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Thanks for bringing these extremely valuable pieces to us, Kathy

Donna,

Thought it was an interesting article. So many ways to look at the issue.

Kathy

Gently snowing, how cool is that, I just got out from under 2 feet. And this contract clause sounds almost as scary, it sounds like Macmillan is saying "give me your hard work and I can do anything I please with it." - Please say I'm wrong.

I hope it's not enforcable and that even authors desperate to be published don't accept it as is.

Good grief...

I can't say anything else, or I risk saying something I don't want anyone to hear, read, or otherwise know I'm thinking.

I'm so shocked I can't get my eyebrows to come down.

That's just shameful! That's like taking a photographer's work and claiming the copyright because you painted a mustache and glasses on the subject!

Hmm. Perhaps this was the other shoe dropping? They made the contract longer and more complicated to conceal their shenanigans?

For what it's worth, I've heard that you can actually sell the rights to make derivative works, same as normal rights. So it's not illegal -- it's just a sleazeball maneuver.

Also, giving them the benefit of the doubt: maybe legal was ordered to extend their contract boilerplate to cover e-book versions, and the intern who got the job of re-writing it used some fancy legal language without knowing what it meant?

Not that it matters. Whether their amoral or incompetent, the reasonable response is the same: send it back to them with a note saying "Um, WTF?"

Blowing the whistle on your blog is unnecessary, but much appreciated regardless.

Kristin, can agent negotiate that clause out of the contract for his/her client?

Thanks for bringing this up!!!

There is good faith and bad faith. In good faith, you would draft a boilerplate that is to your favor, but within the bounds of generally accepted rights. This one is bad faith. Trying to slide one by the author (and agent). As you say, it contradicts copyright law and all that is fair. But if the victim who agrees to it doesn't know that, what difference will it make?

My word!!! That's very not cool. Here's hoping everyone who needs to see this post will.

Wow, there are so many "little" things in the contracts that I wouldn't have a clue about if I went it alone. They'd turn in to big huge "things" as soon as I signed my life away. As always, thanks for the info!

My thoughts? WTF!? That sounds very sly and horrible.

Is this common? I'm appalled. We're talking about a pretty big publisher. Does this make you not want to deal with them, and do you have other options for your clients? Thanks for informing us.

"Derivative works" is defined in 6(b) as "any derivative works based on the Work that this Agreement authorizes the Publisher to create or to authorize others to create."

The boilerplate in section 4 includes pretty much every kind of subsidiary right, and these can be negotiated individually and included in the grant of rights or reserved by the author.

My reading of the contract is that 6(b) gives the Publisher the copyright for derivative works authorized under section 4 (such as an audio recording or a graphic-novel adaptation), but does not give them any additional rights to create derivative works that aren't expressly authorized in the author's contract.

Do you read the clause differently?

I believe "derivative works", in terms of copyright law, is commonly understood to mean sequels, spin-offs, adaptations, and so forth. Stuff that you don't want the publisher to be able to sanction without giving the author a cut.

Phew!!! That don't smell so good...

Thanks, Kristin, for the heads up!

Wait. Tell me I read that wrong.

Wow. See, this is why I want an agent, rather than trying to go it alone. It's good to have someone watching out for you.

I hope you can help your client(s) with that clause.

I'd cry 'copyright infringement' right away! Wow. As a professional photographer, I'm acutely aware of these kinds of things and for something like that to 'show' up? Boggles my mind. Wow. Wow. Wow. :( Thank you for posting!

First: this is why it's so important for content providers to read contracts, and to know what is common and uncommong in them. As Paul (above) said, this is why I would like to have an agent--to help me understand what is normal in a contract and what isn't, and to keep me from getting (pardon my American) screwed.

The objectionable part is that the publisher thinks that it should own these "derivative works," not the derivative works themselves. If it was the derivative works, you'd be outlawing, among other things, fanfiction, compendia, concordances, etc. Those things seem to simply increase excitement around a book or its universe, but never replace the actual book itself. But the way that this is written now, I could see some clever publisher claiming that it owns a fanfiction site.

Anonymous at 6:38 pm-- not only the agent, but the writer herself, working without an agent, can negotiate it out.

I've negotiated seven contracts without an agent. You need to read them very carefully. Most things, in my experience, can be changed simply by asking. But if you don't read carefully, you won't know to ask.

