Torching the Modern-Day Library of Alexandria

[darryl]

Originally Posted by HarryT

I’d just note that this is NOT common practice at all. Publishing contracts do not transfer copyright to the publisher. The only area of publishing in which it is common is academic journal publishing. I’ve never, ever, heard of it happening with book publication. Can you give an example?

That is correct. However, the difference is more a matter of semantics than anything else, Back in 2012 Joe Konrath posted about unconscionability and quoted a typical clause from a traditional publishing contract as follows:

Author grants and assigns to Publisher the sole and exclusive rights to the Material throughout the Territory during the entire term of the copyright and any renewals and extensions thereof.

See Link to Joe Konrath Blog

Yes, this is less than an assignment of the whole of the copyright. But, for the territory concerned, it may as well be. And sometimes that territory is the whole of the world. Anecdotally, things have got a lot worse for Big 5 authors since.

[HarryT]

Well, sure, exclusive publishing contracts are indeed normal, but it strikes me that only a fool would sign a contract granting such rights for the whole of the copyright term. Always, always get a contract checked by a lawyer specialising in intellectual property rights before signing, and make sure you know exactly what rights you're granting.

[Thasaidon]

Originally Posted by HarryT

I’d just note that this is NOT common practice at all. Publishing contracts do not transfer copyright to the publisher. The only area of publishing in which it is common is academic journal publishing. I’ve never, ever, heard of it happening with book publication. Can you give an example?

Hi Harry

I cannot now remember the titles and authors but it came up in a panel at an Eastercon (main UK Science Fiction Convention) about twenty years ago in a discussion between two authors.

I have also come across it several times on the Internet. I never thought I would ever need to give anyone details so I did not keep them.

But the basic situation stuck a chord and I remembered the basic situation because I hate to think of any book being unavailable, even some of the stinkers I read as a teenager.

[HarryT]

I really do think you may perhaps have misunderstood what was being said. I wonder if perhaps they were talking about granting rights, and you took that as meaning transferring copyright? I've had close contacts in the publishing world for a very, very long time (in the dim and distant days of my youth I used to write physics textbooks ), and in all honesty, this just doesn't happen. Authors sign a contract with a publisher granting them the (generally exclusive) right to publish a book. They do not transfer the copyright to the publisher.

[darryl]

Originally Posted by HarryT

Well, sure, exclusive publishing contracts are indeed normal, but it strikes me that only a fool would sign a contract granting such rights for the whole of the copyright term. Always, always get a contract checked by a lawyer specialising in intellectual property rights before signing, and make sure you know exactly what rights you're granting.

I tend to agree with you, Harry, though you are probably being a little harsh on virtually all traditionally published authors. Other clauses in these contracts provided mechanisms for the author to ask for reversion in certain circumstances, and I seem to recall something about the US providing an option to the author for reversion after something like 30 or 40 years. Those who used lawyers rather than agents may have done a little better, but for most authors this term was not negotiable. Lawyers would of course advise how unreasonable it was but had to concede that it was industry practice. An industry practice which developed when only few were chosen for publication and where the only alternative was the vanity presses. There was no practical alternative.

Unfortunately anecdotal evidence suggests nothing has changed with this term, and that publishers are engaging in a rights grab. Unfortunately there still seem to be many new authors who want to be traditionally published no matter the terms.

[pwalker8]

Originally Posted by darryl

Unfortunately there is a built-in potential conflict of interest, with a very high likelihood of it becoming an actual one. To have any chance of being published the industry forced authors to use agents. Agents dependant on the goodwill of their contacts at the various publishers. Personal friendships were not exactly uncommon. I'd say agents were what I would call a "captive" industry. As for praising agents? Perhaps Stockholm Syndrome. Or simple gratitude for being published at all under the prevailing conditions.



So what qualifications did/does one need to be a literary agent, other than ones connections? An MFA or a major in literature does not qualify one to negotiate or interpret contracts.



I'd say pretty well all. Including self-published authors. They can't afford too many supporters, particularly unqualified ones, if each of them wants 15% of their earnings.

