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There was no YouTube when poet Robert Frost penned the deathless line, "Nothing gold can stay." But if he were alive today he would certainly feel his image aptly described the possible fate of YouTube as professionals get set to move in on it. The very zeitgeist of the 21st century represented by the ingenuity, the spontaneous combustiveness, the wacky hilarity, the instant, viral, visceral responsiveness of a public that knew what it loved and voted for it with billions of mouseclicks, may now be giving way to the slick creations of Hollywood television and film companies backed by studio and network money, branded sponsors, and calculating marketers. Here's a quote from Brian Stelter's reportage in the New York Times:
YouTube and the William Morris Agency, the Hollywood talent agency, are close to signing a deal that would place the company’s clients in made-for-the-Web productions.
The deal would underscore the ways that distribution models are evolving on the Internet. Already, some actors and other celebrities are creating their own content for the Web, bypassing the often arduous process of developing a program for a television network. The YouTube deal would give William Morris clients an ownership stake in the videos they create for the Web site.
From the beginning Google recognized the commercial potential of YouTube when it acquired the emerging phenomenon, paying a then eye-popping $1.65 for it (a price that in restrospect seems like a steal). But despite 100 million visitors a month, monetizing YouTube's content and making Google's investment back has not proven to be a slam-dunk thanks to the complexities and potential liabilities of copyright. Now that it looks as if the William Morris Agency is taking charge of the packaging and selling, you can be sure that copyright clearances will be diligently handled, production values will soar, lots of money will be made, and something precious will be spoiled.
Fred Davis, a senior partner at an entertainment law firm, is quoted by Stelter as commenting that “Although everyone realizes that the monetization of this content is not quite there yet, everyone also realizes the huge potential as the digital media business matures.”
Well, Hollywood, there are millions of us who don't want YouTube to mature. We like it just the way it is -- embarrassingly sophomoric, amateurish, LOL hilarious, pathetic, dopey, dirty, funky, and utterly counterculture. It belongs to We the People. Can't you go co-opt some other industry? We can think of a lot of them that could use your genius, your money and your values.
Nothing gold can stay, but as for the innocent fun of a freshly posted video produced by an inspired amateur, we can quote another poet on that score, Robert Graves: Good-bye to All That.
No, I Haven't Read Your Book, But I've Seen the Video
A wag once said about book advertising, "We know it's fifty percent effective. We just don't know which fifty percent."
I was reminded of this quip when I read J. Courtney Sullivan's essay in the New York Times Book Review about the thriving industry dedicated to designing book-specific websites and producing elaborate video tie-ins. "Today, you can’t be a successful writer without having a little Barnum in your bones," Sullivan quotes thriller writer Brad Meltzer, one of the earliest creators of a website devoted to a book.
Though it's now accepted wisdom that every author needs a website, it didn't take long after the introduction of book sites like Meltzer's for authors to try outdoing each other to produce the most colorful, interactive, and sense-stimulating sites money could buy. Book videos were introduced around 2002. Then publishers raised the stakes by creating dedicated web pages for their prominent authors and featured books. In time these displays grew into Hollywood-like productions, and publishers began asking authors to contribute to the cost or even to produce the trailers themselves. "A sizable industry has sprung up," Writes Sullivan. For instance,
"AuthorBytes, a multimedia company started in 2003, has built sites for more than 200 clients, including Paul Krugman, Chris Bohjalian and Khaled Hosseini. They cost from $3,500 to $35,000 — with writers paying about 85 percent of the time. The staff of 20 even includes three employees whose entire job is updating."
A visit to the AuthorBytes ("Everything authors need to shine online") website is instructive. Among the services offered are custom websites for authors and publishers, podcasts, multimedia Trailers and online book promotions.
Authors who can't pay the freight for productions like those done by AuthorBytes often try to do it themselves, with less than stellar results. "Many book videos are little better than home movies, painfully dull and almost laughably bad," comments Sullivan. "But others are impressive, full-scale productions. Naomi Klein’s nearly seven-minute companion film to 'The Shock Doctrine,' directed by Alfonso Cuarón with a full crew and shown at the 2007 Venice and Toronto International Film Festivals, has been downloaded more than a million times."
Do these dog and pony shows sell books? That takes us back to the fifty-percent rule. Or maybe it's the eight percent rule, for Sullivan cites a survey that found that that's the percentage of book shoppers who visit author websites in a given week. "It didn’t, however, say how many clicked on the 'buy the book' link," she says.
But is that the point?
There's nothing wrong with having a little Barnum in your bones. But, despite Sullivan's conclusion that the Web promotions have not proven themselves, it's likely that her article, See the Web Site, Buy the Book, is only going to contribute to the ratcheting of author anxiety to an almost pathological pitch. In an essay called "Watching Books" posted a few months ago I wrote:
It never hurts for authors to be attractive and promotable, and no one in publishing is so naïve as to deny that publishing decisions are influenced by an author’s sex appeal, charm, showmanship, and other extrinsic factors. To utilize the mighty resources of the Internet in order to play up those factors is by no means deplorable as long we keep things in proportion. Which means that, ultimately, it’s all about the book. But as the publishing industry’s drift into the rapids of show business accelerates, we should not be surprised to see computerized pyrotechnics become significant if not decisive factors in the acquisition of books.
Sullivan's essay suggests that the trip down the rapids has indeed accelerated for authors.
From time to time an author will do something that causes me to scratch my head. I've compiled a list of these foibles and offer it here with a light heart. If you have perpetrated any of these transgressions I'll let you off this time without a fine, but don't let me see you in this courtroom again.
I must say right off the bat that among the things authors do that irk me, delivering manuscripts late is not one of them. Lateness is the medium in which agents live. We breathe late manuscripts and eat late checks and drink late contracts. And lateness in a creative person is certainly more understandable and forgivable than it is in a business organization. I have never known an author to be deliberately late with a book, but I have known many a publisher to be deliberately late with a check.
What kills me, however, is authors who don't tell me they're going to be late. Publishers schedule books many months in advance, and in most cases are able to pull one out of the schedule if given sufficient notice. In most cases, too, a publisher will grant the author a reasonable extension of delivery date. If, however, out of embarrassment or some other reason (such as a moonlighting gig the agent doesn't know about), an author doesn't level with his agent, he will not only get himself into trouble, but his agent as well. An agent who knows the truth can go to bat for his client, make excuses, concoct a fib. But if an agent sincerely assures an editor that a book will be turned in in June because that's what his client told him, when the client knew all the time that there wasn't a chance in hell that he could make the deadline, the agent's credibility will be damaged.
I make very few inflexible rules for my clients, but this is one of them: no matter how embarrassing your reasons may be (one author's dog actually did eat his manuscript), I insist that you tell me the truth so that I can make proper excuses for you. (I, of course, have never lied on behalf of a client. What kind of agent would I be if I lied on behalf of a client?)
Lying to your agent is a mortal sin, but authors commit many venial ones as well, and oddly enough, it is the latter variety that drives me absolutely up the wall.
Take authors who misspell "Foreword," for instance. I strongly feel that anybody who turns in a manuscript containing a "Forward" deserves automatic shredding of his manuscript plus the first three fingers of his right hand. You would think I would not have to explain to professionals who make their livings with words that a foreword is a fore-word, a word that comes before the main text. But as the Forward-to-Foreword ratio on manuscripts submitted to my agency is about one out of three, I can see that the correct spelling cannot be stressed enough. It should be enough to remind you that "Foreword" is usually the very first word one's eyes fall upon when opening a manuscript. (I hesitate, however, to criticize writers for not knowing the difference between a foreword, a preface, and an introduction, since I don't understand it either.)
The Forward-Foreword offense is part of a larger conspiracy to send agents to early graves. I am referring to authors who don't review their manuscripts before submitting them. An occasional, random typo is one thing, but when I realize that the author never bothered to reread his manuscript, have it vetted by a good speller, or run it through the spell-checker on his computer, a murderous rage comes over me and I am compelled to steal into the night to overturn garbage cans and scratch automobile fenders with my ring. Don't authors understand (I growl at alley cats as I kick them) that today's literary marketplace is so intensely competitive that a poorly spelled manuscript can lose somebody a sale?
