Publishing lore is filled with tales of famous authors having their work rejected repeatedly by agents and publishers only to find long-lasting success and appreciation in the long run. I’ve shared many such stories with talented clients and friends disheartened by the arrival of a “thanks, but no thanks” response to their latest submission.
Today’s New York Times provides another example: Kurt Vonnegut. In describing plans for the Vonnegut Library that will open this fall there’s this:
“We have boxes of rejection letters,” Edie Vonnegut, the author’s oldest daughter, told The A.P., “letters saying ‘You have no talent and we suggest you give up writing.’ He did not have an easy time of it, and I think for anyone who wants to be a writer, it will be important for them to see how tough it was for him.”
Ensuring that coauthors, coeditors, and other collaborators have a clear understanding of their respective rights and responsibilities can be difficult under the best of circumstances, which is why I always counsel my clients to memorialize the terms of their work together as early as possible.
Often, creative partners delay doing so for a host of reasons, some of which are actually the best reasons to formalize an agreement:
“We’re best friends, so we don’t need a written agreement." Sadly, a creative project gone awry can bring an end to even long-term friendships. When trust is broken, or when one person feels taken advantage of, the hurt may not only be financial or professional, but also emotional.
“We’ll set up our own agreement once we know whether a publisher is interested." Another path to conflict, and a way to put a project in limbo. What happens when one author believes that all the income will be shared 50-50, and the other author believes he’s entitled to a larger share of income? Top billing? Sole credit? Discussing these and other issues openly at the start of a project, and memorializing what’s agreed, can make later disagreements more unlikely.
“We never agreed to call ourselves coauthors, so we’re not." Depending on the circumstances of your collaboration, you may not have the law on your side. Joint authorship is defined in the U.S. Copyright Act, and there is a hefty body of case law that elaborates of what elements create joint authorship. Don’t assume that your definition of coauthorship is the one that will hold up in court should a dispute reach that point.
These are just a few of the situations that arise all too often.
One problem that is often not considered is what happens when a coauthor becomes unavailable. Illness, death, or other events can profoundly affect the working relationship. (Less likely–but not impossible: Your coauthor is alleged to be involved in a murder for hire. And you’re not writing a literary work about crime…)
The National Law Journal is reporting this morning that another action has been initiated in connection with Google’s massive digitization project. After their attempt to join the ongoing action again Google was denied, photographers, illustrators, and eleven photograph and graphic arts organizations are suing Google, claiming copyright infringement.
The case is The American Society of Media Photographers, Inc. v. Google; a brief summary is available via law.com.
“What is obscene?” is a loaded question, and one that’s answered in different ways in different communities. What has come to be known as the Miller standard (from Miller v. California, 413 U.S. 15 (1973)) involves a three-pronged analysis to determine whether a particular work is obscene:
1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
There's a lot of wiggle room in those three prongs: "the average person," "community standards," "patently offensive," "serious literary, artistic... value." Clearly, what may meet the standard easily in one community may not meet the standard in another community. While driving cross-country last summer I was surprised at what magazine covers were largely blocked from view on some supermarket newsstands, covers that would not garner a second glance in Los Angeles, Chicago, New York, or dozens (hundreds? thousands?) of other cities across the U.S. So what happens when you make the entire world (via the internet) your newsstand? That's the question we're facing now.
I share this not to suggest that what Apple is doing is prohibited by law. Apple is a private actor, and there’s no constitutional guarantee of having one’s application or other creative work offered for sale in the App Store or the forthcoming iBookstore. If anything it’s a reminder that in the discussion of when and why to restrict access because of sexual (or sensual) content there aren’t a lot of bright lines.
Apple is opening itself to much-deserved criticism by applying standards in a way that seems capricious or motivated by the market power of the developer/publisher submitting content for review and sale. If a seller of bathing suits has their application booted for showing too much skin, how can Apple continue to offer the Sports Illustrated app with pics from its swimsuit issue, where girls are pouring out of their bikinis? The din’s going to get much louder…
Book trailers were a hot topic of conversation some time ago. Authors are being asked to do more of their own marketing and promotion than ever before, and I recall several conversations with weary authors who asked plaintively, “What? I have to produce a movie, too?”
As with most things, there were book trailers that were great, that caught one’s attention in the best way, and others that looked cheesy and poorly made. I’d shake my head at those, feeling sorry for the authors and publishers who had spent money on a video that might actually turn potential readers away from the book.
