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The Media

When Publishing Contracts Go Bad 140

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."
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When Publishing Contracts Go Bad

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  • by shankark ( 324928 ) on Monday March 11, 2002 @10:05AM (#3142255)
    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.
    • Open Content License (Score:5, Informative)

      by pmancini ( 20121 ) <pmancini@ya h o o . com> on Monday March 11, 2002 @10:33AM (#3142357) Homepage
      There already is one. I use it on my work, "The Japanese Art of War." I think the real upshot of this story is that more and more people will consider using vanity press. It would be difficult to publish as many books that way, but if you are not going to get paid for it, then what is the problem? If you make more money selling 10,000 books via vanity than selling 1 million books via a publisher why wouldn't you accept the risks of a vanity pressing? At least you get total control of your book before, during and after publishing. Look at ID - those guys did great selling doom on their own. In the end they made more money selling via Activision -- but I think the deal they got there was much sweeter.
      • 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.
      • Pmancini said some interesting things, but he confuses self-publishing with vanity presses. There's a big difference between the two. In a nutshell, self-publishing is for smart people and vanity presses are for idiots.

        With self-publishing, you pay for book design and printing, which sets you back less than two bucks a book. When you hire a vanity press to do that, they deliver the books to you for perhaps ten bucks apiece. At that price, you can't afford to give standard wholesale discounts, and you lose your shirt. Most vanity books end up in a big pile in the author's garage.

        This obviously isn't an exhaustive summary of how self-publishing differs from vanity publishing, but I wanted to set the record straight since the term was misused in the above post. I'd suggest people read Dan Poynter's books if they are interested in self publishing.

        • Thanks for the clarification. I thought all self-publication was vanity press. I wasn't aware there was something called vanity press that, according to your definition, sounds similar to normal publishing only without the benefits of all the marketing and book signings!

          Thanks,
          --Peter
      • Are you thinking 'vanity press', or someone like Xlibris?
    • Brutalization like this could lead to substandard literature.

      Heh. Too late now.

    • Unless you want to make a living off your work. Open sourcers usually have some other income. writers, musicians and other artists may want to actually make money off their work. Releasing it "GPL" doesn't help that particular cause much. What it might do is increase awareness and hopefully get good reviews and a fan base going. That might convence a publisher to give them better contract terms when they do sign, but not likely.

      Do you like getting paid for your work?

    • by hrieke ( 126185 ) on Monday March 11, 2002 @11:45AM (#3142716) Homepage
      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.
  • by 2Flower ( 216318 ) on Monday March 11, 2002 @10:07AM (#3142264) Homepage

    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 [pixelscapes.com], 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.

    • by epsalon ( 518482 ) <slash@alon.wox.org> on Monday March 11, 2002 @10:21AM (#3142316) Homepage Journal
      The biggest problem with online publishing is that anybody could do it. Hence, there is no quality control. Publishers won't publish any junk you send them.

      My brother has recently published a book. If he had published it online, noone would have read it. But now the book has been read by much more people.

      I, personally prefer getting my books online (or from the local library). But I won't read a book that wasn't recommended.
      • by Masem ( 1171 ) on Monday March 11, 2002 @10:28AM (#3142338)
        I agree that there's no direct quality control. However, there are ways for direct feedback from the readership to comment and critique a book, and that can be used to not only allow the sepearation of the good from the bad, but to allow related works to fall together. Half of that is just a moderation system ala /., the other half is something like Amazon's related works. This type of system can't easily work with mainstream publishing because the only critiques of books that get out are those done by professional book critics, and while these reviews may be better formulated, they may not really reflect what the masses agree with (similar to how the Oscar's tend to lean heavily on art house films instead of movies with large ticket sales).

        Heck, you have the same issue with the various scientific articles being published on the internet: such usually require peer review to validate the conclusions, but the sites that are offering the run-around the traditional journal publishers found a way to still allow this.

        • 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 [mathworld.com] 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 [dmoz.org]/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.

        • The oscars should go to the art house movies more often than the blockbuster. The oscars should reflect the best in the industry for things such as cinematography, costumes, script, music etc. In a blockbuster, more often the most important thing was the s/fx budget and who the lead actor was.

          That doesn't mean it wasn't a good movie, and that I wont go see it. But it isn't award worty either.

          On the other hand, just because a movie is technically perfect or groundbreaking doesn't mean it is any good.

          Thats why there a movie reviewers. The reviewers talk about if a movie is enjoyable. The oscars (while now highly commericalized and used as something to drive sales) are really for the industry to rate themselves - it has nothing to do with what the audience thinks (Or shouldn't)

          Simmilarly, the book world has the Hugo awards, or a bunch of other literary awards that I can't think of. John grisham, Tom clancey, Ann Rice et al are never on these award lists. They are fun books to read, but they arent anything spectacular WITHIN the literary circles.

          However, I disagree with your point that book reviews tend to be like the oscars. The point of the review is to tell you how you will like the book. Not analize its makeup. I usually find book reviews pretty on the money, unless they come from a pseudo-intelectual tripe mag. However what I really find helpfull is the readers comments, which is why Amazon is such a nice place.
        • I was doing some research yesterday, and I came across a story by this guy. I didn't know at the time that it was by a Slashdotter. I read it, and it was good (tho perhaps a little too pat). Anyway, here's the link:
          http://www.pixelscapes.com/twoflower/fwls/n eofwls7 .txt

          So, there's your quality control: Peer recommendations.
      • Publishers won't publish any junk you send them.

        Some of the tripe that does make it into print makes me doubt the truth of this assertion.

        Maybe the way forward for disillusioned authors is something like /., where authors could submit stories, and readers could rate and comment on submissions. Hell for all I know, such sites already exist and I just haven't found them

        Perhaps authors would submit only sample chapters and outlines (like they sometimes do to traditional publishers) and an indication of how much money they think their works are worth. If readers like the samples, they pay up and download the full work.

      • The biggest problem with online publishing is that anybody could do it. Hence, there is no quality control. Publishers won't publish any junk you send them.

        That is true but, it does give you the reader much more power. YOU become the publisher, you decide whats good or bad. You become more discerning about what you read and you are never hampered by someone else's decision.

        How many good authors out there were screwed by their publishers and their work never to see the light of day I wonder?
        • "How many good authors out there were screwed by their publishers and their work never to see the light of day I wonder?"

          How do publishers, even if they are evil incarnate, make any money for themselves or anyone else by not publishing someone's work?

      • I agree that in general, there is very little quality control. However, in some cases, there can be a great deal. I'm a mathematician, and from time to time, I teach some applied math classes at a local university. Suppose I wanted to write my own web-based book on differential equations, but I was not concerned about making any money with it.

