Simon & Schuster set a worrying precedent
If you haven’t seen the following item in today’s NY Times, you should read it. It is an understandable way to go for publishers, but not good news for authors.
From the New York Times
Simon & Schuster, one of the largest book publishers in the U.S., has altered its standard contract with authors in an effort to retain control of books even after they have gone out of print. Until now, Simon & Schuster, like all other major trade publishers, has followed the traditional practice in which rights to a work revert to the author if the book falls out of print or if its sales are low.
The new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database — even if no copies are available to be ordered by traditional bookstores.
With the new contract language, the publisher would be able stop printing a book and prevent the author from publishing it with any other house. “A publisher is meant to publish, to get out there and sell our books,” said Authors Guild president Roy Blount Jr. “A publishing house is not supposed to be a place where our books are permanently squirreled away.”
All major trade publishers have been willing to acknowledge the requirement of some minimum level of economic activity in order for them to retain exclusive rights to a manuscript. Typically, such clauses obligate a publisher to sell a few hundred books a year. Simon & Schuster has been signaling, however, that it will no longer accept a minimum sales threshold.
“Other major publishers have not followed suit,” said Guild executive director Paul Aiken. “We’ll be watching for that, of course, since coordinated moves would have serious legal implications.”
In an alert issued to its members today, the Authors Guild cautioned members to consider their options carefully:
1. Remember that if you sign a contract with Simon & Schuster that includes this clause, they’ll say you’re wed to them. Your book will live and die with this particular conglomerate.
2. Ask your agent to explore other options. Other publishers are not seeking an irrevocable grant of rights.
3. If you have a manuscript that may be auctioned, consider asking your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.
The Authors Guild (www.authorsguild.org) is the nation’s oldest and largest organization of published book authors.
Comments
Posted by Richard Havers on 18 May 2007
It sounds like those pesky lawyers are at it again.
The idea of a company having control of my work when they are making no attempt to sell it is an anathema to me. But am I surprised? No. Publishing seems to be increasingly about control and the dreaded ‘p’ word is the problem. That’s p for product. As soon as a publisher takes the view that what they have product then the whole relationship with the creative element breaks down.
Posted by Lyn leJeune on 18 May 2007
This is going to chase good writers into web publishing or POD or perhaps, finally, authors will become a force in the publishing “industry” and change the way the market handles their works.
I’m waiting for lots of books about murdered publishers who steal the souls of their writers…oh, wait….I just saw this movie called The Novak Box….
Lyn Lejeune
The Beatitudes Network- Rebuilding the Public Libraries of New Orleans
Posted by fmk on 19 May 2007
Danuta: do you know what the rule is with regard to pure ebooks? as digital texts, they are always in print, so long as available for sale somewhere on the web. given the hopes and the hype behind ereaders, surely all publishers will be moving in this direction in the very near future?
TIA
Posted by Danuta Kean on 19 May 2007
Yes, you’re right. It is one of the reasons why the Society of Authors are not so keen as some on either e-books or self-publishing, because the latter usually relies on digital copies and so could do nothing to promote a book but keep hold of the rights because the book is effectively never out of print. It really is a case of the rights not keeping pace with the technology. This is an important area. No one would deny that authors need to maintain control of their work, but how do you do that in a digitised environment in which the author could end up being forced to pay heavily if they want their rights back from a publisher that has effectively allowed them to go out of print?
Posted by fmk on 19 May 2007
Danuta: well if the sea change predicted for ebooks takes place, then all is changed and there is no issue with regard to books beings out of print. looking at it and saying the glass is half-full, well obviously the author should be happy to know their book is available 24/7 for the duration of its copyright. with whatever it is, 70% or so of copyrighted books currently out of print, you’d be inclined to buy the ebook hype and buy a pair of shades, the future’s going to be that bright with so many books available. though with the (long) tail wagging the dog, new authors mightn’t be so happy, in the short term.
if the bookworld does go digital though i wonder if the publishing industry shouldn’t be looking at the music industry, not just for the ipod analogy it so loves today, but for the way the music industry breaks copyright between publishing and mechanical, with the mechanical copyright being for a shorter period. not quite sure how that could work out for books though, they’re a radically different product, am really just thinking out loud on that one. presumably an author would only licence their book to a publisher for a defined period of time.
no doubt some author currently with their books available in both dead tree and bits and bytes formats will be able to explain the short print of their contract and how / whether the bits and bytes product can revert back to them.
thanx for your response.