As an author waiting to be published, I'm not very demanding. I know I won't make much money. I know I'll work like a dog. But at the end of the day, those characters and novels are mine. I'd rather give them away for free than allow a publisher and their ghostwriters to write the series without me. If that's what that clause means, it's a "mountain worth dying on."

I flashed for a minute on James Frey. Is that his name? That guy who wrote the fictional non-fiction memoir? I have also blocked the name of his reprehensible writer-for-hire company.

How awful.

Just a Canadian law student chiming in:

US copyright law is unusual in that it explicitly covers derivative works. Title 17 of the US Code contains a definition of derivative works (in §101) that includes any form in which a work may be "recast, transformed, or adapted", including "elaborations"

Most importantly, §106(2) grants the owner of copyright the exclusive right "to prepare derivative works based upon the copyrighted work". Like the other exclusive rights enumerated in §106 (including the basic right of copyright – the right to make copies), this right can be sold to others.

Now, I may be missing something here, but as far as I know it is completely legal to assign the right to create derivative works. Indeed, I believe that in some fields (such as photography, particularly for corporate clients) it's actually fairly common.

This isn't meant to suggest that Macmillan shouldn't be putting this clause in their contract. I'm just pointing out that assigning the right to create derivative works isn't some sketchy legal trick – it's a perfectly legitimate right that you own and Macmillan wants. Whether you give it to them is up to you (although I can't think of many authors who would surrender it).

Necessary disclaimer: I'm not a lawyer yet (and I'm Canadian, to boot!), so don't rely on this like it's real legal advice – you could get into trouble.

Your "eyebrow raise" was perfectly timed, for that is exactly the expression I wore as I read those words.

All I can say is - Seriously? I mean really. Seriously? *shakes head with eyebrows still raised*

Oh, those wascally wassholes...

OK, there seems to be some dissension in the comments over whether the publisher can legally ask for these rights, but even if they can, it seems to be a bad faith move and deprives the author and creator from potential income. I'm sure most authors would like to see this clause removed!

Wow, is all I can say. And thanks for sharing!

Thanks for passing this along ... yikes!

Off topic, royalty loss on e-books from the Authors Guild:

“The Help,” by Kathryn Stockett
Author’s Standard Royalty: $3.75 hardcover; $2.28 e-book.
Author’s E-Loss = -39%
Publisher’s Margin: $4.75 hardcover; $6.32 e-book.
Publisher’s E-Gain = +33%

“Hell’s Corner,” by David Baldacci
Author's Standard Royalty: $4.20 hardcover; $2.63 e-book.
Author’s E-Loss = -37%
Publisher’s Margin: $5.80 hardcover; $7.37 e-book.
Publisher’s E-Gain = +27%

“Unbroken,” by Laura Hillenbrand
Author’s Standard Royalty: $4.05 hardcover; $3.38 e-book.
Author’s E-Loss = -17%
Publisher’s Margin: $5.45 hardcover; $9.62 e-book.
Publisher’s E-Gain = +77%

Full article: http://www.authorsguild.org/advocacy/articles/e-book-royalty-math-the-big.html

I find this quite scary, actually, and possibly somewhat underhanded. Macmillan's New Writer department receives tons of novel submissions, daily, from new and unpublished writers--most of them without representation, and with no knowledge of the industry or their rights. I'd imagine there will be an awful lot who could sign without understanding the contract, and it appears as nothing more than them taking advantage of that. :(

Frightening news about that publisher, but not unexpected. More and more of them are willing to take advantage of writers in these uncertain times, while the entire profession is in flux.

Very bad news.

>>>get in touch with the Authors Guild before doing anything so detrimental to your intellectual property rights.

*snort* Turn to the AG? The biggest sellouts in all of writing and publishing history?

The Authors Guild Leadership: 21st Century Chamberlains

Yeah, they'd be *real* helpful. NOT!

I am calling upon writers and readers alike to please boycott Macmillan Publishing until they remove the onerous clause from their contract which grants them the right to create "derivative works" based on the work they are buying from the author.

Please Tweet, blog and post on FB about this. This insane attack on writers while the entire industry is in flux has got to stop. It is time we empower ourselves and fight back. It is time we demand to be treated with dignity.