        I could try to write it in a GPL-type way allowing readers to contribute "patches" with me acting as the benevolent dictator. Presumably, since I would be teaching the class, I'd be adequately qualified as a benevolent dictator. If not, then someone else can take the parts of my book they like, and "fork" it into a different book. As an instructor, I'd be delighted if every time I taught a class, I could go online, and "build" my own text book by choosing chapters like they were kernel modules.

        This situation is different from a web novel because the subject (differential equations) is fairly objective. There may be stylistic disagreements between contributors, but all should agree upon (correct) mathematics. In this way, such a book would be very similar to code. Programmers may not agree on coding style, but either the code works or it doesn't, and that is objective.

        I suspect that this is one possible direction that the OpenCourseWare [mit.edu] project at MIT might be heading. Does anyone know of any similar "open source" text book projects?

      • The biggest problem with online publishing is that anybody could do it. Hence, there is no quality control.

        However it is perfectly possible to have direct review from other writers and readers where something is published online.

        Publishers won't publish any junk you send them.

        Some people would claim that publishers; be the book, music or film; most definitly do publish "junk".
    • by Aanallein ( 556209 ) on Monday March 11, 2002 @10:33AM (#3142360)
      Are you aware of Tad Williams' Shadowmarch [shadowmarch.com]? (Also see slashdot story 1 [slashdot.org] and 2 [slashdot.org])
      It's his latest fantasy story, but he's publishing it online - completely on his own, no publishers involved. ($18 for a subscription of a year (first 5 episodes can be read for free), for which instead of proprietary formats used by far too many epublishing projects, you get regular HTML files - it's so good to be able to grep through your local copies to quickly find other references to characters or events.)
      And although he's making far less money with it than with regular books, from what I know the site should be paying for itself. Which makes this a very interesting development for all authors wanting to do without publishers. Once you're a big name author, it is possible. :)
      And I'm thinking, the more projects like this that will actually be somewhat succesful, the sooner people will be willing to give less known authors a try as well. Every satisfying experience will create more demand for similar projects, and will make other authors consider doing this sort of thing as well. Who knows, we might just not be doomed to eBooks after all... :)

      As you also mentioned, the almost immediate reader feedback on what he writes was one of the major reasons to start this project. And I as a reader just love seeing how remarks and suggestions made about previous episodes have a noticeable impact on new episodes.
      • Thanks for the link - very interesting website. It will be interesting to see whether the site makes money given that there's no copy protection involved. I suspect it will - because fans tend to want to support the authors they're fans of.

        What I wonder about is if he's making money but there is a lot of unpaid for distribution - will he feel that he wants to introduce copy protection in order to make more money or will he be happy with what he's getting?

        At the moment he seems to be saying that if he can't make money he'll stop the project - which is the only non-Honour incentive not to distribute his work on a large scale. I get the feeling he's pretty relaxed about sharing copies on a small scale though -

        We're very willing to try this as an experiment. But if people start passing too many free copies of the Shadowmarch story around and we get to the point where it doesn't pay for itself anymore, then I'll have to stop doing it, and nobody (me included) will get to find out where it's going. But I don't want to put too much emphasis on that. Most net-users are honest folk anyway, and my readership has always been the best of the best in all ways.

        Note he says "passing too many free copies" rather than "passing free copies" - very enlightened and realistic I think.

        I'd like to see this kind of thing succeed. I may even subscribe - think I'll read the free chapters first though.

        • I get the feeling he's pretty relaxed about sharing copies on a small scale though

          I wouldn't say that. Rather, as you also mention, he's simply realistic and knows that no matter how much he might hate it, it'll happen.
          Though I don't actually think it happens all _that_ much. Perhaps a few copies between friends, but I've just searched in various places and haven't found any mention of the episodes so far. Then again, I probably don't have a clue where to look anyway. :)

          I may even subscribe - think I'll read the free chapters first though.

          Always a good idea. :) Two things I'd like to add though.
          1) Don't be put off immediately by the present tense used in the story. Yes, it makes for quite strange reading at first, but you'll grow used to it, and it adds a great sense of immediacy.
          2) Something I hope you'll be willing to take my word for (and for that matter, I hope people here are willing to forgive me for going slightly offtopic like this), the first five episodes do not do justice to the story. They're great for introducing the world and the characters, and showing a bit of the magic in the world, but after having read only the first five episodes I was fearing the story itself would be somewhat mediocre and cliche. Nothing could be further from the truth, but that only becomes apparent after those first few episodes.
          Luckily they should be able to convince most people to want to read further anyway, but if after having read them you're doubting whether or not to subscribe, and the quality of the story is a major part of that, then you know now there's at least one person :) who thinks the story has far more promise later on.

          *ponders* Hmm, maybe I should write a full fledged review for Shadowmarch for use here at slashdot... 's kinda hard with the project still running though. Hmm, I'll have to think about that.
          • I like Tad, and I have read most of his books, so I was excited about the prospect of an online Tad Williams novel. I dutifully read the prelude and the first couple of episodes and I even liked what I read. What's more, I am a recent convert to the joy of reading books on my Visor Handspring. I love being able to carry around an entire library wherever I go.

            But a quick bit of math told and some quick Emacs functions told me that I would be paying $18 for an estimated 190K words (or about two books worth). In my mind that is a little steep for a book that I has almost no marketing, publishing, or delivery costs. The fact that the text is available as plain text helps a little, but not enough. If the book were already finished, then I might be tempted, but I am not interested in paying a premium to read a chapter ever two weeks for several years.

            Maybe when I have worked through the books at www.baen.com (many of which are available for free) I will be interested in half-hearted attempts like Shadowmarch.

      • Not the only author check-out Sci-Fi Arizona [scifi-az.com]. This site is for Michael McCollum who is definitely not a no name. He uses pdf, e-reader, Palm, etc. You can buy a specific book and then download the format(s) of your chose. He includes a Chapter from the book to read for free. In addition, he has started a company called Third Millennium Publishing. It is for assisting writers in who wish to do the same thing. Just to give you a list of who's who on the site.. Stephen King Anne McCaffrey Shirley McClaine Those were ones I think a lot of people will recognize.
    • 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.)
  • too many authors (Score:2, Insightful)

    by tps12 ( 105590 )
    Publishers have these terrible contracts because they can afford to lose authors over contract terms. My advice to authors: don't try to make a living from it.
  • by phil reed ( 626 ) on Monday March 11, 2002 @10:09AM (#3142276) Homepage
    It's big business, looking for more revenue. If the authors/musicians/whoever is standing between the company and a buck, look out!


    Whenever somebody asks a "Why..." question that involves a large corporation, the answer is always "Money." If you start with that premise, everything a corporation does is 100% logical.

