When Publishing Contracts Go Bad

drmofe writes: "It's not just recording artists who are getting screwed over royalty payments and publishing rights. MediaChannel has an op-ed piece asserting that standard publisher-author contracts are now so restrictive that they might in fact be "restraint of trade" under the US anti-trust laws."

Comments

Brutalization like this...

[shankark]

could lead to substandard literature. I think what we need as something akin to the GNU Public License for writers as well but with some kind of a modification that enables them to collect what little royalty that can come their way at least then. The best way for writers out of this exploitation is to collectively refrain temporarily from bringing out any books through such autocratic ham-handed corporations and GPL their works instead. That way, they also reach out to a larger and (may I say) a much more enlightened audience. Not only will that emphasize their importance to the publishers but it will also, I am sure, succeed in exposing their misdemeanors.

Re:Brutalization like this...

[hrieke]

I think what we need as something akin to the GNU Public License for writers as well but with some kind of a modification that enables them to collect what little royalty that can come their way at least then...

No, what is needed here is a standard way to do accounting, a contract writing that is fair and just, and a transparent system for publishing. Those with the most lawyers wins is how the media companies are playing the game - and then they barrow a page from the banks and nickel and dime everyone to death.

This is pure naked avarice (greed) here, and if the Writer's Guild can make it more palatable to their members then they will. But lest not forget that if they can screw the publishers and get away with it, they would.

A perfect solution: the internet.

[2Flower]

If the Internet is supposed to free musicians to produce without the middlemen of publishers with unfair contracts, just imagine what it can do to writers to avoid contracts like these.

I've been an online-only amateur author for the last ten years (here's my current project, in fact). I do all my work on the web, which gives me huge advantages in terms of reader feedback, online draft publishing to get comments and criticism, and as much graphical/multimedia extras as I feel are appropriate to each product. I haven't felt the need to seek out a publisher yet -- the Internet gives me a much richer experience as an author in every respect except for money and mass-audience exposure.

It makes good sense. Writing is a form of content that's perfect for a text based web medium, and it runs up lower bandwidth charges than indie musicians manage with MP3 libraries. There are no distribution costs whatsoever except for bandwidth; all you really need to spend major money on is promotional muscle. The cons are the typical "I want a real solid paper thing in my hands" attitudes, but print on demand services would take care of that.

I'll admit, right now, there is no economic model to make it happen. Gotta be practical about it; I couldn't start making the kind of money off my work that I could be by publishing traditionally. But I see the potential there, and once a good system is developed, this could be the way to free authors from the constraints of publishers once and for all.

Re:A perfect solution: the internet.

[notfancy]

I think the key to Internet publishing is patience. If your work is a roar, you won't get a big exposure to it as fast as with a printed edition. On the other hand, if you slowly, patiently wait for a following to form, and defer publication offers until you feel you have the upper hand, you may come up the winner.

(Of course, always keep in mind the MathWorld fiasco.)

I find on-line publishing much more satisfying than, say, vanity press. I write short fiction, which is pretty much an unpublishable genre today; but the Web lets me review and revise in an open-ended fashion, control the presentation aspects (not very well, admittedly), editorialize ad lib, etcetera. And it doesn't need more self-promotion than a well-landed link in Open Directory/Google and/or an affiliate link program. The latter can be even informal: find a site you like, convince them that they like your site, and swap links.

That's how the Web was supposed to work five years ago.

Re:A perfect solution: the internet.

[Bookwyrm]

Not while the Internet is viewed as a 'flat-rate' usage medium. The flat rate usage model was a useful thing, like being bottle-fed, to get things going, but things are rapidly reaching the point where a pay-for-play model is making far more sense, and this type of 'publishing' is one example.

Right now, if you are paying for 'bandwidth' in terms of a shared connection (going through DSLAMs, modem concentrators, etc.) it is not in the providers' best interest that you use the bandwidth. The flat rate is priced according to the 'average' usage across all users (so the people who use it less get screwed out of their money by the people who use it more) -- if the average usage increases, the provider loses money. The provider starts throwing these things like usage caps and blocking incoming server connections, etc., to throttle down the average usage levels.

This is a bad situation all around. The users are paying for a service which the providers make the most money on when the users don't use it. Work out the logical conclusions. The users *cannot* win, because the providers control the wires and can limit service accordingly. (NAT, application level firewalls, private networks, etc.) Websites have advertisements and subscriptions to cover the cost of their network connections.