Please, help spread the word about this boycott.

We must fight back in our own self interest. No one else is going to do it for us.

Kenneth Mark Hoover
Allen, TX

And while you're boycotting, ten thousands scabs are licking their chops because now they can be "validated"...

Scott Nicholson
http://www.hauntedcomputer.com

Indie publishing gains again.

Does anyone have a copy of the contract? I'd like to see what it says.

The Onion loves to pick on publishing. Here's a clip they did with a friend of mine as John Basil, publisher.

http://onion.com/dmdCbx via @TheOnion - Adults Go Wild Over Latest In Children's Picture Book Series

The real crime is the waste of mayo. I'm just saying what everybody's thinking.

Haha, condiment crime spree. Hopefully someone will commit a felony with ketchup so those three words can be strung together again.

The Onion article is hilarious as well. A girl seeing past the "brooding exterior" of a "bad-boy" minotaur, eh? I can see the cover now - a swooning girl and a buff, half-bull teenage boy - never mind, I can't, it's too hysterical.

I do like the idea of a "bad-boy Mayan vision serpent" though. :)

Hey now! As a Boisean myself I feel compelled to defend the condiment woman (dare I call her saucy?).

Sadly, I can't. It seems like everytime Idaho makes the nat'l. news it's for something wacky: women scalping each other in Kirkham hot springs, crazy man killing entire family and going on the run with the two kids, a small town changing it's zoning code so all residents are 'required' to own a gun.

Yes, it's a weird and wonderful world here in potato-land.

Way to go, Idaho! (channelling Toy Story there)

Minotaurs the new Vampires? Oh noes, I heard it was ferrets! LOL!

So that's why all my library books have had a mayonaisey smell lately...

That is hilarious. I love that the library in question is like 10 minutes from my house and I haven't heard a thing about these "condiment-related crimes" in local news. Thank you Kristin for keeping me up to date. :)

I would totally laugh at the mayo spree if I weren't currently working in a library. I've had one to many experiences of reaching into the book drop and pulling my hand out to find it covered in various slimy and/or sticky things.

And Minotaurs, wow! But hey, who would've believed me five years ago if I told them sparkling vampires where the next hot thing?

Not to jump off topic--because I totally love the condiment crime spree and Minotaur update,

but I'm curious why the publishers aren't able to take current data and show the author what their royalties would have been had they been under the amended contracts?--I'm guessing that's what the auditors do?--I really don't know.

This gives me hope for my Bolano-inspired story of a bad-boy chupacabra.

LOL.... I work in a library and certainly got a kick out of the book drop story. Hopefully it doesn't become a trend!

That Onion article is so well timed. I was shelving in Fiction yesterday and noticed all the many many vampire related books out there. (I knew we had a lot in YA, but I was surprised to see so many in Fiction as well!)

Mayonnaise? On books?
It's distressing how many people get that wrong.
It's mustard on books. Mayonnaise should only be dumped on videos, although salsa is also acceptable on DVDs, and of course nothing goes better with Blue-Ray than a nice ranch dressing.

People... why on earth are we the dominant species?

All I can see is a poor 74 y/o nice grandma in handcuffs...in a little jail cell...for mayo on books with realish other criminal in there. Anyone else seeing this picture after the drop! I'm telling other people about this story, so thanks for sharing!

Oh my gosh, The Onion post was classic! Bad-boy minotaur...wait, I would totally read a book about a labyrinth. Darn...

The Onion... Mayo... Damn, I'm getting hungry.

The even funnier thing is: that mayo crime happened in Idaho Falls- it's just too small to show up in the National News, so they call it Boise. That's where I live, and the next day, the library drop box was closed off! Oh brother! I agree though, the question is: why?

Actually, there's a crime trick...condiment crooks... pulled in Toronto where one crook squirts ketchup on a pedestrian while the second crook steals his wallet.

Check out author Brandilynn Collin's blog for her ideas on what the condiment woman might be saying about the books: http://bit.ly/dbcvof

Ha..priceless...
However, it makes me sad for the little boy...he was probably pummeled after the commercial...lol

YES. :D Hahaha, fantastic!

That was so awesome! I want one of those dolls ;)

HAHAHAHAHA! I've seen that video posted before, but this was the first time I had a chance to watch it. HILARIOUS.

Thanks.

