Erik Sherman's WriterBiz

Emirates Airline Dumps Its Magazine

noreply@blogger.com (Erik Sherman) — Fri, 25 Jul 2008 21:20:00 +0000

This isn't one of the big markets in the US, but it's worth noting that Emirates Airline will no longer carry its paper in-flight magazines and entertainment guides. Instead it will send "similar content" into its in-flight entertainment system. They figure that they'll drop close to 4.5 pounds per passenger this way. It's part of the cost cutting measures the airline is taking because of high fuel prices. (Any irony that this happens first in the Middle East?)

I'm not sure that it will be so long before other carriers consider the same sort of tactic; they're already charging for checked baggage. Also, the people who produce the in-flight digital material are probably different from those that create the printed magazines. Between these two factors, if you count on airline magazines for a significant amount of your business, it might be smart to branch out as quickly as possible and find other clients so you don't get caught in a change, should it happen. And if it doesn't, the worst thing is that you end up with more clients.

Reusing Material from WMFH Assignments

noreply@blogger.com (Erik Sherman) — Wed, 23 Jul 2008 10:20:00 +0000

Some discussion on a writers' board centered on what degree of change was enough so that you could sell a piece originally sold under a WMFH contract, and then if the publication went out of business, did the rights return to the author, even if written under WMFH.

On the first question, I'd personally be wary of including ANY of the material written as-is under a WMFH contract in any other piece. Under such an agreement, the publisher owns copyright and could sue you for using "its" material. You would need to toss the entire piece and start from scratch, although the information in your notes would be available (assuming you didn't sign those away, as some contracts require), and the quotes actually belong to the people you interviewed (it's best to ask if they mind being included in another piece, so you extend the implicit permission you had in the first place). But to take even some of the sentences? Not only would you be looking to lose in court, but you'd involve the second publisher and instead of burning a bridge, you'd reduce it to its constituent atomic parts.

On the second question, unless there is a clause specifically stating that you would get rights back in case the company went out of business - and I've yet to see a clause like that in all the contracts I've reviewed - then, no, you don't get anything back. If you sold your car to someone who then died without any living heirs, would you automatically get the car back? No, because you sold the property and no longer have a claim on it. It's the same with WMFH - you sell the intellectual property and no longer have any claim on it or any right to it.

Free Self-Publishing Event for Readers in Britain

noreply@blogger.com (Erik Sherman) — Tue, 22 Jul 2008 15:48:00 +0000

There's a free one-day self-publishing fair in London on Sunday, August 3, 2008, from noon to 6pm. Check the link for more info.

Gawker Media Traffic Jumps with Page View Incentives

noreply@blogger.com (Erik Sherman) — Tue, 22 Jul 2008 09:22:00 +0000

Blogger Simon Owens emailed me about a post he had on Gawker Media. Early in the year, the publisher of such popular sites as Gawker, Gizmodo, Valleywag, and Consumerist told its bloggers that they would receive a base amount of money and then bonuses based on the number of page views they got. He analyzed the change in page views since the announcement. The changes were anywhere from 23 percent to 83 percent. In thinking about the changes, a few things became apparent:

It's impossible to say what caused the growth - general expansion of blog readers, Gawker Media marketing programs, or the work of the bloggers themselves.
There's no way of knowing how much of the growth will stick with the blogs, or if it will churn, requiring ever more effort to attract people to maintain the numbers.
From these figures, there is no way to translate between page views and unique audience members.
People may come by periodically to read the sites, or they may be landing there after a search - and that would put a different interpretation on where exactly the efforts of the bloggers had been most effective. Do readers drop by because of the voice of the writers, are the writers doing their work in such a way that it comes up on popular search results, or are they breaking stories that drive interest?

Whatever the case, it looks like the Gawker sites would be worth some visits and analysis if you're writing a blog and want to get tips on how to help attract more audience.

Two Tools to Better Understand Copyright and Using Someone's Material

noreply@blogger.com (Erik Sherman) — Mon, 21 Jul 2008 09:26:00 +0000

I heard to a couple of tools from the American Library Association that might prove useful - either in checking whether a use is permitted yourself or sending to those who would use your work without permission. The digital slider lets you choose a time range and other conditions to indicate whether something is in the pubic domain or if you would have to seek permission. The fair use checklist offers no such certain an answer, but it lists many of the considerations in a favoring/opposing fair use structure.

Authors Guild Warns About Simon & Schuster E-Book Letter

noreply@blogger.com (Erik Sherman) — Fri, 18 Jul 2008 12:55:00 +0000

The Authors Guild has sent a message to its members, warning that Simon & Schuster is trying to get many of its authors to sign an e-book royalty rate amendment to their contracts. They're trying to "set those rates at 15% of the 'catalog retail price' of the e-book." The organization suggests caution:

1. Discuss the amendment with your agent or attorney, if you have one.

2. Depending on your existing contract with Simon & Schuster, the amendment may grant the publisher rights that you've otherwise retained.

3. Be aware that the amendment may affect your ability to obtain a reversion of rights.

Furthermore, the Authors Guild thinks that 15 percent of retail price will be "the low-water mark for e-book royalties." The reason is that the publishers virtually no costs in warehousing, printing, shipping, or handling. My guess is that e-books probably strip a good $2 to $3 from the actual cost of a given title. (And if any publishers read this and disagree with my estimation, I'd be glad to hear the arguments on how it should change and why.)

