Amazing Earthquake Trick

May 18th, 2009

Los Angeles experienced a 4.7 earthquake last night. Carolyn and I were sitting on the sofa when the shaking began. This was the most sudden and violent quake I’ve felt in 20+ years in LA. Nothing broke and no damage is apparent, yet one, and only one, book out of a thousand on our shelves, jumped out of a bookcase and hit the floor with a resounding BAM. The book in question was Ricky Jay’s Journal of Anomalies, a collection of his essays on hoaxsters, hustlers, and cheats (to quote the cover). This flying book event is worth a blog entry because Jay’s profession, when not writing books, is making objects do unexpected things. How did he do this; he wasn’t even in the room? See Ricky at work on this youtube video. (Disclaimer: Ricky Jay is not a client; I just like his work.)

Reading publisher’s contracts is much like watching a card trick. Where did the author’s rights go? What’s the value of the contract? Everything seems to be clear  in paragraph 5, but wow, paragraph 11 really controls the deal.

Wreck a Cake

May 7th, 2009

Our relentlessly creative client, Lisa Mantchev, has begun a Wreck a Cake contest (includes explanatory links) at her website for her YA novel, Eyes Like Stars (Feiwel and Friends, July 2009). Bake. Wreck. Collect swag.

Guide to the Google Settlement in PDF

April 25th, 2009

This item duplicates the link to download the PDF file of our Guide to Google Settlement because some readers found the link hard to find at the end of the previous post. Do read the previous post that presents our major concerns, then download the Guide for the steps authors need to take.

AGLA Guide to the Google Settlement

The Google Settlement

April 23rd, 2009

You may or may not be aware of what is known as the Google Book Settlement.  In short, Google was sued by the Authors Guild and several publishers who alleged that Google’s digitizing of books constituted copyright infringement.  Google and the Plaintiffs reached a proposed Settlement Agreement.This involves you because the Settlement Agreement covers all books and inserts (see definitions of books and inserts in our Guide) that were published before January 5, 2009.We have prepared our own analysis of the proposed Google Settlement Agreement and invite everyone to read it in the accompanying Guide.Please pay attention to the timelines, as the deadline for an action you might want to take is May 5, 2009.

Introduction:  Grumpy Literary Agent’s comments on the Google Settlement

The more we have studied this, the worse the situation and the implications have become. In no case have further details or understanding shown the Google Settlement to be better than we first thought.This is not a minor sub-rights issue that may make you $60 or less on each of your books. It is a major manipulation of the marketplace that effectively diminishes your ability to earn money from your works in significant new markets. In time, these new markets may become the only markets, so this is serious.The circumstances that brought this lawsuit and settlement about are simply about the march of technical capability; neither the circumstances nor the technical issues are good or bad. Like nuclear power in 1947 the technology is neutral and can be used to make bombs or generate power.Unfortunately, however, the settlement agreement as proposed mandates a compromise between technology-enabled business and copyright holders that serves neither.The settlement does several things:

