The Magic of Fair Use

I've seen a lot of discussion about the Harry Potter copyright infringement suit. But for all the certainty lay people have, the experts are saying that, as with many fair use arguments, the case is a crap shoot. This article in the Hollywood Reporter is worth reading for those in the writing business, becasue you can never know enough about the conditions that control your fortunes - or lack of them.

New Rules of Custom Publishing

Here's something worth reading: the rules of custom publishing. It's a white paper aimed at publisher but has some interesting insights for writers, particularly those who are publishing their own materails, no matter what medium they choose.

Importance of Video Skills

In case you were thinking that an increasing emphasis on video was like the weather - everyone talking about it, but no one doing anything - here's part of a Wall Street Journal ad on Mediabistro that you should see:

The Wall Street Journal Online is seeking talented video journalists worldwide to shoot and edit video on a freelance basis. You'll be assigned to work alongside some of the industry's best print journalists, helping illustrate their stories via Web video. Assignments will only be made to excellent storytellers with solid news judgment and a proven track record in video journalism. You must have your own camera equipment and be a strong FinalCut editor. We will pay a reasonable assignment rate for "all-in-one" work.

The Journal is not an easy place to break in as a freelancer, and the opportunities, as I understand it, have always been limited. But no matter what you think of the changes that Rupert Murdoch is bringing, you can make book on his understanding the need for real multimedia more than most in the various media industries. Now is the time to start learning, and maybe invest in a camera (even high definition ones are getting cheaper) and some software (you want the "Photoshop" equivalent in terms of industry acceptance).

Michelle Vranizan Rafter's Best Blogs for Writers

Michelle Rafter ran a list of best blogs for writers on her blog, WordCount. Ignoring for a moment her inclusion of my blog, there's a great list of resources, from the mechanics of writing and editing to the freelance business and corporate writing. It's worth putting on your list.

The PITA Tax

On her blog, Heather Boerner has an amusing and useful piece on treating pain in the rear clients as a class that needs to be taxed as part of an interview with Bob Sutton, author of The No Asshole Rule. The idea is to add up all the time you spend, including the minutes you fret over dealing with the client, and multiply that by your hourly rate. This is actually a cute variation on understanding the profitability of a client. You have to calculate not only the time for which you actually get to invoice, but that part belonging to overhead and personal time. Much of this you would ordinarily write off as part of your operational expenses (for example, you don't get paid for crafting pitches to clients). But if the time is significant, it may heavily cut down the profitability, because you're actually putting in more time than you can bill for.

I'd take my target hourly rate (How many zeros can I add?), not my bottom line "must make" number, and multiple it by all the time spent on the average for the client. Then take that total amount of money and divide by the number of billable hours. Whether you express this as an hourly figure to them or merely up your project fees doesn't matter. However, do be prepared to find a replacement client, because if the size of the new number doesn't kill him or her, there's a good chance the person will walk away. Ah, how sad.

Are States and State Employees Immune from Copyright Suits?

A February District court case in California invalidated part of US copyright law. The particular statue is the following:

Any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity, shall not be immune, under the Eleventh Amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person, including any governmental or nongovernmental entity, for a violation of any of the exclusive rights of a copyright owner provided by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

In the case Marketing Information Masters v. The Trustees of the California State University, the Pacific Life Holiday Bowl (organization that puts on the Holiday Bowl football game) had hired the plaintiff company in the past to undertake a survey to show the economic impact of the game on its home of San Diego. When the company tripled its fees for the 2004 survey, the organization instead turned to San Diego State University to instead do the research.

Given a copy of the previous work, the school had been told to use the same format of layout - which is something that has a copyright. The school did, the company found out, and it sued the university trustees and the professor, both of whom filed a motion to dismiss the suit under the 11th Amendment of the U.S. Constitution, which states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The company argued that the part of copyright law at the top of this post precluded such a defense. The court ruled that part of the law unconstitutional because, essentially, the Constitution generally trumps legislative attempts to specifically limit it.

Does that mean if a state uses your work without asking, you are out of luck? Not exactly. Although the deep pockets of the state itself may be off limits, state employees are only protected to the extent that they are acting within their official capacity. If they infringe copyright, they are breaking the law, and if they are breaking the law, they cannot be acting within their official capacity, so you would sue the individual.

Contract Review: Custom Solutions From SmartMoney

This contract is from the custom publishing arm of SmartMoney. I'm not a lawyer, this isn't legal advice, and make sure you negotiate, because there are some terms in here that I'm betting you'd want to change. I'll review the clauses that I think might be of interest. Warning - every now and then I find a contract that seems so odious that I indulge in sarcasm and ranting. This is one of those cases:

• Clause 1 This would seem like standard "You're going to do this and the assignment schedules become part of this agreement" wording, but there's a killer sentence at the end: "However, should Consultant receive an offer to work on other projects that may be competitive to SmartMoney’s business, then Consultant must get approval from SmartMoney before accepting such assignment." Huh? Since SmartMoney is technically in the custom publishing business, you have to get flipping approval to do something that would be competitive, otherwise known as writing for any other custom publisher? No where in the agreement does it specify what SmartMoney considers its business to be. Could that include writing an article directly for a company that SM (notice the intentional allusion to pain games) might want as a client? Check their site and notice some of the work they do: magazines, newsletters, annual reports, booklets, bulletins, and web sites. To me, that's a "that goes or I go" statement, as they're trying to control your income and business without any promise of future work.