However, I think we all have to keep aware of the broader economic issues that are happening. Yes, costs for publishers drop, but if Amazon has its way, so will the money that the publishers get in the first place. And by no means am I suggesting that S&S has got the best interests of the authors in mind. If they are trying to set the amount at 15 percent, I suspect they are trying to offer something that sounds generous compared to print royalties, but that leaves more money in their pocket. If you figure a $20 cost for a trade paperback and 50 percent discount, that means the publisher is saving maybe $2 on income of $10, which is an additional 20 percent in available profit. Instead of 15 percent, an author might reasonably get 20 or 25 percent of the sale price.

But read about the prices Amazon is charging for big titles. It's very little compared to print prices - even though Amazon itself is also saving lots in the new format - and the company is taking aggressive portions of the money that comes in. That's why they're pushing on the Kindle so hard. Should other e-book readers come out and become popular as well, there might be multiple formats and outlets, meaning far less ability to twist arms. If the publishers are forced into taking $5 to $7 for a title, there's a whole lot less money now available for all of us.

Greatly Improved Profnet Interface

noreply@blogger.com (Erik Sherman) — Thu, 17 Jul 2008 11:05:00 +0000

If Profnet's interface has driven you off in search of other tools for finding sources, you might consider giving it another try. I needed to find this morning a type of legal source that Profnet has been helpful in reaching (and I'm guessing that the HARO mailing had already gone out). Happily, they have made some important changes in the interface that makes it more manageable. For example, to set the date, you no longer have to wait for the calendar to come up and then click on the date. Instead, drop down boxes let you quickly pick month, day, and time. Choosing geographic areas all happens with check boxes, and by clicking on one of the associated plus signs, you can immediately expand a given area into its constituent parts. It reminds me of how the service used to work, and is certainly a change for the better.

Watching the Account Payable Metric

noreply@blogger.com (Erik Sherman) — Tue, 15 Jul 2008 19:00:00 +0000

There are various numbers that help you keep an eye on your freelancing business. An under-appreciated one is the current size of your accounts payable. That refers to all the companies that owe you money at any one point. The reason AP totals are important is that they become an early warning sign of cash flow problems. Take your monthly revenue goal and divide the AP total by it. That shows how many months of revenue you're expecting in at any given time. I find that the number needs to be between 1.5 and 2, meaning that at any time I'm owed between one-and-a-half and two months worth of invoices. In that range, I can expect a regular flow of funds with clients paying between 45 and 60 days. If the number drops below that, then it doesn't matter how much I've just billed out, because I don't have invoices old enough that I can realistically expect checks. If you've had problems getting cash in and you don't have enough on hand to act as a cushion, or even if you do, consider working to increase your billing for a few months so you begin to develop a backlog that will help provide more dependable cash flow.

Where Have All the Book Editors Gone?

noreply@blogger.com (Erik Sherman) — Mon, 14 Jul 2008 09:14:00 +0000

I came across a Stuart Evers blog entry in the Guardian about the new role of editors at book publishers:

These days, experience of shaping, honing and bringing out the best in an author is unnecessary to land a high profile role: all you need to be able to do is identify the product.

It's a sad observation, but has a lot of truth. I know editors who get frustrated with the entire process because they don't get to edit. All they can do is hope that the book comes in well enough constructed that they can free up some time for the market analyses and major manuscript resuscitations that are necessary. So here's my question: if editors don't get time to really edit and the authors have to do a lot of the marketing, then what is it that publishers really do?

Is Media That Delivers a Market That Isn't?

noreply@blogger.com (Erik Sherman) — Fri, 11 Jul 2008 09:32:00 +0000

I often hear about freelance woes with various publications, and on rare occassions I do some investigation into them. That just happened today when Lynne Meredith Schreiber posted on a writers' board about a problem she was having with getting a payment from Estates West, which is published by Media That Delivers. She is not the only writer alleging problems with the company, and back in February WritersWeekly had a something about the company owing a writer $2000. Lynne has given me permission to use her name and mention the details. Here is an outline of the saga as she relates it:

Lynne wrote a "huge story" and submitted it on January 2. "[T]he editor loved it. They had said they paid on publication and the story was worth $975 - but the editor said she'd try to issue payment early."

In March she got a PDF of the story but no check. By April she began to email the editor "incessently" and was referred to the publisher, whom she quotes as saying, "It's a bad economy. A lot of our creditors are not paying us so we can't pay you just yet." She says that the publisher, Mike Dee, offered to send "less than half up front and then the rest when he could. He did not."

She had a lawyer contact the company, which sent a check for $100. The lawyer returned the check as inadequate and was told it was all the company could afford for now and that it wanted to set up a payment plan.

I wrote Mike Dee the following:

I write a reasonably well-read blog on the freelance business. I've been hearing that writers are being asked to wait very long periods for payment from your company, and so wanted to ask you about this before I put something on my blog.

