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Judith Regan Back in Spotlight, Trailing Clouds of Glory
The party was ostensibly in honor of the 55th birthday of Hollywood media expert and bestselling author (Guerrilla P.R. 2.0) Michael Levine. But all eyes were on hostess Judith Regan, back on the Big Apple scene after an adventurous sojourn in Hollywood trying to establish an imprint backed by News Corp boss Rupert Murdoch. The venture came to grief, and a hack doggerlizer summarized the subsequent shenanigans in Publishers Weekly's 2007 year-end issue:
Judith Regan filed a brief Seeking millions in relief. After News Corp’s Chief Commander Pulled the gynarch’s plug and canned her. Faulty judgment her transgression, Buying O. J.’s faux confession. Tempers soared from hot to fissile Over her abrupt dismissal.
Her lawsuit settled, Regan seems ready to take what's left of New York publishing by storm, if that's what she chooses to do.
The party, held in her spacious Grecian isle-white penthouse, was wall to wall with coast to coast movers, shakers, media people and photographers. Guests were invited to "dress to intimidate" but with few exceptions business attire was the couture du jour. This reporter wore his most intimidating fire-engine red power pocket square but no one seemed to cringe, or even to open a path to the hummus dip.
Dick Morris toasted the guest of honor and told a naughty story about him.
RC Poem excerpt (c) Richard Curtis reprinted from Publishers Weekly, December 31 2007, Reed Elsevier Magazines.
Michael Cader, blogging in Publishers Lunch, says that "The Kindle is probably the only major consumer electronic device aimed at older buyers." He cites a survey conducted by Bowker: "The device is favored particularly by people aged 50 to 64, and women like it disproportionately more than men, while the iPhone is heavily preferred by those in the 35 to 49 bracket," Cader writes.
In one respect, these data should not come as a surprise; generally speaking, adults simply buy more books than the young, period - 60 percent of book purchases are by older persons. But because we associate e-books and reading devices with youthful innovation, the numbers bear some attention.
The party most interested in these demographics is Amazon itself, creator of the Kindle. Amazon asked visitors to its Kindle Community page to disclose their age, and as of this writing 1652 responded. That's a huge number of responders and we're not sure why the question elicited so much action. By way of comparison, the second most responded to question garnered only 20 replies! Nor are we sure why respondents felt compelled to relate their life stories in response to the simple request for "Average Kindle Owners Age" ("59 3/4 years old here...no arthritis here yet. Probably will start suffering from it when I turn 60.") I guess seniors talking about their age like to add a flourish or two..
In any event, though we didn't sift methodically through every response or tally the average, it was clear from a random clickthrough of responses that the majority of those answering the question were in their fifties and sixties.
On the trail of these absorbing factoids, I randomly selected and debriefed a 25-year-old male about his, and his friends', attitudes towards Kindle. Interestingly, this interviewee works for a publisher and uses the device in his professional capacity.
Me: Do you own a Kindle personally?
Him: No.
Me: Because?
Him: The expense. I can't afford one. [It currently lists for $359.00 on Amazon.com] My friends can't either.
Me: Do you read books on another electronic device?
Him: No, call me old fashioned, but I like printed books. And they're also economical compared to the Kindle. If you read eight or ten books a year, buying them is cheap compared to buying a Kindle. Some of us either borrow books from the library or from each other, so it doesn't make sense to buy a Kindle.
Me: But you spend money on music.
Him: I would rather spend my money on music. I can listen to music while I'm doing something else. But reading a book is a dedicated activity. You can't do something else while you read a book.
Me. You call yourself old-fashioned. Doesn't that strike you as ironic, that a 25-year-old is more old-fashioned than a Kindle-reading fifty or sixty year old man or woman?
Him. [Shrugs] I guess so.
Are you too young for Kindle? The answer is right under our noses - for kids, it's simply too expensive.
Though Kindle is sitting high atop the e-reader heap, a competitor producing a $99.00 device could topple the Goliath, or at least give it a good healthy fight.
Some time ago, the Community for Creative Non-Violence, an advocacy group for the homeless, commissioned a Baltimore sculptor, James Earl Reid, to create a sculpture. In due time, his skilled hands produced a piece called Third World America, celebrating the dignity and suffering of homeless people. It was a work that both the advocacy group and the sculptor could be proud of, and they were. But then, as both began making plans to take it on tour, a question arose that nobody had bothered to explore in any depth: Who owns Third World America? The Community for Creative Non-Violence claimed the sculpture was a "work made for hire." Not only had the group hired the sculptor, but had also imparted to him its vision of what the piece should look like, and had even given him much input on details. Be that as it may, claimed Reid, he was the sole creator of the work and he should retain the copyright.
The dispute triggered a legal battle culminating in a Supreme Court decision that has important implications for writers. For, if you substitute "publisher" or "packager" for the group that hired Reid, "writer" for "sculptor," and "book" for "sculpture," you have a perfectly analogous relationship to one quite commonly found on the publishing scene. Under the "work-for-hire" provision of the Copyright Act of 1976, publishers, packagers, magazines, newspapers, and other persons or businesses may copyright in their own names works that they conceive and "farm out" to freelance writers. Like the Committee for Creative Non-Violence, these parties originate the writing projects, furnish writers with detailed specifications, and offer writers abundant editorial guidance. Are they not, then, entitled to claim ownership of copyright to those works? Are they not entitled to exploit those works in whatever way they wish, with no further obligation to the writers?
According to the Supreme Court, which ruled on the dispute on June 5, 1989, the answer is no. The decision was unanimous.
The court's ruling hinged not so much on the amount of time, effort, thought, vision, and money the advocacy group had invested in the sculpture, but rather on whether or not the artist could justly be described as an employee of the group that hired him. It seems that when Congress created the revised copyright law, it left the definition of work for hire somewhat ambiguous, describing it as "a work prepared by an employee within the scope of his or her employment." Had the sculptor gone to work on salary for a company that mass-produced plastic Buddhas, he would obviously have no claim to the product he helped to manufacture. But Reid's relationship to the organization that commissioned his sculpture was nowhere so simple, and his attorneys attacked the vagueness of the terms "employee" and "scope of employment."
"Under the broadest alternative," wrote Linda Greenhouse of the New York Times, "a freelance artist was an 'employee,' and therefore forfeited the right to copyright his or her work whenever the party commissioning the work, like a magazine publisher, retained the right to 'control' the final product." Greenhouse reported that a group of major publishers had filed a brief as friends of the Court, supporting this definition. That should come as no surprise, considering how much is at stake for them. Until the sculpture decision, most freelance work was considered work-for-hire. The result of the Supreme Court's decision, however, is that freelance writers and artists may enjoy, to a far greater extent than before, the benefits of copyright to the work they produce for others. "The fee that these businesses pay to a freelance artist will be a fee for one-time use of the work and not, as has been common practice, for the right to reprint and reuse the material without further compensation," stated Greenhouse.
Reid, the Court asserted, is an independent contractor and not an employee, and therefore his sculpture was not a "work made for hire." Because of the ambiguity of the origins of the work, however, the Court sent the case back to a lower court to consider whether the sculpture might fall into yet another category of copyright law, a joint work to which the copyright was owned by both claimants coequally.