Just the other day I had the pleasure of watching the book trailer for Kim Severson’s memoir, Spoon Fed. I’m a regular reader of Kim’s contributions to The New York Times and find her writing consistently informative, timely, and engaging. I’m also very involved in the sustainable food movement, so a book about how Kim had been influenced by other women in the food world was already on my books-to-buy list.
But the point of this post is the book trailer, and my hat is off to whoever produced the one for Spoon Fed. I think it’s wonderful: In a few minutes you know what the book is about, you have a real sense of Kim’s voice (and not only because she’s the one talking), and if you’ve lived a while, you’ll likely recognize the story Kim shares.
Don’t take my word for it: Watch the trailer yourself:
While Apple’s iPad and iBookstore aren’t news—they were announced several weeks ago to much fanfare—Apple on Friday supplemented its own website with an iBooks features page.
While much key information about the details of iBook development and distribution have remained cloaked by NDAs and limited to key partners, macrumors.com provided a useful summary of what has been confirmed and also shared information about the supposed categorization of iBooks: Approximately 20 primary categories, and 150 secondary categories. The mention of an Erotica subcategory is interesting for those of us who have been following Apple’s rather capricious acceptance and rejection of iPhone applications in its App Store.
Many developers have cried foul when their apps were rejected or accepted and subsequently removed by Apple only to learn that their recourse is limited: Apple’s agreement gives it extraordinary discretion to determine what’s sold in its store. Last week the Electronic Frontier Foundation made public Apple’s iPhone Developer Program License Agreement. Will Apple’s agreement for the iBookstore be substantially similar, or will books get different treatment than apps? Will works published by large trade houses be able to skip past or receive preferential treatment in Apple’s review process? Or will all works with content that might not be suited to younger and more sensitive readers (to borrow a phrase from broadcasters) be unwelcome?
Stay tuned. More as the iPad launch date—3 April— draws closer.
The Google Book Settlement is not yet settled. Opposition to the settlement has been vocal and growing, and today’s New York Times notes that the parties have requested an extension to Friday, 13 November, to submit a revised settlement for the court’s review.
In the wake of growing objections and concerns, judicial review of the Google Book Settlement has been delayed to give the parties an opportunity to revise the settlement terms to address concerns from the U.S. Department of Justice, numerous private parties, and foreign governments.
For information about the latest turn of events in what has been a much-delayed conclusion to the dispute between associations of authors and publishers and Google, Inc. over Google’s program to digitize books, the New York Times published a short summary, available online.
The book review section may be gone, but the Los Angeles Times’ Festival of Books lives on. UCLA hosts the festival this weekend, 25-26 April, and it’s a must-visit event for those of us who live and read locally and for many others who make the trek to L.A. for panels, booksignings, and a wide array of exhibitors.
In addition to its useful resources for members including contract reviews, referrals, and other services, the Authors Guild also shares information about developments in publishing law and related matters with interested nonmembers via the Guild’s website. Two recent examples:
In the wake of the settlement in the Authors Guild v. Google action, the Authors Guild made a series of key documents available on its website, including a helpful distillation of the settlement agreement. More recently, after the announcement of the Kindle 2 by Amazon CEO Jeff Bezos, the Guild advised caution for writers crossing the intersection of electronic and audio rights. Although this potential conflict has been on the radar of many of us who negotiate publishing contracts, the announcement of the forthcoming Kindle’s “text to speech” feature brought questions related to these rights into sharp relief.
Far from being a challenge to the right of individual readers to read aloud as some too-quick commentators alleged, the Guild’s alert was appropriate and appropriately swift, raising a legitimate concern about a matter that should be considered carefully, and not only by authors. I’m thinking of parties on both sides of the negotiation table. Authors, artists, and other contributors need to understand what rights they’re granting and what rights they’re reserving, and to do so mindfully and strategically. Publishers—especially those whose contract boilerplate has not been reviewed in a few years—need to consider what rights they need and how best to delineate those rights in the contracts on which their business rests.
Pat Holt makes a modest proposal on the “Holt Uncensored” blog:
If you were an author, wouldn’t it be great if your publisher gave you a password to your own royalty account?
This would be an online, frequently updated, always accessible, entirely confidential page on your publisher’s website that would replace the current system.