That video = PURE AWESOME! "Nobody wants to read books written by GIRLS!"
hahahahaha.

Thanks for posting.

"Run away!"

Hilarious! Oh my gosh, I wish I had the set :)

That is HILARIOUS!!! I'm going to have to put it on FB-- thanks for sharing!

Reading that press release almost reminds me of someone arguing "did not" when confronted with an accusation, but not going into any more detail than that.

You know, when someone counters specific charges with "nuh uh," it's just not believable.

The AG said that Wiley changed e-book royalties from cover price to net receipts. It would be nice to say, "No, we didn't," or "We did, but we drastically bumped up the royalty rate in compensation."

"We don't think so" is just a dumb, unbelievable response.

Just found your blog, and love it! Thanks for keeping it real~

God I love youtube too - except when I catch myself after wasting a couple of hours watching vids instead of sleeping or writing or doing something else essential!

This though was one of the funniest things I've seen! must repost. Thanks for sharing!

Wow. Just. Wow.

Wow. That is some shady business dealings. Behavior like that puts the whole company in a negative light and puts their very integrity into question. As an author, the fact that they would conspire in this way would make we want to avoid them completely.

This is one of the reasons I like you so much, kudos to you for letting the word out- even when it doesn't affect you.

Wow, that's crazy.
Thanks for the post!

I can't believe they would do that. It's ridiculous and outrageous!

WHY!?!

THat's it! I'm marking them off my list. Yeeuucchh are they trying to lose authors?

Wow! Wiley's legal devision just made sure they'd be earning their paychecks for awhile. That just says "sue me" all over.

Absolutely shocked to see this.

And a big thank you to agents like Kristin and to AG who keep all of us informed and warned.

That seems highly unethical to me, and I'm glad there are agents on top of the issue.

Also, Forever Young was my prom song so now it's stuck in my head--thanks. :)

Thank you for posting this to keep your readership informed.

I would guess that many Bloomberg Press authors don't have agents. That's what makss this especially sneaky and underhanded.

Despicable. I wonder if Writer Beware! knows about this.

That is absolutely ridiculous. Wouldn't they have to send the contract to the agent before the writers? Hopefully the agents of the authors caught it.

This is shocking! This is a good way to alienate future writers. What were they thinking?

Thanks for the warning. I won't query them first hand, if I can't get an agent. I'm assuming they're first and foremost trying to trick the agent-less people.

And why am I not surprised?

Please shoot me now! Though I have been working on a book for some time, I am new to the publishing world. I wish I had found your site with examples of submitted query letters prior to sending one out yesterday. Ouch! Kristin, if you feel so inclined to read it and give any advice, please shoot me an e-mail. Thanks!

Royalties on "unknowable" net are a screw, period. Not because the percentage is off. If the publisher sold the books for 50% of cover price, I wouldn't mind that I got 20% of net, as opposed to 10% of cover price. But, guess what, publishers can sell the book for anything they want to. Why don't they add in their contract that they won't sell the book for less than 50% of cover price. Then, gimme a double cut of net, I don't mind.

Why hide the truth in a contract? That's the place where everything should be clearly stated and understood by both parties... and, well, being "knowable" helps.

The payment a publisher makes for "content" should be stable, knowable, and, well, payable. Please.

Wow - I just checked out the Mashable site and it's amazing! Thanks for the info. I also like the Market My Words blog -- it has a ton of info on publicity and marketing.

There's a site called Gender Genie--you can put in a block of dialogue and, based on studies of typical word choice differences between men and women, the site tells you whether the dialogue is more likely that of a man or a woman.

I found it useful when I was trying to write from the pov of a man and kept getting comments that it sounded too feminine.

I love The Word Detective, for recreational purposes. Internet-Resources.com is another great site.

Anyone who isn't subscribed to Mashable's email list or following them on twitter (or through facebook) should be. They're completely on top of new trends and technology and have been for some time.

Thank you, I appreciate your links they will come in so handy.

Hi, Lauren,

I'd like to call your attention to my podcast and Web site, The Writing Show, http://www.writingshow.com, where we offer information on the craft and business of writing as well as contests, reality shows, workshops, and more. We've produced about 300 podcasts now. We're in the process of expanding our text-based features as well, including a new forum, which will go live this week.