It's interesting that this development comes at a time when the question of "moral rights" has begun to raise writers' consciousness about the status of freelance work they perform for outside contractors. I have speculated on the changes in the relationship between contractors and freelancers if American courts should adopt the principle that authors and artists are entitled to moral rights protection of their creations even though they have sold their copyrights to other parties. The Supreme Court's decision on Reid's sculpture is not a moral rights one, but it does give artists and writers a beachhead to wage further battles to protect work that they have sold—or thought they had sold—outright.
What seems to have been glossed over in the press's coverage of the sculpture battle is the extent of the contract between the commissioning party and the sculptor or, indeed, whether there was a written agreement at all. The relationship between the parties might not have stirred up such bitter conflict had they "perfected" it, to use a legal term, through a clearly worded contract in which the status of copyright ownership was spelled out. The deal between them, however, seems to have arisen in a spirit of good will and genuine compassion for the poor and homeless, but very little else in terms of a tightly structured contract. What seems to be implied in the Supreme Court's decision is, If you don't want any misunderstandings about ownership of copyright, you'd better write a good contract.
There are many cautionary lessons in this legal case that should be of particular interest to writers. For instance, inadequate grasp of the legal implications of arrangements writers make with book packagers has caused a great deal of grief for many authors. Book packagers copyright in their own name the projects they create, and writers they hire to develop those projects are denied proprietary interest in the work they perform for packagers. Packagers, in other words, are in a position analogous to that of the Community for Creative Non-Violence, the outfit that engaged the sculptor and subsequently claimed copyright ownership of the piece he did for them. "Packager" is, for some writers, a loaded term, connoting exploitation. I have stated elsewhere that I don't think there is anything inherently wrong with book packagers, but writers entering into contracts with them should do so with their eyes open and be aware of the nature of their relationship to packagers. There are fair packagers, not-so-fair packagers, and wicked packagers, but central to their activities is the copyrighting of literary creations in their own name. This process can be perceived as unfair if one party feels that he or she has been taken advantage of by the other.
Even harder for many writers to grasp are the implications of so-called shared-world series or anthologies. Shared worlds are generated out of popular books or series. The authors of these works, and their publishers, exploit the popularity of the books' characters by licensing or commissioning other authors to write new works featuring those characters and the world they live in. An example of this is the series of anthologies created in Andre Norton's Witch World. These collections of stories by other authors extend and elaborate on the fantasy world originally created in a series of books by Norton. Shared worlds, though we don't always think of them that way, may be found in categories outside of science fiction and fantasy. In the male action-adventure genre, for example, authors created new stories for the world of The Executioner originally created by Don Pendleton. Hardy Boys and Nancy Drew novels were produced by writers for hire long after the deaths of the authors who created these characters. The sequel to Gone with the Wind, when you strip away all the hype, was essentially a shared-world novel.
A tremendous amount of confusion exists about shared worlds, and misunderstandings about the relationship between creator and sharers have caused strain and even enmity among formerly warm friends and colleagues when arguments over money, byline credits, and copyright ownership developed. Perhaps many of these problems would take a proper perspective if all parties realized a fundamental truth about shared worlds: the moment an author attempts to share his world with other authors, he becomes, in effect, a packager. At the heart of most such grievances is that sudden change in the way sharers and "sharees" relate to each other. Writers who, up to then, were on what might be called a communistic parity with other writer comrades, suddenly become capitalists, and they don't always handle their new role very well. The tasks of apportioning money and credits produce conflicting feelings in authors who for so long have themselves struggled in the position of the exploited. "I felt," one writer told me, "like an assembly-line worker who had suddenly been made foreman. In negotiating contracts with authors sharing my world with me, I had to pull rank on some of my former co-workers, and none of us was happy about it."
Thanks to the Supreme Court's ruling, conflicts over money and credits may not be the only sources of contention between the participants in shared-world deals. Serious questions of ownership may be raised by contributors of material to shared-world series or anthologies. If you write a sequel or prequel to somebody else's novel, are you entitled to claim ownership, or co-ownership, of your contribution? Unless you clearly waived such a claim when you signed an agreement with the original author, the answer may well be debatable.
If you're not sure what's at stake, consider the lawsuit brought by Lynn Thomson, a dramaturg (a sort of script doctor for plays), against the estate of Jonathan Larson, author of the runaway Broadway hit musical, Rent. Before his tragic death, Larson had asked Thomson's advice on aspects of the show's script. Thomson subsequently claimed a co-authorship role entitling her to a share of the millions the Larson estate has earned, and will earn. In July 1997, a federal trial judge found that she was not a "joint author" under the U.S. Copyright Act, because she had not, in his opinion, contributed copyrightable material to the work, and because there was no evidence that she and Larson intended to be joint authors. Evidence—as in contract. The case is on appeal as of this writing, but whichever way it's decided, one could not ask for a more graphic illustration of the need to spell out the copyright implications of any arrangement, however casual, that authors make with those advising them on their texts.
Another ongoing lawsuit (at the time of this writing) concerns Fay Vincent, former commissioner of Major League Baseball. He was under contract to write his autobiography with a co-author, but presently thought better of publishing some revelations and decided to cancel the contract. His collaborator, however, claimed equal ownership of the manuscript under U.S. copyright law, meaning he has as much right as Vincent to bring out the memoir. The co-author's relationship to Vincent was apparently not writer-for-hire, but rather collaborator, and he does have a point. Another case of: Think before you share.
Up to now, too many authors have relied on the Golden Rule in reaching understandings with fellow authors about exploiting each other's worlds. If legal developments continue on the path they currently are following, it will be advisable to trade in the Golden Rule for an airtight contract. - Richard Curtis
Jonathan Karp is the distinguished publisher of an Hachette imprint called "Twelve", the name derived from its mission to publish no more than one book per month. Drawing on his "less is more" philosophy, Karp has written a piece for Publishers Weekly distilling what he calls 12 Steps to Better Book Publishing. In fact the innocuous title disguises a manifesto that should be nailed to the door of every publishing company large or small that cherishes a prayer of surviving in the next few years. But one of his twelve harbors a potentially toxic prescription.
Before listing his 12 Commandments, Karp heaps some well deserved abuse on many publisher excesses that exemplify the practices he condemns.
On sale now: A History of Cannibalism. Illustrated! A gift book! The subtitle is stupendously, kaleidoscopically all-encompassing: From Ancient Cultures to Survival Stories and Modern Psychopaths.
Just a few shelves away: Jesus, Life Coach, with the subtitle: Learn from the Best, a companion to the bestselling Jesus CEO, not to be confused with Jesus, Entrepreneur; Jesus on Leadership; or Jesus in Blue Jeans.
Then there are the arcane books, the ones that dare to be obscure on the assumption that if people will read about cod, or oranges, anything is possible. Who could resist a history of the potato, titled, of course, Potato. Amazingly, this wasn't the only work available on the subject. There's also The Potato: How the Humble Spud Rescued the Western World. Wasn't it intellectually responsible of the publisher to limit the scope of the subtitle to the Western world?
The best-packaged sex book portrayed a scantily clad woman perched on a saddle—Ride 'Em Cowgirl: Sex Position Secrets for Better Bucking. The most unusual was Vibrators, featuring 100 of the best devices in the world, all artily photographed. I had assumed this was published by some outré left coast indie house, but when I looked on the spine, I found the HarperCollins logo. My wish for this book is that Oprah will name it one of her favorite things, and NewsCorp will be compelled to print illustrations of vibrators in its next annual report.