A subspecies of the above-mentioned type misspells critical words and names, and misspells them consistently, focusing a glaring light on his or her own carelessness. I remember a Biblical novel in which the word "Pharaoh'' was misspelled "Pharoah" throughout, and in a book that long, that's a lot of Pharoahs. I have often wondered why, if the word is pronounced fayro, lexicographers have chosen to place the a before the o. In fact, what is an a doing in the second syllable at all? Such speculations do not mitigate one's intense annoyance at having to correct such errors over and over again in saga-length manuscripts.
Speaking of repetitious errors, I'm reminded of those authors who print the title of their book as a header on every page of manuscript. I don't know where this quaint custom arose. I suppose it has its origins in the paranoiac fantasy that part of a manuscript will inadvertently be separated from the rest in a publisher's office.
Against this remote possibility must be weighed the not-so-remote one that the title you print on every page of your manuscript will be a lousy one. Like many publishing people I am a fanatical believer in the importance of titles: a good or bad one can significantly affect the fate of a book. All too often I'll get a good book with a bad title, and after kicking alternate titles around the author and I will agree on a new one. I'll then prepare a new title page only to discover that the discarded title appears on every page of the manuscript. Now what? I must now either go out with a badly titled book or have the entire manuscript reprinted just to knock the offending title off every page. Luckily, the advent of word processing makes it easier to run off modified manuscripts. Still, do us both a favor and leave the title off the header of every page.
Nowadays manuscripts are submitted as email attachments. But many agents still prefer to read submissions in printed form. The peeve potential here is very high. On occasion an author will send me a manuscript ring-bound like a scientist's notebook. I ask myself what terrible thing I did to this person that he should avenge himself on me so cruelly. Am I supposed to read his manuscript standing up at a lectern, or remove the pages from the binding rings knowing that I will have to reassemble it when I am finished?
I think it's time that writers understood something about literary agents: their standard reading posture is supine, head elevated sufficiently to glance at a baseball game or sitcom on television. Now that I've revealed this tightly guarded secret, perhaps you'll be more considerate and submit your manuscript unbound. And is it too much to ask while I'm at it that it be double spaced in 12-point font and printed on one side of the page only?
And when you do post it, may I ask you not to have it bound or specially boxed or wrapped? Just a loose manuscript in a typing paper box wrapped and taped securely enough to get safely through the postal system. There seems to be a law of nature that the quality of a manuscript declines in inverse proportion to the elaborateness of its package. When I receive a manuscript bound by brass screws with a plastic embossed cover, lovingly wrapped in chamois cloth, set in a velvet-lined cedar box, shrink-wrapped, packed in turn in a fireproof strongbox secured with iron bands, I am prepared to stake my career on the likelihood that this book is one colossal dud. And in all likelihood it will be sent via Fedex or courier with the expectation of an overnight response.
There is a particularly lukewarm place in my heart for foreign authors who are obliged to use typing paper of different dimensions - approximately ½ inch too long and ¼ inch too narrow - from the standard American 8½ by 11 inches. I realize how chauvinistic it must sound to deplore the paper that was probably good enough for Thomas Mann, Jean-Paul Sartre, and Graham Greene, but because agents usually place manuscripts in submission boxes to protect them and present them attractively, it drives us crazy to get a misshapen manuscript from the Continent requiring Procrustean measures to package the submission.
Authors who submit their only copy of a manuscript are, to say the least, an intense source of curiosity to me. They brazenly challenge the immutable law guaranteeing that that manuscript will get lost in the mails. The advent of computer document management and cheap photocopy services has stimulated a rise in lost manuscripts, for authors who used to type an original and carbon now type an original only and bring it to a photocopy shop, where another immutable law causes it to get mixed up with somebody's master's thesis. Again, the development of computers will eventually make the question of lost manuscripts academic, but computers can crash. So keeping a hard copy is definitely a good idea.
Then there are the authors who administer tests to their agents. Some try a cute trick of turning one page in their manuscript upside down. If the agent returns the manuscript with that one page still upside down, it proves he didn't read the manuscript page for page. There are authors who quiz their agents about specific scenes and characters. A typical dialogue might sound like this: AUTHOR: Did you like my book? AGENT: Oh, yes, loved it, loved it. AUTHOR: Great. What did you think of my character Pflonk? AGENT: Pflonk? Terrific character. Nicely developed. AUTHOR: Hah! Gotcha! There was no such character in my book!
I assure you that when it comes to an important book your agent reads your manuscript carefully. With so much riding on it, he has to. But most agents I know don't have time to read their clients' work page for page, nor do they need to in order to get a sense of its quality, organization, and pace. In fact, they don't even need to in order to sell it. With certain kinds of material, such as books in a series, a light once-over is enough to satisfy your agent that all is in order and the work follows the original outline.
Plainly, the evil that authors do may be categorized as Class B Misdemeanors, punishable by groans, rolling eyes, sighs of frustration, and indulgent smiles. I would like to think that you are as tolerant of your agent's foibles. Agents do have them. (I know this only from talking to authors). There is one extremely successful agent who likes to boast he's never read anything he's sold. And there's another who, every time he makes a big deal for a client, gloats, "That will pay for a new set of radials for my sports car," or, "Now I can put that new wing on my house." I consider myself truly fortunate in not being possessed of any personality traits that irritate others. Well, maybe one or two. All right, maybe a few more than that. Okay, okay, so I'm riddled with them. But at least I know how to spell "Foreword."
For those who fret over the perilous state of publishing in the 21st century, Lev Grossman's article in the January 21st issue of Time is a solid summary of all we need to know as we stand at the crossroad where the Old World of Tangible meets the New World of Virtual. Read Books Unbound and find your own place at the intersection.
To exemplify the paradigm shift Grossman cites a number of self-published novels - notably Still Alice by Lisa Genova and Daemon by Daniel Suarez - that became wild successes. He suggests that this proves that the conventional book industry has been cut out of the loop and that the public is "rising up to claim its right to act as a tastemaker." The so-called "gatekeepers" of the traditional publishing game - editors, bookstore buyers, reviewers and critics, literary agents - are given short shrift in their role of tastemakers and kingmakers:
In theory, publishers are gatekeepers: they filter literature so that only the best writing gets into print. But Genova and Barry and Suarez got filtered out, initially, which suggests that there are cultural sectors that conventional publishing isn't serving.
Has the elite gatekeeper role truly passed from publisher to the man and woman in the street? About a year ago I asked, Do Amazon Reviews Count? Noting the success of Zagat restaurant guides, which rely on the ratings of just plain folks like you and me, I wondered if a similar phenomenon could occur in rating books. "We live in an age when peer review is meaningful if not significant, and Amazon.com has used this fact to create a cadre of reviewers who must be taken seriously," I wrote, noting that although I hadn't seen too many traditional books with Amazon.com quotes emblazoned on the cover, I wouldn't be surprised if that changed before long.
Well, a year later I still haven't seen one. What I continue to see however are blurbs by those familiar gatekeepers known as household name bestselling authors. Clicking on Genova's Still Alice page on Amazon.com, I was greeted by raves from Brunonia Barry, a New York Times bestselling author; Beverly Beckham of The Boston Globe; Phil Bolsta, author of Sixty Seconds; Julia Fox Garrison, author of Don't Leave Me This Way; and Charley Schneider, author of Don't Bury Me, It Ain't Over Yet. Similarly, Suarez's Amazon.com reviews were keynoted by a rave by theflagship of book industry gatekeepers, Publishers Weekly, followed by plugs from: William O’Brien, Director of Cybersecurity and Communications Policy, The White House; Craig Newmark, Founder Craigslist; John Robb, futurist & Author of Brave New War; Stewart Brand, Founder Whole Earth Catalog & co-founder of the Long Now Foundation; etc. etc. Not a Just Plain Folk Like You And Me in the lot. To learn what the man and woman in the street think about these books you have to click on all editorial reviews. In short, when it comes to promoting books, brand name celebrities are firmly in control of the gates and the hoi polloi remain outside.
