were the result of “connections”  and were consummated over the famous “publisher’s lunch.” It probably wasn’t true then, and it definitely isn’t true now. The big publishers are all owned by multimedia conglomerates. Editors are under intense pressure to acquire books that will meet the often unrealistic expectations of their corporate bosses.  Ask any editor and they will tell you that the single most important element for them in the acquisition decision is a good book proposal. For fiction, it’s all about the story. Of course an author’s previous track record will play an enormous role in the decision.

There are some advantages and disadvantages working with a big agency. Sometimes there is considerable collaboration within the agency and accordingly there may be useful collective wisdom. Some agencies have foreign rights departments or film /tv specialists who can work to sell subsidiary rights. A good independent agent, though, will have a network of foreign and entertainment co-agent specialists who will perform the same services. Regardless of the size of the agency, you need an agent with a passion for your project, a belief in your talent, and the will to walk the walk, not just talk the talk. There are no good agencies or bad agencies. There are only good agents and bad agents.

 

To be continued. We will ask and answer questions about query letters, book proposals, book deals, commercial vs. self-publishing, and more. Send me your own questions and I’ll try to address them.

Rushdie, Charlie Hebdo, and Me

 

I’ve been reading peoples’ reactions to the Charlie Hebdo Affair in the media and on Facebook. There is a lot of soul searching going on about what is the appropriate response to the horrendous act and what is the proper way for people to express solidarity and outrage. For me, this is of more than a casual interest. As many of you know, my bookstore was bombed in 1989, presumably because  we were carrying Salman Rushdie’s The Satanic Verses. As best as I can tell, we were the first victim of Islamic terrorism in the United States. No one was killed, because the pipe bomb that was thrown through the window didn’t go off. But had it not been defective, it would have killed everyone in the store.

 

Much of the public pronouncements that were being made then  are being made again now in the international conversation about Charlie Hebdo. How do we respond to threats against freedom of speech? How can we best express our solidarity? How should government protect the people against terrorists in general and Islamic terrorists and Jihadists, in particular? What is the responsibility of the broader Islamic community and the Islamic religion in permitting these acts to occur? How much, if at all, should we be profiling Moslems as potentially dangerous? What should mainstream Moslem leaders do about  denouncing these acts? Is Islam a uniquely violent religion that is the true source of Jihadism?

 

Of course, the comments of right wingers, conservative politicians, and Fox News pundits are pretty much what we would expect. For them, this is an opportunity to wage a holy war against Islam. It also vindicates their contempt of the cowardly French and allows them to fulminate against liberals, Obama, Al Sharpton, and the United Nations. We need not waste time commenting on this.

 

Alan Dershowitz gave a particularly tasteless interview asserting that France was reaping what it had sown, and went on to view the entire affair from the prism of  what it all means for Israel.

 

A lot of people along the entire political spectrum are arguing that  it’s the responsibility of  all  Islamic people to denounce this act and it is particularly the responsibility of Islamic leaders to denounce it in language sufficiently strong to satisfy…..something and someone.

 

During the Rushdie Affair,  people in the literary world made eloquent pronouncements about how they  would risk their lives for freedom of speech. Most of these people didn’t have much skin in the game and were not likely to have an opportunity to risk much of anything. It was quite different for those of us at Cody’s. After the bomb squad detonated the bomb, we all met in the store and took a vote about whether we should keep carrying the book. The staff voted unanimously to continue selling it.

 

But the media and many public voices wanted more than that.  The media was looking for sound bites. Every newsperson I spoke with challenged me to put the book in the window. (I didn’t, and I didn’t put it on the front table either). Most of them wanted me to make grandiloquent public pronouncements about how we were willing to be martyrs for freedom of speech. (“Ayatollah Khomeini, read…my…lips”). I didn’t do that either. I decided that under the circumstances, discretion was the better part of valor. No interviews to the media, no manifestoes about freedom of speech in the front window. We just quietly kept selling the book.

 

I have no problem telling you today that I had no intention of being a martyr, that I was not willing to die for The First Amendment, and I certainly wasn’t willing to put my employees in harm’s way to make  a public point. People treated us like heroes for selling the book, and they still do. But honestly, if as a result of our selling it, my employees were killed. I would not be proud of our decision  at all. I would have thought it was reckless, not heroic.

 

I’ve been thinking a lot about Islamic leaders and clerics and what they should be doing.  I think it’s fine if they want to denounce the act, if they want to point out that almost all of the 1.6 billion followers of Islam are not Jihadists. Even if they want to apologize. That’s their choice but not their responsibility. What I would like to see them do is to engage potential future Jihadists in a way that would get them to calm down. But doing so would require considerable discretion.

 

For me then and I imagine for them now, the decisions just aren’t that easy. And we should be respectful of that fact.