Now, let's flip this around so we have a pay-for-play model where the providers make money for usage/bandwidth. That the more the network is used, the more content is used the more money the provider makes -- give the provider motivation to encourage use of the network. This has a far, far more interesting set of possibilities.

What does this have to do with publishing of music or writing online? Everything. The more content there is out there, the more *good* content, the more people would use the network in a pay-for-play situation, and the more money the providers would make. Potentially, the situation could be reached where it was in the network providers' best interest to sponsor or provide patronage to writers, artists, musicians, programmers, etc. that generate content -- *without* restrictions. The more the content is restricted, the less it could be sent over the network, which means the less revenue the provider would earn.

This would make search engines and services like google all the more important, of course, as in this model the users would be much more careful about what they looked at -- the need for promotion and quality control of content generation would increase.

Imagine a scenario where if you put a web server up on your DSL connection it cost you nothing -- that people who viewed your pages were paying for the bandwidth they used to view it. Providers would be doing their darndest to encourage people to set up web pages, put up content, exchange view points -- generate traffic. If a provider could make $14 a month from someone connecting to a $10 a month MMPORG, perhaps it would make sense for them to pay the $10 themselves, and earn extra revenue from the increased user base. Laws which chilled free speech or free exchange of information would suddenly be very much not in their own commercial interests.

Heck, perhaps the network provider could give you a cut of the revenue you generated for them by getting people to connect to your website. Then self-publishing could take on a whole new meaning -- it would take literally no more than a computer to host the content, be it music, text, software, movies, etc.

This is not to say the situation would necessarily work out that way, of course, but it seems a much more positive scenario than the one where the providers have to actively work against their users using their services in order to stay in business -- it makes them more interested in working with folks who do content control and restriction than against them.

(A bit off topic: VoIP should be an interesting disaster -- if it actually takes off among broadband users and raises the average bandwidth usage significantly, then all the broadband providers are going to start losing money verses the flat rate fees. Of course, the first one to raise their rates will lose, because all the users will jump to the ones who have not... While it's true that the costs of providing bandwidth go down every year (in theory), so do the prices of cars, but most people cannot afford new cars every year, and neither can most providers afford to upgrade their entire networks over night to lower costs (sic). If growth increases faster under a flat rate system than a provider can pay off the equipment, rates will have to rise or the provider goes out of business. In a pay-for-play system, the provider ends up paying off the equipment costs faster and can potentially upgrade sooner.)

Michael Moore managed to get around the problem

[sam_handelman]

There's a long story on Michael Moore's page about how he managed to get his book in print in spite of the best efforts of his publisher.

Basically, his publishing company was either a) gonna reprint the book (at Michael's expense) with more PC language or b) sit on it forever. There was nothing he could do about it, legally speaking. A letter writing campaign by a bunch of librarians (and the promise of considerable bad press) evidently forced Harper Collins to capitulate.

As regards the argument that the publisher was right, and that the book was fundamentally flawed, the onion seems to agree. I am not saying that the Onion would condone censoring it on that basis, merely that they agree with the substantive portions of the publisher's complaints, and that POV deserves to be aired, as well.

I'm think that Michael Moore would agree that it his notoriety that saved his book, and that a less-well-known author would have had no such recourse, since their reamed-being would not have made a splash in the press.

Re:Michael Moore managed to get around the problem

[FFFish]

Er... it isn't PC to bash corporations and the American public, both of which are the basis for all that Moore does.

Re:Difference between written and recorded media

[gilroy]

Blcokquoth the poster:

Why is it that all of the *new* media content has attracted so much bad practise

Because people have learned, in Old Media, all the way they could have screwed the author, the consumer, and the public, if only they had known. But they accidentally let all these roadblocks, legal and social, arise that raise expectations in Old Media. Ahhhh, but in New Media, there are no such blocks.

Precedent will be allowed to apply only and exactly to the extent it helps maximize the profits of the corporations. Otherwise, it will be used and discarded -- just like those artists, those consumers, and that public.

See bad things in the future

[mochan_s]

Publishing today is characterized by powerful corporate entities acting in concert, to the detriment of essentially powerless authors

For content authors it's a really scary hearing something like that. Major companies in the publishing (literature or music) industry are all together on it and as the article says it's choose your own poison.

/.errs are probably going to go on about the net publishing and micropayment revenue structure but I don't think there are decent companies out there who actually are doing this stuff (and suceseding).

It hardly makes sense to say that authors and musicians do what they do because of passion. A lot of the process in creating is skill that has to be developed and refined and if it's going to compete with the author's time for other things that make the author's living.

I just see bad things in the future. The large number of musicians and authors are probably going to disappear once the best that could happen isn't that great.