  • by Schlemphfer ( 556732 ) on Monday March 11, 2002 @10:10AM (#3142280) Homepage

    Yes, publishing contracts are exploitive. And they are probably exploitive no matter who you sign with.

    One way to reduce your exposure to exploitive contracts is to sign with a small press. If you're a first-time writer, you're likely to get a level of support and effort behind your book that is better than what you get with the big houses.

    And there's another advantage. If you sign with a small press, you develop a close relationship with the owner of the company. My first book was published by a small press, and I've since become good friends with my publisher. There's (sometimes) a limit to how badly you can be screwed by a contract, when you're not dealing with a monolithic corporation, but a person who knows you -- a person who signs your royalty checks and has to look you in the eye.

    I've had pretty good success with my first book (25,000 copies sold.) For any writers out there, I strongly suggest you find a competent and energetic small press, or, better yet, publish the thing yourself.

    • Technical Writer here. I have written one book and four chapters in another book. I actually had a co-author due to time constraints on my book, but, it still turned out nicely.

      I know for a fact that technical books work vastly different from traditional books. You typically have an agreement for your book to be published before you write any of the actual content for the book.

      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. :)

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

      Jeremy
      • 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.

        • All of that is true, and I did not expect much more or less when I started.

          It would still be nice to have more control over your own work. And I have found several books that have had a lot of staying power on my bookshelf.

          Most programming language specific books don't last long. Just off the top of my head the following books have become more or less permanent on my bookshelf: Code Complete, K&R C, TIC++, a C99 language ref, and several project management books. I think the staying power of a book depends on the subject and how good it is.

          If you write about .NET and release the book when it is still BETA it wont last long.

          Yet if you write something like Code Complete and your book is *good* it should have more staying power. I guess it is context sensitive, but a little more control over your work is nice in the cases where you know you can write a really good book with a lot of staying power. I have found you have to "pay your dues" and become known for your writing ability before you have that kind of negotiating power. :)

          Jeremy
      • Technical Writer here.

        Ah, another one, eh? Maybe we can boost the literacy rate of slashdot. Heh.

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

        Same deal here. Basically, the stuff I have written is a work for hire, the same as the stuff I have written for my company. The contract is sort of strange, for reasons I can't get into.

        And really, I'm not too worried about this. For the vast majority of technical books, the lifetime of the work is far, far shorter than what copyright allows. Unless you happen to write a classic (such as Knuth's works) your book will be out there a year, perhaps two. If you are lucky, you'll be asked to do a revised edition or two. But ultimately, the "long term" rights for these sorts of books are moot.

        Also, from talking to people, technical book publishers seem to treat their writers with a bit more repsect than general publishers. This probably comes from the fact that these publishers do have to have a high turnover in their publishing cycle, and thus value the relationship with he author a bit more. You'd figure it would be the same for the general publishers, though.

        Of course, there's still that risk of them making "Using Foo: the Motion Picture", and we'll be screwed out of royalties!

        • I am *really* not complaning about anything there. I am fine with what I got from the deal. My publisher treated me quite well. I was just noting my observations that tech writing is a different beast from something like a Sci-Fi novel. There are exceptions, and I guess by the time you are writing a tech book with staying power you will have the clout you need to negotiate a contract to your liking.

          How long do I expect my book on PHP 4 to actually be relevant? Until PHP 5 :)

          Jeremy
  • I know, it's the author's living. But Why don't they try a little rebellion? Musicians, stop selling through riaa. Authors, just reject these contracts and insist on your own. Try self-publishing. Start your own record label or publishing house. Put your Music and your Books on a website, free for download by all. They can screw you, but you can screw them as well. What will they sell if you do not write or compose for them?
    I know, it is easier said than done, but the only solution is to fight. If people sit around and accept whatever contract is forced down their throat, then that will not help solve anything.

    • As much as people would like to change the way it works it is VERY difficult. (I write myself).

      1) An individual piece of music is a chapter in a book. A book is much more effort is more like a symphany or a good album.

      2) Listening to music on an MP3 player is feasible. Reading a book electronically is not possible or at least not easily and not that nicely. More time needs to pass before this will work.

      Music and books are two totally different animals. Even though both deal with intellectual creativity. Until points 1 and 2 are addressed sadly authors are screwed!
      • Well 1) is really a matter of scope, not an issue. So maybe a track of music is comparable to a short story.

        As for 2)... it works. I have read many novels on my PalmIIIx while sitting in darkish trains going to places all over Europe. (Thank you project Gutenberg.) I read bbc world news instead of a newspaper and I do read all kinds of stuff on my screen on a PC. It does work, it's just not very common. But the point of my proposal was less to sell the books in a convenient way, but to give the publishers a virtual finger.

        Besides, it could be argued that if a lot of high quality electronic books became available at a low price or for free, decent readers would follow soon. Why am I not buying eBooks? Because they come in fscked up formats and cost as much as physical books, without the physical book to justify the price.

        It's really a chicken and egg problem.
    • But Why don't they try a little rebellion?

      Perhaps because we like to eat?

      Max
      • Of course. But other industries had to have the fight, too. Remember the living and working conditions of factory workers in the 19th century? They had to fight for their rights as well. Don't get me wrong. I know how difficult it is to fight this battle. You need to get organized and everything. But if things are really as bad as that article describes, then to me it does not really look like you have any choice.
  • Contracts for authors/musicians/etc

    A way to get the artist to work for next to nothing to make some other dude rich

    It has happened throughout history and continues to happen. Just stop bitchin' about the musicians who "sell out" and make money... true artists rarely make money, and rarely care. Everyone else seems to care about it, but the artists themselves just expressin' demselves.

    Sure, it hurts when someone else makes money out of your work. But unless you are a money hungry selfish bastard there will always be a hungrier, more selfish bastard who will take what you have made for the entertainment of others, make money out of it, and devalue it.

  • I'm assuming that in the past, writers have been fairly well protected form this sort of thing. Why is it that all of the *new* media content has attracted so much bad practise - I guess people spotted there was money to be made. But if it's the case that it's now spreading to standard publishing contracts... surely such a mature profession will not stand for this?

    Next thing they'll be campaigning to close the libraries...
    • by gilroy ( 155262 ) on Monday March 11, 2002 @10:27AM (#3142334) Homepage Journal
      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.

      • by west ( 39918 ) on Monday March 11, 2002 @12:11PM (#3142874)
        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...
  • 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 [michaelmoore.com].

    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 [theonionavclub.com]. 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.

  • A little off subject, but right now rock band Weezer is getting screwed by their label.

    This site [uwftm.com] has a good history [uwftm.com] of the story.

  • 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 (Score:5, Interesting)

    by Lord Puppet ( 300347 ) on Monday March 11, 2002 @10:34AM (#3142361)
    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.
    • Re:Negotiate (Score:5, Informative)

      by ChaoticCoyote ( 195677 ) on Monday March 11, 2002 @10:43AM (#3142391) Homepage

      Actually, they do have something -- a pool of people who may not be the "best", but who are willing to work cheaper and give up copyright.