Of far greater significance is that while Genova and Suarez were carried into the stratosphere on the wings of viral popularity, it took traditional publishers paying big bucks, printing tons and tons of tangible books, and distributing all those copies through brick and mortar bookstores to monetize their success. Nor must we forget that the fame of their books was measured by yet another traditional gatekeeping institution - bestseller lists.
Of course, some authors may be satisfied with egoboo in lieu of cash. Grossman says,
And speaking of advances, books are also leaving behind another kind of paper: money. Those cell-phone novels are generally written by amateurs and posted on free community websites, by the hundreds of thousands, with no expectation of payment. For the first time in modern history, novels are becoming detached from dollars. They're circulating outside the economy that spawned them.
That is most assuredly not music to the ears of this gatekeeper, who holds with the immortal words of that dean of gatekeepers, Samuel Johnson: "No man but a blockhead ever wrote, except for money."
Perhaps the best way to characterize the state of the publishing industry is that it is a complex ecosystem where exciting new species are identified by the proletarian processes of the Internet, but their commercial potential can only be realized by the traditional book industry. In time the former may eclipse the latter, but at this moment in time the two cannot really live without each other.
When told that he was indispensable, the illustrious general and eventual president of France Charles De Gaulle said, "The graveyards are full of indispensable men."
Every business captain needs to post that quotation on the wall in front of his or her desk as a reminder that great leaders must be great delegators. Steve Jobs, CEO of Apple, is as indispensable as corporate heads can possibly be, but adverse health has forced him, as it did De Gaulle, to look at his mortality and relinquish to others tasks that threaten to sap the energy he needs to restore his health.
It's a difficult challenge for Jobs, his delegatees, his devoted fans - and investors, who turned bearish after Jobs farmed out the State of Apple keynote presentation at Macworld 2009 to Senior Worldwide Product Marketing VP Philip Schiller. By way of comparison (invidious or otherwise), here's Jobs giving the 2008 keynote, boiled down to 90 seconds. Do you think it raises or lowers his IQ (Irreplaceability Quotient)?
Apple's CEO, Timothy D. Cook, reassured analysts: “There is extraordinary breadth and depth and tenure among the Apple executive team, and they lead 35,000 employees that I would call wicked smart,” Cook was quoted in the New York Times. “We believe we were put on the face of the earth to make great products, and that is not changing.” It's significant that Apple rebounded forcefully from the Jobs health-jolt with a $1.61 billion profit for the fourth quarter of '08.
Jobs is one of many famous historical and contemporary figures forced to confront the realization that if your company or nation are going to live after you, you will have to find a way to turn some and eventually all of your authority over to heirs and successors. That is the theme of an article by Steve Lohr in the New York Times. Lohr's conclusion? "The notion of the irreplaceable individual is a myth." He mentions such business leaders as Wal-Mart's Sam Walton and Microsoft's Bill Gates as leaders who retired from active management at no great harm to their firms' productivity or profitability.
Among the earliest and most celebrated instances of delegation can be found in The Book of Exodus (chapter 18). One of the first things Moses did after leading his people out of Egypt was confer on others responsibility for adjudicating disputes. His father-in-law Jethro counseled that justice could not be served if Moses occupied himself settling every petty quarrel in his vast camp of contentious Israelites. "Thou wilt surely wear away, both thou, and this people that is with thee," said Jethro (in the King James version). "For this thing is too heavy for thee; thou art not able to perform it thyself alone."
Art thou listening, Mr. Jobs?
Moses was humble enough to take the advice, reserving for himself the capital issues. Though it still took forty years to reach the Promised Land, it's arguable that the wanderers would not have made it at all had their patriarch sapped his vitality on the small stuff.
In case you want to read the story in full, Mr. Jobs, there are a number of excellent Bible apps available in your store for download on your iPhone.
Today was one of the worst days of your writing career.
It began when the postman brought you an advance copy of your historical saga, an original paperback, and you started thumbing through it. To your dismay you discovered that over ten thousand words of text had been cut from your manuscript, and a number of sexy scenes modified if not downright bowdlerized. Your contract did give your publisher the right to make editorial changes, but you never dreamed they would go so far. You called your editor and were told the cuts were necessitated by pricing considerations, and the desexing had been performed to make the book more acceptable in certain markets.
No sooner had you recovered from that shock than you received a second in the form of galleys of a novel messengered to you by a packager you work for. The packager had engaged you as a writer-for-hire to write one of a series of novels it had created. Although the series is copyrighted in the packager's name, you'd insisted that your byline appear on your book. At the time you negotiated the contract, you thought that was a smart move. But when you started to review the galleys, you immediately realized that every sentence of your original text had been rewritten by the packager. Outraged, you phoned your packager, who informed you that as his company owns the copyright to your book, he could do anything he wanted to it.
As if these two horror stories weren't bad enough, you suffered the final insult when you attended a screening of the film made from a spy thriller you'd written several years earlier. You were, of course, not so naive as to believe the adaptation would be absolutely faithful to your story, but you were scarcely prepared for the monstrous perversion portrayed on the big screen that evening. Except for the basic premise, the producer had thrown out every idea, every tasteful scene, every line of dialogue in your book. Surrounded by friends and family, you slunk out of the screening room humiliated to the very core of your being. In a black rage, you phoned your lawyer. "Do you handle criminal cases?" you asked him.
"Some. Why?"
"Because I'm about to commit murder." You proceeded to describe in exquisitely graphic detail the butchery that had been perpetrated on your work.
"Okay," he finally said when you let him get a word in edgewise, "here's what I suggest you do. Go straight home, do not attempt to murder anybody. Take out the contracts on your books and examine them carefully. Then call me again and I'll tell you what I'm looking for. You may have a case on a variety of grounds, but I'd be especially interested in any references to something called 'Droit Moral'."
"Dwah wha'?"
"Droit moral. 'Moral right.' Bring your contracts to my office tomorrow. And don't forget your checkbook."
Tempting though it was to go on a killing spree, you took your attorney's advice and returned home, and after belting down a brandy straight you hauled out your contracts and pored over them, looking in particular for the phrase you had heard for the first time, droit moral. No luck in the contract for that historical, nor any in the one with your packager. But in the movie contract you struck pay dirt. Or so you thought at first. But as your finger traced the language your heart sank. You picked up the phone.
"No references to droit moral in my book contracts," you sighed to your attorney.
"I didn't expect any. And in the movie contract, you waived your moral right, yes?"
"Yes. So I guess that's the end of that."
"Not long ago I would have said yes," your attorney replies. "But there are signs that offer some encouragement. Whether or not the phrase appears in your contract, indeed even if you've waived your so-called moral rights, it may be that they are still recognized and enforced by the courts. I'll do a little research and have some thoughts for you when we meet tomorrow."
Your attorney is right, at least about the signs of change in the law, for an important event occurred on March 1, 1989, and it may presage some profound changes in the relationship between the buyers and sellers of literary and artistic works. On that date, the United States became a signatory of the Berne Convention, an international copyright treaty created to protect copyrighted works in the numerous countries that have signed it.
Included in the treaty is a provision giving artists the right to protect the integrity of their work even after it has been sold. That right is considered "perpetual, inalienable, and cannot be waived."
If your attorney didn't have time to research the Berne Convention and droit moral in great depth before you paid him a visit, he might have gotten an excellent summary out of The Rights of Authors, Artists and Other Creative People: The Basic ACLU Guide to Author and Artist Rights, an American Civil Liberties Union handbook written by Kenneth P. Norwick and Jerry Simon Chasen, and published in paperback by Southern Illinois University Press. He might even, as I did, phone Ken Norwick for a briefing. Mr. Norwick is legal counsel to the Association of Authors' Representatives.
Mr. Norwick and his book point out that moral rights are distinguished from the property rights - that is, the rights that you have under the copyright law - that you convey when you license your written work to publishers and producers. Droit moral is described as "non-property attributes of an intellectual and moral character which exist between a literary or artistic work and its author's personality; it is intended to protect his personality as well as his work." In other words, the distortion or mutilation of a work of art or literature could be considered a slur on the character of that work's creator. If you are wondering whether Shootout at the Bensonhurst Riding Stables or Book #16 in the Galactic Humungoid science fiction series may accurately be defined as literature, you will be comforted to know that the law offers lots of leeway on that score. Droit moral embraces three major components: the right of integrity of the work, the right of paternity, and the right of divulgation.