Karp then shifts focus to his package of reforms. Among them:
End Kabuki publishing. "I am amazed by how much of publishing today is a Kabuki of ritualized and empty artifice," Karp writes, spewing venom on such choreographed silliness as launch meetings and sales conferences.
"Stop the copycat books. "They are the equivalent of pack journalism, and most of the time, we wind up looking like a bunch of rats chasing a chunk of stale cheese."
Be loyal to the book, not the ego. "Today, the only loyalty that makes sense is a commitment to the specific book...When I review catalogues, it seems as if more than a third of the titles on any given list are being published out of obligation rather than enthusiasm."
And here's one that may not win Karp a lot of points in the author community:
Pay authors to market their work. "Publishers should contractually require that a part of the advance be allocated to marketing and promotional efforts supervised by the author."
Eleven of Karp's twelve steps to better book publishing are cogent and wise, and publishers should take them to heart. But the twelfth has mischief written all over it:
"If a title falls short of the house's standards, don't market it. Don't even distribute it to bookstores. Publish those titles as e-books and print-on-demand only. Don't waste trees, warehouse and energy costs on them."
Karp assumes that a Harper or Simon & Schuster or Hachette has the option to release, as originally published e-books or PODs, books that they feel are potentially unprofitable or simply not up to snuff. Here is yet another sign that publishers are growing all too comfortable with the idea of issuing works as e-book originals without first publishing them in traditional print formats. I for one am very ill at ease with the concept. As I recently wrote,
"Original e-book publication by traditional publishers places their feet on a slippery slope. For one thing, there may be no legal basis for it; that is, no contractual provision sanctioning it. For another, authors who bargain for print publication and end up with e-book release may feel they have not been dealt with in good faith. For yet another, the current state of the e-book business is such that e-book publication does not earn a fraction of the revenue that print does, either for publisher or author."
A baseball player would be thrilled to boast a .917 batting average, so Karp can rest easy that eleven out of his twelve remedies for what ails publishing will help to cure the patient. But that twelfth one bears some serious rethinking. If you don't think a book is worth printing, don't buy it. If you buy it, make it worth printing. Major publishers resorting to original e-book release are not only abandoning their mission, they may also be forsaking their identity.
When It Comes to E-Books, England Still a Primitive Society
One of the programs presented at the London Book Fair was a panel on e-books attended by the heads of such illustrious British publishers as Random House Group, Hachette Livre UK, HarperCollins, and Penguin Group. The host, BBC News Media Correspondent Torin Douglas, asked what he called "The $64,000 question": Where’s the money in ebooks?
When it comes to digital technology the sun always seems to rise last on the British Empire. The same question was raised in the US over a decade ago and settled five years later as e-book sales began a rocket-boosted double-digit assent that has not remotely begun to level off. Indeed, January 2009 e-book sales jumped an astounding 173.6% over the same month of 2008 - while England slept.
The very title of Douglas's panel tells us what time zone the Brits occupy. "The $64,000 Question" was a television quiz show introduced over fifty years ago. Though the size of the jackpot was unprecedented in that postwar age, it is dwarfed by those paid today. Hello? We're up to "Who Wants To Be A Millionaire?" We're also up to more than $50 million in e-book sales annually. So, the real $64,000 question for our friends across the Pond is, What part of Money in E-Books don't you understand?
Behold the two books I place before you. Both are thrillers by authors whose names are unfamiliar to you. But attached to the one on your left is an endorsement by one of today's bestselling thriller writers. The other has no such recommendation. Which will you be inclined to purchase and read?
The obvious answer to that question formed the eye of a tempest that swept through the publishing industry some years ago, leaving in its path a shattered deal, damaged credibility, and a dazed author and his agent wandering through the rubble seeking something to salvage. The only good to come out of this event is the possibility that the rest of us may learn something from it.
We take for granted that a plug from a star can give an enormous boost to an obscure author or an undistinguished (or even distinguished) book. That is why publishers go to considerable lengths to solicit quotes - commonly called "blurbs" in the publishing industry - by big-name authors for books they are soon to publish. "When 55,000 books are published each year, you are desperate for ways to distinguish your books from everybody else's," a publisher told the New York Times's media reporter. "The right person writing a blurb for the right audience can sometimes make a tremendous difference in sales."
What it was that inspired Peter Lampack, a leading literary agent, to put blurbs on an unsold manuscript, I do not know. But when I read in the newspaper that he had used the ploy to garner over $900,000 in an auction for a first novel, I could have kicked myself for not having thought of it first.
Lampack's strategy was simple but inspired. If he used the blurbs to sell the book to publishers, he would certainly arouse far more interest in the book than in a book supported only by his own enthusiasm. Because enthusiasm is as commonplace among agents as it is among mothers, it is subject to heavy discounting by skeptical publishers. If, however, an author of world-class reputation offers an enthusiastic quote, it all but guarantees that publishers will highly prize the work to which it's attached.
There are two important reasons why a plug from a star would give a big boost to an unsold book by an unknown author. The first is that it validates, for editors, the book's quality. Given the cost of publishing and promoting first novels, editors today are extremely nervous about committing their companies to investing hundreds of thousands or even millions or dollars for them. Not a few would rather pass up a good first book than overpay for it, for many an editorial head has been impaled on the pikestaff of poor judgment. If an author who is a proven moneymaker raves about that book, however - particularly an author seldom given to promoting the work of others - much of the uncertainty about its quality is taken out of the editor's hands. And so is the responsibility, thus freeing the editor to spend the company's money with confidence.
The other reason why an enthusiastic blurb by a star author is of such inestimable value is that it validates the book for the consumer. As the average list price of a hardcover novel is well into the $20.00 range and mass market paperbacks closing in on $10.00, bookstore customers have become more discriminating than ever about what they plunk their money down for. It is likely that they will be inclined to pay that kind of money only for a proven commodity - a book by a brand-name author. If, however, a brand-name author declares adoration for an unheard-of book, and permits a publisher to feature his statement on cover and advertising copy, the publicity value of that plug will overcome consumer reluctance. After all, the next best thing to a book by your favorite bestselling author is a book that your favorite bestselling author loves and recommends. The late publisher Donald Fine stated in that same article that "there's a presumption among marketing people that blurbs are especially important for the sales reps and booksellers." Fine cited the time when he asked bestselling author John D. MacDonald to read galleys of a book by Elmore Leonard, who was at that time considered a midlist mystery writer. MacDonald called Fine and exclaimed, "Who is that guy? He's terrific." Fine asked MacDonald if he could use those very words in advertising for Elmore's books, and the rest is history.
Understanding these psychological principles so well, agent Lampack must have jumped for joy when Derek V. Goodwin, pseudonymous author of a first novel entitled Just Killing Time, furnished him with blurbs by two leading thriller authors, John Le Carré and Joseph Wambaugh. Lampack loved Goodwin's novel, and successfully solicited a quote from a famous client of his own, Clive Cussler. Thus armed with three dynamite blurbs, Lampack put Just Killing Time up for auction, and when the dust settled, Simon & Schuster walked off with the book with a high bid of $920,000.
I had scarcely had time to compose a congratulatory letter to Lampack when the newspapers announced that both Le Carré and Wambaugh had repudiated the blurbs attributed to them, Le Carré characterizing the one written over his name as "straight fraud." After an agonizing week, Simon & Schuster withdrew its offer. "We must be able to rely on the validity of what is submitted to us," stated the president of Simon & Schuster's trade division. The author claimed that he was "completely duped" by whoever it was that had issued the phony blurbs.