• Clause 2 It gets better and better, or not. You must perform all the work demanded "in an acceptable manner" to get paid. Also, "In the event the Materials are not accepted, SmartMoney will pay Consultant a reasonable kill fee, the amount of which shall be determined by SmartMoney in its sole discretion." That's right, it's totally up to them, even though they could deem it unacceptable because you delivered it on a Tuesday. There's no definition of the acceptance process or how long they can delay it.


• Clause 3 a) They want WMFH, which isn't surprising because, after all, they want to own your custom publishing time and prospects. They can do anything they want with what they accept. You have to wave moral rights.
  
  b) They also want "the sublicensable worldwide right to use Consultant’s name, biography and likeness in connection with the publication, use, advertising and promotion of the Materials, SmartMoney, its Custom Solutions division or its clients’ use of the Materials, and to make such other promotional use as SmartMoney, its licensees, successors or assigns may determine." In other words, your name, background, and image become a commodity that they can use again and again to promote themselves and anyone they sell the rights to, even if you would not want to be associated with said organization, product, or cause. You cannot ask to have your name withheld if they butcher your writing, yet they don't have to give you credit at all.
  
  c)You have to warrant that "SmartMoney’s exploitation thereof [of your writing] will not violate or infringe the copyright, patent, trademark, right of privacy or any other right of any person or party or be false or libelous or defamatory." That isn't just saying that your writing won't infringe copyright or be defamatory, but that their use won't be. There have been cases where people successfully sued for libel because of the way materials were used, even though the materials themselves were fine. You can't determine context, but the way I read this, you are warranting their use, which includes the context in which they use your work. Now for the indemnification: "Consultant hereby agrees to indemnify, defend and hold SmartMoney, its partners, affiliates, trustees, directors, officers, employees and agents harmless from and against any and all claims, demands, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or related to a breach of Consultant’s representations, warranties and obligations hereunder or in any way to any of Consultant’s services provided hereunder..." Notice that you're not just indemnifying for a breach of the warranties, but for anything that would arise out of the services you provide, which means if they get sued and someone cites your article, you could find yourself indemnifying them. This is really bad.


• Clause 4 This is one of those idiotic confidentiality clauses so strictly constructed that technically you could not tell a source the subject matter of the article you are writing. When you stop working for them, all materials that they own, you must return. As you've done WMFH, I think that means every copy of any article you've written for them. If there is "a violation or attempted or threatened violation of this provision, SMARTMONEY may apply for and obtain, without any requirement to post a bond or other security, an injunction to restrain such violation or attempted or threatened violation..." Boom, an injunction because they think you might reveal confidential information. It doesn't matter whether it's likely that they'd do this or not, because you're bound by it should someone in the company decide to make use of the clause.


• Clause 5 You can't try to get any employee or client to leave. If you do, or if there's a threat that you might, they can again get an injunction to stop you.


• Clause 6 If the non-disclosure isn't enough, here's a gag clause (first time I remember seeing this in a publishing contract): "Effective with the signing of this Agreement, Consultant agrees to make no statements relating to SmartMoney, its affiliates or the project Consultant is working on orally or in writings which impair or disparage the reputation of SmartMoney or its clients." In other words, your opinions are now censored.


• Clause 9 I think this contract was adopted from one meant for more general services: "Consultant will comply with all federal, state and local laws regarding business permits and licenses that may be required to carry out the work to be performed hereunder." You'd need something like that if someone was doing building or renovation. But not for writing, so it doesn't apply. And, contractually, they cannot make you attend staff meetings. At least something in the contract is appealing.


• Clause 10 The contract is construed under New York State law, which is good in terms of the interpretation of libel, et. al. But if there's a contractual dispute, you have to go to New York courts.


• Clause 11 This is the entire agreement, so nothing that an editor says or writes to the contrary of any clause has any force. Similarly, don't expect any term that you include on your invoice to have force - and that means how quickly they have to pay.


• Clause 12 You cannot tell anyone that this agreement even exists and you cannot tell anyone about the services you are providing to them. "Without limitation, Consultant agrees that Consultant will not issue any press release or other information concerning Consultant’s services." Sounds like that means you cannot mention them as a client in your marketing.

Daring to be Wrong

I have often seen writers asking the most basic questions, even when they've been in freelance writing for a while. I don't mean fundamental questions, like what are some principles that can help me find my direction. I mean basic, such as do I mention that a mutual acquaintance the editor and I have suggested I pitch, or am I allowed to call an editor?

Although I do believe in the adage that no question is too foolish to ask, I think we all have to temper that with another: if you're going to ask a question, understand why you do. The answer for many writers, including a number who have many years of experience under the belt, is that they ask questions because they're afraid of making even the slightest mistake. That in itself is close to the biggest error you could conceive.