You can subscribe to the podcast via iTunes, Zune, or straight RSS feed available at our site.

Thank you!

Best regards,
Paula Berinstein
Producer and host
The Writing Show

I watched Sing Off last night, and I agree! FACE was fantastic! What were the judges thinking?

I thought Face rocked - how many a cappella groups sing Bon Jovi? Nota was definitely the only other group that stood out for me. I don't even watch television but made an exception for my fellow Coloradoans (yes, I think that's a word :)

Thanks for all the ebook info which honestly confuses me and further reinforces my desire to have an agent help me navigate those waters.

I DID buy the CD as a gift for my singing-dentist husband (no, he doesn't sing while he works, but all the way home on his commute.) Too bad about Sing-Off. I think they're amazing and deserved better.

First, a quick note on the midlist question. From a sales perspective, it can be very frustrating to sell an author with declining sales from book to book. My account focused mainly on the first 8 week sales at their store and bookscan, plus bestseller or award info. These were smart business woman who saw no reason to waste shelf space on an author with a declining audience. Something new, they were often willing to give it a shot. I was always pleased when a midlist author with declining sales changed his or her pen name for a fresh start. Some sales reps could mention the change if it helped them and others would present the author as a fresh debut.

I've been following your post on RH's recent announcement and I understand that this is not in the best interest of authors and agents. However, RH (and other publishers) must negotiate terms with the retailers that actually sell the books. While it might seem like agents and authors have very little leverage (apart from auctions), RH might feel they are in a similar position with some of their big name retailers. After all, grocery stores and big box chains don't need to sell books. In fact, they might make more money using the space for diapers or soft drink products.

These "interesting times" present a challenge to everyone involved with the publishing practice. .

I believe it was in one of Richard Curtis' books on publishing that he said royalties have never gone up in publishing.

I remember years ago, authors agreed to a drop in royalties FOR THE SHORT TERM when the price of paper rose drastically, but, of course, royalties never rose after the paper prices dropped considerably.

I hope that e-royalties will rise as digital takes a much greater share of the market, but I really doubt they will.

The Nerny-Nerny-Nert-Band as my niece used to say.

Thank you for answering my question! :) These really are interesting times, and I feel like the more I know, the better off I'll be. I appreciate all the insight!

I wonder what you would consider a good deal for e-book royalties. It seems to me, that if an e-publisher publishes a book, the author should get 50% of the net profit. In other words: book sells at amazon for 7.99; Amazon gets 65% Publisher gets 35%, author gets 50% of the 35% of cover price. In other words, author gets: $1.40 per book sold. That seems fair to me.

On a new author if the cover price is 3.99, the author would ultimately get $.70 per book sold.

That's not a lot for a new author, but if they sold 5,000 copies, they'd get $3,500.

Really, what else can an author expect?

If they write a hit, and sell 100,000 copies, they'd make 70 grand off the book and probably sell the screenplay rights, translation rights, and if books are still around, the print rights.

What else can they expect? This is the new world. We may just have to own up to the fact that writing doesn't pay any better than any other business venture. For it to pay, you have to be one of the few who really hit. You have to write the better mousetrap (mixed metaphor intended:)

Really interesting questions and answers - thanks for posting.

Kate x

As with any content business facing an unavoidable transition in business models, most publishers are acting defensively. It's understandable. Why not delay e-books and claim it provides an additional marketing opportunity, when even the model of delayed paperbacks doesn't make much sense anymore as hardcover sales continue to decline and there are more original paperbacks. The best bang for the promotional buck is to publish a book in every format at once and let consumers decide how they want to consume it. I know this will hasten the decline of hardcovers, but you can take a slow death or proactively transition your business.

I also think what RH is doing will only make it harder for them to obtain new electronic rights at a time when Amazon, Rosetta, and even agents and publishers can disintermediate them.

I think the best case a print book publisher has for retaining e- rights is that they will publish hard. soft, audio and e- at the same time with an effective marketing blitz.

(Did I say effective marketing blitz by book publishers?)

I totally agree FACE was awesome last night. One of the college groups should have gone home. My husband and I were both scratching our heads at the judge's choices. Bah. At least it was fun to see Sara.

Thanks for answering questions. I've enjoyed these posts.