      Up until the late 90s, I was always able to politely ask, "Can I retain copyright, and can we strike the 'future works' clause?", and the publisher would kindly modify the contract. That has since changed.

      The world is changing, and it isn't for the better...

  • by ChaoticCoyote ( 195677 ) on Monday March 11, 2002 @10:39AM (#3142380) Homepage

    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.

    • I recently finished my first book, about a month ago.

      Of course, I am under NDA to even discuss to the terms of my agreement!

      Based on what others have told me about technical writing contracts I have learned the following: you sign away most if not all of your rights to the publisher. I have determined from my experience writing technical books that there are a few good points to it. Writing is good for your name. Writing will put a *little* money in your pocket (if your good). Uhm, thats about it.

      You can always try and go with a smaller press, but.. that eliminates some of the other advantages of writing a tech book. (Name/Publisher) recognition being the big one.

      I really enjoyed the experience of writing so much that I don't think I can stop writing and sharing all the knowledge I have rattling around in my brain. The alternative to this of course writing on my own. I have decided to start my own application development portal and develop a site where I can easily share my writings on technical subjects. Doing it for the love of it is more rewarding in the end anyways. Oh well, live and learn ehh? :)

      Jeremy
    • Publishers want to own copyright (i.e., control), something I am unwilling to give up.

      Just about all publishers appear to want this, regardless of the media. People appear to have forgotten that the US constitution (and the Queen Anne copyright statute on which the clause in the US consitution is based on) removed the practice of giving copyright to publishers.
  • by Seth Finkelstein ( 90154 ) on Monday March 11, 2002 @10:45AM (#3142404) Homepage Journal
    If you are ever contemplating a book contract, read the page of

    Grievance & Contract Division [nwu.org]

    of the

    National Writer's Union [nwu.org]

    Well worth it.

    Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]

  • Get an agent (Score:5, Informative)

    by david.given ( 6740 ) <dg@cowl[ ].com ['ark' in gap]> on Monday March 11, 2002 @10:46AM (#3142411) Homepage Journal
    I read rec.arts.sf.composition. A lot. There are an awful lot of professional authors there, and whenever someone says, "I sent my manuscript to [publisher] and they accepted it. They sent me this great huge contract to sign. What do I do now?" there is only one reply.

    GET AN AGENT.

    Yes, the publisher will screw you if you sign that contract. That's because they don't seriously expect you to sign it; it's the first step in the negotiation process. If you get an agent, that agent will know all about this, and will get you a much fairer contract in practically no time. That's what the agent is for.

    A good agent can get you a far better deal than you can. All professionals use agents. (Unless they're lawyers writing in their spare time... does happen.)

    GET AN AGENT.

    (Disclaimer: IAmNotAnAuthorIJustPretendToBeOne.SeeALicensedProf essionalIfSymptomsPersist.)

    • Re:Get an agent (Score:4, Insightful)

      by west ( 39918 ) on Monday March 11, 2002 @11:43AM (#3142701)
      GET AN AGENT

      This is absolutely essential advice. Once you have a contract in hand, it's not terribly difficult to get an agent. (It can be very difficult to get one without a contact. It can also be very difficult to get a publisher to read your book without an agent. Both sides want to use the other as a filter. Catch-22!)

      However, to elaborate on that advice:

      Find an agent with experience in your field.

      The best bet is to try and find out the agents of people who are publishing with your prospective publisher (most authors are very forthcoming, and industry publications often list author's agents...)

      The clout of an agent lies with the number of clients he has with a given publisher. The agent's angle is that if the publisher tries to force an outrageous contract on a weak author, the agent will decide to yank more established authors away from that house. No editor wants to be on a powerful agents black list. (And almost every agent has a few houses they won't deal with because they damaged one of their clients...)

      Your job is to find an agent who your prospective publishing house doesn't want to anger (and then persuade him or her to represent you).

      Of course, an agent will cost you between 10-15% and there's a good chance that they won't make it up by increasing the advance. However, they can usually get most of the ridiculous conditions removed. They've been playing this field for a long time, so they know what's recent foolishness and what's "time-honoured" contract conditions.

    • Re:Get an agent (Score:2, Informative)

      by bookguy ( 562708 )
      So, I am an literary agent, and let me say that there is some serious misinformation here.

      For one thing, though I love selling books to small presses, their contracts are always more restrictive, more draconian, more money-grabbing than the corporate publishers' versions. That's because running a small press is a far more financially difficult endeavor (it's a true labor of love), and small presses need to eke every dollar they can out of the books they publish. Do I like these contracts? Do I feel that they are "the best" I can do for my client? No, but the situation may make more sense overall than dealing with the big corporate publishers (what we call the "trade" houses) for a particular author.

      Secondly, many of the concerns raised by the MediaCentral article are legitimate -- but as david.given wrote above, agents not only routinely change the boilerplate on many of these topics, but publishers essentially have different boilerplates they use for agented vs. unagented manuscripts (as well as different negotiated boilerplates for the various agencies).

      Yes, the electronic book issue is a sore one for many of us in the agent's and author's community. And other technologies (print-on-demand, direct sales via publisher websites) offer opportunities for profit that under the current contracts authors will not share. It's a conflict that won't get resolved this year. But I'm betting that within the next few years, as these technologies become implemented to a greater extent, we'll see the authors and agents communities even the scales. I certainly will fight these issues fiercely once we see real revenue being generated from them. Part of the problem is that without revenue, it's hard to develop economic and fiscal models that make sense of how to divide the pie. When there ain't no pie, you can't cut it wisely. Once the pie starts to be real, and not a figment of hope and fantasy, you'll see these issues addressed far more aggressively by authors and their agents.

      Do I think that publisher's contracts are generally not friendly to the author? Of course. But, within reason, there are things that a good agent can do to mitigate these problems. Not fully, but enough to make contracts more equitable. On the other hand, I can assure you that the agents I know would more than welcome some changes to the standard clauses we view as being draconian and unfair. For example, everyone I know is eager to see the results of the class action suit against HarperCollins regarding the royalty it pays for sales through its Canadian sibling -- many of us view the royalty currently being offered as being both inequitable and substandard in comparison to that offered by the other major publishers. The point is, there's stuff in there that isn't exactly author friendly, but with a good agent, you can sign a reasonable contract and make good on the investment of your time and your intellectual capital.
  • But one ray of hope does exist. As Microsoft found out recently, the antitrust laws of the United States are sometimes enforced.

    Unfortunately, this has been proven otherwise.