There is no way you can ever come close to complete certainty. As in any activity, you cannot just read how to do it. The only way to learn is to try and to make mistakes. There will be times you say or do the wrong thing. Don't worry so much. So long as you're not doing something like making up a story or delivering excremental effort to a client or insulting people, you're not going to do irreparable harm to your business.

It's as though people want a set of rules and checklists to follow that will guarantee success. But the more specific the prescriptions, the less flexible they can be and the more certainly you will settle on something that cannot work all the time. In other words, the more you try to get the complete and exact list of steps you need to succeed in business, the more you set yourself up for failure.

The important thing is to learn the underlying principles, not their specific applications in all circumstances, because what will work for you will not necessarily work for me. Just try to practice the following:

• Put your client's interests before your own.


• Do your best and then keep trying to surpass it.


• Remember what you need out of your business and don't dishonor it.


• Acknowledge all the help and luck you have had and do what you can for others.


• Say no to the unethical and odious.


• The business is about relationships, not about words.


• The sooner you make the first 5,000 mistakes, the sooner you can learn and improve.

Anyone who can't deal with your being mortal and human is probably not someone you'd want to do business with anyway.

Contract Review: Pet Age Magazine

A writer requested a review. As always, I'm not a lawyer, this isn't legal advice, and you should try to negotiate what you don't like about a contract. I'm focusing on the potential problem areas, for the most part.

• They pay 45 days after acceptance, but there is no definition of when acceptance happens. I'd suggest modifying the on acceptance to something like "...on acceptance, which may not be unreasonably delayed or denied."
• They want the following rights: First North American Serial; right to use the article for no additional pay in any of the publisher's other magazines; non-exclusive right to license others to use the piece electronically in any form; non-exclusive right to license reprints so long as the author agrees in writing in advance and, if the publisher doesn't get money, the writer doesn't get money, either.
• Publisher can use writer's name, image, and bio in conjunction with either the article or the magazine itself.
• You wave moral rights and will make "reasonable revisions" to the article at their request.
• You must provide source contact information and provide confirmation of all facts and keep that material for at least a year.
• You warrant, among other things, that "the Work contains no matter that is unlawful, obscene, constitutes defamation or otherwise violates the rights of any third party, including, without limitation, any copyrights, patents, trademarks, confidentiality obligations or trade secrets, privacy rights or publicity rights," which is very broad and should be constrained with the word "knowingly" or even "to the writer's best knowledge."
• The publisher wants you to indemnify not only for an actual breach of the warranted, but for alleged breaches, which is really bad, because you could be stuck even if you had done nothing.
• In case of a breach, or even an alleged breach, the publisher wants the automatic ability to ask a court for an injunction.
• If there is a legal dispute, you have to take it up in Chicago.

Contract Review: Pace Communications

Here is a recent Pace contract that a writer sent. Please remember that a) I'm not a lawyer, b) this isn't legal advice, and c) my remarks don't necessarily mean that the publisher will or will not negotiate (it's always good to try the latter):

• Clause one This gives the tentative article name and an approximate word count. Unfortunately, there are no limitations on the amount by which the count can go up, but the payment (clause 10) may be a fixed amount.


• Clause two This is the clause where you state that you aren't going to infringe anyone's copyright. However, there is a built-in indemnification "from all damages, costs and expenses which PACE may incur by reason of any copyright infringement or claim of copyright infringement." That "claim of copyright infringement" is a problem, because what if you were not guilty of it? Ask to alter the wording so that it is only for final judgments of copyright infringement in a court of competent jurisdiction after all appeals have been exhausted.


• Clause 3 This is a fairly reasonable warranty that, to the best of your knowledge, the article has nothing in it that, if published, "will be libelous, defamatory or scandalous or violate any personal or property rights of any third party." You agree to cooperate in joint defense, though, frankly, I'm not sure whether that might open you to having to bear some part of the legal costs. It's also not just for any libel or defamation, but the claim of libel or defamation.


• Clause 4 Here's where you get the delivery date and you agree that you'll keep a copy of the article around at least until the publication date. (What, someone would not keep a copy?)


• Clause 5 You have to provide phone numbers, releases, references, and so on for fact checking. Does that mean you have to send over hard copies? I don't know, but would suspect that, yes, you would. Do you have to provide your notes? I'm not sure it would be covered, and I certainly wouldn't volunteer such material, since fact checking should be independent verification that what you claim is true actually is according to someone else, which means specifically going to sources that aren't looking at your notes.


• Clause 6 If you don't deliver the article on time, they can cancel the contract, and there is no provision made for someone having extended the deadline. If they don't like the article, they can request one rewrite. They start payment when they "verbally accept" the article. I'd follow up with an email to establish a trail of that acceptance, as otherwise there is no way to prove the telephone conversation happened. There is no time line for them having to provide acceptance or rejection within a given guideline, and they should only be able to reject an article if it does not cover the agreed-upon topic or does so in a way that is not professional. As for a kill fee provision: "Prior to acceptance, should a rewritten Magazine Article not be satisfactory to PACE, or if PACE elects for any reason not to publish the Magazine Article, it will pay WRITER a kill fee of U.S $XXX in full and final settlement of PACE's obligations hereunder." In other words, even if you do provide something satisfactory, they can decide to kill it (maybe because of a dual assignment or because editors changed their minds) and not pay you the full amount, which is unfair.