My heart went out to my colleague, a first-class agent and a gentleman of the highest character, and I waited breathlessly to see who, if anyone, would come forward to claim the orphaned book. During the month or so that it took for that question to be answered, the debacle set off a fascinating debate: How much was Goodwin's book worth without the quotes?
As I listened to the arguments, I thought of the ancient dispute as to whether a tree that falls in a forest makes a sound if no one is present to hear it. Goodwin's book after the deal fell through was the same one that existed before. The only difference was, two of the three star blurbs had been dropped. So had the price. Simon & Schuster's winning bid had been withdrawn, and it didn't seem likely that the runner-up in the auction, Bantam with $850,000, would stand by its offer. How much was Goodwin's book worth stripped of its glamorous advocates? Even more interesting to me was: How much were the big-name author blurbs worth? I said above that they were of inestimable value, but if you look at it in a certain way, you will realize they can indeed be estimated.
As it turned out, Lampack was able to resell Goodwin's book for approximately a $500,000 advance to Dutton Press/New American Library, a division of Penguin and an underbidder in the original auction. Can it not be argued, then, that the blurbs by Le Carré and Wambaugh were therefore worth $420,000, the difference between what Simon & Schuster would have paid for the book with blurbs and what the new publisher was willing to pay without them? That would mean that Le Carré's and Wambaugh's blurbs could each be valued at $210,000.
It would not surprise me to learn that it had crossed the minds of these distinguished authors, or the minds of their distinguished agents, that there is big money to be earned in selling their endorsements. Movie stars and other celebrities get big bucks for endorsing all sorts of products. Why shouldn't star authors get them for plugging books? Requests for blurbs are an imposition on an author's time, and for a big-name author, time is not just money - it's a lot of money. On those grounds alone, then, it can be argued that an author ought to be compensated for writing a blurb. But more importantly, there is the obvious fact that the author's name helps to sell the merchandise. Robert Ludlum and Stephen King were paid handsomely to star in American Express card commercials; would they have been out of line demanding money to do a "commercial" for someone else's book?
Our instincts rebel against the notion because it seems dishonest—-and our instincts are correct. Unlike commercials undertaken for pay, the author who writes a blurb is assumed to genuinely like the product he or she is promoting. There is thus an aura of sincerity about blurbs that would be fatally tarnished if they were written for pay. Of course, one could be cynical about that sincerity, for it often appears that the blurbing industry operates under the motto, "One hand washes the other." The now-defunct Spy magazine carried a feature called "Logrolling in Our Time," which cited the suspicious frequency with which an author who plugs another's book finds his or her own book praised in return by the pluggee of the first part. In one issue, for instance, after George F. Will called Henry Kissinger's The White House Years "an elegant literary achievement," Kissinger called Will's The Pursuit of Virtue and Other Tory Notions "a delight." Similarly, Barbara Ehrenreich and John Kenneth Galbraith, Richard Ford and Joyce Carol Oates, and Diane Johnson and Francine Prose were shown to be mutual admirers of each other's books.
Such possible abuses notwithstanding, the point is that blurbs are traditionally undertaken as favors, and are therefore a form of barter. And though publishers and agents who request them from their authors don't usually offer specific inducements, the good will generated by a cooperative author inevitably pays off down the road in one tangible way or another. As an editor once said to me, "It's good business to caress the hand that feeds you."
But good will is a fragile value, and the lofty tradition of exchanging favors cannot always be counted on to prevail over the temptations of hard cash. A day may well come when a famous writer will demand a big fee for endorsing someone's book, and a publisher will pay it. Anyone naïve enough to think it can't happen has never attended a baseball card convention, where star ballplayers who used to autograph memorabilia out of the goodness of their hearts now charge hefty fees for their appearances and signatures.
The fact is that just as light is bent by the gravitational pull of celestial stars, our ethics seem to get a little bent by the attraction of human stars. Take for instance what might be termed the "Dead Author's Society," wherein publishers go on issuing works by authors long in their graves. The bylines of such illustrious writers as V. C. Andrews and Cynthia Freeman continued to appear on books long after the passage of their namesakes to the Great Book Expo in the sky. You would be surprised how many fans were under the impression that the authors were still alive, an impression the publishers did not go out of their way to correct. Is this ethical?
I don't particularly deplore the practice, as I'm not sure I see that much difference between books packaged by dead authors and those packaged by living ones - and living ones do it all the time. Whether the spurious books are as good as those created by the original authors is another question, but if most fans never notice the difference, the issue of quality is pretty much beside the point.
In England, it's considered not just unethical but downright illegal for a publisher to issue a book with the byline of a deceased author. Of course, the British have always been a bit dotty about their dead big-name authors. Would you believe they actually enshrine some of them in their cathedrals?
Aarrr! Pirates Forced To Walk The Plank Thanks To Latest Swedish Court Ruling
The other shoe dropped for the Pirate Bay today (news here, and for the first act, see The Pirate Bay: Standing Up In Court For a Generation of Blackbeards). The four co-defendants were each found guilty of being accessories to copyright infringement in a Swedish court. The courts documents say that the Pirate Bay co-founders helped promote theft and so they've each been sentenced to 1 year in prison and fined $3.5 million ($14m total). If the judgment stands, maybe the next files they'll be looking to share in secret will be in a cake.
Sweden had already been strengthening its reputation for being hard on piracy since they recently began requesting that local internet service providers log all the IP addresses of computers involved in file sharing starting at the beginning of this month. Consequently, Swedish internet traffic has fallen by over 30% (see this BBC article). If something similar were to be enacted in the U.S., it could be decried as further infringement on our right to privacy and it wouldn't be tolerated well at all.
Much is going to be made about this Swedish court decision and the forthcoming appeals in the short term, but it's hard to predict if the outcome is really going to deliver much of a blow to file sharing in general until the stigma of copyright transgressions is something that's educated effectively to scoffing young users.
The Pirate Bay is akin to a fleet of off-shore gambling boats floating in international waters. Even while the main defendants are caught up in Swedish courts, the operations can and probably will continue under the supervision of other affiliated groups. And it's not like the Navy can escort our copyrighted materials. So, while this news is fresh validation for the media rights holders, it's still not the end of the battle.
Under pressure of the May 5 Google settlement deadline, publishing professionals are frantically contacting each other and their lawyers to make sure they understand the settlement and the opt-in/opt-out choices confronting them. An informal sampling of their communications strongly suggests that a great many authors, agents, editors, and even lawyers are somewhere south of knowledgeable and some are barely north of clueless.
We can't blame them. Though the broad meaning of the settlement can be summarized fairly easily, as we recently tried to do here, it's the specifics that are stumping so many. For one thing, the paperwork is daunting for individual authors and crushing for publishers, requiring lists of titles falling into the opt-in/opt-out categories. For another, answers to many questions are far from yes/no. Mike Shatzkin puts it straightforwardly: "They are largely in the dark about what rights they own. "
The spectacle of otherwise sophisticated professionals calling each other and asking, "Do you understand it? I think I understand it. Actually I don't understand it" would be funny if there were not so much at stake. Publishers do not want to incur liability by making the wrong decision, and agents don't want to incur responsibility for giving their author clients bad advice. So we're all in touch doing our best to get it right. But getting it right is not as easy as it looks. Shatzkin points out that "The 'rights database' or 'contracts database' for most publishers consists largely of paper contracts in file drawers."