  • "- Thomas Hauser is a New York city attorney and the author of 22 books, including "Missing," which served as the basis for the feature film starring Jack Lemmon and Sissy Spacek, "Muhammad Ali: His Life and Times," and most recently, "Mark Twain Remembers," published by Barricade Books. He is currently completing his ninth work of fiction--"Finding The Princess"--which will be published by the University of Arkansas Press in Autumn, 2000. He can be reached by fax at (212) 496-7990."

    I love that. No email, just a fax number for interacting with him. hihihihi

  • Engineers' IP (Score:3, Informative)

    by andaru ( 535590 ) <andaru2@onebox.com> on Monday March 11, 2002 @10:53AM (#3142445) Homepage
    They do the same thing with your IP when you get a job somewhere. The only reason you have to give up your right to patents you create on the job is because every "employment contract" (read: conglomerate of employment, NDA, and IP rights waiver) makes you give them up.

    At times when engineers have more clout, they can do something about it (although I think most people just shrug and sign the forms without any negotiation, which could be part of the problem), but if you need the job, and they have it, you have to sign.

    • I am sorry. Your analogy is off. If a publisher employs me to write a book for them, then sure they own it. However, if I come to them with my book in hand already, then I own it. (At least until I sign the contract.) Whoever owns the book should be allowed some control over it.
      • You are confusing patent and copyright...

        Just because the employer owns the copyright to works for hire does not mean that he employer owns the right to patent intelectual property which an employee devised while employed by said employer.

  • by jquiroga ( 94119 ) on Monday March 11, 2002 @11:04AM (#3142490)
    If the future book lends itself to self-publishing, why not?

    The most successful self-publisher I know about is Edward Tufte [edwardtufte.com]. He has sold hundreds of thousands of copies of his three books. There is an interview in which he tells why and how he self-published [ercb.com].

    An excerpt from that interview follows:

    It turned out that all self-publishing required was a really good book designer, some money, and a large garage. For capital, I took out another mortgage on my house. This also concentrated my mind, in part because interest rates were 18% at the time. The bank officer said this was the second most unusual loan that she had ever made; first place belonged to a loan to a circus to buy an elephant!

    My view on self-publishing was to go all out, to make the best and most elegant and wonderful book possible, without compromise. Otherwise, why do it? If I wanted to mess it up, I could have gone to a real publisher. And I also wanted a reasonable price so that the book would be widely accessible. It all worked out, dreamlike
  • Some bad, not all (Score:2, Informative)

    by orblee ( 66225 )
    Not all publishers screw authors. Yes, contracts tend to attempt to reduce the risk to the publisher, but that is because it is the publisher that books time at the press, pays the money to print, pays the distributors, gets the sales guys to convince every bookshop to own a copy, deals with translations, sorts out marketing deals when the books aren't selling as well as they'd like, etc. There are always many thousands of up front costs that have to be covered, aside from the staff wages and printing costs.

    Most of the profits don't go to the publisher, but to the shops who sell them. True they have a risk in carrying all this combustible material that may not sell and has to be shifted if it doesn't, but publishers can get a relatively small share. Not all, but some. Find a relatively small publisher, like O'Reilly or Wrox for IT books, and negotiate a deal. If they really want to publish your work, then they will strike a deal.

    Copyright was invented for writers of printed material, to protect both the author (and his family) and the original publisher. Make it work for you.
    • As someone who worked in a bookstore, I'd have to dispute that - perhaps it's the case in large chains like Borders, but not for a small one. The industry standard wholesalers rate is 60% - meaning the book store owner pays 60% of the cover price of the book. Thats a pretty tight margin to manage restocking, expansion, and overhead in. If you buy in sufficent quantity, you can possibly get as low as 45%, but that's generally only for (very large) bulk purchase from the publisher, and only distributors or chains that have thier own distribution (Borders, again) can get those prices. It's a tight margin.

      Point of fact: Copyright doesn't protect publishers in any way. Thats why they want you to sign it over to them.

  • Look at the date at the top of the article [mediachannel.org] - Feb 3, 2000. That's not a misprint, it's been referenced elsewhere [nearbycafe.com]

    Grumble, grumble - To Michael Sims: I know it's an interesting article, and it's not censorship that all my recent anticensorware reports [sethf.com], as well as Jonathan Wallace's research [spectacle.org] have been rejected, maybe because of What Happened To The Censorware Project (censorware.org) [sethf.com]

    But isn't it just a little absurd to be reposting two-year old editorials as "News", while good research ends up trashed suspiciously because of grudges?

    • Just because it's two years old doesn't mean it's not interesting. The information in it is timely right now because of all the other intellectual properties debates going on
    • Grumble, grumble - To Michael Sims: I know it's an interesting article, and it's not censorship that all my recent anticensorware reports [sethf.com], as well as Jonathan Wallace's research [spectacle.org] have been rejected, maybe because of What Happened To The Censorware Project (censorware.org) [sethf.com]

      So what did happen to the Censorware project?????

  • by El Camino SS ( 264212 ) on Monday March 11, 2002 @11:30AM (#3142622)

    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.
    • Most of what you say is common sense.

      "Good products and services sell themselves; it is the junk that you push."

      Not so. Nothing "sells itself". It's true that good products are sold by word of mouth, but people still have to know the product exists and that it has certain advantages that they may appreciate.

      A well-advertised and more widely distributed inferior product will often sell better than the superior alternative, simply because the better product is unknown to the customer or too difficult for them to obtain, or simply too expensive. Not that that's always a bad thing; an "inferior" product is often good enough for the purposes at hand, especially if your task is not demanding or the time for researching the alternatives is limited.
      • 'Nothing "sells itself". It's true that good products are sold by word of mouth, but people still have to know the product exists and that it has certain advantages that they may appreciate.

        A well-advertised
        and more widely distributed inferior product will often sell better than the superior alternative, [sic emphasis mine]'

        You are right. I understand that is a simplistic statement. It is simply a personal rule of mine, and from that you add your own knowledge to that idea and make a conclusion.

        Please note that I was talking about "salesmanship" and not "advertising." Most businesses know that distinction so implicitly that they have two seperate departments for it, Sales AND Marketing. One gets the word out. The other pumps people for money. Pumping for money is what I am wary of. That is excessive, unless your business model is built on poor products. Then sales is all you have.

        Also... if a product fills all of its requirements (including time and acceptable cost of alternate research), it is not considered "inferior." It is considered well placed. Then the other standard alternatives are "overpriced." Using the cheapest tool to function is simply cost (meaning opportunity, time, and price) meeting demands.
    • IANAL

      IARNAL

      IARRNAL

      That having been said, your non-compete clause may not be binding everywhere. In California, for example, non-compete clauses are considered an impediment to fair trade in the technology industry and are therefore not binding. This may be true in your industry. It wouldn't take much to convince a judge that news photography doesn't involve the risk of dissemenation of industry secrets and that there isn't something else you can reasonably do.

