Big Publishing Blog contracts Copyright/Intellectual Property Kristine Kathryn Rusch Legal Stuff

Rethinking the Writing Business – Big Publishing Contracts Copyright/Intellectual Property Kristine Kathryn Rusch Legal Stuff –

When the disruption hit the publishing business ten years ago, I watched with a wary eye. After I completed The Freelancer’s Survival Guide in the summer time of 2010, I repurposed this weekly weblog to assist me perceive the modifications the publishing business was present process. It appeared, in those heady days, that every little thing modified every day. And there was a big contingent of brand-new writers who knew so a lot better than the rest of us how revolutionary this indie publishing factor can be.

Most of these writers—the hoards that used to return screaming (actually) to this website every Saturday to denounce me and tell me what an idiot I am and how fallacious I used to be—are gone now. They give up the enterprise not because they weren’t earning cash—most of them earned a boatload—however as a result of they couldn’t handle what that they had arrange.

Lots of them revealed quickly and adopted an insane publishing schedule that couldn’t be maintained in the face of real life. Some based mostly the whole lot that they had and every part they knew on Amazon algorithms, solely to be shocked when Amazon endured in changing up those algorithms.

Others couldn’t handle the financial ups and downs of freelancing and some, frankly, didn’t give themselves an opportunity to succeed. They saw others making hundreds each month whereas they have been making espresso cash, and determined that they’d by no means succeed and give up with out ever utterly studying their craft or build up an viewers.

. . . .

New, scorching, and stylish has a shorter shelf life lately than it did, and I wasn’t positive why. There’s lots about this new world of publishing, as I referred to as it, that I couldn’t work out.

. . . .

We’ve been doing this improper.

By this, I imply the writing business post-Kindle. We’re all approaching our enterprise like we’re still in the publishing business. But we’re not. We’re part of the entertainment business, and that entails a lot more than we expect it does.

Let me see if I can retrace a few of this considering, in order that I don’t simply spring my concepts on you and have you balk at them.

I signed up for the Licensing College courses related to the [Las Vegas Licensing] Expo. I noticed these last yr, and felt that I might miss a huge alternative if I did not attend.

This yr, I checked out the roster of courses, and promised myself I might depart any class that was too primary for me. The “Is Your Brand Ready For Licensing” was a working example (although I didn’t understand it till later). That was a copyright/trademark fundamentals course that falls into the well-duh class for me, but is probably needed for most first-time attendees at the Expo (and for most writers as nicely).

However the Basics of Licensing class? Holy Crap-Poodles. I figured I’d sit there for ten minutes before going out to the flooring to look around. As an alternative, I took 30 pages of notes. (In future posts, I will cope with a lot of what I discovered on a element degree.)

That class laid out the basics of a licensing deal, whereas acknowledging that every deal is totally different.

Let’s back up. We writers are creators of intellectual property. We’ve the property to license. We are the licensors. We’re in search of licensees. Okay? Acquired that?

The phrases of a primary licensing deal consists of these parts:

  • A Royalty
  • An Advance Cost Towards That Royalty
  • Internet Gross sales Definition
  • Some Type of Reporting Course of
  • Termination
  • Insurance coverage/Warrantees/Indemnification
  • Jurisdiction

A primary licensing deal consists of much more than that, issues like minimum royalty guarantees, an audit schedule, minimal performance threshold, quality and approvals, promoting and advertising requirements, and so on.

The licensor is a participant in all of that. An lively participant, who can terminate if, for example, the high quality of the product (based mostly on the sample) doesn’t come as much as snuff after several tries.

I keep in mind considering in the center of that class that the publishing agreements that I signed again in the 1990s had much more in widespread with a regular licensing settlement than commonplace publishing contracts do now. The truth is, there was lots in the previous publishing contracts that have been identical to a licensing settlement. In reality, the previous publishing contracts have been licensing agreements with the pro-licensor stuff (the stuff that benefits the licensor/writer/creator) taken out.

. . . .

Fast-forward by means of the afternoon to the class on How To Negotiate A Licensing Deal, which was listed as a negotiation class, without the “licensing deal” half added in. I wrote a guide on negotiation, for godssake. I’m rattling good at negotiating. I figured I’d be leaving this one early as properly.

Nope. Another 30+ pages of notes. With two surprises added in.

First, from a passing comment on royalty rates.

In licensing, the royalty rates can range from 2% to 20% of the internet gross sales worth (often wholesale, however that’s altering depending on distribution). Considered one of the instructors (an agent) mentioned that basically massive brands with numerous clout like Disney can get the 20% royalty without plenty of pushback as a result of their brand is so priceless.