Being a literary agent is a business, just like many businesses. How do you know you are hiring a good plumber? You use recommendations from people who have used them before. I believe that most agencies have lawyers who specialize in publishing contracts. Agents look at your book, give you advice on making it more attractive to publishers, help you find a publisher and negotiate a deal for you. They basically handle the details so you don't have to.

Publishing isn't the only business that really require a middle man. Computer contracting is mostly done through contract firms in the US these days. Most sports figures have agents. Most people who buy and sell a house use a real estate agent, at least in the US. I doubt that literary agents are any more likely to have a conflict of interest than any other representative. Can you get by without an agent? Sure. You can also represent yourself in a court case. It's just not particularly wise to do so.

[pwalker8]

Originally Posted by darryl

I tend to agree with you, Harry, though you are probably being a little harsh on virtually all traditionally published authors. Other clauses in these contracts provided mechanisms for the author to ask for reversion in certain circumstances, and I seem to recall something about the US providing an option to the author for reversion after something like 30 or 40 years. Those who used lawyers rather than agents may have done a little better, but for most authors this term was not negotiable. Lawyers would of course advise how unreasonable it was but had to concede that it was industry practice. An industry practice which developed when only few were chosen for publication and where the only alternative was the vanity presses. There was no practical alternative.

Unfortunately anecdotal evidence suggests nothing has changed with this term, and that publishers are engaging in a rights grab. Unfortunately there still seem to be many new authors who want to be traditionally published no matter the terms.

The US Copyright Act gives the original author the right to issue a notice of termination for a work created after Jan 1st, 1978. You can issue the notice 30 years after copyright is granted, or 25 years after publication, which ever occurs first. The termination then becomes effect 35 years after the copyright was granted.

Here is a relevant article by a publishing attorney and writer about rights reversion. (note the article does not mention the US copyright act. You can find that at the US government copyright website which is down for maintenance as I post this, but is easy enough to google)

http://writerunboxed.com/2016/01/10/...-bad-the-ugly/

[FizzyWater]

Originally Posted by HarryT

I’d just note that this is NOT common practice at all. Publishing contracts do not transfer copyright to the publisher. The only area of publishing in which it is common is academic journal publishing. I’ve never, ever, heard of it happening with book publication. Can you give an example?

I don't know if this is as prevalent as it once was, but Harlequin used to require authors to transfer copyright to them, although it might have been overturned since then. She stopped publishing with them in the 2000s, if I remember correctly, and commented often how frustrated she was that Harlequin kept publishing her backlist. She finally got it back a few or so years ago.

I saw a blog post or comment by her on this, but I don't remember details.

[darryl]

Originally Posted by FizzyWater

I don't know if this is as prevalent as it once was, but Harlequin used to require authors to transfer copyright to them, although it might have been overturned since then. She stopped publishing with them in the 2000s, if I remember correctly, and commented often how frustrated she was that Harlequin kept publishing her backlist. She finally got it back a few or so years ago.

I saw a blog post or comment by her on this, but I don't remember details.

It could be what Harry calls an exclusive publishing contract and which seem to be pretty well the norm. In most cases there is really very little practical difference between such a contract and an assignment of the whole of the copyright.

[darryl]

Originally Posted by pwalker8

Being a literary agent is a business, just like many businesses. How do you know you are hiring a good plumber? You use recommendations from people who have used them before. I believe that most agencies have lawyers who specialize in publishing contracts. Agents look at your book, give you advice on making it more attractive to publishers, help you find a publisher and negotiate a deal for you. They basically handle the details so you don't have to.

Publishing isn't the only business that really require a middle man. Computer contracting is mostly done through contract firms in the US these days. Most sports figures have agents. Most people who buy and sell a house use a real estate agent, at least in the US. I doubt that literary agents are any more likely to have a conflict of interest than any other representative. Can you get by without an agent? Sure. You can also represent yourself in a court case. It's just not particularly wise to do so.