(Sorry to derail)...FACE was great! I loved that they did Bon Jovi, and I really loved we got to see Sara and her wonderful act! Very cool! They're an extremely talented group of guys, and definitely NOT who I would've chosen to go. (And I have a degree in music/percussion, so take that, judges!) :)

Kristin,

I read your blog daily and I absolutely love it! It was one of the first things that really helped me get a grasp on the publishing industry!

But I have a question specifically for you if you have time to answer it.

When you receive queries, how do you feel about getting the first three chapters along with it? As far as I can see, your website simply says, 'E-queries only'. But is it permissible to send along the first three chapters with it, or is this something you personally object to?

Thanks so much Kristin for all the time and dedication you instill into this blog! You are amazing!

I saw FACE too last night- and they mentioned Sara and her husband. They were awesome!

May you live in interesting times IS a curse! (Chinese, that is...)

Hi Kristin! I know there's no "ideal" time of the year to send out query letters, but I was wondering about the holiday season. How long should you wait until after the holidays to start querying?

Thanks so much for all you do!

I really appreciate all the "digging into the details" information on your blog.

I have a question of further clarification on e-books if you are still taking questions. I feel like I am missing a really basic point here.

Certainly it makes sense that an ebook version of a book would cost less to produce than a print version of a book, because copying data is cheaper than printing on paper. But, shouldn't it still be be possible for authors *and* publishers to make the same amount per book? (And have the savings in production costs be reflected in the e-book price.)

An addition to my previous comment. Publishers have less invested in an ebook effort-wise (as in there is no design - cover or page, no time spent on securing a printer, etc.). So shouldn't authors in that case make more, as they have a bigger percentage effort invested in an ebook than a paper book?

I think I am seeing more of why this is so complicated...

"...they basically rejected RH’s argument that its older contracts that grant rights to publish “in book form” or “in all editions” is a grant of electronic rights.

It's happened to me. It's not a good feeling. A smaller press just released all my work in digital format without letting me know. When I contacted the editor, he didn't even know. I had to provide amazon links. I thought I'd signed contracts for print books.

On one level I'm screwed, on another, I signed a non-exclusive and I still own the copyrights. And I'll re-release and take advantage of an opportunity. If traditional print publishers think they are going to muscle in on the pioneers of digital publishing without a fight, they are sadly mistaken.

Joe Konrath revealed info on Kindle sales and what the impact is for lower-vs.-higher priced e-books on his blog, it was very interesting. Take a look athttp://jakonrath.blogspot.com/2009/10/kindle-numbers-traditional-publishing.html
(A Newbie's Guide to Publishing, October 13)

I agree with you on FACE. I thought they were rockin' and there were not very many groups that got me going (except Nota). The backstory about Sara was so totally awesome. I thought that was amazing what she did for her friends. Tell her she is an angel.
Also love your blog!

You can opt out of the settlement but AG only recommends that if you want the fun of suing Google yourself. Better have deep pockets is all I’m saying…

You can also opt out if you think there's nothing wrong with what Google is doing (scanning books to make them searchable might be considered fair use), or if you think there's something wrong with the Author's Guild keeping half the settlement as well as daring to speak for authors who aren't members of the Author's Guild.

By the way, the settlement with the Author's Guild gives Google rights they wouldn't have enjoyed before the settlement, such as the right to "earn money through advertising and by selling access to the full text of in-copyright, not commercially available books." In other words, the settlement with the Author's Guild enables Google to sell out of print books unless the author takes steps to prevent it.

Frankly, I find it outrageous that the Author's Guild could effectively sell to Google rights it does not itself hold, belonging to authors it does not represent.

Personally, I do not have a book in publish and am not currently affected. But I am working on my first piece and have considered this issue based on how I would feel.

I realize that I may be in the minority here, but if I find or read a copy of a book online and enjoy it, I go out and buy it to have on my bookshelf. Even when I love a book on my Kindle I buy the hard copy to keep on hand.
So for me, as an aspiring author, I would do whatever I could to court attention from the online community. Getting people exciting about your work online, even by them reading parts of your work for free, is a good thing.

Meganrebekah.com

Hi Kristen,

I have a book out of print. How do I go about opting in?

Thanks,
L.Strauss

Kristen,

Thank you so much for the warning. The idea of being automatically bound by the settlement if you do nothing is frightening.

Much appreciated!