Negotiate

[Lord Puppet]

I've written a couple of computer books. On my first contract, there were a few clauses which made me uncomfortable. I raised these issues, certain that the publisher would just look elsewhere. To my surprise, they DID negotiate, and (after a month of stonewalling), they CAVED! This knowledge made negotiations for the second book much easier.

Don't just accept these terms. Without authors, publishers have nothing.

Why I Gave up Professional Writing

[ChaoticCoyote]

I've published 17 books professionally, through everyone from McGraw-Hill to Microsoft to the old (and recently resurrected) M&T Books. Five years ago, I ended a successful ten-year career as a full-time write to re-enter the "regular" workforce. Draconian contracts were a major reason for my career detour.

Modern publishing is about the control of intellectual property.

Publishers want to own copyright (i.e., control), something I am unwilling to give up. I wrote the damned thing, and for better or worse, it is my intellectual property. I would rather give away my work than sell it into corporate slavery. Once, the relationship between author and publisher was one of mutual benefit; now, writers are largely treated as property by corporate publishing houses.

And, to be less idealistic, the pay rate for writing sucks. Even the magazines pay pitiful amounts for articles that take considerable effort. I was doing pretty good as a writer -- 40-60K %US in a good year -- but I doubled that going into industry. And the paychecks now arrive with some reasonable regularity. I can't begin to enumerate the ways in which corporate publishers (every one I've worked with, with the notable exception [so far] of O'Reilly) rip off authors, by twisting terms, demanding future rights, selling books through third parties, and "forgetting" things. Ugh... the "freedom" that comes without a day job was great, but at least now I know how much I'm being paid and when!

Not that I wouldn't sign with a publisher who was interested in a mutual relationship. I just haven't met one recently.

I love writing; I love sharing with my readers. Today publish through the web and other venues, where I can write what I want, when I want, about what I want, without ignorant marketers, semi-literate editors, and corporate lawyers mucking about in my product. My readers decide what they like and don't like; I can update material as necessary, and no one is telling me to change what I write for "marketting" purposes.

In the end, giving up "professional" writing has given me unexpected freedom -- and that's a Good Thing.

Re:Self-publishing can be the way

[alkali]

Another example is David Eggers' McSweeney's Books, which is basically the publishing equivalent of an independent record label. This article relates that McSweeney's can do a very good looking hardcover (better than most of what you see at B&N or Borders) for $2.80/copy. Makes you think.

Re:An Alternative: Choose a Small Press

[JamesOfTheDesert]

I can't actually discuss the terms of my contract, but lets just say writing a tech book is good for your name, some money, and not much else. :)

What else do you want? I, too, am a technical writer. I write about programming languages. The information is constantly changing, so such books are "perishable goods." Both author and publisher need to make a few bucks while the books are still relevant. I made some decent money off one book, some side chapters, some on-line articles. I see each piece as stepping-stone to the next. My rates have gone up as I get more experience and more exposure. Do I excpect a lifetime of earnings from any single work? No. It's a job, and I'm fine with that.

If I can make a living as a writer, where I can set my own hours and live where I want, then I've achieved at least some of my goals. Text-for-hire is no worse than code-for-hire, but you don't hear quite the same commotion from programmers wanting lifetime royalties on their daily output of Java.

You tend to lose most or all of your rights to your work with a typical contract for a technical book.

In most cases it doesn't really matter. Today's technology is outdated fairly quick. If you're writing a book that's more abstract and has a pontentially longer shelf life, then one hopes you really know what you're talking about, have a decent reputation, and can negotiate a better contract.

Re:Open Content License

[dinotrac]

GPL is a funny concept with regard to books, as books are inherently open source (as opposed to Open Source) and , as an author, you don't generally want anybody modifiying your work.

I agree on the vanity press with a small quibble. Vanity Press generally (though not always) refers to a publisher for hire. They may take the rights to your work and pay you on a royalty basis. That kind of Vanity Press can rip you off as thoroughly as any other publisher. Self publishing is a slightly different thing. You contract with a press for the purpose of printing up your books, but you retain all rights and do (or arrange) all the actual publishing work. You get paid based on a sales - costs basis, not on a royalty basis.

Whatever you call it, going your own way is an increasingly attractive option. If I ever finish my book instead of vying for the "world's longest gestation" award, I will most certainly self-publish. (As if I have a choice: Hemingway I ain't ;0) )

You are absolutely right: If I'm not going to make any money on the thing, at least let me retain ownership and not be ripped off in the process.