The right of integrity posits that a work is a direct expression of the creator's personality, and any harm done to that work reflects on the creator's identity itself. Unauthorized condensation of a literary work, expurgation of supposedly offensive passages, or rewriting of the text without permission are acts that might make it appear the author deliberatly designed the work that way, and subject him to unfounded criticism by his peers or condemnation by posterity. Even if critics feel the changes improve the work, those alterations misrepresent the author's original vision and are therefore a blot on his honor.
The right of paternity irrevocably associates the author's or artist's name with his work (or hers, though it's still called the right of paternity). Your byline cannot be taken off (or put on) without your express permission.
Finally, the right of divulgation gives artists and writers the right to decide at what point their work is finished and ready for exhibition or publication.
While principles of droit moral are widely accepted beyond our shores, they have generally been rejected, or at least not recognized, by the U.S. courts. Thus, because these rights are not usually accepted by the legal system, if you want the protection that they offer you must negotiate for them in your contracts. If, for instance, you wanted to reserve the option to withdraw your byline from a book, you would have to state that explicitly in your book contract.
There have been some promising legal developments in this area of the law in the U.S. in recent years. In 1983, New York State passed an Artists' Authorship Rights Act that, among other things, prohibited exhibition or publication of a work of fine art "in an altered, defaced, mutilated form" without the artist's consent. The law also gave artists the right to claim or disclaim authorship of their works of fine art. The artist who believes his rights under this law have been violated can sue for damages. Similar moral rights legislation has been enacted in California, too. The New York State act is limited to "works of fine art," and there's the rub. As Ellen M. Kozak, a lawyer and author of Every Writer's Practical Guide to Copyright Law, quipped in a piece on the Berne Convention in the Science Fiction Writers of America Bulletin, "Writers need not apply." But that may no longer be the case if the droit moral provisions of Berne are liberally interpreted in future court challenges.
You can imagine that not everybody greeted the ratification of Berne by the United States with banquets and fireworks. In fact, many publishers and movie and television producers lobbied passionately against it, even though some aspects of it protected their own rights. This was because they feared that the recognition of moral rights in the Berne Convention would threaten the traditional ways in which they have been producing and publishing their works. In response to those fears, Congress declared that Berne neither expands nor limits authors' or artists' rights to object to unauthorized modification of their work. The current thinking, then, is that you must seek remedies in other legal areas.
This bleak view, however, may not necessarily prevail in the days and years ahead. In the first place, many courts have recognized rights remarkably similar to "moral rights" under the guise of traditional trademark and copyright (and even in some cases libel) law. In what may be the most important example, a court found that a television network's substantial, unauthorized editing for television of a Monty Python movie violated the group's rights under American trademark law. Second, many people believe that America's entry into the Berne Convention should provide the impetus for greater recognition of moral rights in this country, and it has already encouraged a movement to lobby Congress to enact specific moral rights protection for authors and artists.
Somewhere out there are authors who will one day suffer the indignities hypothesized at the beginning of this article, and they will seek the protection of the courts using the droit moral principles recognized in the Berne Convention. I'll be sitting in the gallery when it happens. - Richard Curtis
Having maligned the legal profession last week, I hope to return to grace with some high praise for one branch of the species. It may be hyperbolic to refer to the legal counsels of publishing companies as "grey eminences," a term one usually assigns to the shadowy power brokers who manipulate the controls of vast corporate or political networks. But it would be no exaggeration to state that tremendous influence resides in the hands of the attorneys who counsel publishing executives on the legal aspects of their companies' operations. Few significant corporate decisions are made without clearance by a publisher's lawyers, and no book is published that has not somehow been affected by procedures originating in the firm's legal department. To the degree that the men and women of those departments are seldom colorful, their eminence may indeed be depicted as grey. But it must never be underestimated, because the power they wield over the fate of your book is both total and final. However headstrong the chief operating officer of a publishing company may be, he or she will override a house counsel's advice at the utmost peril.
Owing to the enormous number of legal affairs confronting every publisher, attorneys must be engaged to advise the firms' executives. Small houses with little money to spare for lawyers may hire a small firm or sole practitioner on an hourly or flat-fee basis to perform specific tasks such as drawing up incorporation papers, writing a lawyer-letter, or rendering an opinion about a specific situation. Larger publishers may engage an outside law firm for an annual retainer, which is adjusted if the time spent by the lawyers exceeds a prearranged ceiling. Fees and expenses of litigation are always a matter of separate arrangement, as they absorb extraordinary amounts of billable time.
The largest publishing companies maintain a salaried in-house legal counsel or staff to advise them on the countless matters arising out of the daily operation of the company. Or they may share the legal staff of the conglomerate of which the publisher is one component. In any event, some of the matters dealt with by the in-house counsel may be as minute as a single, but potentially actionable, provocative word in a manuscript; other matters may be as immense and complex as a corporate merger or a major litigation. The publisher's legal department is also in charge of contracts: not just publishing contracts, but those pertaining to everything from the office lease to a bank loan to a distribution deal to the acquisition of another publisher. If there is a notable increase in the time it takes for your book contract to be processed, as authors commonly assert these days, it may be attributable to the workload of the lawyer at the top.
Although routine contracts or deals for sums below a certain figure may never end up on their desks, most of them run very tight ships and insist on reviewing everything contractual that is generated in their bailiwicks. And there is scarcely a corner of the publishing company that does not in some fashion fall in a general counsel's bailiwick. Indeed, his or her office is sometimes a convenient dumping ground for many of those corporate problems that executives cannot pigeonhole and thus cannot deal with. "You should see some of the stuff I have to handle," one attorney told me. But he handles it decisively. "A general counsel is often a general troubleshooter for the corporation, and we solve lots of problems that are very far afield from our job description. You name it, they'll run it past Legal."
Here are some items that might appear on a typical day's agenda of the house counsel for a large publisher.
* The directors are concerned that the company is vulnerable to a hostile takeover. There is a great deal of stock on the market and its price is temptingly low. A raider might be interested in adding a publishing jewel to his conglomerate crown. A decision must be reached about buying back the stock and funding the maneuver.
* A news magazine has managed to get hold of a set of proofs of a major autobiography that the publisher is bringing out six months from now. Under the guise of a "news story" the magazine has summarized the juiciest passages of the book. The potential for selling first serial rights has been damaged if not ruined. The general counsel is contemplating litigation and is reviewing the legal precedents.
* This publisher is also at the other end of a possible lawsuit. An author has threatened litigation because, he claims, the publisher rejected his book in bad faith. He'd been hired by the publisher to write a biography of a glamorous starlet. But just as he turned in the manuscript it was learned that she'd been arrested for cocaine possession. The publisher rejected the book on the grounds that it was simply a poor job and wants back the large advance paid on signing the contract. The author not only doesn't want to repay the initial advance, but wants to compel the publisher to pay the money due on acceptance, too.
* A delegation of literary agents is scheduled for a meeting to discuss improvements in the publisher's royalty reporting system. The firm's management is loath to spend the large sum of money it will cost to revamp the computerized royalty statements for thousands of books. At the same time, management is anxious not to give offense to the agents and to the large number of authors they collectively represent. The house counsel must determine a negotiating position before going into that meeting.
There are several high stacks of paper on his desk and coffee table requiring attention. One pile contains routine contracts and contract requisitions calling for his signature or initials. Another contains affidavits, depositions, briefs, and other court papers for him to review. Still another has corporate minutes and other company business for his comments, approval, or other action. And in yet another are some items demanding urgent attention: a subpoena to which a response must be made by Friday; a summary of the terms sought by an agent for a major book on which there is an auction closing at five this afternoon; and a memo from an editor containing the distressing news that a reader has pointed out a dozen passages in a book the company recently published that seem to have been lifted almost verbatim from a book published ten years ago.