I got a response today, as well, from Hayley Gudat, "Director of Estates West & Custom Publications Media That Deelivers, Inc." Here is the response:

Thanks for contacting us about your blog before making any comments about Media That Deelivers. While we cannot stop you from posting about us, we of course hope you will not, simply because we have always maintained excellent relationships with our freelancers, and in most cases have been using the same writers, photographers and stylists for years, which we believe is testiment to our reliability as a publisher of magazines. We have been in business over a decade and have probably the best reputation in our state, be it for our editorial content or the way we treat the people we work with.

In some situations, freelance payment can be late, but never, ever has an invoice gone unpaid. We try at all times to pay any freelancer on time, and in most cases we do, though of course there will be occurances of slight backlogs. We always communicate with our writers, should a payment be late, and from my experiences they appreciate the dialog and we have not had any problems to date. I hope this helps you. Please contact me if you have any other concerns or questions.

The related story and the response don't seem reconcilable to me, but perhaps there is something that I am not getting. At least what I'm missing is not a check, which is an unreasonable situation for any freelance writer to be in.

Using Quotes Left in Your Notes: 7 Considerations

noreply@blogger.com (Erik Sherman) — Thu, 10 Jul 2008 14:35:00 +0000

There was a recent discussion on a writers' board about using quotes from an interview you did when they didn't make the original piece you were writing. Can you do that? There's no simple answer, and the considerations are as much business relations as they are contractual.

You must check the contract from the first publication. Some writers assume that they can do what they want with their notes. However, I've seen a few publishers insert wording in a WMFH contract defining the work in question as including all drafts and notes. In that phrasing, you may have no rights to the material.

If you do own the notes, then there's a question of whether they are quotes or not. If quotes, then the person who said them actually owns the copyright on that part of the material, not you, even though you took them down. Fair use would allow some use in a journalistic or educational context, but you couldn't necessarily present verbatim everything in there, because then you'd be crossing the fair use bound of what percentage you could quote. (And there is no fixed number to use as a guide.)

You also wouldn't have rights to do anything at all you wanted to with the quotes: for example, using them in a piece of marketing.

The subject also has some rights in how his or her name is being portrayed. If you misused quotes in a way that painted the person in a bad light (taking quotes out of context, for example), the person could potentially sue you and win.

Although the courts are mixed on the issue, it's not clear whether someone could say that you only had permission to use the material for the publication you said it was for, and not for another one. What if you wrote another piece and placed it in some magazine espousing views that the subject found repugnant? Could you be sued for making it seem that the person was supporting those views? Possibly. And once you have to defend yourself, you lose, even if ultimately you win, because of all the costs you incur.

Aside from the legal issues are the practical ones. If you want to speak with someone again, being respectful is smart. That means letting them know what you're doing (unless you say up front that it could appear in other places). You could just state that you would be using the material elsewhere, but that could tick the person off. What if the person says, "I don't want to appear in that publication," or "You misrepresented my views in the first piece and so I don't want you using the material anywhere else?" Can you ignore them? You would at least burn a bridge. There are times you might feel that you had to, but you should make a knowing choice.

If a PR person was involved in getting the interview and you burn the client, you've also burned the PR source. Again, I'm not suggesting that you tiptoe about to smooth the sensibilities of publicity representatives, but realize what you're doing when you do it.

Some of the solutions include getting a written release from the subject or even taping the subject's provision of assent to your use of the material. I try to remember to tell people up front that I could end up using an interview in some other publication as well, if the topic were similar and/or relevant.

More Copy Editing to India

noreply@blogger.com (Erik Sherman) — Wed, 09 Jul 2008 15:30:00 +0000

Businessweek has a good story on an Indian copyediting and reporting outsource firm that is even doing work for the Miami Herald:

Mindworks has been handling outsourcing assignments from non-Indian publishers for four years. It expects plenty more business as the cost-cutting in U.S. and European print media grinds on. Some Western publishers do their outsourcing in-house—Thomson Reuters (TRI), for instance, has moved basic Wall Street reporting on U.S., European, and Gulf equities to a new bureau in Bangalore. But other media companies prefer to outsource to the Indians directly. On June 24, Mindworks made global headlines when the Associated Press reported that the company had taken on copyediting and layout work for a couple of publications owned by the California media publishing group Orange County Register Communications.

We're in a time where geographic situation means ever less when it comes to getting work. If you are not building expertise and abilities that are difficult to replicate, then you are facing a more uncertain professional future.

Gawker Pay? Gaak

noreply@blogger.com (Erik Sherman) — Tue, 08 Jul 2008 13:20:00 +0000

According to Radar, Gawker has cut the pay schedules of its blggers for the second quarter running:

"We've broken the site budget," Gawker Media owner Nick Denton told the staff in an email yesterday. The only answer, from the company's perspective? To keep getting more traffic—but to pay the producers of that traffic less for each pageview. So for the second and now, according to a new memo regarding the pay rate for the quarter that began this week, third quarters of 2008, the company has reduced the rate of pay per pageview. Other Gawker Media sites, including Jezebel, also had their pageview rate cut.

It used to be that if a writer got a million page views a month, that translated into $7500. Given the amount of work it takes to get that much attention, the money seems short. But now it's even shorter, at $5 a thousand, or $5000 for that million page views.