  • It skips around Google’s past copyright violations by establishing an agreement that their acts against some works in the past are made legal in the future and apply to everyone. It amounts to saying, “we know you stole the victim’s curtains but instead of prosecuting you for burglary we will accept your offer of $12.95 payment and declare ‘curtain harvesting’ a valid activity with a price set between $1.99 and $29.99, but there will be at least five years before the payment reaches the curtainholders.”
  • It offers as representative authors of the class, not one author of adult trade fiction, thereby violating the rules of class actions. This is a legal procedural objection that is being made about the Settlement, but we have other concerns. Basically, no novelist was represented in the class.  More information is available at Scrivner’s Error.
  • It establishes a single electronic rights clearing house, the Book Rights Registry (BRR), with an entitlement to a percentage of the electronic income of all works. This amounts to a mandated electronics rights agency that every author is required to pay, but no author can question.  It inserts itself between authors and their agents (and editors and the publisher’s sub-rights managers) and an entire new world of business and taxes all transactions from day one.
  • It establishes the Book Rights Registry as the author’s de-facto agent for a range of electronic rights in books currently out of print but still under contract and grants the publisher electronic rights to those books even though the contracts may not contain e-rights language. It deprives the author and agent of the opportunity to exploit those rights as they see fit through negotiation. It pays a share of 50%-35% of the author’s income to publishers who may be out of business or no longer functioning as publishers and the author will have the legal expense of recovering rights. (See page 12 of our Guide)
    • “Consumers will have the ability to purchase online access to many in-copyright books for online reading, highlighting, limited printing, and other potential features. These features will be available for all in-copyright, out-of-print books unless the rightsholder chooses to deactivate these features, as well as for in-copyright, in-print books if the rightsholder chooses to activate these features. The agreement allows for Google and the Book Rights Registry to expand upon this with future additional offerings such as Print-on-Demand, Consumer Subscription, and other uses and services.”  (From The Association of American Publishers Google FAQ.)
  • It forms the market model for the value and future value of the electronic rights in your books. The Book Rights Registry gets an entitlement to all works, and can’t be removed from their position so they have no motive to act. Contrast this to a regular literary agent whose job it is to fight for the client.
  • While it sets up one agency the authors can’t fire, it also allows any number of additional sellers of display and e-rights to start businesses with the virtual guarantee that they never have to pay an author more than Google did. So Microsoft, Apple, The Open Source Republic of Gimmiestan, Piranah.com, etc. can all start businesses of any type and draw on all authors’ works without any further negotiation. Publishing consultants are already promising a gold rush of new business based on “content” with no recognition of “authors” in the business model.

Grumpy old agent thinks no good can come from this.Yet authors are being rushed to a deadline to acquiesce and not pay attention to what is going on.  In the rest of the booklet we have prepared, you will see what you can do, when you need to decide and what the alternatives are.

Grumpy old agent suggests the following…

  1. Empower yourself by reading our booklet and anything else you can to best understand the issues.
  2. Immediately and relentlessly in the near future write your congress critters, the Register of Copyrights and the White House, as well as your local newspapers and TV news desks to make your point. This is not part of the requirement to act on the Settlement, but it is important to expose the nature of the settlement.
  3. Please pay attention to the deadlines in the Guide and perform the record keeping suggested
  4. Every author has individual needs, intent, and financial goals, but no author should act without information. IF you are an author who wishes to have a say in what big companies can do with your works, and who makes money from them, you should seriously consider Opting Out of the Settlement, or Opt In and Object. The latter takes a little more resolve and a willingness to argue a position but hey, that’s why you became a writer, right? Besides, speaking out gets you publicity as the author of “Whatever Title” you want to promote. How to choose the optimal position for yourself and how to act to establish that position is covered in the remainder of this booklet.

Risk and Reward

By doing nothing, you risk losing control of your works if they are out of print and the income they may produce.By Opting Out or Objecting you can pursue a better reward for yourself, your financial dependents and your (eventual) estate. There is no higher risk for Opting Out or Objecting; that is, you can’t end up worse off for having done it.Everything you have to consider and acts to perform to be heard and protect yourself involve reading, filling out some forms, and writing. Nothing an author can’t do exceedingly well. If you need to register some of your own copyrights, you may have to pay some filing fees, but these are one time costs that ensure future income potential. You can’t afford not to.Can I ask my agent to do this?  It is possible for an agent to file on behalf of a client author, but we feel it is important for you to be aware of your titles and their status and make choices about them, and you can do it for a few minutes’ work of going online.Can I expect my Publisher to act for me?  Based on personal interviews, we found no publisher who had a ready document that stated what their action would be for the works whose electronic rights they control. No editor we spoke with was aware that the settlement hands publishers up to 50% of the authors e-rights that they never contracted for. We assume publishers will Opt In, but there are problems.Our estimates are that less than ten percent (10%) of published works have proper electronic rights clauses that authorize publishers to act in this matter. The Google Settlement presumes that if a publisher asserts control of the rights, the deal is done. Individual contracts will likely prevail, but there’s no process to consider author contracts until the BRR is set up and operating. So you have to trust what an unknown organization will do in the future.While publishers have recently started sending out letters asking authors to “give” the electronic rights to them, we, as agents, think this is a bad idea.