As frequently as you wish, you could check sales of your book, the rate of returns, the percentage taken out for reserves and varying royalty rates for bulk sales, special sales, premium sales, electronic sales, and so forth.
Given the amount of money many publishers spend on internal systems to share data among departments and to transmit data to wholesalers and distributors, why would the development and implementation of a system to share data with authors be an outrageous proposition? Read's Pat's complete post on the Holt Uncensored blog and you may find yourself asking the same question.
Few industries have escaped feeling the dark economic news of recent weeks (and months). Although articles and opinion pieces about the future of publishing run the gamut from glowingly hopeful reports to the-sky-is-falling predictions of doom, some observers are taking a more balanced view of how belt tightening has affected the industry, and what kinds of changes are taking place in day-to-day business.
One such perspective is offered by Leon Neyfakh in the 14 October 2008 New York Observer, available online and worth reading for anyone considering a trek down the path to publication. While larger houses and agencies may be facing greater challenges to meet revenue projections, the economic downturn may present opportunities to smaller publishers, university presses, and other, more nimble members of the industry. (Thanks to MediaBistro for the pointer.)
J.K. Rowling and Warner Bros. have prevailed in their action again RDR Books, who were readying Steven Vander Ark’s Harry Potter Lexicon for publication. Although the author’s fan site had previously been singled out for praise by Rowling, news that a print edition has been prepared and was going to be published sparked the legal dispute between the parties, and a larger debate about when reference guides cross the threshold of copyright infringement.
The New York trial was closely watched by copyright scholars, publishers, and others in the publishing community involved with the creation and production of so-called companion books, works that reference, explain, and in large measure rely upon previously published works. Of concern was how Judge Patterson’s decision would affect the market for such works and whether it would signal a shift toward a narrower and more restrictive test for what constitutes an infringing work.
What happens when a character takes on a life beyond its author’s original work, and who should benefit?
The Flat Stanley Project was started by Dale Hubert in 1995. By several accounts Mr. Hubert was encouraged in his promotion of Flat Stanley (and related literacy and community development efforts) by Jeff Brown, the creator of the Flat Stanley character and author of numerous Flat Stanley Books, and by HarperCollins Publishers.
Mr. Brown died in 2003. No formal agreements had been made between Mr. Brown or HarperCollins and Mr. Hubert. It appears Mr. Hubert may be paying a price for relying on a good faith understanding as there are other parties who now wish to capitalize on the popularity of the Flat Stanley character, a popularity, one could argue, that was stimulated significantly by Mr. Hubert’s efforts.
With an increasing number of options for print-on-demand (POD) and electronic publishing available to publishers and authors alike, it’s important for both to pay careful attention to the provisions in their contracts that define what conditions must exist for a work to be considered out of print and the rights subject to reversion.
These are perennial points of negotiation because the market for these formats is still evolving. Benedicte Page writes for today’s Bookseller.com (UK) about how both sides are characterizing their concerns, with input from Random House UK and the Society of Authors.
In tandem with a careful evaluation of the out-of-print provision of their contracts, publishers and authors need to be aware of what rights have been granted, whether a publisher has the right to produce an electronic edition (and what forms of electronic editions), and whether there are any contractual barriers to publishing in POD or to licensing a work for a third party’s POD program. Provisions for reasonable royalty rates, or the ability to revisit the rates at appropriate times, are also key.
Steven Galloway, the author of The Cellist of Sarajevo, asserts that although the title character of his novel was inspired by a real-life musician, he is under no obligation to secure the real person’s permission for depicting him–or a character very much like him–in a work of fiction. The author has used the same setting, the number of days the cellist plays, the same musical selection (Albinoni’s Adagio), and the moniker given to the cellist by members of the media who originally covered the story.
Vedran Smailovic is the cellist who received worldwide attention during the war in Bosnia for playing his cello amidst the rubble (and sniper fire) in Sarajevo in the wake of a deadly mortar attack. He claims that his story has been inappropriately used by Galloway, without permission, for Galloway’s–and his publisher’s–financial gain.
Complicating the matter, or perhaps making it clearer, is that Galloway’s Canadian publisher, Knopf Canada, used a photo of Smailovic on the cover of the book without Smailovic’s permission. (As of this writing, the cover is displayed on Knopf Canada’s web page for the book.)
Although the tongue-in-cheek guideline for many authors and publishers has been that “it is easier to ask for forgiveness than permission,” asking for forgiveness may be a more costly proposition.
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