So more ad inventory—actual pages served—should mean more income for the company—particularly since Gawker seems to be mostly increasing in pageviews not attached to any writer. At the same time, reducing the cost of the creation of that inventory also gets the company more of the income that is attached to a writer. Kicking down less money to the workers seems, at best, cheap.

How about predatory or exploitive? Those are pretty good words, too.

Writers' Rooms

noreply@blogger.com (Erik Sherman) — Mon, 07 Jul 2008 10:35:00 +0000

Ever wonder where such writers as Bernard Shaw, Lord Byron, and Virginia Woolf worked? The Guardian has a writers' rooms feature online with pictures of said roosts. If you need a distraction but want to justify the tangent as research into efficient working, this should provide a few minutes excuse.

Myth of the Long Tail?

noreply@blogger.com (Erik Sherman) — Thu, 03 Jul 2008 14:12:00 +0000

A study in the Harvard Business Review looked at some data in the light of Chris Anderson's "long tail" theory and concluded that while the tail is getting a bit thicker, the head - the "popular stuff" - is really what is growing. Or in the words of that great business philosopher, Ira Gershwin, "Them that's got shall get, them that's not shall lose. So the Bible says, and it still is news." I've written about this on BNET (the new business arm of CNET), and that has links to the study as well as to Anderson's reply (which I found essentially unsatisfactory).

But enough of them; let's talk about us. Does the long tail hold any hope for individual writers? Yes and no. The upside is that if you have some writing that will interest a large enough community, and you market hard, then you can make money. You can, that is, if you put in the work and don't sit passively, assuming that the long tail is going to bring your income to you.

I get the sense that many writers look to the long tail concept as a silver bullet that will bring money in without them having to do anything else. Nothing could be farther from the truth. Say that an Amazon sees 20 percent of its 2007 sales of about $14.8 billion in the long tail (though the study would suggest more like 10 percent). According to Anderson, the tail should be everything that you wouldn't find in a Borders or Barnes & Nobel physical location. That means every one of the estimate million book SKUs the 10 or 20 thousand you might find in a store. So be generous and call the remainder 9.8 million. Divide and you get ... $285 per year per SKU.

Even if there is an average of 2 SKUs per book (each SKU representing a specific version of the book you could buy), that's annual revenue of $570 from Amazon. Even if that is only part of what you get (and remember, physical book outlets won't even have your title, by definition of tail), what are you going to make total? Maybe $1100, and that's in total sales. The cut going back to the publisher is half, so you're back to your royalties on $570 a year, or maybe $60. Self-publish and you could get the number higher, but that's hardly the passive approach to the long tail.

The only hope the "long tail" offers the individual author is the old concept of niche audiences, marketing to them, and making money. Nothing new there, and nothing easy. In fact, I'd argue that the only writer who is really making money off the long tail is Anderson himself.

Contract Review: Hospitality Design/Nielsen Business Media

noreply@blogger.com (Erik Sherman) — Wed, 02 Jul 2008 10:15:00 +0000

As always, I'm not a lawyer; this isn't legal advice (just my opinion and interpretation); I'm providing comments on contracts, but you still need to read one of the contracts to see how everything applies to your circumstances; and you should always negotiation for the best terms you can get:

1 The contract is retroactive, so if you've ever written anything for any of their publications (because the contract is with the company), it will apply to that work as well.

2 You give them to use, publish, and distribute your work any way they want for as long and as often as they want. They can grant others the right to do the same, so they are in competition with you for reuse. At least it's not exclusive. They can make "reasonable" changes to the work and will give you credit "where possible."

3 You own copyright and may grant others the right to use the material, but that has to be 8 weeks after the first publication by these people.

4 You say that you have not infringed on copyright or any other intellectual property rights, and that you indemnify them if the work does infringe a third party's intellectual property rights.

5 You're independent, so not eligible for any company benefit, and you are responsible for your own taxes.

6 This is a strange one - they say that they have to pay you any mutually agreed upon fees, but they don't say when they have to pay them, or what triggers payment. Is it acceptance? Publication? Who knows?

7 This is construed under New York law, and nothing in an invoice, email, or conversation changes any of the terms of the agreement.

A "Champion" Disagrees with Views of Kindle

noreply@blogger.com (Erik Sherman) — Tue, 01 Jul 2008 10:09:00 +0000

I got the following as a response to my post Some Additional Views on the Kindle. However, as it eventually seemed to border on the self-serving, I thought I'd address the anonymous remarks in parts on a post.

I, myself, am a Kindle champion as well,

And as you were trying to point people to what appears to be an Amazon-affiliated (not owned) site about the Kindle, I have to wonder what "champion" really means.

and I think that there are a number of intangible "cost" savings and benefits to consider for you skeptics out there.

Ah, yes, intangibles - often the last refuge of the businessperson who cannot point to a concrete benefit.

First of all, think of the convenience the Kindle provides you. Now, you can read all of your favorite newspapers, blogs, books, magazines etc. anywhere and everywhere. You do not have to worry about the weight and size of your reading material and about how you will transport it on the move.

Yes, I always travel with a Sherpa carrying my newspapers, magazines, and books. Realistically, when I do travel on business, it's one book, and I find that airlines are terrific about having magazines that I needn't schlep.