• Clause 7 They can edit to their usual standards.


• Clause 8 They have absolute rights to how the story will be presented and and to cancel, modify, or delete any story. (Please don't ask me the difference between canceling a story and deleting it.) Paired with clause 6, that means absolute control over whether they have to pay you the full fee or not.


• Clause 9 They want 120 days of exclusive worldwide rights to all media, including electronic. During that period, "PACE is further granted the right to reprint or quote the manuscript without fee or permission for a period of one hundred and twenty (120) days after publication so long as appropriate credit to the writer is given." This wording is sticky, because, strictly speaking, it doesn't give them the right to let another use it. However, this would let them put the same article in another of their magazines, in an edited form if they wished, without paying you anything extra so long as they included your name.


• Clause 10 They state the fee for the piece, you promise that you'll work on "revisions or reasonable additions" during editing and fact checking, even if you've already been paid. You are promised credit (though it would be good to have the option to remove your name should any editing be objectionable). Payment happens through direct deposit.


• Clause 11 You state that you won't get money, gifts, or services from anyone in the article or anyone who appears in preliminary research without approval in advance from Pace, although "Advertising or promotional novelties of nominal value or bonafide business meals are excluded." In other words, are you getting comped lodging, admissions to places, or other such things? The contract probably forbids them.


• Clause 12 You're an independent contractor and responsible for your own insurance, taxes, and benefits.


• Clause 13 Neither you nor Pace can assign responsibilities to someone else. That could be taken to mean that you could not hire someone to do research for you.


• Clause 14 If any part of the contract is waived (and that has to be in writing), the remaining parts are still in force.


• Clauses 15 and 16 Both were missing from the copy I saw (which was retyped by the submitter).


• Clause 17 This is the complete understanding, so anything to the contrary in writing or said doesn't count.


• Clause 18 The laws of North Carolina govern the agreement.

Fear of Phoning: 5 Techniques to Reduce It

From time to time I see writers posting online messages about feeling afraid to call clients. Personally, I think it's a mistake to simply avoid the situation by using email for several reasons:

• Constantly avoiding what you fear only strengthens the emotion's grip on you.
• Editors often ignore email, or the messages get pushed into a spam filter, leaving the writer wondering why there is no answer.
• Sometimes the phone is the best form of communication, next to being in-person, and to avoid it is to give up an important marketing and sales tool.

I often see another writer answer something to the extent of, "Oh, but you're great, so just call. Don't be worried about it." Tell that to the person in the middle of fear. It may sound good, but the results can be exactly the opposite of what the encourager might want. Instead, here are some approaches that can be helpful. None of them require you to directly confront the fear, as often the most effective approach is an indirect one that lets you focus on intellect or action, both of which offer you far more control:

• Write it down One of the ways the fear of phoning comes out is the sense that you're babbling and sound like a complete loon. So write down all the points you want to make in roughly the order you want to make them. When you're prepared and know what you have to say, then you can stick with that, rather than trying to wing it.
• Take your time There is no rule that all negotiations happen within one sentence, let alone one conversation. Take the time you need to make your points. If someone comes up with something you're not ready for, say that you have to give it some thought and plan a subsequent discussion on the issue.
• Schedule ahead It's tought to make yourself pick up the phone when you're in the middle of fear. But the entire situation is different when you've scheduled the call and you cannot simply not bother. Use the power of your own obligation to get you on the phone in the first place, when possible.
• You can always say no You tend to get on a call to conduct a negotiation, whether over a contract, an assignment, or even the attempt to get an assignment. Fear comes in part from the concern that you won't get what you want. When that happens, invoke the power of walking away. There is no single assignment that will make or break your career and no single job that will make or break your entire financial existence. There are always other clients and other work out there; remind yourself to reduce the pressure of how much you need this particular negotiation to go through.
• Do some marketing A variation on the previous point, you can become more confident when you have more prospects. Reduce your dependence by sending off a few queries before you get on the phone. The more choices you have in work, the more control you have and, as a result, the more confidence and less fear you will feel.

Work with every intellectual and physical tool you have in a way that increases the odds in your favor and reduces the power of fear.

Magazine Ad Trends: Products Advertised Equals Topics Covered

There's an old trick in the magazine business: if you want advertisers, then cover them editorially. I don't mean the ethically-challenged tit for tat we've all seen some publishers indulge. In this case, there's a more natural and obvious connection. If you never mention consumer electronics in your publication, then it becomes harder for ad salespeople to interest consumer electronics companies to advertise:

Ad salesperson: "This is really a great publication for you to reach your customers."

Corporate ad buyer: "But we sell nutritional supplements for older people and you have a magazine for kids. What interest are they going to have in geriatric products?"

Ad salesperson: "Ah, but one day they're going to be older, and think of all the mind share you would have built!"