What a surprise... not.

[El Camino SS]

There are three rules that I have learned in business... they have helped me a lot. One of them applies in this one.

Currently one is in effect in my life right now. I am in a restraint of trade situation myself right now. My company made me sign a non-compete contract after I spent the money and effort to move, two days into the job, and I couldn't afford to walk out on those bastards. What do I do that warrants a non-compete contract? I'm a news photographer, figure that one out. I always thought of my job as interchangeable with others. But I couldn't afford to not sign and take my stuff back hundreds of miles. As usual with contracts, one signs reluctantly or under duress, while the other one smiles all the way to the bank.

Anyway, the three rules:

Rule #1. Any high profit industry is made high profit off of the backs of others. Expect lawyers. They are the luxury of high profits. The reason being that the people who get money in high profit industries immediately spend money on lawyers to insulate themselves and to rope in a permanent, high profit solutions against their customers and against their employees. Look at cigarettes, entertainment, alcohol, pornography, and the auto industry (personally, I am not surprised if soon cars come with waiver forms for the purchaser to get them out of the f'n lot... so an irresponsible company like Ford can so obviously produce top heavy, gas-guzzling deathtraps of excess that the American public so desires).

Anyway, the other two rules of note that will save you trouble:

Rule #2: Never work high up in a family business. If you are the same level as a family member, you're screwed. You will work forever. The family member will work to incompetence with 100% job security. You will make mention of it and get fired. Your options? Keep your mouth shut in an increasingly bad situation until you go nuts, think less of yourself and your life and continue working, or quit. Of course, never getting in that situation is the best. This rule also works for any business that works similar to a family business, meaning if your boss plays favorites a lot, say with a cute girl or something similar.

Rule #3: Good products and services sell themselves; it is the junk that you push. This is the most important rule of them all, one that after learning, makes you see the whole world of business differently.
You should be immediately suspicious of all sales tactics. If anyone is trying to sell something to you, you don't want it. REPEAT AFTER ME, "Salesmanship is the added cost to an inferior or overpriced product." If it was good, and you wanted it, no one would have to sell it to you... you would meet them at the checkout line with it in hand. Think about it. You are actively searching for things you like and want. This works in all things... including gettting jobs, cars, and yes, even dates.

Oh Whine Whine Whine

[Greyfox]

Always these people with their "Oh! I should be able to make a living!" and "Oh, the Corporation is ass-raping me without vaseline!" They should learn to shut up and take what the corporation gives them. They should be happy to get anything at all!

Seriously though, it's next to impossible to get a start in that field. When you're just starting out, you often end up paying the publisher to publish your work. And just like any of the other entertainment genres, you never know what's going to be the next big hit.

Most of the writers I've met aren't in it for the money (Though the money is nice if they hit it big.) Given that, internet publishing could be an option for a lot of them. Doesn't take much to set up a web page these days, though a guy I'm hosting at the moment tells me the free hosting services leave a lot to be desired.

So what do you do about quality control? Sifting through 80 tons of crap to uncover a few good stories doesn't appeal to a lot of people. Perhaps some sort of reader ratings system would work. I'd tend to trust the readers to rate a good story over the publishers anyway.

Re:Difference between written and recorded media

[west]

Why is it that all of the *new* media content has attracted so much bad practise

Because people have learned, in Old Media, all the way they could have screwed the author, the consumer, and the public, if only they had known. But they accidentally let all these roadblocks, legal and social, arise that raise expectations in Old Media. Ahhhh, but in New Media, there are no such blocks.

Actually, there's a slightly less pernicious possibility. Lots of companies are scared pea green that something they don't anticipate will slap them upside the head and destroy them in one fell swoop.

The only way to be able to handle the unforseen is to have all the power yourself, allowing you to react as necessary. Don't want to find out that new "mind-imprinting technology" that didn't exist last year is going to render your multi-billion dollar investment in books and movies worthless? Then make damn sure you own the rights to use the the content you publish in any new medium. Make certain you have the right to make any changes necessary in order to make the content compatible. Make certain you have clauses that can allow you to dump the content that is now valueless without forking over any more money than you've already paid...

Old media was based on the assumption of long-term stability. Technology has taken that away and made it possible to turn huge assets into so much waste in a matter of months.

[Of course, that's complete bunk, but have enough people yelling at you that you're going to go bankrupt because of this or that new technology and big suprise, you protect yourself.]

Of course, once you've got that power, it's pretty tempting to corporate executives (who now hold a lot more power over editors than in the past) to actually use it to boost profits. Absolute power and all that...