Very true. The traditional publishing industry is not unique in using "agents". But literary agents are largely unregulated, and, unlike most other agents, are usually dependant on a relatively small number of publishers with whom they have close relationships. It is generally not in their interests to aggressively pursue their clients' interests, which is one reason why such terrible contract provisions have lasted for so long. They became an industry standard and what literary agent was going to contest an industry standard. Similar with sports agents who are "accredited" by the bodies they negotiate with.

Originally Posted by pwalker8

The US Copyright Act gives the original author the right to issue a notice of termination for a work created after Jan 1st, 1978. You can issue the notice 30 years after copyright is granted, or 25 years after publication, which ever occurs first. The termination then becomes effect 35 years after the copyright was granted.

Here is a relevant article by a publishing attorney and writer about rights reversion. (note the article does not mention the US copyright act. You can find that at the US government copyright website which is down for maintenance as I post this, but is easy enough to google)

http://writerunboxed.com/2016/01/10/...-bad-the-ugly/

Thanks for this. I only had a vague recollection of it. Better than nothing, of course, but not particularly helpful.

[pwalker8]

Originally Posted by darryl

Very true. The traditional publishing industry is not unique in using "agents". But literary agents are largely unregulated, and, unlike most other agents, are usually dependant on a relatively small number of publishers with whom they have close relationships. It is generally not in their interests to aggressively pursue their clients' interests, which is one reason why such terrible contract provisions have lasted for so long. They became an industry standard and what literary agent was going to contest an industry standard. Similar with sports agents who are "accredited" by the bodies they negotiate with.



Thanks for this. I only had a vague recollection of it. Better than nothing, of course, but not particularly helpful.

In the US, most literary agents belong to an organization ( Association of Authors' Representatives http://aaronline.org/) so like many such groups - lawyers, union plumbers, electricians and the like, there is a level of self regulation. You can at least file a complaint and they have a code of ethics.

Like sports agents, if you are a super star, you can get all sorts of things put in your contract. If you aren't, then you have a lot less leverage. My understanding is that most publishing houses have a standard contract, and you start negotiation from there. Based on what I read, and I am certainly no expert, it sounds like reversion of rights is one of those things that most publishing houses are willing to grant, but you have to ask and you have to be willing to give up something to get something.

[darryl]

Originally Posted by pwalker8

In the US, most literary agents belong to an organization ( Association of Authors' Representatives http://aaronline.org/) so like many such groups - lawyers, union plumbers, electricians and the like, there is a level of self regulation. You can at least file a complaint and they have a code of ethics.

Like sports agents, if you are a super star, you can get all sorts of things put in your contract. If you aren't, then you have a lot less leverage. My understanding is that most publishing houses have a standard contract, and you start negotiation from there. Based on what I read, and I am certainly no expert, it sounds like reversion of rights is one of those things that most publishing houses are willing to grant, but you have to ask and you have to be willing to give up something to get something.

Kris Rusch on Agents

There is no reason to hire an agent to represent your work in 2016. None. No reason at all.

Kris Rusch on Contract Termination

Since 2009 or so, publishers have gotten quite nasty about contracts. In short, they’re refusing to let any contract terminate.

Kris Rusch on Reversions/

The only reason I can’t get my rights back on my last remaining title with Simon and Schuster is because my very old contract with them does not have that line, and S&S counts the POD availability as “in-print.”

[pwalker8]

Originally Posted by darryl

Kris Rusch on Agents




Kris Rusch on Contract Termination




Kris Rusch on Reversions/

http://www.sfwa.org/why-a-writer-needs-an-agent/

"But things have changed. A lot. Many of those older publishers now survive only as imprints of huge conglomerates. The downsizing that has accompanied these mergers has resulted in fewer editors, even as publishers churn out an ever-increasing number of books. Time-crunched editors, who must devote their days to administrative tasks and have to shunt their actual editing work to nights and weekends, simply have no time to sift through submissions. More and more, they’ve come to rely on agents as a filtering mechanism."


https://www.thebalance.com/what-does...lished-2799883

"Do You Absolutely Need A Book Agent To Get Your Book Published?