Second, you can do and learn more with what would have been wasted down time while you wait for this or that. You can just pull it out whenever you have a few minutes here and there.

How about the educational use of contemplating what you have already read and heard, or even looking around to see where you are? Not every minute of every day needs to be "productive," in the limited sense of the term.

Third, think of the environmental cost savings. If we, as a collected whole, begin to do more and more of our reading from "paper-like" digital devices, we will be cutting down less trees, maintaining and even increasing oxygen levels and perhaps even fighting global warming.

What of the environmental costs of the semiconductors plants that run through tens of thousands of gallons of water daily? The non-replaceable minerals and metals? The energy costs of manufacturing the whole thing? The energy costs in keeping the acres of servers running to make the "environmentally-friendly" reading available? High tech does not translate into green.

Fourth, you begin reading content that you may have otherwise missed and will become more and more educated/cultured as you seek out new and different reading materials.

Wait, you're going to read it just because it's on a screen, although you wouldn't on paper? That seems like one of the most far fetched arguments I've ever heard for anything.

All in all, while $359 for this device plus the cost of the books etc. seems high, you are getting a great deal of value out of it, be it value from convenience, value from supplementary education, value from environmental protection or other value.

In other words, pay no attention to businessman behind the curtain. And, sorry, I won't be listing your Kindle-centered web site that is "in association with Amazon.com," even if you do end your exhortation with an environmentally-friendly electronic exclamation point.

Time to Debut Magazine Mix and Match

noreply@blogger.com (Erik Sherman) — Mon, 30 Jun 2008 10:44:00 +0000

Time is finally going to launch Maghound.com, which, as Folio describes, is its "Netflix-like" service:

Maghound.com allows consumers to choose titles from a variety of publishers for a mix-and-match “subscriptions” where they pay one monthly fee and have the ability to switch titles at any time. Unlike traditional subscriptions, members aren’t locked in their memberships and can cancel whenever they wish. [President of Maghound Enterprises Dave] Ventresca says that Maghound.com offers “flexibility, choice, control and personalization.”

I think this has to be a relatively scary thing for publishers to get into. Until now, people I know would make a calculation regarding a magazine subscription: If you were going to spend more on individual issues than you would on the best discounted price you could find for a subscription, you went for the subscription.

The fear? That model pushes people into getting more subscriptions than they may want. Publishers like subscriptions, because they help guarantee that much more paid circulation, and that means being able to charge advertisers more.

But with Maghound, people can swap subscriptions at any time, and it doesn't seem to cost too much more than the "$12 for 12 months" approach, except you don't get locked in. So I'm betting there are going to be magazines that start to see their subscriptions numbers slip. That will translate into even more uncertainty at publications, which could drive even loonier and more desperate attempts to "attract" readers - a scary thought, because it usually involves some complex wishful thinking and not coming up with something that you know people want, even if they don't know that they want it. That would translate into stranger assignments and more hoop-jumping. You can bet I'll go to the site to sign up - and to see which magazines I might think of avoiding.

Contract Review: The Independent Traveler

noreply@blogger.com (Erik Sherman) — Sat, 28 Jun 2008 13:32:00 +0000

Got this in - as always, I'm not a lawyer; this isn't legal advice (just my opinion and interpretation); I'm providing comments on contracts, but you still need to read one of the contracts to see how everything applies to your circumstances; and you should always negotiation for the best terms you can get:

1. Description of Services You have a contract governing all the writing you do for them, and individual "Schedules" contain the terms and deadlines for any given assignment. And then there is this sentence: "Notwithstanding any other provision of this Agreement, IT shall have no obligation to publish any Work produced or created by Author hereunder. " That means no matter what else is in the contract, they don't have to publish something that you've written, even if you have a Schedule saying that you have an assignment.

2. Acceptance This is the first time I've seen a contract that says acceptance happens according to the procedure in the assignment, or Schedule. So you have to read the assignment carefully, because something as fundamental as acceptance can change from one to the next.

3. Payment Again, the terms governing payment are on any Schedule. If they aren't there, then you have a fuzzy arrangement, particularly as payment depends upon acceptance. They say they pay 30 days "following receipt of a properly submitted and correct invoice(s)," but they don't indicate what property submitted means. Could that include a given format? Is there specific information you need that you might not ordinarily put on? Expenses are on you, unless the Schedule specifically states otherwise. Again, the assignment becomes at least as important to read as the contract.

4. Relationship of Author and IT; Author’s Business This is supposed to be the section where they set out that you are not an employee, but an independent businessperson. However, some of the details get a bit ... detailed. For example, "Author represents to IT that Author is maintaining a separate set of books or records that reflect all items of income and expenses of the business which Author is conducting. " Also, look at this: "Upon request, Author shall provide IT with proof of independent contractor status satisfactory to IT, including but not limited to tax records and the United Business Identifier (“UBI”) in the state where Author does business." You are agreeing that they can ask for your tax records and that you have to show them.

5. Insurance You might have to get insurance, depending. "Without limiting the foregoing, to the extent this Agreement creates exposure generally covered by Commercial General Liability and Professional Liability insurance policies, Author will maintain at its sole cost and expense such insurance policies covering its obligations under this Agreement. "

6 Ownership; Third-Party Materials Because of the phrasing in this clause, it seems like this is a generally contract for any type of contracted work. They want to own everything - including notes and copyright of what you write. Think of it as WMFH with notes included. You also waive moral rights, which doesn't mean anything if you're a US writer, but does if you're from Canada or Europe.