Publishers also have problems with books on which they unambiguously have the rights to print and sell copies. What they don’t know, without looking at the original contract, is whether the language in it gives them a shot at an ebook, a print-on-demand edition, or allows them to include some of the material in that book in an electronic database. Even looking at the book contract might not tell them if they have the rights to use artwork that is in the book in any other edition.
The danger is that those who are not completely sure what to do may, in their haste to make the deadline, make a blanket yes/no decision that could turn out to be a blunder.
I don't know if it's possible for the parties to work out an extension at this late date but now that we're all focused on the issues, some more time for everybody to sort out their rights would be welcome.
Agents don't like to admit that there are events beyond their control, and I suspect that is why it's hard to write about such contractual matters as forces majeures—acts of God—and bankruptcy. Such events serve only to reaffirm our human frailty and fallibility, our total helplessness before the awful natural and business convulsions that occasionally devastate the microcosmic world of book publishing. How easy it is to deny that they could ever happen or that there is anything we could do about them anyway. I am able to rationalize my omission of these subjects by telling myself that in the course of my career in the book business, I have never seen a publisher invoke fire, flood, strike, hurricane, insurrection, or war as an excuse for delaying or screwing up a book.
Yet, anybody who works in this business long enough knows that sooner or later Murphy's law will clutch us by the throat, and whatever terrible things can happen will, perforce, happen. These tired old eyes have seen booming markets dry up overnight, seemingly omnipotent chief executive officers of great publishing houses fired ignominiously, and corporate acquisitions, mergers, and divestitures undertaken as casually as cards tossed in a low-stakes poker game.
For instance, some years ago, at the very apogee of the gothic novel boom, Avon, the leading publisher of the genre, announced that it was terminating its gothics program. Snap! Just like that. Writers, agents, and Avon's competitors were floored. It was not as if the market had begun to decline. Anybody who wanted to make a small fortune in those days had but to take anything vaguely resembling a gothic formula story and slap on it a cover of a filmily clad girl looking apprehensively over her shoulder at a fog-shrouded mansion with a light burning in one window. We were all the more baffled because it was said that the head of Avon at that time killed the program simply because gothics bored him, which was like the secretary of the treasury announcing that he is bored with the presses that mint money. But that's what happened, and it left the paperback market in chaos and countless writers and agents floundering around on the wilder shores wondering where their livings were going to come from.
Or, take what happened after Harcourt Brace, the trade and textbook publishing giant, acquired Pyramid Books, an independent and minor paperback house that had suddenly found itself on the map with the huge success of John Jakes's Kent Family Chronicles. Harcourt changed Pyramid's name to Jove, replaced most of its staff, and poured millions and millions of dollars into acquisitions and self-promotion in a bid to make it the number one paperback company in the industry. Then, one Monday, the editor in chief and a number of other key editors were given until the end of the day to collect their personal effects and leave the building, and not long afterward Jove was unloaded on what was then MCA's Putnam-Berkley entertainment complex.
The upheavals created by these transactions were so immense that few of us had the experience of dealing with anything remotely like it, and the toll on writers, agents, and the industry at large was incalculable. A lot of authors cried Do something! to their agents, but I can think of scarcely anything an agent might have done to predict or control the situation so that he or she and his or hers would not be adversely affected.
In the modern history of publishing we have witnessed similarly seismic events. In the space of six or seven months during the mid-eighties, for example, the publisher of Bantam replaced the publisher of Pocket Books, then hired the publisher of Berkley, who quit a couple of months later and presently replaced the publisher of Avon, whereupon the editor in chief of Avon left and was replaced by the editor in chief of Pinnacle. The turmoil caused by these churnings cannot be described. Nor can the harm done to authors be mitigated by the efforts of even the most powerful agents in the business. You just stand there, mouth agape, and watch the majestic unfolding of events. Then you come in when the dust has settled and do what you can to pick up the pieces.
And then, also in the mid-eighties, we witnessed the collapse of a paperback publisher. For many years, Pinnacle Books was a marginal paperback house publishing routine genre books. It was then acquired by an investment group and the old management and editorial staff were replaced by a smart and enthusiastic team that expanded the firm's editorial vision, spent money to acquire better authors and properties, and marketed its books shrewdly and aggressively. Within a year or so the results were dramatic. Sales began to soar and Pinnacle was the hot shop in the industry, a genuine major-league contender. But there were serious problems underlying the successes. The company had expanded so explosively that its cash flow couldn't keep up with demand. Furthermore, as was alleged to me by people close to the situation, Pinnacle's parent company had to "borrow" some of Pinnacle's working capital to cover deficits or corporate acquisitions elsewhere in the conglomerate.
For many of us, the first crack in the structure appeared when a number of Pinnacle's checks bounced. As restitution was made shortly thereafter and cash started to flow again, most of us who'd been touched by that chilly wind accepted Pinnacle's reassurances that the situation was temporary and order would soon be restored. In midsummer, however, agents and authors demanding overdue payments were told that there just wasn't any money. By August the crisis had deepened. Key employees quit or were let go. Inquiries yielded a sketchy but frightening picture of Pinnacle's parent company allegedly using the publisher's accounts receivable to pay off corporate obligations that had nothing to do with Pinnacle. By the end of August the disaster was all but complete: Matters were turned over to the firm's attorneys and the last of Pinnacle's staff was forced to abandon ship.
This was a tragic event. When a paperback publisher goes out of business, there is none to replace it. Mass-market publishers are simply too expensive to create easily from scratch. The loss of a competitor is bad for publishing and worse for authors. The fewer publishers there are, the less flexibility there is in prices and terms available to writers. As if they didn't have it bad enough.
The possibility of an actual bankruptcy sent agents and authors scurrying to their contract files to examine the pertinent provisions of their agreements with Pinnacle. Almost all book contracts contain language to the effect that if a publisher goes or is forced into bankruptcy, takes advantage of any bankruptcy statutes, or assigns its assets for the benefit of creditors, the author is entitled to get his rights back automatically. Examination of the boilerplate of Pinnacle's contract confirmed the existence of such a provision. Specifically, Pinnacle's contract stated that:
If (i) a petition in bankruptcy is filed by Publisher or (ii) a petition is filed against Publisher and is finally sustained or (iii) a petition for Arrangement or Reorganization is filed by or against Publisher and an order is entered directing the liquidation of Publisher in bankruptcy, or (iv) if Publisher shall make an assignment for the benefit of creditors, then Author may, at Author's option, terminate this Agreement by written notice and, thereupon, all rights granted herein shall revert to Author.
Well, that was a relief. Although we still weren't sure what would become of any royalties Pinnacle might owe, at least there was no question about the procedure for getting our rights back. All we had to do was wait for an announcement that Pinnacle had filed for bankruptcy (or find out for ourselves by sending a lawyer to federal bankruptcy court, where bankruptcy petitions must be filed). Then we send a notice terminating the contract. Right?
Imagine our shock when we learned that the bankruptcy provision of the Pinnacle contract was unenforceable. And if you can imagine it, try imagining that the bankruptcy provisions of all publishing contracts are unenforceable.