. . . .

Once upon a time, I was a work-for-hire author, and one among the properties I wrote work-for-hire was Star Wars. I acquired a 2% royalty on the books revealed (see above).

In most work-for-hire publishing tasks, the royalty fee gets cut up between the licensor who created the intellectual property and the writer who does the precise work on writing the novel. I do not know what Bantam paid LucasFilm for those early books. It may need been 10%, it may need been 15%. I do comprehend it was lower than 20%. At the time, you see, Star Wars was thought-about moribund. The books, Tim Zahn’s first trilogy particularly, led the leisure business to understand that there was a hungry audience for extra Star Wars. The revival of the model dates from that very first publication.

So I do know that, in these days, LucasFilm didn’t have the Disney-level clout that it might later achieve. Which had an impression. As a result of, when it got here time to renegotiate the license with Bantam, LucasFilm requested for a 20% royalty.

Bantam balked. They claimed they couldn’t make a profit. They claimed they couldn’t pay their writers. They claimed they wouldn’t get writers.

So, LucasFilm threatened to tug out, and the dance began. LucasFilm came right down to 19% which nonetheless didn’t give Bantam enough room to pay the writers from the royalty price (the normal method that writers did/do business in traditional publishing).

Bantam got here with a compromise. Moderately than a 2% royalty, they’d pay the authors $60-90,000 for the guide, which was what those books earned out at in these days. These payments can be assured, however they’d be a flat payment. So if the books bought higher than that, the writers would get no extra money. If the books bought less, the writers would get more than they often would.

Business-minded writers realized this: that in the event that they took their upfront cost (which Bantam was offering in four payments) and banked it, they’d make more than they might off the 2% royalty price. (Cash in hand is value more than cash promised. Cash in hand allows issues like paying down bank cards relatively than charging them, and having an emergency fund, slightly than borrowing, and so forth.)

A bunch of us agreed, our contracts have been in the works, and then the idiots at the Science Fiction Writers of America acquired their underwear in a bundle and denounced the complete deal and faxed a protest letter to LucasFilm, naming each single Star Wars writeras agreeing, even those who didn’t agree (and had threatened them in the event that they used our identify, like me) and even those that weren’t members (like me). That piece of idiocy value me a minimum of $90,000 if not more, as a result of I used to be slated to put in writing a bunch of books, and LucasFilm canceled all communication with me and reduce me out of all the things, identical to they did with all the other authors named.

The books went on with out us. And I simply thought it a bizarre deal—that LucasFilm needed 20%–believing what Bantam put on the market (that LucasFilm was grasping) and what SFWA put on the market (that LucasFilm was grasping) moderately than understanding that LucasFilm was treating the books as a regular licensed product.

My brain was spinning as the negotiation class went on, as a result of I finally understood the different aspect—the other aspect not being Bantam Books, but LucasFilm. I was just a sorry little contractor caught in the middle of a negotiation for a licensing deal, with a stupid idiotic third-party group sticking its ignorant foot into the mess.

. . . .

The royalty charges class looked at all types of things that may have an impact on royalty charges, together with internet gross sales.

In that dialogue, considered one of the agents on the panel clicked the next slide in the deck, which showed Publishing. She made a face, and stated, with great disbelief, In publishing, the product is 100% returnable, so you must work out the best way to cap the losses.

She went on to talk about how troublesome traditional publishing was to work with due to all the quirks in its contracts.

But I sat there and found my brain spinning again. Once I was a baby writer, my guide agents might get a minor cap on returns, limiting them to only two or three years. After that, the writer had to eat the returns.

A normal licensing deal has a three-year term, which meant that publishers have been already set as much as cap returns earlier than that.

The licensing agent additionally went on to talk about how she needed to clarify primary licensing to her publishing companions, and how she had to hold them to the hearth to get them to comply with a full royalty for all the individuals (which means that if the brand was say, a star quarterback for the NFL, the NFL would get its share of the royalty and the star quarterback would get his—so perhaps a 50-50 cut up of a 20% royalty—which means the writer would write for a flat charge).

I instantly received retroactive anger.

Licensors from outdoors the publishing business—that is, nonwriters. Celebrities. Grumpy Cat—received not simply an advance towards a considerable royalty, but a term-limited contract, and minimum royalty cost ensures, and guaranteed advertising/advertising budgets, and the means to simply and routinely audit the writer, and, and, and…

. . . .