Tough to make the sale if you can't show the natural interest. That's why you should take a look at this article from Crain's New York Business, which discusses the general state of magazine ads and which categories are up and down in the first quarter of this year as compared to the same time last year:

For the entire industry, rate-card-reported advertising revenue, which does not reflect discounting, came in at $5.2 billion, down 1.2% from the previous year. Ad pages—generally considered the more reliable industry bell weather—fell 6.4%, to 49,167.

The top advertising categories that actually showed growth were retail; transportation, hotels and resorts; financial and real estate; and food. "The category that includes the likes of Kraft’s macaroni and cheese and Lay’s potato chips almost single-handedly held up the magazine industry in the first quarter, according to numbers released Monday by the Publishers Information Bureau of the Magazine Publishers of America."

The categories getting hammered were led by automotive, which is no surprise in the combination of economic downturn and tightening credit market. It dropped 17 percent. Home furnishings and supplies lost 12%. The reporting is based on numbers from Publishers Information Bureau of the Magazine Publishers of America.

You might also check the numbers for how individual magazine titles did. Some of the big winners were All You, Backpacker, Cookie, Ducks Unlimited, Every Day with Rachel Ray, Family Fun, Field and Stream, Medizine Healthy Living, OK Weekly, Quick and Simple, ReadyMade, Remedy, Ser Padres, Transworld Snowboarding, Womens Health, Wondertime, and Relish.

Some of the big losers: ABA Journal, Auto Week, Boating, Businessweek, Coastal Living, Cycle World, Endless Vacation, Entertainment Weekly, Fortune Small Business, Golf for Women, Gourmet, Hemispheres, Kiplingers Personal Finance, Motorboating, National Journal, Reader's Digest, Rolling Stone, Scientific American, Tennis, US News & World Report, and the Los Angeles Times Magazine.

A caveat: these are all based on rate cards. But discounting is common, and there's no telling for sure whether the magazines that had gone up might have effectively dropped their price. (However, generally when you're selling a lot of ads, you don't have to drop rates so much.)

Call for Amazon Boycott

YouWriteOn.com, a popular UK site for new writers, run by the UK's Art Counsel, is calling for a boycott of Amazon. Apparently Amazon is expanding its punitive efforts beyond just the arm-twisting to force publishers that use print-on-demand technology into buying the services only from Amazon's own offering, which is anti-competitive and an attempt, in my view, to force monopolistic vertical integration into the industry.

Now, at least in Britain, the company is angry with publishers selling their own wares at a discount on their own web sites. To be fair, such channel conflict - when the sources of product undercut the price of a reseller - is considered by retailers to be poor behavior. After all, the reseller cannot possibly match the price of the vendor. But there is talk that Amazon may move beyond what I think might be reasonable dislike of the practice:

There are fears that Amazon may retaliate by regarding a publisher’s online price as the recommended retail price and applying its trading terms to that. If a publisher discounts a £20 book to £15 online and Amazon has a contract for a 50 per cent discount on the full price, Amazon would pay the company £7.50 instead of £10. Publishers say that this would be unfair and could ultimately drive up prices.

In addition, there are more rumors over what Amazon is demanding from the POD publishers whose buy buttons it has disabled:

One source claimed that the online seller recently removed the “buy buttons” from a book on its website to prevent users from being able to purchase it. “They then went to the publisher and said, ‘Give us an extra 2 or 3 per cent or we won’t put the buy buttons back’,” the source said.

An Amazon spokesman said: “It is speculation. We never talk about discussions with suppliers.” He declined to comment further.

So when will the pressure start ratcheting up in the US? Maybe it is time for all of us to take our purchases someplace other than Amazon - and to email Jeff Bezos (email address from Small Publishers Association of North America, or SPAN, whose executive director sent this email) to let him know how many people in the industry are distressed by his company's actions.

Why You Can't Sue for Copyright Infringement If Someone Doesn't Pay

The thought of suing a publisher for copyright infringement if it doesn't pay is tempting. I once asked my publishing lawyer about the concept (not for a specific reason, but just because it's good to know about these things before you actually need them). He said that, in general, a court would not accept that approach and, instead, view the issue as a breach of contract.

I hadn't thought that much about the concept until someone brought it up on a writers' board. I passed on what I had heard and was asked by someone who had the same initial thought as I why this wouldn't work. Here's what I answered, though, please remember it's my own ramblings here, not the explanation of someone really qualified in legal issues.

The problem is that copyright infringement happens when one party uses another's copyrighted material without permission. However, in a dispute over a publishing contract, there *is* permission. Causing the conflict is that one side has not upheld its side of the contract (which is actually a private law drawn up between the two parties - this will become important in a moment). Therefore, the court focuses on that dispute as the one needing resolution.

If the writer were able to sue for infringment, he/she would be free to back out of the very same contract, changing terms after the fact, which is the egregious action of the publisher. That reduces the private law - the contract - to something with no power to compel people to meet the terms. Looking to an analogy for a moment, just because someone breaks the law by robbing a bank doesn't give the state authority to also ignore the law and use unreasonable search and seizure in prosecuting the crime. To say that the framework of law no longer applies when one party disregards its obligations is to say that we live in a world of chaos, because law will be out the window every day.