      If it becomes a problem, speak to a lawyer familiar with laws in different states. You may have to move to get out of your non-compete, but it is better than not working just to please the F***ing man.

      (This is from a technology law course taken last year at the University of California, Irvine. It is not intended to plot a course of action but to give you a direction for your discussions with a certified lawyer.)
  • by freeBill ( 3843 ) on Monday March 11, 2002 @11:33AM (#3142639) Homepage
    ...for a long, long time. What seems to be changing is the insistence on not changing the terms.

    As far back as 1975, Frank Herbert (a very successful author) and Ben Bova (a fairly ethical editor) were telling young authors never to sign the first contract a publisher offered you. The contracts always included all kinds of outrageous clauses. (Well, maybe not all kinds, since this article points out some new ones.) Herbert said that even with all his experience the publishers were still sending him exploitative contracts and his agent was still crossing out sentences and sending them back.

    Bova claimed that the publishers knew the contracts were outrageous, fully expected them to be rewritten by the authors, and continued to send them out in hopes of achieving the indentured servitude of a major talent. Some first-time writers told them they were afraid they wouldn't get published if they crossed out things on the contract. But Bova maintained that the publishers would agree to any reasonable change because their editors would already have decided they wanted to publish the book.

    This last seems to be the thing which is changing, according to the linked article. Which seems strange to me, given the fact that writers have never been in a position of greater power. It has never been easier to self-publish, let alone the possibilities of publishing your own work on the Internet.

    In summary, when you get an outrageous offer:

    1) Read the Writers Union advice linked in an earlier post, cross out the things you should cross out, and send it back.

    2) If you're not comfortable doing this yourself (or if you're tired of doing it yourself every time you get an acceptance), get an agent. Again, this is explained in an earlier post.

    3) If your publisher refuses to comply, get another publisher or self-publish.

    Life is too short to allow yourself to be enslaved by immoral cretins.
  • Take a look at this site 1st Books [1stbooks.com]
    I'm thinking about using them for a couple of small books I'm working on. They use a print on demand technology so there's no upfront costs to you, plus you get to keep the rights to your works. It's worth taking a look at.
  • Oh Whine Whine Whine (Score:1, Interesting)

    by Greyfox ( 87712 )
    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.

    • Maybe a group of editors could start an online club ("Slush Busters"?) that would charge readers a small subscription, say $5/month. Members would have access to reviews and recommendations, and some of the money could be paid to the more widely-read authors.
  • by west ( 39918 ) on Monday March 11, 2002 @11:54AM (#3142778)
    From the article:

    In the past, when an author signed a contract with a publisher, he or she could safely assume that the book under contract would be published. However, as a general rule, most publishers now insist upon a clause that relieves them of that obligation. More specifically, if a publisher chooses for any reason not to publish a given book, the author can keep the portion of the advance that has been paid. But that's all. And in some instances, if the author resells the book to another publisher, even that partial advance must be repaid. In other words, the standard publishing contract today is nothing more than a one-sided option to publish--obligating the author, but not the publisher.


    Actually, a clause like that has always been there. The difference is that before it took a catastrophe of major proportion to make a publisher actually invoke the clause. Nowadays, when a publisher is in peril (or at least its profits are), it invokes those clauses much more easily. A favourite for fiction publishers is the due date clause. Most fiction authors are perennially late, and this clause (which has always existed) can allow you to can a substantial number of books for only half their advance.

    Of course, publishers that play dirty games soon become publishers of last resort among those in the know. The name of the game here is to keep up on industry gossip! Join any author associations that you can and mingle with established authors.

    Also note that the rules for bestselling authors are so different from beginning authors that there's not much to be learned from them. Find a midlist author (or three) who's work you like (most authors are very amenable to heartfelt complements :-)) and pump them for advice...
    • Actually, a clause like that has always been there.

      Not always. Until about twenty years ago it was quite common for a book contract to obligate the book publisher to publish the book, as long as the writer met all of his obligations.

  • I wrote an article in a programming journal in early 2000, and I was soon after approached by a publisher to write a book on embedded development. I seriously considered it, until I read Philip Greenspun's book behind the book [greenspun.com].

    Favorite quote: Five percent of retail is fair if you abandon one erroneous assumption: that the publishing industry exists to compensate authors.

    Same ideas as the linked article, just more in depth.

  • by ibis ( 16191 ) on Monday March 11, 2002 @12:18PM (#3142913) Homepage
    It used to be that an author would sell specific rights to a publisher, such as the right to print the first US edition of a work. I understand that in some European countries, copyright may not be sold. That is, only the original author(s) may hold copyright; they may not transfer it to others for money. With such a system, the author maintains control of the work for his lifetime, only granting specific license to publish to a publisher.

    This sort of system would actually be more in line with the US Constitution, which says, The Congress shall have power . . . to promote the progress of science and useful arts . . . by securing for limited times to authors and inventors the exclusive rights to their
    respective writings and discoveries.


    IMHO, the current US copyright system is in violation of the US Constitition due to the fact that it does not exclusively secure the exclusive rights for the author. Copyright legislation should be revised to prohibit outright sale or transfer of copyright to any other individual or organization. The author(s) should be required to own the copyright themselves. The only exception would be to voluntarily place the work into the public domain.

    And getting into the limited times issue. Obviously the highest limit in such a system consistent with the Constitution would be the lifespan of the author, since transfer, inheritance, etc. would be prohibited. Copyright could also not be limited to less than the life of the author, as this would violate the Vth Amendment: nor shall private property be taken for public use, without just compensation. It would be most consistant just to make copyright endure for the life of the author, period. Any other solution puts the author at the mercy of the publishers.

    As to the argument that copyright should be inherited by the author's heirs, I say this is complete and utter rubbish. Let the author invest the income from his/her copyrights, and will the results of those investments to his heirs, like anyone who earns money by employment has to...
  • Tell me about it (Score:4, Informative)

    by Rogerborg ( 306625 ) on Monday March 11, 2002 @12:38PM (#3143029) Homepage

    This isn't news to me. I'm a novellist looking to get a first novel published, and have been hearing the same things. Publishers have realised that they can sign up more books than they can actually sell, and then keep some of them as perpetual bankers to fill slack spots. It's not really anything sinister, it's just that commissioning editors are more keen to justify their existence by signing up books than marketing managers are to dilute their budget stuffing the channel with no-namers. It's simple supply and demand: book buyers make their decision mostly based on the author name, then in decreasing order of importance, the cover art, the title, the cover quotes (from authors in the same stable, naturally), then the cover blurb and finally the author bio. Consider the shelves groaning under the weight of Koontz, King, McCaffrey and Pratchett, and anything featuring Josh Kirbyesque artwork for that matter.