The licensing professionals who labored for a nonwriter licensor, like LucasFilm, obtained a licensing deal that might make writers and their ebook brokers fall over in surprised surprise. Simply by using business commonplace.

Okay, acquired all of that?

In the previous, writers have gone begging to ebook agents, to publishers, to comic corporations, to gaming corporations, hoping to get someone to “take a chance” on their writing.

Writers weren’t appearing as model house owners, licensors, individuals in command of their IP, asking for a standard licensing association. Writers have been beggars, which put them in a horrible long-standing place with the publishers.

. . . .

The e-book, the revealed guide, is not the holy grail.

The story, the thing that the writer has created, is the holy grail. Earlier than publication of any sort.

Because publication is a license. Whether or not you do it your self and upload to Amazon (Direct to Retail, is what that’s referred to as) or whether you go through a standard publisher (Business to Business, is what that’s referred to as and see that the businesses are on equal footing in that definition),  you’re licensing a tiny portion of your copyright to make distribution of some product (in this case a e-book) potential.

We’ve been educating for years that publication is a license. Not a “sale” because you don’t lose the copyright. You license it.

However Dean and I and rattling near every different writer out there (with solely a handful of exceptions all through the last 100 years) have not gone any farther than that. We haven’t considered the revealed ebook as being a single licensed product.

We’ve been conditioned by our upbringing in the enterprise culture of the earlier century to think about the revealed e-book as the be-all-and-end-all of the whole lot we did.

. . . .

We aren’t in the publishing business. We’re in the entertainment business.

Right here’s a hyperlink to Kris Rusch’s books. For those who like the thoughts Kris shares, you’ll be able to show your appreciation by testing her books.

For PG, Kris is certainly one of the most fascinating commentators on the publishing enterprise, traditional and trendy, and he all the time appreciates her Business Musings posts.

In these posts, Kris typically seems above and beyond agents and publishers, KDP, and so on., and so forth. in a means most authors do not.

In a former legal life, PG represented some software and know-how corporations whose products have been typically licensed to very giant enterprise organizations, together with Goldman Sachs, Morgan Stanley, Merrill Lynch, Constancy Investments, Apple, IBM, Oracle, Disney, Hallmark, Intel, Hewlett-Packard, and American Categorical.

(For context, at an earlier stage in his legal profession, PG additionally represented abused spouses, dairy farmers, the tenants of small-time slumlords, people who needed a divorce and/or wanted to file for bankruptcy, a couple of arsonists, drunk drivers and people who couldn’t afford to pay an lawyer and acquired assist from Legal Assist.)

PG supplies the huge enterprise listing not to show what an enormous deal he’s or was, however merely to reveal the number of totally different licensing agreements he has seen outdoors of the conventional publishing business.

From a authorized standpoint, as Kris says, a publishing contract shouldn’t be a particular snowflake, it’s a license of intellectual property, particularly, the copyright to a ebook which is owned by the writer. Copyrights to software are what Microsoft owns and licenses to everyone who buys and makes use of MS Word, Excel, Home windows, and so on.

Although PG has not seen very many publishing contracts that acknowledge the reality, a standard publishing contract additionally features a sort-of implied license to the writer’s proper of publicity, typically referred to as character rights (which can embrace individual’s picture, personal knowledge and different usually personal info).

Nevertheless, most publisher-provided publishing contracts don’t look very similar to licensing agreements used elsewhere in the business world. Publishing agreements have little quirks that would appear strange to any lawyer accustomed to seeing licensing agreements for know-how or virtually anything.

PG understands the precept of customs of the trade, assumptions that govern area of interest businesses and the agreements they make. For example, in another case from PG’s olden days, he discovered all about the New York Metropolis garment enterprise and the unusual methods it operates.

Nevertheless, trade publishing and, to a fair higher extent, educational and professional publishing still function as if ebooks and other epublications have never existed. Much more necessary for authors, many publishers operate as if the value of publishing was still based mostly upon the expense and compensation construction that existed when printed books and journals have been the only solution to disseminate information and long-form writing.

PG means that even for traditionally-published authors, Amazon has offered an incredible service by providing both self-publishing and Amazon Press as various strategies of reaching readers. Absent Amazon’s influence, publishers would nonetheless be operating as if it have been 1955 and at this time’s authors can be earning much much less and accepting it as the writer’s burden in life.

Yet, from a authorized and business viewpoint, traditional publishing continues to be a screwy business and authors bear most of the burden of its weird practices.

The ebook, the revealed guide, is not the holy grail. We aren’t in the publishing business. We are in the leisure business.