Now, my lawyer did say that there could be cases under which a writer *might* withdraw permission. For a contract to be valid, there are some basic assumptions. One is that there is a commercial transaction - the reason why if you're giving away something through a contract, you may require the payment of a dollar, because then there is something given on both sides. Another is that both parties enter the contract in good faith.

You'd pretty much have to show a pattern of such behavior on the part of the publisher to demonstrate that it entered the contract in bad faith. Then a court could find that there was never a contract in the first place, and you might be able to sue for infringement. However, that is an extreme situation that a court will be naturally reluctant to enable. You would be asking the court to assume that you, the writer, would be truthful and absolutely correct on first principles. As virtuous as I'm sure you are, you don't want a court to assume that, because then it could just as easily assume that the publisher was the party presumed to be accurate and honest. Instead, the court sees the possibility that there might have been a mistake, or some problem that caused a breach, and that's not the same as bad faith.

In short, to have the automatic right to sue for copyright infringement because of a payment dispute would essentially be to give everyone the right to act as though a contract had never been signed because of virtually any disagreement. And there's no court that wants to go down a slippery slope, let alone a slippery vertical drop.

Blog Ahead of Time

One of the big challenges in blogging is to keep it going day after day - or even day after every other or every third day. Miss frequency, and you don't gain readers. But posting more often means having time. Here's a trick that just became available in Blogger.com (which I use), and which has been around for some time in some of the other blogging engines: post-dated publishing.


What you're reading today I wrote on Sunday, when I had a bit of time and was knocking off some blog entries in advance. I write when I have a chance, and then set the date and time when I want the post to appear, and then publish. Voila! Instant literary (or not) time travel. It doesn't solve the overall issue of time commitment, but it does let you work on your schedule a bit more. Then, if something comes up that is timely and you want to cover that instead, get to the post before it goes up, change the date, and keep it for another time. In Blogger, you get to this by going to Blogger in Draft; that's the version with all the new features that haven't quite made it to regular Blogger. As for other blogging engines, you're on your own there.


I'm still experimenting with this, and the feature doesn't seem completely solid yet in the way it works. But, hey, it's free, so I'm not going to argue

Reference Sites for Publishing Law

It's good to have some places to learn about publishing law, as that is a vital part of running your writing business. I've just added a couple of links to my "Other Other Sites":

• Ivan Hoffman Hoffman has been in publishing and entertainment law for decades and has a great collection of articles on aspects of contracts, rights, coypright, and doing business. I periodically go in and see what new articles he has listed and catch up on my reading.


• PublishLawyer.com This is another site by an attorney, Daniel N. Steven. It has more of a tutorial feel to it and also has features like the Quick Guide to Book Contract Trouble Spots.

If you're serious about running your writing business, you should be learning as much as you can about contract and publishing law. You don't have to become a lawyer to start improving the way you look after your own interests.

Bnet's Catching Flack Doesn't Catch Query Posting Problem

When I posted about HARO queries being posted on a blog, I guess I must have hit a nerve, as both Mediabistro's PR Newser and Bnet's Catching Flack picked up on it. (Must have been a slow news minute in the blogosphere.)

Unfortunately, I think that Jon Greet on Catching Flack didn't catch what was really going on. First, he seemed to take exception with Shankman's taking exception with the PR person taking the queries and putting them on a blog:

For starters, email is Internet content. It may not be de facto ok to republish it, but you can’t just tell people no. What’s to stop the offender from resubscribing via another email account and reposting the emails via an anonymous blog? Nothing, really. Or, what’s to stop a HARO subscriber from forwarding a HARO email to any number of their friends? Again, nothing.

A variation on the argument could be made that just because it's illegal to rob a store, what's to stop someone? Because it is illegal - and immoral and unethical. Similar to Profnet emailing queries, the HARO emails are copyrighted compilations, and the individual queries are copyrighted by the reporters.

Under both international and US copyright law, as well as the Digital Millennium Copyright Act of 1998, people do not have the right to take copyrighted material and post it on the web, absent a fair use argument. Posting something in its entirety on a commercial site as a way to attract traffic could be a textbook example of something that was not fair use. And the person whose copyright has been infringed has a number of legal remedies, just as the shop owner who has been robbed has.

In addition, Greer called the letter a "hissy fit." However, he happened to have left out its middle - the part about openly posting the email addresses of reporters, which makes them subject to the harvesting of spambots. (I'd have added that open posting also presents competitive problems for the writers and publishers looking for sources, because it starts identifying which publications are looking at particular stories.) By leaving out that part, I think he badly and unfairly mischaracterized Shankman's reaction - and the reaction of the writers I know whose queries were posted.

This post isn’t about ethics. I could argue both sides of the ethics debate. What its about is that the Internet is a super-powerful communications tool and you can’t take for granted that pre-Internet rules of engagement automatically apply. You have to anticipate how the power of the Internet may impact what you are doing or want to do, and adapt. You just can’t make assumptions.

When you ridicule someone for objecting to a practice, you are talking about ethics in more ways than one. The issue in question was one of ethics, and by slanting the appearance of the letter, there's an entire other aspect of ethics that comes into play.