7 Confidential Information Apparently you're supposed to sign a separate non-disclosure, and in the case of conflict between that NDA and this contract, the NDA rules. Among the "confidential information" that you cannot reveal to anyone are the terms and conditions of the agreement. If you have any doubt if something is confidential, you ask them. I'll hazard a guess as to an affirmative answer.

8 Term and Termination They can terminate the agreement or any assignment at any time and pay you only for what you had done up to that date. If you hand't handed in a draft, my guess is that they could argue that they didn't owe you anything. If you argue that you had done research, I'm guessing that they could demand the notes and then own them. You can give notice on 30 days, but still have to complete any assignment that would be due before the termination date.

9 Author’s Data They can use your name, bio, and likeness, and can also license that to anyone they want regarding an article. Becusae you have no control over where they will sell it, you have no control over where you will appear and in what context. Also, they can allow others to further license the article as well as your info, meaning control is now completely out the window.

10. Warranties and Representations There are some broad warranties, like "the Work will not include the unauthorized use of name or likeness of any person, libel, slander, defamation, disparagement, piracy, plagiarism, idea misappropriation, and any invasion of the right of privacy." You cannot infringe anyone's copyright nor any other property right, including trade secret. What if you find out about some information that a company was hiding? Can they declare it a trade secret, putting you in breach of your contract?

11. Limitation of Liability They get a limit on the damages you can get from a court from them. If you have to travel (and this is a travel publisher), then you also have to take out a "reasonable" amount of travel insurance.

12. Indemnification You have to indemnify for an actual claim that you infringed a third party's "legal right," including copyright. For anything else, it's alleged breach type wording, so if someone even says that you libeled them, you're now indemnifying the publisher.

13. General State of New York laws govern the contract. They want you to agree that any legal action has to take place in New York, and in Superior or District court, which I think means you cannot use small claims court lto get money you're owed. The prevailing party automatically gets costs and attorneys' fees, even if the court wouldn't otherwise award them. You cannot elect a trial by jury (which might work in your favor). This is the entire agreement, so what an editor tells you to the contrary is meaningless.

Publishing Needs to Focus on Smarter Editors, not Smarter Readers

noreply@blogger.com (Erik Sherman) — Fri, 27 Jun 2008 10:49:00 +0000

Photographer director Rob Haggart had a great post on what goes on the cover of magazines. You can feel his pain in, between, and on top of the lines:

Who should we put on the cover? How about someone who actually wants to be there and that the audience cares about. How about someone we can spend some time with a write a meaningful story and take interesting pictures of. I look forward to the day when magazines can return to serving their audience and not the newsstand. Until then you're stuck with 109, free, biggest, hot, ultimate, travel, toys, secrets, great, perfect, best, sex, abs, weight-loss, getaway, new, insider, easy, delicious, shortcuts, paired with a celebrity you keep seeing over and over on the covers of magazines.

He knows of what he writes, because he's been there: a former director of photography for Mens' Journal and Outside.

I agree that the dumbing down comes from the editorial side, only in a different way than many of this think - that is, many editors are bringing less intelligence to the job and assuming that they are talking to people who know even less than they, when that may not be so. How many times have you seen editors set off on a topic or story angle that assumed the worst of their readers, or that wanted to prove a theory of theirs, no matter how much evidence suggested that they were wrong?

Maybe if we want better copy that will really attract readers, the industry needs to stop low-balling salaries of everyone other than the EIC so they don't have to focus so much on the next jump of their career, because they aren't having to live out in NJ on $28,000 with 4 roommates. Perhaps magazines could attract some people who not only love the work, but are smart and willing to consider things from the readers' vantage. And maybe have more of those editors actually talk with a lot more readers. What a concept, talking to your customers.

Three Considerations on Dealing with Growing Payment Cycles

noreply@blogger.com (Erik Sherman) — Thu, 26 Jun 2008 09:27:00 +0000

On a writers' board, someone brought up the topic of clients that are trying to unilaterally stretch their payment schedules from 30 days to 45 or more. There should be two concerns when that happens. One is that we're in some times when certain types of clients - print publications, for example - are feeling a revenue pinch. Generally when a client, particularly a smaller one, starts paying later and later, it's a sign of economic troubles.

There's another factor at work as well. Remember that the commercial credit crisis hasn't suddenly stopped. One result is that many businesses, including large ones, don't have access to their usual amounts of credit, which is the lubricant for all sorts of business transactions. When things get tight on the lending side, you can find some of these larger clients choosing a different form of financing - late payment to vendors - that they think they can control.

