to own or not to own, that is the question

Numerous emails have flown both inside the agency and outside the agency concerning the recent statement by Simon & Schuster that they were going to change their boilerplate contract. I’m a couple days late to the blogosphere conversation. You can read an article at Publishers Weekly Online that says a bit about agent reactions. My pal Kristin has had some comments the last few days. You can find other commentary of interest, along with a proposed alternative model here.

Also, go read Victoria Strauss at Writer Beware and the post on Booksquare. Really, you’ll understand what is at stake much better. From Booksquare: “Simon & Schuster wants to own the rights to your book for the entire duration of the copyright. The good news is that you’ll be dead for 70 years of that time period; the bad news is that as long as S&S owns these rights, you can’t do a thing with your book.”

In case you haven’t been following along, I will explain. No, there is too much. I will sum up.

Thursday, the Authors’ Guild issued a highly-circulated alert in which they objected a “new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database — even if no copies are available to be ordered by traditional bookstores.” S&S has countered by asserting that the Authors’ Guild is over-reacting and the publisher says they will continue to negotiate in good faith on the subject of reversions. Most agents seem to be assuming a stance of skepticism until they have the opportunity to experience negotiations for themselves. I’ll be waiting to see what happens with my next S&S agreement.

It’s not that I’m a disbeliever in the long-tail approach, particularly when it comes to backlist titles that may have a tendency to languish. But one has to wonder what the motivation will be for the publisher to continue to make such books actively available in the case of terms such as S&S proposes.

The publishing standard has long been to establish a minimum sales requirement (say, xxx copies in two consecutive royalty periods) to constitute a book being in print if it is only available in POD or electronic versions. Smaller presses have offered non-exclusive terms with 30 day termination periods. An open-ended holding of rights such as S&S is currently proposing does not appear to be in the best long-term interests of the author.

4 responses to “to own or not to own, that is the question

  1. I’ve been hearing about this all over the place, and I have to say I’m still confused by it. I’m not a real agent or anything yet, just trying to learn enough to become one eventually, so I’m allowed to be confused for now, right?
    Would “any form” include, say, making the book available online for free as a promotion for another of the author’s printed books? How do you contract for a price for something that will be “on the shelves” for seventy years, through vastly changing economies etc? Would counting the books as “in print” just because they’re available electronically mean that the publisher would never necessarily have to print the books in the first place? Isn’t this clause sortof contingent upon the publisher being granted the electronic rights to even be in play? And wouldn’t that be a separate granting of rights and a point of initial negotiation with the publisher, not something they can just assume they’ll get? I thought audio or electronic rights don’t always go hand-in-hand with print rights… but maybe I just misunderstood the stuff I’ve been reading?
    Assuming the publisher is really asking for all that on purpose… how can they possibly afford to offer enough to justify it to the author? Signing that contract means the author will never ever be able to get control of the work back even if the publisher doesn’t ever print many of the books, it means that the publisher has effectively gotten worldwide english distribution rights without specifically negotiating for them, and it means that the author will be wholly reliant on the publisher to keep up with the technology and come up with innovative uses to maximize its potential… which realistically the publishers aren’t in a position to do, because they have far higher development and maintenance costs and so are limited to distribution solutions which will work well for MOST of their books, and which will be cost-effective for them to implement. Technology just doesn’t come cheap when you’re talking broad-scale implementation, and it also becomes impossible to ride the edge of it once you’re at that large a scale. Everything takes too long to set up and by the time you have you’ll be behind again.
    So, then, when an agent is negotiating a contract and the publisher insists on getting those rights and by extension control of the work for longer than the author or agent or editor will even be alive… what can the agent ask for in exchange? Electronic distribution is effectively infinite potential profit for next to no initial investment, and even less upkeep investment… what’s a reasonable royalty for something where the publisher takes on pretty much no risk and spends almost nothing? When the publisher can distribute a million copies for no more than the cost of hosting and a programmer to set it all up (assuming the distribution is as a download rather than online read), what’s a reasonable advance? When signing away the electronic rights means that the publisher has the opportunity to put the security of the work’s distribution in jeopardy (in other words, it is guaranteed the publisher will not be able to keep people from stealing the work online and it is a waste of money for them to even try too hard), how does the agent protect the author from the consequences to their bottom line? How is the publisher held accountable for the profitability of a medium and means of distribution they aren’t in a position to use to its full potential?

    • Personally… I think once we’re talking electronic rights and control for the duration of the copyright, we’d better also be talking about six figure advances and high royalties, no matter the quality of the work. Yes, I’m entirely serious. Print advances and royalties are one thing, because there’s a serious distribution advantage for the author that works with a publisher there… but electronic distribution is a whole different ballgame, and if a publisher wants the electronic rights they need to be willing to compete for them, and able to offer something better than what the author can get on their own.
      In terms of online distribution, four figures is easy to make, pretty much anyone can do that without even having all that great a product. Five figures is harder, but still entirely feasible for someone with a good product and decent website exposure… most critical for that number is an extremely good relationship with the fans. I know plenty of people who do five figures every year without even actually charging for their product! Instead they have free distribution with a PBS system of donations and various small rewards at different levels, and it works.
      Six figures is really the point at which I think you need better resources and a lot more exposure than your average author can get without having to spend more time or money to do it… so that’s the point at which it offers an advantage to the author to grant the rights to the publisher. Before that, you’re probably just as far ahead to do it yourself, provided you understand how.

  2. I saw this in PW and was immediately relieved to see it was not my publisher which means (I suppose) I will not have to be the guinea pig. S&S claims that it will still negotiate in good faith with anyone who wants reversion, it just won’t happen automatically any more. This to me sounds like the equivalent of, “It’s okay, you can trust me.”
    Also, from the bookstore POV, POD doesn’t work. When I look up a title in BIP and it says “Available for Order” instead of “Readily Available” it means I probably can’t get it. Often what happens is that we fax the publisher with the request, they presumably receive it, and throw it straight into the trash. If they’re nice, they fax back saying the title is no longer available. Hardly ever do they get back to us and say, “Sure, we’ll just print that right up for you.”

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