When Pinnacle tanked I consulted with a lawyer friend of mine, Michael A. Gerber, a professor of law at Brooklyn Law School and now Associate Dean there. He had published a book about bankruptcy, and he cited provisions in the federal Bankruptcy Code that invalidate the bankruptcy termination clauses of contracts.
It turns out that book contracts are regarded by Congress as assets comparable to the furniture, typewriters, and light fixtures of a publisher. Section 365(e) (1) of the Code stipulates that an executory contract (that's what you have) may not be terminated just because your publisher goes into bankruptcy. And it doesn't matter whether or not your book has yet been published - it's the contract that counts as an asset.
The reason the law takes this position is that if a company is trying to reorganize in order to work things out with its creditors, as it may do in some bankruptcy cases, its rehabilitation may be hampered if you yank your contracts away. Those contracts are, after all, a key source of potential revenue for a company trying to get back on its feet. Even if a company is not attempting merely to reorganize but is completely liquidating, the law still regards the earning potential of your contracts as an asset to which all creditors have some claim. Thus, you may not get your rights back if the company elects to assume the benefits and obligations called for in your contract. There is some saving grace in all this in that the company cannot keep you dangling interminably. In a Chapter 7 (liquidation) case, the company must decide whether to assume or abandon the contract within sixty days of filing. In a Chapter 11 (reorganization) case, there is no hard-and-fast deadline, but the bankruptcy court may impose one at your request.
So, contrary to the black-and-white language of your publishing contract, if your publisher chooses to take advantage of this provision of the Bankruptcy Code, you're up the creek, at least for a while. Fortunately, few publishers who get into financial trouble go bankrupt because there is usually another publisher waiting in the wings to take it over. A publisher's backlist may continue generating income for anybody who takes it over, and because most creditors of publishing companies (such as a banks, printers, distributors, and the landlord) are incapable of generating income from the publishing of books, sooner or later they will conclude that it makes good financial sense to turn over to a publisher the contracts the creditors control.
That is precisely what happened in Pinnacle's case. Electing not to file for bankruptcy, Pinnacle sent a notice to all interested parties stating that it had signed an agreement in principle with the parent company of Zebra Books (now a division of Kensington Books) to take over the imprint. This meant that Zebra would be able to publish certain Pinnacle books under contract or on the Pinnacle backlist.
Back to their contract files scurried the authors and agents, where they confirmed that Pinnacle, like every other publisher, has provisions in its contract permitting it to assign that contract to anyone of its choosing without the author's permission. Some agents and authors are able to modify that clause in negotiations so that a publisher cannot assign the rights without the author's express permission, but most publishers resist that modification, for the freedom to assign is an extremely important one to them, more important at least than it is to authors, for whom it is seldom a deal-breaker. However, even if your contract prohibits your publisher from assigning your rights without your permission, that prohibition would be invalid in a bankruptcy situation under the Bankruptcy Code, according to Professor Gerber.
Actually, the assignment of your contract to another publisher might be the best thing that can happen to you if you are worried that your books may be tied up for years in bankruptcy litigation or seized by some creditor who doesn't know a copyright from a coffin nail. For one thing, before a publisher can assume or assign a contract, it must pay you any royalties it owes you or at least provide you with assurances that they will be paid. Moreover, if your contract is assigned, at least there is someone you can talk to, someone who will keep your book in print and generate some income for you.
That, however, might not necessarily have been the case if Zebra's original plan for taking Pinnacle over had gone through, for the notice Pinnacle sent out stated that the money Zebra generated for Pinnacle would not be paid directly to authors, but would rather go into an escrow account controlled by Pinnacle and its "secured creditor." A secured creditor is someone who has extended credit that is secured by some kind of collateral. In this case, that secured creditor appears to be the bank to which Pinnacle's owners allegedly pledged the publisher's accounts receivable.
Authors are not secured creditors. If a secured creditor intercepts revenue that otherwise would have flowed to the company and eventually to you the author, then that secured creditor is under no obligation to satisfy the claims of the unsecured ones. Of course, a judge might be most sympathetic to your plea for return of your rights and royalties, for it is clear that an author is a lot more helpless in situations like this than is a bank or a printer. But a judge is under no legal compulsion to grant an author's plea.
At length, no longer capable of fending off its creditors, Pinnacle filed for bankruptcy under the Chapter 11 provisions of the federal bankruptcy law, meaning it was seeking protection by the federal government while it reorganized and formulated a plan to repay its debts and restore business. It took almost two years, from autumn of 1985 through summer of 1987, for the company to get its act together. It did make a deal with Zebra, which proceeded to review the entire Pinnacle list to decide which unpublished manuscripts it would bring out, which backlist books it would reissue, and which properties it would release to the original copyright owners and under what terms it would do so.
As I said at the outset, agents don't like to admit that there are things they are powerless to control, but I must tell you that bankruptcy appears to be one area where little an agent does by way of negotiating contractual language is going to help if your publisher goes belly-up; and once it does, little that an author, agent, or lawyer does will help if the bankrupt firm and its creditors don't want to cooperate with you. My best advice is, first, to move like lightning once you or your agent get the feeling your publisher is in serious trouble, demanding a reversion of your rights and/or settlement of whatever financial obligations the publisher has to you. Put short deadlines on your demands and send official letters stating that owing to failure of your publisher to comply with the terms of his contract with you, you consider that contract canceled. Second, make a horrid pest of yourself in the hope that your publisher will decide life is too short to do combat tooth and nail with a crazy author.
One author did just that in the Pinnacle case and did win his rights back, but at a terrible cost because of the onerous terms of his settlement and the cost of hiring a lawyer - and you will need a lawyer. But if there isn't that much value in your books to begin with, the cost of hiring a lawyer to rescue them may not be justifiable. It's frustrating as hell, maddening in fact, but there you are. And that's just bankruptcy. I haven't even mentioned how helpless we are before acts of God. But I think I'll wait until a tidal wave demolishes Hachette, Random House, or Simon & Schuster before attempting to write about that. Given Murphy's law, you may be reading my remarks about that sooner than you think.
Early in April a few years ago I got a call from a client who was preparing his income tax. This author wrote erotic fiction and wanted to know whether he could legitimately claim as a deduction his pharmacological treatment for a little affliction he had contracted in the course of “researching” one of his novels.
I told him I imagined the treatment would probably fall under medical deductions rather than research expenses, but the story does illustrate that even the most untrammeled literary spirits have to pay their obeisance to Uncle Sam sooner or later. With more and more authors incorporating, purchasing expensive computer equipment, seeking shelters for their taxable income, and in general being more businesslike in their approaches to the art and craft of literature, the accountant is becoming as important as the literary agent in guiding the destinies of writers.
The chances of a writer being audited by the Internal Revenue Service are a little better than those of the average working stiff because most writers are freelancers, and taxes on their income are not usually withheld as they are from persons on company payrolls. Thus, even though the odds that anybody will be audited are going down because of staff cutbacks at the IRS, a free-lancer’s tax return may be more provocative than that of someone who works for Boeing or IBM. Your best defense, should the fickle finger of the IRS single you out, is a well-kept set of records, primarily your canceled checks, your receipts, and a journal or ledger recording details of every transaction for which you are claiming a deduction, particularly those for which receipts are not ordinarily given, such as public transportation, certain tips, and the like.