* A staff attorney has completed a line-by-line reading of a recently delivered manuscript, a biography of the late great Senator Clemenceau Osterdonk. Osterdonk was allegedly a pederast, a sadomasochist, a drunk, a cokehead, an arsonist, an influence peddler, an ax murderer, and an embezzler with dandruff, halitosis, and athlete's foot - your typical politician, in other words. Although the laws of the land plainly state that one cannot libel a dead person, the senator's estate and its Rambo-type lawyer are ferociously protective of the hallowed reputation of their late lamented, and have threatened to nuke our publisher if it prints Word One of this scurrilous hatchet job. The book will, the lawyer contends, irreparably damage the family's business interests which are dependent on maintaining an image of the deceased as the closest thing to an angel that is to be found in this imperfect world.
The book was impeccably researched by a journalist of unassailable pedigree, then reviewed by his own attorney, who happens to be the world's authority on libel. Our publisher is not afraid to publish this insightful and entertaining book, but neither does it want to provoke a lawsuit it cannot successfully defend. So the publisher's counsel has a ton of questions, modifications, and requests for documentation to take up with the author, and on the corner of his desk rests this thousand page manuscript to which yellow Post-its are affixed. On each of these mini-memos a question has been raised, and there are so many sticking out of the manuscript it looks like a forsythia in bloom. The author must either alter the text to satisfy the attorney's requests, answer his questions in a point-by-point letter of response, or furnish sufficient documentation to demonstrate beyond reasonable doubt that the items in question rest upon a concrete foundation of fact. Even after the author has complied with all of the lawyer's requests, our house counsel will comb the manuscript again and pick a few dozen more nits before declaring it judgment-proof and fit for public consumption.
It's worthwhile for us to tarry over this function of our in-house lawyer. Every "flag" fluttering along the margins of that manuscript represents a fear fluttering in the heart of any responsible attorney. If the threatened lawsuit does materialize, it might take only one poor choice of phrase, one unsupported allegation, one overenthusiastic innuendo, one unattributable quotation to pave the way for a judgment against the publisher. Old Rambo will be poised to pounce with claws and fangs bared, you may be certain. And not just Rambo, but the attorneys for anybody else mentioned in the book who may feel a victim of defamation, libel, or invasion of privacy.
The fact that the publisher holds a substantial insurance policy indemnifying it against adverse judgments in those areas is of no comfort to our attorney. In the first place, the policy calls for a sizable deductible, somewhere between $100,000 and $500,000, an unrecoverable expense that will make a painful dent in the publisher's profits. For another thing, if the insurance company believes that the publisher was negligent in its responsibility for purging the manuscript of assailable allegations, it may give the company a very hard time and may even cancel its insurance. "No publisher can afford to take that kind of hit," I was told by another attorney. Nor is it of great comfort that the publisher's contract with the author entitles it to recover some or all of its litigation costs and damages from authors' royalties. Rarely is there sufficient royalty revenue to balance the cost of an adverse judgment.
Our house counsel will therefore be forgiven if the queries he has raised in his review of the Osterdonk biography seem picayune. Let's look over his shoulder at a few of them:
Page 15. How do we know O. abused his half-sister when she was four months old? And what, precisely, do you mean by "abused"? Page 26. Can you document that Uncle Floristan turned O. on to the kicks of Blue Nun administered intravenously? Page 36. Can you support the innuendo that O.'s German shepherd was "a lot more than his best friend"? Page 75. Were there any witnesses to O.'s "uncontrollable urge" to flagellate the family chauffeur? Page 106. Re your statement that O. "bribed his way in one door of the Senate and bribed his way out the other door." Was anyone actually standing at the doors taking bribes? Names? Page 140. Any documentation to verify that O. and Hermann Goering were "considerably more than nodding acquaintances"? Page 141. Same question for Joseph Stalin. Page 142. Same question for Al Capone. Page 155. For my own enlightenment, can you explicitly describe the sexual contortion alluded to in the second paragraph? Page 202. Did anyone actually observe O. picking his nose at the luncheon with President Eisenhower? Page 261. Was O. actually divorced when he started his affair with Mister Ed?
Many such queries are exasperating for an author, particularly in cases where "everybody knows" that the subject of his biography slept with this or that person for years or beat his wife on a regular basis. If all you have to go by is a photo in a movie magazine of the subject escorting his alleged mistress to the Academy Awards ceremonies, however, or if not a single soul can be located who actually witnessed the subject striking his wife (or is willing to testify to that effect), you may be required by a prudent lawyer to fudge your language or throw the dubious passages out entirely.
Your publisher's general counsel does have a degree of discretion about some of the statements made in your book. If, for instance, reference to an affair has been made in half a dozen earlier biographies and the persons alluded to have never contested the references, the attorney may see fit to let your allegation pass, even though it does not rest on hard primary documentation. If he is a literary as well as a legal type, he may be reluctant to water a book down excessively because an overly "lawyered" book festooned with "allegeds" can be a ponderous bore. His recommendations may be challenged by publishing executives who feel he is being excessively cautious.
You the author have few options if your publisher insists on legal changes. Most publishing contracts permit a publisher to declare a manuscript unacceptable if the author fails to comply with requests to modify a manuscript to satisfy legal objections. In such cases the author must refund the advance paid on signing the contract, exactly as if he had turned in a book that was editorially unacceptable. The author may then seek a publisher that doesn't have quite so many compunctions.
I would think twice about doing that, though. For one thing, the same objections raised by the original publisher will undoubtedly be raised by others. And, more importantly, your publisher's attorney seeks to protect you as well as his company. You may find the legal vetting of your book upsetting at first, but after you cool down you will probably be grateful to have this eagle-eyed grey eminence in your corner.
We recently reported that the Borders bookstore chain had agreed to retail a publisher's (HarperStudio) books on a nonreturnable basis. This plan flies in the face of a century of bookselling tradition. That it is a lousy tradition and a leading cause of the current calamitous state of the publishing and bookselling industries is more than sufficient reason to celebrate the HarperStudio/Border initiative and wish the parties success.
Whether they will achieve it depends on how effective is the publisher's strategy of according a higher discount to the chain - ranging from 58% to 63% - than the current publishing industry average of 50-56%. As enthusiastically as we are rooting for it to work, however, previous attempts do not give cause for optimism. Over the last few decades, publishers have talked endlessly about selling books on a nonreturnable basis and a few have tried to break the hammerlock of tradition. Some of the bolder experiments, such as one attempted in 1980 by what was then known as Harcourt Brace Jovanovich, failed. That endeavor was by no means a debacle, but it was enough to sound a retreat that that has pretty much prevailed to this day.
Since high discounts stimulate sales in so many other kinds of business, it is perfectly logical for publishers to reason that if they can raise their discounts substantially, bookstores will feel less resistant to accepting merchandise now considered marginal, such as first novels, midlist books, experimental fiction, and slower-moving backlist books - literature that is progressively being frozen out of the marketplace by the blockbuster mentality. Unfortunately, past efforts failed for lack of cooperation among all the sectors of the publishing community.
Specifically they failed, first, because bookstores do not want to get stuck with unsalable merchandise; second, because it was thought the discounts weren't high enough to induce booksellers to create effective "remainder in place" programs in their stores; and third, because high discounts cut too deeply into publishers' profit margins.
As circumstances today are no different than those of the past (and it would not be out of line to argue they are a lot worse), how can publishers possibly consider raising their discounts higher than they already are without cutting even further into slim profit margins? With printing and paper, salaries and rents, production and warehousing and freight and other costs at all-time highs, there doesn't seem to be anything left to trim. Or has something been overlooked?
As a matter of fact, something has. It happens to be the way royalties are calculated. There may be a different way to do it. It means radically reconfiguring the way publishers compensate authors. Years ago I floated such a proposal. Actually, "float" is a misnomer, since it sank like a cast-iron anchor. But I have hauled it up from the depths of oblivion in the hope that it might stay afloat, buoyed by the current financial crisis besetting the publishing industry. Desperate times call for desperate measures.
By way of background, a story:
In the 1960s, the management of a major paperback company, Fawcett, offered an unconventional proposition to authors. They could elect to continue receiving royalties based on copies sold. Or, they could instead choose to receive a lower royalty based on copies distributed. In those days royalties on the average started at 6% on copies sold. Fawcett offered to pay 4% on copies distributed. Returns were not counted in the compensation.