Technically, the answer is no. BUT...

If you want your book to be published by a traditional publishing house, you WANT a literary agent to represent you."

You can find lots of opinions on both sides. Many Indies do everything themselves and have an absolute disdain for anyone who has anything to do with the traditional publishing world. Other authors like having someone else who handles all the business aspects and lets them focus on writing. Both can be successful.

Publishing is a business and there are a lot of would be authors out there. You can get taken to the cleaners if you don't have an agent to guide you through, you can get taken to the cleaners if you have a bad agent, heck you can even self publish and be perfectly happy with the results.

When my sister's husband died, the probate court judge wanted her to use a court appointed attorney (who just happened to be a buddy of his) to handle things. Since my sister is an attorney, she thought she could handle most of the filings herself. The judge proceeded to show her the errors of her ways by making her post a huge bond, and then dragging the process out for a year and a half.

Does that mean that you should always take the court appointed probate attorney? No, it just means that this particular probate judge was a jerk who did stuff because he could get away with it. You run across people like that in every business. Some people have good experiences with literary agent and big publishing houses, some people don't. Neither prove that there is one true way.

[darryl]

Yes. Agents prospered greatly when publishers effectively outsourced the slush pile to them. Unlike many of their later decisions, this was great business. Outsource and have the authors pay for it? Why on earth didn't they think of it before? So of course except for a very lucky few authors all who wanted to be published at all in those dark times had to have an agent, like it or not. So, of course, agents became entrenched as part of the traditional publishing process. Now, of course, traditional publication is no longer the only game in town, and is still fast losing ground. Still, if you are a new author seeking traditional publication now, particularly with the Big 5, you probably still need an agent. Or, of course, you could self-publish and if you are successful you will likely then receive traditional offers. This, I think, is where most literary agents are going to meet their doom. As more authors start with self-publishing or some of the more innovative traditional publishers who don't insist on dealing with agents, I expect that the larger publishers will have to source their books from these established authors. When approached, these authors won't need to be introduced by an agent. They will likely employ professionals for a fee rather than an agent for 15% of everything. If, of course, they are interested in being traditionally published at all.

[pwalker8]

Originally Posted by darryl

Yes. Agents prospered greatly when publishers effectively outsourced the slush pile to them. Unlike many of their later decisions, this was great business. Outsource and have the authors pay for it? Why on earth didn't they think of it before? So of course except for a very lucky few authors all who wanted to be published at all in those dark times had to have an agent, like it or not. So, of course, agents became entrenched as part of the traditional publishing process. Now, of course, traditional publication is no longer the only game in town, and is still fast losing ground. Still, if you are a new author seeking traditional publication now, particularly with the Big 5, you probably still need an agent. Or, of course, you could self-publish and if you are successful you will likely then receive traditional offers. This, I think, is where most literary agents are going to meet their doom. As more authors start with self-publishing or some of the more innovative traditional publishers who don't insist on dealing with agents, I expect that the larger publishers will have to source their books from these established authors. When approached, these authors won't need to be introduced by an agent. They will likely employ professionals for a fee rather than an agent for 15% of everything. If, of course, they are interested in being traditionally published at all.

The authors don't actually pay for the slush piles. Agents get paid a percentage of any contract, so you only pay if you get a contract. That's pretty much the standard way that agents work, in sports, real estate, contract firms or literary.

If you are a good author, who doesn't mind handling all the business details and knows how to market yourself and build a readership, then sure indie works. I'm not so sure there are a ton of writers in that boat. It's pretty hard to get noticed just throwing your book out on Amazon and sitting back waiting for the money to roll in. Marketing your books is hard work. Book discovery is the big unsolved piece of the puzzle. People are a lot more likely to try a book from a publisher they like than some random author in the Kindle store. That is one of the reasons that Baen had so many successful new authors, that and the Baen monthly bundle.

I still think that publishing will re-fragment as the capital cost of publishing drop. That could change the dynamics a bit as small publishers cut out the middle man/agents. That would involve a pretty big change in the way that business is done though.