In general, authors are entitled to “write off,” or deduct from taxable income earned from their writing, certain costs incurred in pursuit of that income. Among those costs are agent’s commissions; rental of office space; editorial and secretarial assistance; purchase or lease of computers and other office equipment; office supplies, such as toner cartridges and paper; travel; the cost of entertaining editors, agents, producers, collaborators, and others related to their professional endeavors; and books and other research material.
Naturally, not all expenses are deductible; other expenses may be deducted over a period of years; others are only partially deductible; and still others are deductible only at your peril. Because of the feast-or-famine nature of the freelance life, you don’t necessarily have to earn money in any given year in order to write off expenses. You may be working on a long-term project and a whole year or more may go by without income. Yet you may still claim the costs incurred that year and deduct them from whatever other income you received, such as interest or stock dividends, your spouse’s income if you’re married and file jointly, and the like. Even if you’re not a professional writer at all but simply a would-be writer who has yet to realize a dime from his work, you may nevertheless write off your expenses for a period of years before these activities come under the definition of hobby, the costs of which are not deductible.
So much for famine. But there’s also tax relief for those who feast. One form of it is the government-sponsored IRA's and other tax shelter plans, which are designed for freelancers and other independent breadwinners who do not earn regular wages. By putting some of your income into such a shelter, you in effect lower the amount of income you claim for that year and pay taxes on it only when you draw that income later in your life, at retirement age, when you will presumably be in a lower tax bracket. Meanwhile, your tax shelter account will be appreciating through interest or dividends or (if you invest the money wisely) through capital gains on investments.
When it comes to taxes, the name of the game is deductions. Let’s talk about some.
Capital purchases. Capital purchases are major items such as machinery and furniture. These might include your personal computer and printer, a desk, photocopier, file cabinets, a fax. The government considers such purchases investments, and because investments are subject to depreciation, you are usually not permitted to deduct their purchase price in full the year you purchased them. Rather, you have to spread the cost out over several years for tax accounting purposes. Thus, if you buy a PC and a printer, you may only be able to “depreciate” them over five years; that is, deduct a portion of the price from your income each year for five years. On the other hand, you may be entitled to an “investment credit,” a direct credit against your tax liability. Investment credits are a form of reward the government gives businesses for buying capital equipment. The principle is that such investments pump money back into our economy and keep it healthy, so investment credits encourage you to buy furniture and equipment.
Straight deductions. Most day-to-day necessities of the writing profession come under this category. Assuming you can furnish receipts, these are fully deductible, and deductible wholly in the year in which you pay them. They include paper and other stationery; pens and pencils, paper clips, rubber bands, and other office supplies; postage; messenger bills; photocopy bills; legal, bookkeeping, and accounting fees; dues and professional organization fees; editorial and secretarial assistance; agent’s commissions and expenses; phone bills; interest on loans; and certain state and local taxes, such as unincorporated business taxes, city rent or occupancy taxes, and the like.
Although many of these costs are indisputably business expenses and are seldom questioned by the IRS as long as you furnish solid documentation, some of them do fall into a gray area where eyebrows might be raised or IRS computers, programmed to seek variations from certain norms, might “flag” the questionable item. Writer’s Digest is a pretty safe magazine subscription to deduct, but Vogue? Sports Illustrated? Well, if you can demonstrate that you wish to write for those markets or that the information they provide applies to a writing project you’re developing, those subscriptions will be arguably legitimate. The same might be said of a television set. If you hope to write for television or consider TV a good source of information for your books, stories, or articles, you may be able to get away with writing off all or some of the cost of the television set.
The gray area gets even grayer with such deductions as travel and entertainment. At what point, if any, a dinner stops being social and starts being professional is often impossible to say, as is the point at which a vacation becomes a business trip. In order to legitimize these deductions, solid documentation is desirable in the form of receipts and canceled checks, a diary or journal, or other written evidence demonstrating intent and purpose. The IRS requires receipts for any claimed business meals of more than $25; for meals costing less (is there such a creature?), no receipt is necessary but a detailed journal entry or other memo is desirable. It should stipulate the date, place, persons involved, business purpose, and price. Home entertainment may be harder to document, since food and drink for business entertainment are often purchased with provisions earmarked for personal use, or food and drink already stocked at home may be used to entertain business guests. But here again, a combination of receipts and memoranda may at least convey to potential auditors the sincerity of your attempts to furnish good documentation. The IRS does assume that a certain percentage of a professional writer’s or freelancer’s income is going to be claimed for entertainment, and within that range it may not raise any questions. But because entertainment deductions are usually among the most inflated found in the average return, any inordinate claims will usually trigger intense curiosity.
The same is true of travel. Business travelers are obliged to document the purpose of their trip and expenses, and even though such trips may in fact be 95 percent play and 5 percent work, orderly records will allow the benefit of the doubt to be given to the claimant. Indeed, no connection between the place visited and the place written about need manifest itself, for who is to say that you did not write a story about Acapulco that was rejected and never published, or that after spending a week in London researching a novel you did not decide to set the book in Paris instead? But there are limits to the government’s credulity. The writer who flies with his family to Miami Beach during Christmas week may have a hard time convincing a gimlet-eyed IRS auditor that it was a research trip.
Probably the most common tax headache for a writer is what to deduct for the office in his home. If you have an office outside your home, you may claim the rent, utility, insurance, and related bills in their entirety. But what if your bedroom doubles as an office or you do your writing on the kitchen table? Until a few years ago, the IRS was liberal in its definition of office space in the home, but it has since become stricter, insisting that a room be set aside specifically and exclusively for professional use. If you have an eight-room home and use one room as an office, you may claim one-eighth of all your house expenses as deductible business expenses.
The telephone is another ambiguous item insofar as personal and professional uses are mingled on the same bill. In such cases you can assign a percentage of the bill to business use and note the long-distance charges for business calls. Perhaps the best way around the problem is to maintain a separate phone for business purposes.
A growing number of writers have become so businesslike about their profession that they have incorporated themselves. What benefits do they hope to derive? Is this something that every writer can or should do?
There are many financial, legal, and other good reasons for individuals to form corporations, but these are not always as clear for writers as they might be for manufacturing or service companies. One major benefit, for instance, is limited liability. With the threat of legal claims perpetually hanging over every writer’s head, what author would not breathe easier knowing that the only assets he’s in jeopardy of losing in a lawsuit are the rather meager ones retained by his corporation?
Unfortunately, it’s nowhere near that simple. The law recognizes how easy it is for wrongdoers to hide behind the cloak of corporate immunity, and thus in the “discovery” process of a trial it may be ruled that the personal assets of the head of a closely held corporation (meaning that only you, or perhaps you and your spouse, hold all the stock) may be vulnerable to a claim.
Furthermore, most publishers signing contracts with incorporated authors require them to furnish written “performance guarantees” that they will honor their contractual obligations and be responsible for the warranty and indemnification clauses of their contracts. After all, a corporation can’t write a book – or, what is more pertinent in this case, it can’t write a libelous, defamatory, obscene, scandalous, or privacy-invading book. Only individuals can do that, so authors must sign a document guaranteeing the contractual obligations of the corporations they own, and vice versa. This so vitiates the limited liability aspect of incorporating as to render it virtually impotent.