For authors it was a classic bird-in-the-hand-vs.-two-in-the-bush challenge. On the surface the answer seemed logical enough: 6% was higher than 4%. But when returns were folded into the calculations, they reduced the net paid to authors to 4% anyway. When authors analyzed Fawcett's either/or, they realized that there was no difference between the royalty on books soldafter returns and one on books distributedbefore returns.
Fawcett paid advances like everyone else and recouped them out of royalties like everyone else, too. But once the advance was recouped, authors did not have to wait for years for full settlement, or puzzle out how much their publisher had withheld in reserves: they had already been paid in full. Within thirty days of each new distribution authors would receive an accounting of the number of copies shipped multiplied by the royalty per copy, and a check accompanied the statement. Anyone wishing to verify the distribution figures could do so easily enough by requesting printing and distribution affidavits. Payments were prompt and dependable, the bookkeeping elementary and transparent.
Everyone made out well under the Fawcett scheme, and generally speaking, authors loved it. This publisher understood something very important about them: most would rather get $1,000 now, without hassle, than gamble on the hope of collecting $1,500 over four or five years with a lot of hassle.
It was a good arrangement for Fawcett, too. Royalty bookkeeping was elementary, requiring a few bookkeepers armed with pencils, paper, and adding machines. I don't know what Fawcett did with the percentage points saved, but it makes sense that they might have used the savings to offer higher discounts to induce stores not to return books.
Unfortunately, Fawcett eventually discontinued this arrangement, probably under the pressure of rising returns, which escalated from a manageable level in the 1960s to the 50-75% dumpfest of the current era.
As creative as the Fawcett scheme was, it was not adopted by the entire publishing industry. But... what if it were? Putting it in terms of today's publishing economics, here's a hypothetical example. Suppose your publisher distributes 100,000 copies of your $8 mass market paperback and your contract calls for an 10% royalty based on the list price - $.80 a copy. Under the conventional accounting system the total royalty would be $80,000 if the book sold out. But it won't sell out: 50% of the 100,000 copies shipped will be returned. You will end up receiving $40,000. And you'll end up receiving it over a period of three, four, five years or more.
Suppose instead your contract were structured so that your publisher paid you a 4% royalty instead of 8%, but paid you on the day the 100,000 copies were shipped to bookstores. You would get the same $40,000. But - you'd get it right away.
For author, publisher, bookseller and consumer here is much to recommend serious consideration of this plan:
From the author's viewpoint:
* Authors receive the same royalties that they do now, but much earlier * Dependable royalty accounting enables authors to budget income more reliably * Transparent royalty accounting reduces author distrust of publishers
From the publisher's viewpoint:
* Print runs are more realistic * Distribution of books more efficient * Royalty accounting simplified substantially, creating savings in bookkeeping personnel and supporting overhead * Money saved on reduced returns and accounting costs raises profitability * Savings can be applied toward increased discounts to booksellers, encouraging nonreturnability * Antagonism between publishers and authors would be reduced greatly
From the bookseller's viewpoint:
* Because of higher discounts, cost of stock reduced * Wasteful overordering or overshipping reduced * More cash liberated for purchasing new stock * Freight, labor and bookkeeping expenses connected with returning books eliminated * Slow-moving books remain in`stores and remaindered in place * Hostility between booksellers and publishers reduced
From the consumer's viewpoint:
* More books available at discounted prices, and more at remainder prices as well * Good backlist books remain in stores for longer periods * Access to heavily marked-down books gives lower-income consumers access to them, helping to raise literacy levels.
From an environmental viewpoint:
As things are structured today, the only way to sell a thousand copies of a book is to print two thousand. The unsold stock goes back to publishers' warehouses and/or is pulped. Given the destruction of our forests to feed the crazy system of overprinting that governs the publishing industry today, elimination of this horrible waste will contribute to a greener book industry.
The publishing industry must shift to a nonreturnable standard, and this royalty model offers one way to facilitate the shift without harming any member of the publishing ecosystem. I hope it will float a little longer this time than it did the last.
A while back I got a Zune player and tried to load my iTunes library into it. Couldn't. My Mac friend shook his head. "Why didn't you ask me? I could have told you iTunes doesn't sync to non-Apple devices."
For years, Apple has been segregating its iPod and iTunes Music Store customers from the competition. The biggest caveat for iTunes customers has been that many iTunes files have restrictions that keep you from playing them on anything but an iTunes "authorized" device. No Zunes allowed.
Now that's going to change, according to Phil Schiller, Apple's senior vice president for worldwide marketing, who pinch-hit for Steve Jobs as keynoter at Macworld in San Francisco. Apple's "iTunes-Plus" files, which have higher audio fidelity and no restrictions on copying, will soon be available for all the songs in the iTunes Music Store, effectively ending an era of stifling sales and policing audio files.
In fact, a lot's going to change thanks to Apple's decision to end DRM restrictions on music content. "DRM" is jaw-friendly abbreviation for Digital Rights Management, the rules and regulations governing the licensing and exploitation of copyright-protected intellectual property. Brad Stone of the New York Times reports that, "Beginning this week, three of the four major music labels — Sony Music Entertainment, Universal Music Group and Warner Music Group — will begin selling music through iTunes without digital rights management software, or D.R.M., which controls the copying and use of digital files. The fourth, EMI, was already doing so."
Apple also agreed to set more flexible pricing on song downloads, a concession to the major labels. With Apple music sales drooping somewhat under competitive pressure from rivals like Amazon's MP3 store, they have agreed to drop prices on slower moving tunes to 69 cents from its rigid one-99-cents-serves-all policy. But hit and hot songs might go out at $1.29 per download. That price could come down as sales soften. Many other tunes will stay at 99 cents. This approach will goose sales of the backlist while taking advantage of hot items without gouging.
“I think the writing was on the wall, both for Apple and the labels, that basically consumers were not going to put up with D.R.M. anymore,” Stone quotes a market research analyst.
Should we look on the same wall for writing about digital books? Stone's comment about DRM in music might apply to e-books: "Industry pundits have long pointed to D.R.M. as one culprit for the music companies’ woes, saying it alienated some customers while doing little to slow piracy on file-sharing networks."
One reason the e-book business has taken so long to develop robustly is publishers' concern - yea obsession - with copyright. No one can blame them, but by insisting on DRM protocols and withholding content from etailers who did not adhere to rigid copyright protections, much traction was lost in the last decade, and still is. Yet, in cases where DRM is not strictly observed such as the MultiFormat feature at Fictionwise, the leading etailer in the business, piracy has not really been as big an issue as one would think. From our own experience here at E-Reads, piracy seems to thrive when books are not readily available or are available only for prohibitive prices. As soon as those books go up for sale, piracy seems to diminish. Given a choice between a free pirated edition and a legitimate one for sale on a reputable website, consumers will usually choose to pay. A key reason is that they are wary of contracting viruses when downloading from pirate sites.
We are all concerned about Steve Jobs's health and wish him a full and speedy recovery. But whatever is afflicting his hormones has not compromised his mind. His change in policy is smart and will prove a boost to every sector of the digital content business.
Whenever an author asks me if he should show a publishing contract to his attorney, I emit a noise not unlike that of a rutting moose whose girlfriend has just trotted into the woods with his rival. "Please," I beg, "anything but that. Take my firstborn. Take my condo, even. But don't show your contract to a lawyer. He won't understand."
My attitude is by no means unique. Many publishing people consider lawyers to be humorless spoilsports placed on our planet to raise hypothetical questions about events that have only the remotest possibility of coming to pass. In response to our reassurances that "it will never happen" or "it doesn't work that way," they smugly cite Gumbo v. Dittersdorf et al. and send groaning agents back to the negotiating table to haggle over the nuances of such words as "book," "pay," and "publish." And whenever a breach of contract is imagined, these learned jurists are right there with their lawyer-letters, writs, petitions, and injunctions to hold the offending party to the explicit meaning of the contractual provision.