    I have been advised that my options for a first novel are:

    • Give - and I do mean give - it to a publisher under terms that make it a no brainer for them to publish, i.e. forget about royalties and perhaps even an advance in return for their investment in putting me on shelves. This is achievable, as I've got a good nine to five job and I don't actually need the income from writing, but I'm not exactly taken with the idea of writing !!! FREE BOOK !!! SAVE $$$ !!! on the manuscript.
    • Try and get it accepted (with major modifications) as a ghostwritten or genre piece by a publisher looking to fill a gap in a series. This is very close to work-for-hire, and it doesn't appeal at all.
    • Write at least three books up front, and expect to agree to give first-refusal rights for another three to a publisher.
    • Self publish. No, only joking. You can't even give books to retailers, as shelf space costs money, and unknown authors without a slick jacket and marketing campaign just don't move books, see above.
    • Sell on the 'net. Apparently the Easter Bunny delivers your money.

    I'm going for the multi-book option. If publishers want to sell trilogies, a trilogy they shall get (with outlines for five more). I stopped book the first a little prematurely at 90,000 words, and am 30,000 into book the second. I've pretty much accepted that I have to write another 120,000 words or so before I can approach a publisher from anything like a position of strength. As I said, this isn't a problem for me, writing is a hobby at the moment, and the long term payoff will be better. But this would be impossible for someone wanting to write for a living.

    This is quite apart from the problem of stopping your work from going straight off the top of the slush pile into the outgoing mail (or the round file). What's making that situation worse is that many publishers are looking for The Next Harry Potter, which means they're prepared to throw their slender resources at promoting a very few new "personality" authors in the hope of making it big, while treating the majority of their current stable as shelf padders and rejecting the rest of the new authors out of hand. Publishers don't accept books any more, they accept authors and series. A slush pile submission really has to be accompanied by a colourful and illustrated biography; you're not submitting a well written novel, but an attractive sales pitch for an ongoing cash cow.

    Bear in mind that I'm still optimistic enough to believe that if I put in the work up front, I can be one of those lucky breakthrough authors. Get back to me in a few years, and I might have even more reservations about the whole process. ;-)

  • The following are actual contract provisions for a book chapter I was invited to write:

    "Contributor hereby assigns to Publisher ... the exclusive right to publish, perform, display, reproduce, distribute and sell the Work and to create derivative works, in all forms or media now known or hereafter developed ..."

    It's not enough to transfer copyright for the written word -- they want me to sign over the right to make, what, the holographic 22nd century version?

    "Should Contributor become unable or unwilling to perform ... prior to publication of the Work, Publisher may appoint a third party to act as Contributor ..."

    Okay, I'd be at fault for this provision to happen, but how exactly is someone else going to finish my work? It's not entirely clear that I'd get credit for any of it if they appoint someone to "act as Contributor."

    And my personal favorite: "... Contributor agrees not to divulge, disseminate or publicize the terms of this Agreement ..."

    which, of course, I'd be breaking right now if I'd signed it.

    Be careful what you agree to in black and white!
  • Missing the point (Score:5, Insightful)

    by Outland Traveller ( 12138 ) on Monday March 11, 2002 @01:14PM (#3143238)
    There are many problems in book publishing and many ways in which the little guy is getting screwed by the corporation, but the boilerplate contract, as analyzed in this article, is the least of it.

    Termination clauses
    Contracts are a two-way street. The publisher promises to publish the book as long as the author delivers what he promised to deliver. There are a few set ways in which a contract can be terminated:

    1. The author fails to deliver the book. At all. Every contract stipulates a delivery date, and there is usually a grace period for extenuating circumstances, or the contract is renegotiated. If the author still doesn't turn in the manuscript, there really isn't any way the publisher can publish it.
    2. The author delivers something substantially different from the book that was proposed and agreed upon. In this case the author is pulling the old bait-and-switch on the publisher, and there should be no obligation to publish a different book from the one the publisher thought they were contracting for.
    3. The author can also terminate a contract if he has delivered everything according to the contract but the publisher fails to publish within a certain time frame (usually a year to 18 months -- typical lead time for a fiction/nonfiction work is 9 months from delivery of manuscript to publication). The author does have some recourse against the big evil company.
    Termination clauses are never invoked casually -- before the contract is even drawn up the publisher has decided they like this author and their book, and they want to publish it. They've scheduled it for some future date and they're counting on the revenue it'll bring. So they may be amenable to stretching deadlines, or reworking a manuscript that doesn't come in as they expected, but they're rarely going to ditch it altogether. They've invested in the book, and if they terminate the contract they're out the money already paid to the author. Sure, the author has to pay it back if they manage to sell it to another publisher, but it's only fair since the second publisher will no doubt have paid him another advance.

    Options
    The case presented in the article is one of many possible option clauses; not all are so "Draconian". Rarely is the entire manuscript required before the publisher needs to decide whether to take on the next book or not, though it's true they're unlikely to commit to another book from an author before they see the sales record of the first one. But then again, how often is the next manuscript all finished before the first book is out? In the case where another book is already in the works and destined for another publisher, there are often amendments to the option clause to allow for it. As for putting an author's career on hold indefinitely, that author'd be a fool to agree to an option clause that didn't give the publisher a time limit to make an offer on the option work.

    Royalties
    Book royalties may not be that impressive, but the truth is most books don't earn out their advances in the first place. So for all the haggling over royalty rates, most authors won't see a dime after their last royalty advance, and the publisher swallows the difference. In those rare cases where the book does earn out, the author will almost certainly negotiate a better rate next time.

    Yes, you can negotiate the terms. You can even get an agent to do it for you if you're willing to part with 10-15% of the earnings in exchange for a better deal and most likely a better relationship with your editor, one that isn't soured by a rough contract negotiation. Don't want your book excerpted somewhere embarassing? Ask for approval on licensing; you may get it.

    If you want to point out problems with publishing, look to the conglomeration of publishing houses into massive corporations that care only about the bottom line, guaranteeing that the majority of potential authors never get offered that contract in the first place. (Ironically, that approach doesn't seem to have made any more money for the publishers than simply putting out the books they love.) The focus on commercialism paired with the increasing ability of Barnes & Noble to drive the book industry from the creation of books through to sales is a bigger part of what's wrong with book publishing today.

  • This is good stuff (Score:3, Insightful)

    by JoeShmoe ( 90109 ) <askjoeshmoe@hotmail.com> on Monday March 11, 2002 @01:28PM (#3143323)
    A previous poster mentioned this but was marked as flamebait. But the point is valid.