There are definite financial advantages for an author to incorporate, but these generally come into play only if that author is making a good deal of money, and making it consistently. Medical insurance can be paid out of before-tax income. A pension plan can be established, enabling you to shelter until retirement far more money than the government currently permits under IRA plans it sponsors. These pension plans usually have life insurance options, meaning that life insurance premiums may be paid out of before-tax income, a distinct advantage over the situation of unincorporated individuals. There are other benefits, too, but there are also disadvantages. The costs of starting and maintaining a corporation are not inconsiderable, and after you have paid legal and accounting costs, or spent so much time filling out and filing federal, state, and local withholding income tax, corporation tax, unemployment, Social Security, disability, pension, and other papers, you may find that you might have done just as well conducting your business as a plain old unincorporated human being. Besides, if the government feels you’ve established a corporation just to dodge taxes, you could get into trouble and end up paying heavy penalties and interest on back taxes. So before you start thinking about vying with Mobil for a place on the Fortune 500 list, consult your accountant.
"The day is coming—and much sooner than you may think—when authors will no longer be able to define themselves simply as creators of literary works. As electronic technology hurtles too fast for even futurists to keep up with, a generation of readers is emerging that will not accept text unless it is interactively married to other media. The twenty-first century's definition of "author" will be as far from today's definition as you are from the town scribe of yore."
I wrote that over ten years ago in an article called Author? What's an Author? I didn't know it at the time, but I was anticipating the arrival of the vook. And now it's here.
Brad Stone, writing in the New York Times, defines it as "a multimedia hybrid that is tailored to the rapidly growing number of digital reading devices. "Vooks, created and named by a Silicon Valley entrepreneur Bradley Inman, combine traditional fictional storytelling, online video, and other digital media to create an amalgamated art form. "Vook," explains Stone, "tries to address a big problem for book publishers as they expand onto digital formats.
"For all the hype and initial success of devices like the Kindle, they threaten to strip traditional books of much of their transportive appeal. Images on the jacket cover, inviting fonts and the satisfying feel of quality paper are all largely absent, replaced by humdrum pixels on a virtual page.
Even worse, on multipurpose reading devices like the iPhone, more immediately gratifying pastimes like video games are a click away for readers with short attention spans."
Defending himself against traditionalist criticism, Inman says, "Books are finally coming online but they are very one-dimensional. I think we can experiment and do this better.”
His observation would seem bear out an observation I made recently in a piece called Watching Books.
"Reading text on a screen without sound, color, or movement, one develops the uneasy feeling that something is missing. We wonder, Is that all there is? I’m not a psychologist but it seems more than likely that we are bringing to text viewed on screens the same expectations we bring to television, movie and computer screens. Indeed, something is missing! How can we not be disappointed - even, God help us, bored - when these blocks of words fail to stimulate the same intense response as a YouTube video? We are trying to extract a linear experience out of a nonlinear medium."
Okay. We how have a name for the art form. But what shall we call the vook's creator? In Author? What's an Author? I struggled to give it a name.
"As I acclimate myself to the rich atmosphere of computer technology, I hear the word 'author' used less and less and 'producer"'used more and more to describe those who assemble, integrate, and purvey multimedia software packages to consumers. As the trend toward multimedia accelerates, as I predict it will, the role of the author must, without question, become subordinated to that of the producer. Authors will become scenarists, creating story lines for or textual supplements to full-motion video films for personal computers. The real creative stars will be those who can produce brilliant and stimulating programs for display on home entertainment systems."
So where does this leave good old-fashioned writers and publishers? Well, if they want to survive they have no choice but to join the 21st century. In Author? What's an Author? I suggest some ways that authors can find their place in this rapidly evolving world.
How's About a Quickie? Paper and Digital Consort to Spawn Instant Books
A decade ago as I was reviewing a standard trade book contract I had a dark and scary thought. There was nothing in it requiring the publisher to issue the work originally as a printed book. I then examined the contracts of other major publishers. Same thing. Subsequently, in contract negotiations, I began asking publishers to guarantee that they would not publish books as e-book originals. "We are book publishers," they assured me with a sniff. "We would never do that." But they refused to put that assurance in writing.
And that is why you never say never. Motoko Rich reports in the New York Times that, faced with the exigencies of getting timely books out fast, major publishers have begun issuing them in e-book format before they release them in print. And in some cases they don't release them in print at all.
For instance, about a month after the manuscript was turned in, the FT (Financial Times) Press released Barack, Inc: Winning Business Lessons of the Obama Campaign. The format of choice? E-Book. Same goes for Daniel Gross's Dumb Money: How Our Greatest Financial Minds Bankrupted the Nation published by Free Press, a division of Simon & Schuster. That one, Rich reports, took just three weeks from completion to release.
Though there's nothing improper about first publishing quickie books in e-format, until now the practice was unprecedented among major book publishers. How do they justify the change in course? On the grounds that today's frenetic and unrelenting news cycle requires nothing less than instantaneous issuance of books. Though it can be argued that the proper media for fast-breaking stories are newspapers, television or the Internet, no one would quarrel with FT Press's Amy Neidlinger when she tells Rich that, “People can’t wait a year to get timely information on critical subjects. Especially today it’s dated 10 minutes after you’ve just received the first installation.” Or with literary agent Todd Shuster, who says that even significant books, if they “come out so late that they’re either obsolete or redundant, are going to lose out.”
Granted. We'll even grant that simultaneous publication of e-book and the print version makes sense for books requiring immediate dissemination. But original e-book publication by traditional publishers places their feet on a slippery slope. For one thing, there may be no legal basis for it; that is, no contractual provision sanctioning it. For another, authors who bargain for print publication and end up with e-book release may feel they have not been dealt with in good faith. For yet another, the current state of the e-book business is such that e-book publication does not earn a fraction of the revenue that print does, either for publisher or author. And finally, there may be e-book publishers that can simply do a better job because they are not burdened with the slow and cumbersome publication machinery and procedures of large houses, nor are they hampered by considerations requiring them to charge artificially high retail prices.
In short, we have to wonder whether original e-book publication is the proper province of conventional publishing companies.
Speaking of quickies...
Arguably the first instant book in modern history was First American Into Space by Robert Silverberg. It was published in 1961, when "instant" was measured in months and not moments.
The story of its creation is an entertaining one. After plans were set to send the first American astronaut into space, Charles Heckelmann, editor of a paperback publisher called Monarch Books, devised a plan to publish a book to celebrate the event. He hired Robert Silverberg, a reliable paperback novelist who has long since gone on to fame, fortune and honor, to write it. Filling - some would say padding - his manuscript with the history of rocketry, astronaut training, biographies of the astronaut candidates for the flight, etc. etc. Silverberg delivered everything but the last chapter. The book was set into type and while Alan Shepard rode a capsule for fifteen minutes before parachuting back to Earth, Silverberg typed the final chapter, taking it right off the television set in real time. He rushed the chapter to Heckelmann who in turn rushed it to the printer. "The flight was on a Friday," Silverberg reminisces, "and I seem to recall they had the book on sale by the following Monday or Tuesday."
Three or four days to produce and release a book? That now seems like an eternity.
The party was ostensibly in honor of the 55th birthday of Hollywood media expert and bestselling author (Guerrilla P.R. 2.0) Michael Levine. But all eyes were on hostess Judith Regan, back on the Big Apple scene after an adventurous sojourn in Hollywood trying to establish an imprint backed by News Corp boss Rupert Murdoch. The venture came to grief, and a hack doggerlizer summarized the subsequent shenanigans in Publishers Weekly's 2007 year-end issue:
The other shoe dropped for the Pirate Bay today (news 