Most of the lawyers I know don't fit this caricature. They make serious efforts to understand the unique nature of publishing law; they are reasonable, thoughtful, realistic, and no more venal than anyone else; and they regard litigation as an extremely distasteful last resort. Nevertheless, by the very nature of their profession, lawyers tend to be extremely literal-minded about the language of contracts. And, sad to say, the literal language of publishing contracts is enough to induce cardiac infarction in even the most liberal of attorneys.
Lawyers ofttimes use legal precedents and forensic experiences that may be germane to coal mining, automobile manufacture, and real estate transactions, but are hardly applicable to publishing situations. Once attorneys are engaged, however, they an obligation to produce results for their fees. It is hard for me to believe that an attorney being paid $300 or $400 an hour or more will read a contract and hand it back to his client saying, "Looks okay to me," or, "I'd say your agent did everything that I would have done." It is far more likely that he will raise those hypothetical questions and will not be satisfied with an agent's breezy assurances that if This or That happens, it'll be taken care of. After all, most agents don't have law degrees, and while their experience must be respected, how can they predict with any certainty that This or That, or, even worse, The Other Thing, will not happen? Thus do agents frequently find themselves pushed by lawyers into composing contractual language applicable only to the red end of the probability spectrum.
The involvement of lawyers in publishing contract negotiations often polarizes situations that might otherwise be settled through negotiation. Publishers hate lawsuits and with a few exceptions (described below) will do almost anything to avoid them. While litigation is certainly the ultimate weapon in a dispute, agents are adept at working out compromises that are scarcely different from settlements forged by lawyers after protracted litigation. The difference is that the agent performs gratis the same function for which a lawyer might charge thousands of dollars.
Most authors hold the legal profession in the same awe in which they hold the medical one. I would recommend a healthy dose of skepticism and common sense when it comes to dealing with the former, however. Practitioners of the law are of women born like the rest of us. Their actions are often dictated by their emotions, their convictions guided by who pays them and how much, and they make as many mistakes and misjudgments as surgeons, engineers, or stockbrokers (or literary agents for that matter).
You should regard contracts the same way. Contracts are solemn undertakings, yes, but they are not sacred covenants written in heavenly fire. Too many authors regard contracts as rigid structures of legal language constructed to thwart and constrain them. Actually they are flexible tools when used skillfully, and can liberate as well as restrict.
In the relations between publishers and authors or publishers and agents, a great many factors balance the literal language of contracts. Custom and tradition, market conditions, practicalities, and, above all, the power of the players affect the way any given contractual provision gets implemented, ignored, or defied. Let's look at some examples.
Not all contracts provide for a grace period in case an author delivers a manuscript late. Yet I have seldom heard of a publisher canceling a contract at the stroke of midnight on the day a manuscript is due. For practical purposes, a manuscript that is days, weeks, even a month or two late, can still be published on time without undue strain on the editorial or production staffs of a publisher. Now, an attorney may insist on specifying a grace period in a client's contract. Publishers don't like grace periods because they give authors another reason to be late, and authors have too many such reasons already. A zealous attorney might feel that that's a deal-breaker. In practice, if your publisher says, "Try to meet your deadline, but don't sweat it if you're a few weeks late," you can rely on that assurance ninety-nine times out of a hundred.
Friendships between agents and publishers mitigate the stringent language of publishing contracts. Despite a strict option clause requiring an author to deliver his next book to his publisher, on the strength of a tight friendship and an appeal to the goodness of an editor's heart an agent can often arrange for a one-time waiver of the option clause in order for the author to take on a project for another publisher - as long as that project doesn't compete with the work the author is doing for his regular publisher. "Thanks, I owe you one" is a common phrase heard in our business, and when the time comes for the publisher to lean on an agent for the return of favors, the agent may have to twist his client's arm a little to tidy up the debits and credits in the ledgers of obligation. Try to explain this system to a lawyer!
The most important factor by far in tempering the rigidity of publishing contracts is power. Don't let anyone tell you that might does not make right. While the language of any contractual provision may be plain as day, enforcing it is quite another matter if you don't have the money, status, influence, or leverage to do so. A first novelist has very little influence over a rich, powerful publisher, and no matter what his contract may say, it's going to be hard to compel his publisher to live up to every letter of his contract. If the author is a big name, however, the publisher's eager compliance may certainly be counted on. Indeed, a powerful author or agent can compel a publisher to do things that are not in the contract. For instance, few contracts grant approval of or even consultation on cover art or jacket and advertising copy to garden variety authors. Yet big-namers are routinely consulted about such matters, and if they don't like them they may well be able to get them changed or thrown out.
When contractual disputes arise, the interpretation that prevails usually belongs to the party with the most clout. Nine times out of ten that's the publisher. An individual author of no particular influence may be able to enhance his legal leverage if he is represented by a strong agent, however. The agent who has a large and important clientele in, say, romance fiction may be able to gain advantages for an author who otherwise would have little standing against a publisher and who cannot afford to hire a lawyer.
One of the most important things that experienced agents know is precisely which issues publishers are prepared to take get tough about and which they will back down on. Authors who owe refunds of advances to publishers because of undelivered or rejected manuscripts are often harassed but seldom sued because it's too expensive for the publisher, as well as bad public relations. If there is a lot of money involved, however, a publisher may well go to the mat to recover its advance, or to resist having to pay the balance due on acceptance. The publisher's motive isn't entirely financial. Such disputes focus on an important issue: is an advance a loan recoverable by a publisher if the author fails to meet his obligation? Or is it instead a nonrecoverable investment? Publishers take the former position, but a powerful agent may well be able to mitigate it and work out a compromise or less than Draconian repayment schedule.
Another issue that publishers are not afraid to go to court over is breaches of the author's contractual warranties, especially those for libel. With damages, settlements, legal and court costs, and insurance premiums reaching Olympian heights, most publishers are, I would say, prepared to sue authors they perceive to have dealt with them in bad faith.
Finally, publishers tend to get rather cranky about authors who play fast and loose with their option clauses, particularly big-money authors. The trend over the last decade or so has been for publishers to write more elaborate and tighter option clauses so that star authors cannot capriciously duck out of their obligations when another publisher waves a big check at them. I must say that option clauses are for agents what elaborate locks are for safecrackers. But even if you, your agent, or your lawyer discover a tiny loophole through which to escape from the necessity of submitting your next book to your publisher, there is nothing to guarantee that your publisher won't rattle the saber at you anyway.
Other than breaching the acceptance, warranty, and option provisions of your contract, there aren't too many offenses you can commit that will land you in court, and even these may be worked out through negotiation most of the time. The same is true, perhaps even more so, for breaches or perceived breaches of contract by publishers. I can think of few so flagrant as to be worth an author's while to prosecute to the bitter end. The threat of a lawsuit, and its attendant bad publicity, may force a negotiated settlement that nets you as much as you would win in a full-blown lawsuit after you have paid legal costs. It you win, that is.
I say all this as a counterpoise to any boasts your lawyer may make that you have an open-and-shut case. Lawyers do their clients a disservice by encouraging them to think there is such a thing as an easy and inexpensive victory. Don't forget that it was an unagented writer, William Shakespeare, who wrote, "The first thing we do, let's kill all the lawyers."
A Fortune Awaits Discoverer of Cure for App Addiction
Apps gone wild!
If you loaded one new application per day into your iPhone, it would take at least 27 years to try them all. According to Matt Richtel and Laura M. Holson of the New York Times, over 10,000 new apps have been posted to the Apple store, generating 300 million downloads. "The new status symbol is what your phone can do — count calories, teach Spanish, simulate a flute, or fling a monkey from a tree," they write. "The popularity of such applications for Apple’s iPhone, the leader of the transformation, is driving a fierce competition among the makers of the BlackBerry and Palm devices, and even Google and Microsoft." One venture capital company thinks it's such a goldmine that it has created a $100 million fund for iPhone developers.
Naturally, our favorite is the Stanza, the free e-book reader, and we've also written about the Android-powered barcode scanner. But it's not just the thousands of wonderful, stupid, crazy, and absorbing add-ons that make the phone-omenon notable, but their convergence into one device that brings us closer to the science fiction dream of a personal slave-device that carries out our every command at the graze of a fingertip.