Finally, Greer argues the following:

So if Shankman wants to make HARO a strong and viable service that will survive, he’ll have to think through some of these implications and adapt or change the service. Otherwise, HARO is going to flame out, as journalists abandon it because they no longer find it to be an efficient and credible source of information.

Quite the opposite. To embrace having everything posted openly would be the kiss of death. Many writers got leery of Profnet when someone started posting those queries, and I know a number that had a similar reaction when the HARO ones appeared. You might argue that the reporters are being unreasonable, but then why not extend that to everything private, and have all of our information, no matter what, posted? Because that would be nuts, and just because something is possible doesn't mean that you should tolerate it. And that's exactly the point here.

B&N Offers Web Site with Free How-To

How-to book authors, take note: Barnes & Noble has a new web site called Quamut.com that offers free advice and help to users. They commission pieces, have them edited and fact-checked, and add photos and drawings to make them clearer:

“Quamut.com positions Barnes & Noble as a leader in digital how-to publishing,” said Dan Weiss, publisher and managing director of Quamut.com. The company simultaneously publishes all content in two formats: as HTML content and as downloadable PDFs. In some cases, Weiss said, Quamut guides are also available as a four-to-six page laminated printed charts, available for purchase at Barnes & Noble stores and BN.com.

The business is supported through three revenue streams: advertising through display ads and Google AdSense, the sale of full-color PDFs ($2.95), and the sale of laminated printed charts ($5.95 each). Many ads on the site are for books related to the subject at hand; for instance, the guide to stretching features an ad for books about stretching, with the line “Learn more with these titles from Barnes & Noble.”

This can't be good news for the many authors who write for the how-to series books. Even if the pieces are short (the downloadable PDFs generally run from 2 to 8 pages, many people buy how-to books to learn something specific. Break it out and you suddenly don't need the entire book - and I'd bet that the Quamot authors aren't getting royalties on either advertising or downloads. Or maybe I'm getting it wrong, and the free material online does just the opposite - sets up an interest in buying the book. B&N advertising full titles on the pages with the how-to content.

Help a Reporter Query Service Getting Posted Online

You may remember the mini-furor of the other week when someone subscribing to PR Newswire was reposting all the queries onto the Internet. For a number of reporters who had become disenchanted with ProfNet, its new interface, and the quality of leads they thought had declined, this seemed the last straw, or close to it, for ProfNet. Then PR person Peter Shankman started his Help A Reporter service, which has been gaining quick traction. Ah, but now those leads are getting posted.

Independent PR person Nicole Lascelle has been posting the complete feeds to her site - certainly without permission, as I found one of my own queries on the list and no one had asked me whether I minded having such materials put out in the open. She's including email addresses, so if you find yourself on even more spam lists, this might be why.

When will PR people realize that journalists have lots of reasons not to make their queries generally available to the public - like not wanting to tip off what they're working on and for whom. I'll be dropping a line to Mr. Shankman to let him know what is happening. So much for common sense confidentiality.

Update

I received a reply from Peter Shankman literally within four minutes of my emailing him. He copied me on an email he sent to Ms. Lascelle and on the phone gave me permission to post it:

Subject: NO. YOU ARE NOT ALLOWED TO POST MY EMAILS ON YOUR SITE

Nicole:

You’re posting my HARO emails on your site without my permission.

REMOVE THEM NOW.

This is not subject to negotiation. You’re putting reporter emails up for Spam-bots to harvest. Have you lost your MIND? And you wonder why reporters hate publicists?

I notice that you put your own emails in (parens) so they’re not harvested, why would you not have the basic decency to do the same?

Take EVERY SINGLE ONE DOWN NOW, and NEVER post another one of my emails.

Peter Shankman

He also mentioned that he knows of PR people who, to curry favor from reporters, will pass on entire ProfNet lead transmissions, and noted that if someone gets the text version of the ProfNet emails, they can pass it on undetected by PRNewswire, which owns the ProfNet service.
In short, folks, if you don't want anyone else ever to be able to see a query, don't use one of these lead systems, because there is no way the owners can prevent the information from being passed around.

More on HarperCollins Move Away from Advances

Last week I mentioned that a new division of HarperCollins was looking to move to profit-sharing rather than book advances and to change the crippling practice of liberal return policies for bookstores. I've read some additional reporting by Jeffrey Trachtenberg in the Wall Street Journal (requires paid subscription):

To be headed by veteran publishing executive Robert S. Miller, the imprint also likely won't pay for more desirable display space in the front of bookstores, a common practice. Instead, the as-yet-unnamed unit will share its profit with writers and focus much of its sales efforts on the Internet, where a growing portion of book sales are shifting.

There's been some discussion in the writing community about whether the huge advances to a few end up causing the problem - and they may trigger it. But most publishers try to gauge advances by expected sales in the first year or two and the attending royalty payments to authors. If a book doesn't earn out its advance - and most don't - then perhaps it's not even selling enough to pay for the advance. Assuming that, then is splitting profits going to be better for authors? ON reflection, I just don't see it. This is part of a cost-savings measure designed to lower risk, so why would the publisher do this if it were going to pay out more money on the average? I suspect that most authors would end up with even less than usual under the arrangement.