    I was not aware of the language in the Sherman Anti-Trust act that the article quotes:

    the Sherman Act has a second component aimed at shared abuse of power. To wit: "Every contract, combination, or conspiracy in restraint of trade is illegal."

    That's dynamite. The question has long been raised, why isn't RIAA a monopoly, why doesn't someone file an anti-trust lawsuit against RIAA. The answer invariably given is that RIAA is just a trade group, an industry association that acts on behalf of many recording companies but itself doesn't really do anything.

    Screw fighting RIAA...they are a multi-headed hydra. We are pissing away time and effort trying to fight the Hillary Rosen beast.

    I think we need to focus on the real target, the recording companies themselves. We need to work towards anti-trust investigations of BMG, Sony, AOL Time Warner, Virgin, etc.

    Who could not look at their actions toward online music in the past five years and not see a compelling restraint of trade? In concert (read: conspiracy) the major groups have all withheld licensing from any third-party group that wished to create a value-added-service based on record company products.

    This would be like Dell refusing to sell me hardware because I charge people to set the hardware up for them. Dell also sells installation services. So I would be robbing Dell of money while at the same time gaining profit based on Dell hardware.

    The argument above is ridiculous. But somehow the argument makes sense when we are talking about intangible intellectual property instead of real physical property...even though the economics of the situation should indicate that there is less risk for the intellectual property!

    After all...if Dell were to experiment with promotions...give away servers to try and encourage future business...that represents real risk and real, on the book, loses. But if a record company decides to experiment with the same promotion, give away electronic copies of music to try and encourage future business...there is no risk and no real loss. Oh sure they would argue loss of future profits while at the same time ignoring that this is exactly what radio has been doing the past fifty years.

    So then, if there is no real, reportable on the book, losses, shouldn't a record company be MORE willing to engage in unproved or far-sighted enterprises, like online music? But they haven't. They, in concert (read: conspiracy) had their trade group shut down any online company that would seek to gain a profit by adding some new value (search engines, recommendation engines, collections, remote cacheing) that is based on record company products.

    That is restraint of trade.

    - JoeShmoe

    .
  • by werdna ( 39029 ) on Monday March 11, 2002 @01:51PM (#3143474) Journal
    As comfortable as it may seem to think otherwise, there are sometimes when you simply need the advice of counsel. Period.

    Do not try this at home, folks. In addition to helping you to be alive to issues that the plain language does not clearly raise, an experienced professional "knows" which terms are truly written in stone, which are routinely dropped when you ask for it, and which are going to require some degree (or a lot) of negotiation depending upon the circumstances.

    Get an agent. If its a big deal, get a lawyer just for you, as well as the lawyer the agent uses. Don't give this a second thought -- the costs of negotiating these properly makes all of the difference in the world. Get an agent. Really. Just do it.

    Competent representation can alleviate much of these issues. As recently as my last book deal (two years ago), publishers were still following pretty much the standard "dance," with terms no more egregious after negotiations than you might responsibly expect. On the other hand, without advice of counsel, substantial research or experience, you may find the agreement something of a minefield.
  • The article paints an interesting and informative picture of the publishing industry for us wannabe authors, but did anyone else note that it's over two years-old (posted Feb 3, 2000)?

    Are there any agents or published authors out there who can update us? Do the facts and figures in this article still hold true today? Based on the comments that I have read so far, it seems that the article still stands, but I could be wrong...

  • My solution to this problem (and to the similar problem in the music industry) would be to outlaw multi-year, multi-book, multi-album, or anything in a contract that has to do with long term future work from anything that's not a company. Any contract should only represent a specific body of work either already created or to be created within the very near future (perhaps a one year limit). Just like anyone else, authors need to be able to find better positions if their current employer is screwing them.

    The truth is on your first contract you are going to get screwed. You have very little experience or bargaining power. That's just the way it's going to be. However, after you've proved yourself to be valuable, you should be able to negotiate a much better deal for your next work.

    There may be illegal reasons why this may not work. (The cartels may simply agree not to offer better contracts even to their competition's valuable authors or artists). However, this would be a great step in the right direction.
  • Well the obvious answer to everyone's problem is have an attorney look at the contract. Entertainment attorneys can represent artists too.
    The $1000 or so dollars spent on an attorney is more than made up in the end.
  • Eric Weinstein has a very nice web site at http://mathworld.wolfram.com/ [wolfram.com]. He had huge problems with the publisher CRC Press. You can read the author's account of this at http://mathworld.wolfram.com/erics_commentary.html [wolfram.com] .
  • Right now I would kill (well, apply postage anyway) to get my book published. Its a good book (heroic fantasy) and I want people to read me. I'm actually not that interested in the money, especially since it is a debut work. Is it ego? Yea, at least a little bit.

    The thing is, if you dont' have a name, you are just some slob putting in a submission. If you do have a name then you can't get yourself considered by the agents and editors who you need.

    The back-end stuff, the books that purport to help you get published and so on, are pretty much a farce and they prey on this very impulse. Teh desire to be read/heard. And there are worse scams. "Send me $8.00 per month per 10,000 words and I'll put your work up on my site where real editors will see it and maybe buy it." Like any editor or publisher needs to look further than the slush-pile to find millions of words to look at.

    Now that is a money making scam that sucks the life out of the prospective authors pocket.

    The thing that really needs to be changed is the kind of accounting that lets a company take home millions of dollars and still "not make a profit."

    Evil has many guises...
  • Some notes relative to the computer book publishing business:

    First for you technical writing copyright hounds: It is usually very easy to retain copyright for your work - just ask for it. The shelf life of your content is so short all the publisher really cares about is who gets the licensing rights. Even if you assign copyright to the publisher you will more than likely get that back when your book is taken out of print.

    Authors are not screwed on royalty.
    If you've ever seen a fully loaded P&L for a book you'll realize that in the end the publisher and the author basically split the pie. And that's if the author is getting a 10% royalty. The difference is the author gets most of their money up front while the publisher waits 18-24 months to get theirs.

    Why you might get half royalties for electronic content:
    Every online site wants the material in a specific format. It costs money to get your content put into that format. There is no revenue going back to the publisher in that market. Publisher's do it now in hopes the market may one day take off. The Publisher is assuming virtually all of the risk in entering that market and deserves the lion's share of the paltry returns. In the future, as the market grows you'll see more equity.

  • My mother got her start writing health books with a certain company. The book did quite well and got reprinted several times. That was several years ago and she still occassionally gets a nice royalties check from sales.

    Where she got completely screwed was overseas rights. The company sold the rights to various company around the world... and the only thing my mom got was courtesy copies of the books. (It's kind of neat having the same book in about 10 languages though.)

    She and her co-author took them to court but by that point the company had gone belly up and had little to give. She ended up with a cash settlement instead of all the back royalties she was owed.

Two percent of zero is almost nothing.

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