Condé Nast query: What makes a rights grab?

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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Posted in Advocacy, Authorship

Condé Nast Moves to Seize, Lowball Freelancers’ Film/TV Rights

Breaking with longstanding industry practices, Condé Nast is seeking to cut itself in on its writers’ potential film and television deals. In the process, it would slice writers’ share of potential film and television income to freelance works appearing in its magazines by more than 50%. Its new boilerplate contract — introduced last year — would give the company a free, exclusive 12-month right to option dramatic and multimedia rights. Under the contract, Condé Nast could choose to extend that option by up to 24 months for a modest sum.

Should Condé Nast exercise the option, the writer would, under boilerplate terms, be paid just 1% of the film or tv production budget. Negotiated film and tv agreements typically pay the author 2.5% or more of the production budget.

Agents and writers are pushing back, with some success. Since Condé Nast owns such leading publications as Bon Appétit, GQ, The New Yorker, Self, Vanity Fair, Vogue, and Wired, among others, authors with significant negotiating clout are affected. Reportedly, some of those authors have been able to substantially alter or eliminate the option terms of the new boilerplate agreement.

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Posted in Advocacy, Authorship, Royalties

Booktalk Nation Returns with Lois Lowry, Richard Russo & Robert K. Massie

Help spread the word as Booktalk Nation returns from its holiday hiatus with a full slate of nationwide dial-in events. This week, former CNN anchor Kitty Pilgrim discusses her latest thriller and Carolyn Mackler and Jay Asher talk about collaborating on their acclaimed YA novel, The Future of Us. Next week, Lois Lowry will discuss the concluding book in her Newbery winning series that began with The Giver, and Emma Straub will talk about her widely praised debut novel about Hollywood’s golden age.

Later this month, Pulitzer Prize winners Richard Russo and Robert K. Massie will be discussing their latest books, and PEN/Robert Bingham Prize winner Vanessa Veselka will talk about her debut novel, Zazen.

Here’s this month’s Booktalk Nation events (all start 7:00 Eastern/4:00 Pacific):

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Posted in Advocacy, Booktalk Nation

Scott Turow on Penguin Random House

We’re back in business: power kicked in for our office Saturday morning; our email server came online late that night.

Here’s our storm-delayed member alert on last Monday’s unsettling announcement that Random House and Penguin, the two largest trade book publishers in the U.S., are merging.

Although Random House has said that the combination would control 25% of the book market, that appears to significantly understate things. The companies’ share of the U.S. trade book market for fiction and narrative non-fiction likely exceeds 35%. Their share in certain submarkets is no doubt even higher. The merger merits close scrutiny from antitrust officials at the Justice Department or the FTC.

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Posted in Advocacy, Authorship, General

Authors Guild Offices Remain Closed

Our offices are high and dry, but power has not yet been restored to them. (Our building is in the zone of Manhattan affected by Hurricane Sandy’s flooding of the Con Ed plant on East 14th Street Monday night.) Our normal email service is unavailable for the moment — our server is stranded in our office. If you’ve recently sent us an email, we should receive it when the server reboots.

From what we can learn, it seems unlikely that our offices will have power tomorrow. We hope to reopen Friday.

Our apologies for the inconvenience.

Posted in Advocacy

“Orphan Works” Unresolved in HathiTrust Ruling

Wednesday evening, US District Court Judge Harold Baer ruled that the mass book digitization program conducted by five major universities in conjunction with Google is a fair use under US copyright law. Under that program, Google has converted millions of copyright-protected library books into machine-readable files, duplicating and distributing the digitized books to university libraries. The universities pooled the digitized books into an online database organized by the University of Michigan known as HathiTrust.

We disagree with nearly every aspect of the court’s ruling. We’re especially disappointed that the court refused to address the universities’ “orphan works” program, which defendants have repeatedly promised to revive. A year ago, the University of Michigan and other defendants were poised to release their first wave of copyright-protected, digitized books to hundreds of thousands of students and faculty members in several states. The universities had deemed the authors of these books to be unfindable.

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Posted in Advocacy, Copyright

Publishers Drop Mass Book Digitization Suit Against Google. Authors’ Class-Action Continues.

A group of large U.S. publishers agreed to drop their lawsuit against Google over its mass-digitization of millions of copyright-protected books. In a press release issued this morning, the Association of American Publishers and Google said that the terms of the settlement are confidential and won’t need court approval. The parties did lift the covers off the deal a bit, saying publishers “can choose to make available or choose to remove their books and journals digitized by Google.” The statement does not say whether Google is compensating publishers for its unauthorized uses of the books, nor does it address whether Google will continue scanning books without permission. The press release acknowledges that the settlement doesn’t affect the authors’ class-action lawsuit against Google.

“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”

The press release follows.

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Posted in Advocacy, Copyright, E-Books

Court Approves Justice Department’s E-Book Proposal, Restoring pre-2010 Status Quo Without an Economic Study

Judge Denise Cote approved the Justice Department’s controversial settlement with three major publishers — Hachette, HarperCollins, and Simon & Schuster — in a 45-page decision filed yesterday afternoon. The settlement requires the publishers to allow e-book retailers to sell their books at any price, even below cost, so long as the retailer does not lose money over a publisher’s entire e-book list over a 12-month period. The Justice Department had sued five publishers (the others are Penguin and Macmillan) and Apple this spring alleging that they had colluded to introduce “agency pricing” for e-books in 2010 with the launch of the iPad.

The Authors Guild opposed approval of the settlement, believing that the DOJ could address the alleged collusion without requiring three publishers to allow Amazon to resume predatory pricing. Amazon’s predatory pricing — selling bestselling frontlist e-book titles at a loss — had helped the online retailer gain a 90% share of the e-book market by January 2010.

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Posted in Advocacy, Authorship, E-Books

AG Makes “Friend of the Court” Filing in DOJ Settlement Proceeding

Yesterday, the Authors Guild filed a motion and a proposed amicus brief with the Southern District Court of New York taking issue with the DOJ’s “narrow gauge” view of the book market in its response to the public comments submitted in the U.S. v. Apple, et al litigation.

Proposed Brief

Posted in Advocacy, Authorship, E-Books

Sen. Schumer Op-Ed on E-Book Suit: DOJ should think again

Sen. Charles Schumer, in a strongly worded Wall Street Journal op-ed piece published today, called for the Justice Department to reconsider its e-book antitrust lawsuit, noting that “the suit could wipe out the publishing industry as we know it, making it much harder for young authors to get published.” Sen. Schumer continued:

The suit will restore Amazon to the dominant position atop the e-books market it occupied for years before competition arrived in the form of Apple. If that happens, consumers will be forced to accept whatever prices Amazon sets. All of us will lose the vibrant resources a diverse publishing universe provides. As Scott Turow, president of the Author’s Guild, has explained, the Justice Department’s suit is “grim news for everyone who cherishes a rich literary culture.”

A powerful member of the Senate Judiciary Committee gets it. A bit of welcome news, this hot summer.

The full op-ed is available here.

Posted in Advocacy, Authorship, E-Books