Now consider that the publisher is going to focus on Internet sales, and not sales from stores. Oh? As in, let's depend on all our sales from Amazon, B&N, and Borders online? Sure, it's an important channel, but, alone, not enough. Amd then they'd also be changing the return policy to those resellers as well, so figure that they might have the same reluctance to do business that way.

Trachtenberg also points out that Harcourt Brace Jovanovich tried eliminating returns in 1980, offering higher discounts instead: "Orders fell off, however, and the publisher reversed itself." Then again, he notes that B&N CEO Steve Riggio said several years ago that he'd rather be able to mark down books than return them - whatever that means. Retaiers in other industries do that, like clothing, but they also get much higher discounts on products and, so, have more room to discount without an absolute loss.

All this will depend on the economic market in the book industry, and where that comes out isn't completely clear, even though the Journal article tried to paint an overall negative picture. On one hand, Borders has put itself up for sale, and the WSJ noted that Hyperion's operating income (pre-tax profits) is down a bit. B&N saw a 9 percent drop in its earnings in its fourth quarter in comparison with the previous year, but that's only half the story, as it earned more and paid out more dividends to investors than analysts expected and also said that its first quarter this year would be profitable, rather than the loss that analysts had predicted. Then again, many on Wall Street are ambivalent on Amazon. In short, there is too much going on that could be written off to a shaky general economy, I think, to get resellers to embrace big change in the way they operate, which means that the new Hyperion group could find that sales will be largely limited to the Internet. In short, even if dropping an open return policy could cut by 30 to 40 percent the number of book copies they have to print, I'm betting that the overall hit on sales would more than make up for that, meaning that the prospects for authors just don't seem that hot.

Authors Guild: Amazon Tightens Grip on Long Tail; Info Requested

I've mentioned Amazon's egregious and unprincipled decision to demand that any book publisher that wanted to use print on demand services use Amazon's own BookSurge service. The Authors Guild has a note with yet another angle - the desire to control this area of publishing. Here's the AG's view in its entirety, by their permission:

Last week Amazon announced that it would be requiring that all books that it sells that are produced through on-demand means be printed by BookSurge, their in-house on-demand printer/publisher. Amazon pitched this as a customer service matter, a means for more speedily delivering print-on-demand books and allowing for the bundling of shipments with other items purchased at the same time from Amazon. It also put a bit of an environmental spin on the move -- claiming less transportation fuel is used (this is unlikely, but that's another story) when all items are shipped directly from Amazon.

We, and many others, think something else is afoot. Ingram Industries' Lightning Source is currently the dominant printer for on-demand titles, and they appear to be quite efficient at their task. They ship on-demand titles shortly after they are ordered through Amazon directly to the customer. It's a nice business for Ingram, since they get a percentage of the sales and a printing fee for every on-demand book they ship. Amazon would be foolish not to covet that business.

What's the rub? Once Amazon owns the supply chain, it has effective control of much of the "long tail" of publishing -- the enormous number of titles that sell in low volumes but which, in aggregate, make a lot of money for the aggregator. Since Amazon has a firm grip on the retailing of these books (it's uneconomic for physical book stores to stock many of these titles), owning the supply chain would allow it to easily increase its profit margins on these books: it need only insist on buying at a deeper discount -- or it can choose to charge more for its printing of the books -- to increase its profits. Most publishers could do little but grumble and comply.

We suspect this maneuver by Amazon is far more about profit margin than it is about customer service or fossil fuels. The potential big losers (other than Ingram) if Amazon does impose greater discounts on the industry, are authors -- since many are paid for on-demand sales based on the publisher's gross revenues -- and publishers.

We're reviewing the antitrust and other legal implications of Amazon's bold move. If you have any information on this matter that you think could be helpful to us, please call us at (212) 563-5904 and ask for the legal services department, or send an e-mail to staff@authorsguild.org.

Feel free to post or forward this message in its entirety.

HarperCollins Tries to Cut Writer Advances

According to the New York Times, a new HarperCollins unit, yet unnamed, wants to substitute profit-sharing for author advances. It also will try to eliminate the liberal returns policy that bookstores have, in my view, at least, unreasonably enjoyed for decades. (In what other industry do you get to hold onto goods for six months or a year, send them back at the last minute, and then reorder to effectively extend that ability to return?) This part of News Corp. will also "release electronic books and digital audio editions of all its titles":

Author advances and bookseller returns have long troubled the publishing industry. Best-selling authors can command advances so high that publishers often come away with slim profits, even for books that are significant successes. Publishers also sometimes offer high advances to untested authors in the hopes of creating new hits, but often those gambles do not pan out.

Ms. Friedman said the new group, which will initially publish just 25 titles a year, would offer “low or no advances.” Mr. Miller, who was most recently president of Hyperion, said he hoped to offer authors a 50-50 split of profits. Typically, authors earn royalties of 15 percent of profits after they have paid off their advances. Many authors never earn royalties.

My "headline" reaction was to think, "Cut advances? Is there anything left of them to remove?" But let's take a moment and conside