But like any other convenience there is a danger of addiction and even abuse. In December Joe Wilcox, author of the Apple Watch blog, put a name on a syndrome whose symptoms are all too familiar to iPhone users: Apple App Addiction. "I've casually asked about two dozen other iPhone or iPod Touch users about their devices," writes Wilcox. "Nearly all confessed to being app addicts."
It looks like Apple App Addiction is the new obesity. What are the signs you're hooked? Says Wilcox,
Can you put the devices down? Do you use them frequently throughout the day—and more frequently than you would a vanilla cell phone or music player? Do you compulsively check your e-mail, Facebook or Twitter—or other app, perhaps? In a crowded room—maybe it's a party or business meeting—do you tap, tap, tap that touchscreen?
If 'yes' is the answer to any question, you're an Apple app addict.
Wilcox describes the technique for "hooking" users that sounds exactly like the way dope dealers hook victims:
Some of these app addict dealers are smart. Tapulous gave iPhone and iPod Touch users just a taste with Tap Tap Revenge. "C`mon, it's free. Try it." The game is highly addictive, and it's got a killer soundtrack. But successors like Nine Inch Nails Revenge and Weezer Christmas cost five bucks a piece. Damn, if they're not addictive, too. That taste leads to paid addiction.
There are organizations for treating alcohol, dope, gambling and even sex addiction. But I'm not aware of an Apps Anonymous (at least not one in my community) and because of the syndrome's potential impact on workplace and school performance, it may be the deadliest of all. Wilcox says, "People ask to be buried with their cell phones," and I can personally testify to that. Not long ago I attended a funeral in which the recently departed was laid out with his beloved cell phone hooked to his belt. "It was a part of him," his widow confessed to me. "No one ever saw him without it." When I viewed the corpse I noticed a blinking light indicating the phone was on. Someone else noticed it too, because, as a macabre practical joke or maybe just to see if the deceased would pick up, they called him and his unique ringtone warbled.
The thing is, nobody laughed. It seems like the most natural thing in the world.
Hand-Wringing Over Used Books While New-Book Industry Teeters Over the Brink
The New York Times's David Streitfeld recently beat his breast so hard, the thumping reverberated throughout the book publishing's trade journals and blogs. In an article called Bargain Hunting for Books, and Feeling Sheepish About It, he expressed guilt feelings about buying used books.
...it’s all the fault of people like myself, who increasingly use the Internet both to buy books and later, after their value to us is gone, sell them. This is not about Amazon peddling new books at discounted prices, which has been a factor in the book business for a decade, but about the rise of a worldwide network of amateurs who sell books from their homes or, if they’re lazy like me, in partnership with an Internet dealer who does all the work for a chunk of the proceeds.
Since Amazon's used-book feature has been in place for years, and indeed six years ago Streitfeld himself wrote about it (Authors, Publishers Protest Amazon’s New Strategy for Selling Used Books), it's a little too late for Mea Culpas. But Streitfeld does raise some important issues when he asks, "...where do I want that money to go? To my local community via a bookstore? To the publisher? To the author?"
The first thing we need to get clear is that money for used books has never gone to authors. There are some enlightened lands where royalties are paid to authors when their books are checked out of a library. Otherwise, authors are not exempted from the cruel fact that the secondary market for artistic product leaves the original creators out in the cold. Authors may take what comfort they can from knowing that someone out there thought enough of their books to buy them used. But unless they're saints, that comfort will be more than offset by the realization that their books were resold for as little as one penny, a fraction of what the bookseller, Amazon and UPS made on freight and handling charges.
Nor do publishers participate in the proceeds of used-book sales. Streitfeld's 2000 article acknowledged the bellows of anguish from publishers about being cut out of the loop.
Local community bookstores? They don't realize much by way of profit from used books, either. Major booksellers like Olsson's, Robin's, and Powell's have either gone out of business or are contemplating it. Wonder Book and Video, a major firm in the field, is fighting to stay competitive. And, though described as one of the great used-book stores in the country, New York City's Strand closed its Annex in the Financial District in September of 2008. Is anybody making money in used books? Think about this: a month before Strand shut its Annex, Amazon announced it had bought Abebooks, a major used-book purveyor.
As I say, it's a little late to lament the ceding of the used-book business to Amazon. The game is pretty much over. Jeff Bezos, the company's founder, beams with pride about the centralization of a process that, for all its serendipitous delights, was chaotic, labor- and real estate-intensive, and frequently just plain crazy. To hear him tell it, Amazon is rescuing a dying business and bringing service and professionalism to it, to say nothing of increasing literacy. Reading Bezos'sdefense of the practice - written six years ago - is a little like listening to Mephistopheles praising the virtues of immortality. But you have to pay the Devil his due, and I think we should.
Feeling sheepish about helping to fatten Amazon's bank account? Time to get over it. Big as the used-book issue is, we have far greater fish to fry, like how our poor dear broken old publishing industry is going to go on producing new books.
If you substitute "books" for "CDs" in Ben Sisario's New York Times article Music Sales Fell in 2008, but Climbed on the Web, you'll see parallels both encouraging and disheartening, depending whether you're in the print books business (which I am) or the e-book business (which I am).
Though total sales of CD's in the year gone by were high - 361 million - they were down almost 20 percent from 2007. Adding full-album downloads to the charts raises the total to 428 million, but that too represents a 14% decline over the previous year. No matter how you cut it, the arrow pointed down in the year gone by. You can mark some of it down to the economic recession, but when you look at the arrow for sales of digital music, you know it's not "the economy, Stupid." Proof is that for the last eight years, when the economy was relatively strong until recently, album sales have been dropping. Between 2000 and 2008, they plummeted by 45%.
On the other hand, in 2008 more than one billion songs were downloaded, a 27 percent increase from 2007, according to Nielsen SoundScan. Five years ago, that figure was 19 million.
If you look at the bar graphs for the e-book business, you see the same dramatic growth. Though stats for all of 2008 aren't in yet, as of the end of the third quarter e-book revenue was up 57.7% over the same period the year before. Whether it's books or music, the plain truth is that retailers don't feel they can generate the same level of sales per square foot of store space (which is how most businesses calculate the profitability of any given product).
But now let's shift from plain truth to one that is emerging from dust at the crossroads where the hard-copy and digital businesses intersect, and that is the profitability of content purchased on web sites.
One reason that the traditional book and record companies cling to their hard-copy model, in the face of all the evidence that consumers are going in another direction, is that the digital model has not proven it can generate revenue on the same scale as the Old Way. Online advertising, secondary exploitation of content, and other revenue-producers have yet to step up to replace the same functions in world of tangible goods. One of the big causes is the Informaton Wants to Be Free mindset among online consumers, a gaping hole at the ship's water line that has not yet been sealed. To executives watching the stupdendous paradigm shift in the media, Free Downloader is just one four-letter word away from Freeloader.
According to the Times's Sisario, however, there is hope. Some record companies, he reports. "...say they are finally beginning to wring significant profits from music on Web sites like YouTube and MySpace." “As the digital side grows," he quotes a market research analyst, "you get a different business model, with more revenue streams.” Sisario cites videos and ring tones as kinds of revenues flowing into those streams. “We don’t focus anymore on total album sales or the sale of any one particular product as the metric of revenue or success,” says an executive VP for Universal Music Group's digital division. “We look at the total consolidated revenue from dozens of revenue lines behind a given artist or project, which include digital sales, the physical business, mobile sales and licensing income.”
Is there a concommitant revenue stream to be exploited by book, newspaper and magazine publishers looking for a bridge to the New World of Digital? I don't know what the book equivalents of ring tones and videos are, but it's imperative that publishers find them and find them fast. RC
There was no YouTube when poet Robert Frost penned the deathless line, "Nothing gold can stay." But if he were alive today he would certainly feel his image aptly described the possible fate of YouTube as professionals get set to move in on it. The very zeitgeist of the 21st century represented by the ingenuity, the spontaneous combustiveness, the wacky hilarity, the instant, viral, visceral responsiveness of a public that knew what it loved and voted for it with billions of mouseclicks, may now be giving way to the slick creations of Hollywood television and film companies backed by studio and network money, branded sponsors, and calculating marketers. Here's a quote from Brian Stelter's reportage in the New York Times:
