There’s an ongoing dispute over retail terms between Simon & Schuster and Barnes & Noble. Ebook sales terms seem to be a key battlefield, but accounts of the dispute are conflicting.

Accounts of the tactics are conflicting as well. It seems clear that B&N has pared back its orders of Simon & Schuster titles — as a story posted by Jeffrey Trachtenberg of the Wall Street Journal (subscription required) this afternoon confirms. We haven’t been able to confirm, however, that B&N is taking punitive action directed at Simon & Schuster or whether it’s cutting back on book orders generally. It seems unlikely that B&N would be cutting back generally on new titles (it still has many, many stores to fill with books, and new titles are the lifeblood of retailing), but odder things have happened.

We strongly condemned Amazon three years ago when it removed the “buy buttons” from nearly all of Macmillan’s books in an attempt to pressure the publisher into rescinding an announced change to its ebook sales terms. We said then that those “hardest and most unfairly hit are authors with new books published by Macmillan that are in their prime sales period.” See “The Right Battle at the Right Time,” Feb. 2, 2010.

Our views haven’t changed: targeting a publisher by punishing authors as their new books hit the marketplace is an over-the-top tactic that a retailer with B&N’s market clout should never employ. A new book makes or breaks in the first few weeks after it hits bookstores.

Publishers and retailers have fought over sales terms forever.  We hope that reports of B&N singling out new Simon & Schuster titles prove to be unfounded.  New books deserve a fair shot at reaching their readers.

Condé Nast’s new boilerplate contract for freelancers, under which it acquires a free 12-month right to option dramatic and multimedia rights to articles appearing in its magazines and then, if it exercises that option, shares less than half the usual amount with the author, has gotten us thinking: what makes a rights grab? After all, there are lots of terms in a typical freelance journalism contract or book publishing contract that wouldn’t be there if the two parties had roughly equal bargaining power. (We’ll name two from trade book contracts: ebook royalties at 25% of net proceeds and any noncompete clause that isn’t reciprocal.)

So, when does a contractual term cross the line and become a rights grab? Breaking with industry practice is clearly one thing to consider. A second is whether the publisher is seeking to control rights that aren’t the main point of the contract. A third — a biggie — is compensation: is the publisher taking rights at bargain-basement rates? Another way to look at that is whether a journalist or book author with greater bargaining power would find the deal acceptable.

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