Other stuff

Objecting:  In the Guide we say that if you wish to object to the Settlement that you should consult with your own attorney.  You may wish to contact any writers organizations of which you are a member (Mystery Writers, SFWA, etc.) to see if they are planning to take action as an organization to object to the settlement, and you could join in the group’s objection.

References you may want to read

A law professor writes about the Settlement

http://www.acslaw.org/files/Grimmelmann%20Issue%20Brief.pdf

 AGLA Guide to the Google Settlement  a downloadable PDF.

Feds have “Patriot Act” written to shut down the internet

July 23rd, 2008

Sometimes the financial news is so much more important than publishing rumors, we have to read it. Check out this story at Fortune. The bottom line:
Lessig, a Stanford Law School professor who founded its Center for Internet and Society, said he came to this conclusion after a conversation with former federal counter-terrorism adviser Richard Clarke. Lessig said Clarke told him that the Justice Department had already written up much of the Patriot Act before the terror attacks of September 11, 2001, and that there is a similar proposal on the shelf in case of an Internet catastrophe. Advocates of Internet openness will not be thrilled about its contents, Lessig said. “Vint Cerf is not going to like it very much,” Lessig recalls Clark saying. 

Authors are entitled

June 11th, 2008

I want to present a new way to think about author income. Everybody knows authors receive money as an “advance against royalties” and after the advance has earned out, from the royalties themselves. But little has been said or written about the financial model that underlies the author’s right to receive money. We need this clarifying view because authors’ income is now under attack from all sides and only by understanding the concept of an entitlement will authors and their agents be prepared to secure and preserve the author’s earnings.

There are lots of ways to acquire money: as wages for labor, as profit from a business, or as interest on a loan, to name three with which every author has some experience.

Money for labor

Many authors I meet want to sell their book so they can quit their day job and “become an author.” However, virtually no one who fantasizes about supporting themselves as an author recognizes how different their new business model will be. “Don’t quit your day job,” means more than anyone thinks.

Money from a business

Successful businesses enjoy income and profits from operations. A well-run business can survive lean years or balance losses in bad seasons with profits made in better earnings periods. Increasingly, authors recognize they need to think of themselves as “a small business,” but there’s a big difference between a writer who has a writing business and an author living off royalties. I’ll cover that soon in another blog.

Interest on loans and investments

Earning interest on loans is a great way to make money if you have money to lend and large numbers of borrowers don’t default. Insert obligatory sub-prime meltdown reference here. Authors often overlook the fact that an author’s advance is simply a loan with a very high invisible interest rate. In the publisher’s accounting, the author is the borrower and the publisher collects the interest. Details soon: watch this space.

Each approach has a pro and con: risk and return.

Published authors, however, have the best model of all, the entitlement. An entitlement is an arrangement where someone, either an individual or organization, collects a sum of money over time, solely because they possess the entitlement. The author’s entitlement comes from having written the book–as an original work.

Entitlements are all around us. Governments grant themselves entitlements by their right to levy taxes. Governments also grant entitlements to people and groups. Kings used to grant entitlements along with titles. What regency romance fan is unfamiliar with the desirable bachelor possessing an estate and “a thousand a year?” Social Security is an entitlement for those who work and pay into the system, the low-wage worker and the Rockefeller alike. Utilities, such as water and gas companies all work on the entitlement model: you can change what you use, but it would be difficult, if not impossible, for you to buy services from anyone other than the provider who serves your area.

An author who writes a book can expect (subject to individual contract details) to receive a percentage of the sales price of every copy sold of that work and a percentage of the money earned by any derivative work produced. This has worked well because the author has taken on the costs of development in preparing the proposal or writing the whole book. Once the rights are licensed to the publisher, everything else: designing and manufacturing the physical books, marketing and sales, distribution and retail point of sale, are out of the author’s hands. The book has entered the business model of competitive capitalism. An entitlement based on the sales price of the book is reasonably accountable for the publisher, and understandable by the author. The publisher can plan and manage costs under the publisher’s control any way that seems viable, subject only to paying the author’s entitlement.

Here’s my point. Publishers think of themselves as competitive capitalists yet their business is organized around the author’s entitlement. Being aggressive business people, publishers have traditionally reacted to the author’s entitlement in a variety of ways which agents and savvy authors have learned to resist or accommodate.

Publishers’ financial strategies for dealing with authors’ entitlements fall into some common areas:

  1. Minimizing funds at risk. Reduce risk by minimizing advances and royalties while maximizing the rights they acquire. This is the most visible strategy, easily understood and most negotiable by experienced agents. Publishers want to buy things cheap. OK, an obvious goal and we can’t blame them, but authors and agents can hold out for a fair deal.
  2. Postponing payments for as long as possible. Payment on delivery has become payment on acceptance, but the publisher is in control of the meaning of the word “acceptance.” Delaying when the book is “accepted” can delay payment for months (savvy agents can help an author here, too). When income from sales of derivative works, for example if the publisher holds the right to sell translations, is accounted to the author’s credit is also invisible to the author. Look for a future blog on this.
  3. Reducing amounts due. Reducing the author’s royalty by giving greater discounts to resellers; the high-discount clause(s) can be tricky and again, savvy agents can help an author here. Look for a future blog on this; publishers are caught in the middle between aggressive booksellers and authors and are not entirely responsible.
  4. Operating partly on a non-entitlement basis. When possible, publishers seek to originate content so no single author has an entitlement; authors can be given “work made for hire contracts” as day labor. Copyright resides with the publisher or packager. Most licensing based publishing limits or removes the author’s entitlement. Authors who write for a fixed fee are stripped of entitlements. Authors who write in licensed series have the value of their work drastically reduced and become piece workers.

As publishing has evolved, the value of the author’s entitlement has been under various pressures, but because the fundamental publisher’s business model is one of competitive capitalism, authors, agents and publishers have been able to consistently find an economically agreeable point and strike deals. What looms on the horizon and is already at work in some areas, are changes that flip the publisher’s model upside down.

In my next blog, I’ll talk about how publishers, distributors, and booksellers are attempting to reshape their business models to create entitlements for themselves.

Kirk Scroggs appearance at the Apple Store in Santa Monica, CA

April 10th, 2008

April 16, 2008 7PM to 8PMBolt the doors and get out your coyote mucus repellent—author and illustrator Kirk Scroggs is visiting the Apple Store, Third Street Promanade, Santa Monica, CA. Find out how he uses the Mac to bring vampire trucks and redneck zombies to life for his Wiley & Grampa’s Creature Features books.Kirk’s presentations to third through sixth graders are all about the zany monster-fighting adventures of Wiley, Grampa, Gramma and Merle the cat. This presentation will be of interest to authors, illustrators, animators and anyone interested in how he does it all. Visit Kirk’s site wileyandgrampa.com; get directions to the Apple Store

The New York Times agrees!

March 3rd, 2008

I see from today’s New York Times, that columnist John Markoff  sees Apple on the verge of introducing a digital book. I hope John is right.

Kitty & The Silver Bullet on NYTimes Bestseller List

January 9th, 2008

One large attaboy for Carrie Vaughn whose fourth adventure of Kitty Norville the werewolf disk jockey from Denver, CO made its debut at number 23 on the mass market paperback list. You can see the cover elsewhere on this blog. 

Will Apple save publishing?

December 14th, 2007

Apple LogoI’m not really in the business of predicting the details of Apple product releases, but I do have a good feeling for what they are capable of, having been a Mac user since 1986. Today, I’d like to say what I hope they will announce at Macworld on January 15, 2008. I say this not from having spoken to any Apple employees, ex-employees, or subcontractors to Apple on any continent. This is just what I hope they will announce because it is the product I want to buy and use.
There’s a much rumored “ultra-thin-laptop” with a 13.5 inch screen (same size as the current MacBook) that will sport only flash memory and sell for about $1,500. Then there’s the less popular rumor of an Apple Tablet computer, equally small, featuring some kind of touch screen, but declared unlikely since Microsoft-based vendors have pretty much killed the tablet category. 
The problem with both such products is that they are small markets without some killer app or new usability. Personally, I’d buy an under two pound MacBook, because I like to travel light, but those of us who would like such a thing may not be a big enough market. 
I hope Apple will change the world again because authors and readers of books need a technological solution to the problem of manufacturing books and getting them into reader’s hands. Here’s how Apple can do this. Apple has iPod-class-success with the iPhone and has also been selling a solid state iPod with the iPhone’s touch screen called the iPod Touch; basically, an iPhone without the phone. What’s promising about these devices is that the iPhone’s touch screen interface allows the user to flick though PDF, MS Word and text files in a way that feels like turning the page in a book. Reading a lot of text on an iPhone or iPod Touch is not very attractive because of the 3 1/2 inch screen, but it is possible and the interface feels right. Click off to the Apple web site for the demo movies on the iPhone and iPod Touch if you aren’t familiar with the way they work. So I’m hoping Apple’s new product will be… pause for dramatic effect …

The MacBook Touch

Think of an iPod Touch scaled up to a 13 1/2 inch screen but not much thicker. It’s a slate, a simple glass book, in which you can see pages of text or pages of media or videos, but has no physical keyboard like today’s laptops. You don’t need a physical keyboard to read a book. It surfs the web whenever it’s in a WiFi zone, does everything a MacBook can do when linked to the existing Apple Wireless Keyboard and has both the touchscreen interface and its virtual keyboard.  The current Apple touch interface: pinch to change the size of the text and images, flick to turn pages, rotate the device to switch from portrait to landscape, is already ten thousand times better than the Sony or Kindle’s clunky buttons. 
Here’s where we book people have to change our thinking. Everyone’s been assuming an ebook reader has to be a special purpose gadget that poorly mimics a book while trapping the consumer in a business model that ties the reading experience to the vendor’s device, file encoding format and sales channel. The Amanzon Kindle is a fine example of this kind of thinking. As an agent, I can grasp the idea of some sort of limit on free re-distribution of duplicates of the electronic book, but I can’t get used to limits on how and where the book is read. Publishing has survived hundreds of years with no control of what happens to a purchased book. You can read it sitting in your chair, at your desk, on a plane  or give it to your nephew or a total stranger. What I can’t get on with is the limit of reading something only on one single platform or when tethered to the shop that sold it. How many books would be sold if when you bought a Random House or Putnam novel, you had to read it by the light of the publisher’s light bulb and store it in a bookcase made or licensed by the publisher.Book people, including many readers, say, “we will never give up the paper book.” Yet, our reading habits have already changed. We already read more on our PCs than we read in magazines and lots of types of books. We read personal mail, business documents, play games for enjoyment, and read the stuff we just wrote on screens. What I want is one thin device that is portable like a book, but on which I can read anything pretty much anywhere. The iPod does this well for music and has sold over 120 million units. A thin MacBook touch could do this for documents. And being a MacBook, even if I have to flip it over or haul out the Wireless Keyboard for serious typing, it’s a computer too.
So without making the user accept another special purpose device or subscribe to a new proprietary service, Apple will have the world’s best electronic reader. Sure, you can expect books bought from iTunes Bookstore to have some kind of DRM, but since it reads PDF and text files too, it should be easy to download your own documents from your PC, Mac or the net. A MacBook touch would be a non-proprietory device that can read proprietary formats, as well as your company’s secure documents, since it is really a Mac laptop. What is not to like about this?

Now for the key objection.

It’s too expensive. Cost was the big objection everyone made about the first iPods and look how that prediction turned out. My hoped-for device would be too expensive if it was a traditionally visualized book reading machine like all those that were cheaper, had faint, gray screens, and failed. But would it be too expensive for a flat, touch-screen news, magazine and book reader that reads every web site in the world in full color? Would it be too expensive as a portable wide-screen movie player (sans DVD drive), music player and audio book player? Probably not.
So this is what I hope Apple will announce. If I’ve accidentally blown some of Apple’s secrets, I apologize. If Apple is reading this and didn’t quite think of this product yet, well, get to work on making it. Readers need this. The publishing industry needs this. I’ll buy the first one.