Whatever the case, you want to consider your various options and what steps might be best for you in the short and long runs:

Hit the 'Chutes If you have any sense that the company is in financial trouble, drop the client immediately. Usually I'm an advocate for phasing out clients over time and not dropping one until you have a replacement. However, if there are economic problems, the chances are overwhelming that they will continue to be bad. I'm not suggesting that you be rude or panicked. You can excuse yourself by blaming your schedule or simply stop pitching ideas. If you do not take action quickly, you can find yourself with thousands being owed money that you may never see. Generally speaking, making a break and doing intensive marketing is a less costly solution.
Recalculate Client Viability Just as I think it's good to limit the total amount of business that any one client represents of your normal billing activity, I also think it's good to limit what is tied up in long payers - and to make sure that you're getting something from it in terms of higher rates. If it's more waiting for no more money, then it's time to recalculate the client's profitability and PIA factors and consider whether a replacement might not make sense.
Get Something in Return The client wants you to give in on something. That means you're in a negotiation and should consider if there is something you could get in return to make things acceptable. Maybe you should increase your rates to cover the few percent that you lose in the time value of money (what borrowing that amount of money for a month or two might cost). Perhaps you should have late fees or, even better, a slight discount for accounts paid within a short amount of time. If you regularly do business, perhaps you could get a retainer relationship, with a certain amount of money guaranteed every month. Perhaps you'd get a greater share of more valuable assignments. Figure out what might make things desirable from your end (so long as you don't think the client's economic ship is taking on water).

Even if you find things slowing down, you can weather the storm and even arrange your business to eliminate the disruption of those checks hitting your mailbox.

Market Analyst Suggests Explosive Growth for E-Books

noreply@blogger.com (Erik Sherman) — Wed, 25 Jun 2008 16:57:00 +0000

Many of us have been wondering just how e-book sales, particularly with Amazon's Kindle, have been going and just how they could change the industry landscape. There's an article on that very topic:

Pacific Crest analyst Steve Weinstein argues that global e-book sales at Amazon could reach $2.5 billion by the year 2012.

To figure this, Weinstein starts with the handiest analogue: iPod and MP3 player sales. He notes that between 2003 and 2008, digital music sales grew from 2 percent of the US market to 33 percent, largely on the back of Apple's ( NSDQ: AAPL) twin offerings. He doesn't expect the Kindle/e-books to track as fast, but he does think the market is off to a strong start already, and that the cycle will pick up steam as the Kindle comes down in price (that's already started) and the ecosystem matures. He also suspects the consumers will be drawn to the instant gratification aspect of Kindle titles, as well as the lower price per book.

MP3 music and e-books aren't exactly the same. People had wanted to buy single tracks for years and not be forced to purchase an entire album for one or two songs. However, they are analogous and the logical is reasonable, I think. Read the article and pay particular attention to the projections he's making for Amazon's profits. Part of that comes out of far lower costs (no manufacturing, warehousing, or shelving), but I wonder how much would come out of the pockets of publishers and authors.

Book Authors Must Get Ready for Instant Books

noreply@blogger.com (Erik Sherman) — Wed, 25 Jun 2008 08:16:00 +0000

The Guardian had an article the other day about UK bookseller Blackwell's plan to install print-on-demand systems throughout their 60 chains - right now 40 pages a minute, but eventually 80, meaning that a buyer could get any of the million titles available in about 4 to 8 minutes.

As with most technological changes, there are ups and downs. The pros for authors is the ability to keep books available at stores, where people are doing their buying. Yes, a majority of book sales happen outside traditional bookstores, but don't knock that big an audience. Even if your book isn't on the shelf, there's a chance that someone could find it.

But now for reality. This is going to be a big marketing onus on the writer. Publishers barely support a brand new book in its first three months of life, so who is going to create buyer awareness of your title? You are, or else you aren't going to get sales off these machines. And for how long does the publisher get to keep your book on the backlist? Have you checked the out-of-print clause in your publishing contract recently? It may be that so long as there is one edition - like a print-on-demand one - the publisher gets to keep the title as active. But if you get the rights back, is the book even going to be in the system? How easily can you get another version ready?

There are no set answers, just questions that require some thinking for those of us who want to make a living in this industry.

What's Black and White and Red All Over: the Newspaper Industry

noreply@blogger.com (Erik Sherman) — Tue, 24 Jun 2008 10:14:00 +0000

Here's a link to a New York Times story about how the newspaper industry is going "from bad to worse" with double-digit ad revenue plummets:

On top of long-term changes in the industry, the weak economy is also hurting ad sales, especially in Florida and California, where the severe contraction of the housing markets has cut deeply into real estate ads. Executives at the Hearst Corporation say that one of their biggest papers, The San Francisco Chronicle, is losing $1 million a week.

Over all, ad revenue fell almost 8 percent last year. This year, it is running about 12 percent below that dismal performance, and company reports issued last week suggested a 14 percent to 15 percent decline in May.

If you're still writing for newspapers as anything more than a hobby or outlet of self-satisfaction, it's time to rethink your business model - quickly.

Contract Review: Adams Media

noreply@blogger.com (Erik Sherman) — Mon, 23 Jun 2008 13:20:00 +0000

Here's my take on the latest Adams Media contract I've seen - and remember, I'm not a lawyer, this isn't legal advice, and always try to negotiation your contracts:

First Paragraph They are calling the “Work” everything including the final draft, all interim drafts, and all drawings, photographs, and so on. This will cause a complication in about 14 seconds.

Section 1. Acknowledgement of Rights. They want this to be work made for hire, which means once you’re done, you can never make another penny off it. They own it and can do with it as they like. That’s bad enough, but now for the problem I mentioned: The definition of work in the previous graph means that they’re not just talking about the finished product, but everything leading up to it, and everything in it. What if you use photographs from a collection with permission or want a drawing done? They want to own it, so they want you to get a copyright transfer. But what if the person with the rights isn’t willing to do that? There is no provision for having a permission form that is anything less than copyright assignment.

Section 2. Right to Publish Work. They’re reiterating that they have all the rights and can do with this anything they want, and that you cannot.

Section 3. Delivery of Manuscript. They've been known, as many other series publishers have done, to set deadlines assuming that you will send in material even before you’ve had a chance to see the contract. I’m a firm believer that all dates in contracts should be based on when they are signed, or at least when you got to basically agree to the deal. If you use photos, note the format in which they want them delivered. There is no allowance for digital photography, so technically, if you wanted to include a color digital photo, you’d have to get it turned into a slide.

Section 4. Originality of the Work. It’s understandable that they don’t want plagiarized material, and they can use every means to make sure it’s original (though “every means” is too broadly stated). But there’s a bigger problem here: “At its sole discretion, the Publisher may deem a Work as containing plagiarized content, and therefore unacceptable, and may cancel this Agreement at any time, requesting return of all payments made to date.” Their sole discretion? In other words, they can declare you to be a plagiarist unilaterally, and you wouldn’t necessarily have any recourse to challenge the statement. How did they come to the conclusion? Where is their evidence? No mention of their having to produce any of that. At worst, this could become a club brought into play at any moment.

Section 5. Revision of the Work. The first sentence, “Author shall promptly make such changes in the Work as the Publisher may request,” puts a time onus on you. They can ask for any change, you have to make it, and nothing about working under a “reasonable” schedule.

Section 6. Publication of the Work. They can use your name and likeness and bio and authors others to do so in the process. However, there isn’t anything saying that they must give you credit. In fact, the last sentence starts, “In the event the author is credited on the cover…”

Section 7. Background Information and Permissions. If you have people listed in photos, you may have to get them to sign releases, as well, which could be logistically impossible in some cases.

Section 8. Verification of Facts. If you mention any facts – and who would do that in a non-fiction book? – you technically have to verify them all and give the “checking material” to them.

Section 9. Author’s Warranties and Indemnity. The warranties are broad – you cannot write anything that, if published, will infringe rights of privacy or publicity, infringe copyright, or be libelous. Now, the contract is interpreted under Massachusetts law, so you could claim to be a journalist, which gives you more protection than the general populace gets. However, if you are mentioning others that are not public figures, you might well get releases from them to be safe. The indemnification is a problem because it has the phrase, “or any allegation which if true would constitute a breach.” In other words, if someone makes a claim of some injury that would be a breach of the warranties, you are indemnifying the publisher, even if you didn’t do anything. That sort of language is a deal-killer for me.

Section 10. Compensation. They really are cheap bastards, aren’t they? Notice the last part: “The Author may also receive a fee for publicity appearances, if such appearances will be deemed necessary by the Publisher in writing.” It should be a reasonable request and you should be able to turn it down. They own the material, for heaven’s sake, so why should you be at their beck and call?

Section 11. Termination. Subsection c is a problem, because they can terminate the Agreement at any time, “at its sole discretion,” before they formally accept the Work. That is ridiculous – they can kill the deal for any or no cause. The publisher also has complete control of whether it will let you keep anything or if it will pay you anything beyond what you had already received. If they decide to pay you what they think is a proportional amount, then they get the rights to what you have already written.

Section 12. Independent Contract. This is pretty straightforward.

Section 13. Notices. Again, straightforward and self-explanatory.

Section 14. Waiver or Modification. Also straightforward.

Section 15. Applicable Law. The contract is governed by Massachusetts law.

Section 16. Arbitration. The arbitration clause is problematic. Not only does the process potentially eliminate such basic protections as discovery, but this clause doesn't even state which of the dozens of sets of rules of the AAA would be used, how many arbitrators would be involved, or how the arbitrators would be chosen. Arbitration is also a lot more expensive than most companies think, and depending on the rules, there can be hefty minimum dollar amounts that you can raise. And if you found they breached the contract and you had to take legal action, you might not want to travel to Boston for their convenience. Trying to get this clause struck would be wise.

Section 17. Assigns. You cannot assign any of the work on this without getting written approval from the Publisher. I’d argue that it would cover research assistants and any other help that you might ordinarily use (or not).

Section 18. Author copies. Self-explanatory.

Section 19. Entire Agreement. This is the whole agreement, so don’t expect emails or verbal assurances from anyone at the publishing company to make any difference.

Section 20. Notices and Payments. This clause generally says that money will be paid to the agent, and they can also have terms about the size of the agent’s commissions. Be sure that there is no conflict between what this says and anything you’ve previously signed with the agent. If this states something higher, then the agent now gets more. Generally, if I’m using an agent, I might direct money to be paid to the person (though I prefer having two checks cut – one for the agent and one for me), but if all the money goes to the agent, take out all the business about how much the agent should get. The agent isn’t a party to this contract, and, presumably, you already have an agreement with the person.

That’s about it – not a great contract, particularly with having to sign over the ownership at relatively low rates of pay.