Posted by Danuta Kean on 20 May 2007
Thanks for the very thoughtful response fmk,- thinking aloud is very much allowed here, it is the main reason I set up the blog side of my website.
As you know I can’t wait for the iPod moment in books, not just because it means the end of books you want to read going out of print, but also there are creative opportunities it may provide – a whole new genre that busts boundaries between film, book, music etc could be amazing – imagine what Laurence Sterne could have done with a mook? (movie book)
But that is said with the caveat that we HAVE to get the copyright issues sorted out, otherwise authors will find themselves in the appalling situations we’ve already discussed. Of course it isn’t the first time rights and technology have failed to keep pace – it took a few hundred years before copyright laws caught up with mass printing….Let’s hope this one takes less time!
Posted by fmk on 20 May 2007
Danuta: i do believe that the bookworld will increasingly go digital, and that an ereader of some kind will gain widespread popularity. tech and text books are increasingly digital. niche fiction (partic sci-fi) is increasingly digital. we’re all spending more time with our puters. by and large, i think we will welcome the arrival of a digital bookworld.
but i do have a problem buying the hype for two reasons: i) it reminds me of the hype of the dot.com boom; & ii) it reminds me of the tablet pc, which parc xerox started promising in the 60s and bill gates has been promising every other year for most of the last decade. the current ereader actually reminds me of apple’s attempt to create a tablet pc – they ended up with the newton, a pda. and it’s really only going to be with the arrival of the iphone that apple’s pda finally catches up with the blackberry. the problem with the ereader is that we can already see that its limited functionality is a barrier to mass acceptance of it.
if the industry cared about the consumer, they would be working toward an ereader that takes e-ink’s flickerless screen and marries it with existing tablet technology to give us an ereader with useful functionality. however, the dedicated ereaders currently being offered seem designed to circle the wagons around copyright in a world where drm is so easily circumvented. and i guess that’s the elephant in the corner on this current copyright issue – you have a publisher seeking to extend the useful life of their copyright, authors up in arms, and yet outside the circle copyright itself is coming under increasing attack.
in terms of what the industry can / should do wrt copyright changes in this changing digital landscape – all i can really add is that the industry better solve the problem internally. if they take it to government they may discover gordon brown is not their friend. he’s already more or less told cliff richard to get lost with his request to extend the life of music’s mechanical copyright.
Posted by Danuta Kean on 21 May 2007
Ooh I’d love to tell Cliffie to get lost! Seriously though, I agree with what you say about both copyright and the technology. The problem with most of these platforms is that they are designed with the content provider and not user in mind. That is the lesson from iPod. They were easy to use, desirable, fashion statements. None of the ereaders on the market have addressed that fashion issue. Besides, the market of book readers simply isn’t big enough to justify an ereader without multi-functionality. These should be cultural objects tha make a statement about the user in the same way a Crackberry does. Maybe we should just give Kate Moss one?
If I am going to be really cynical, I would point out that the book trade rarely innovates. Look at Richard and Judy and the questions about whether the book club will survive Judy leaving the show. The trade should never be so dependent on a channel of promotion outside its own control. The same is bound to happen with ereaders.
There really is a dearth of high quality, original risk-takers in the large houses.
Posted by Richard Havers on 21 May 2007
‘There really is a dearth of high quality, original risk-takers in the large houses’.
Danuta, what you say is SO true. I’ve heard some horror stories recently. Like a commissioning editor in a major saying. “We need books that cover all the market segments and not just niches, no matter how big they are.” (I paraphrase here). If you follow the logic of this there would only be books in supermarkets.
I posted on Richard Charkin’s blog the other day saying that the problem for many publishers is that books have become product and the passion has been removed from much of publishing. Publishing has always had an element of me too, or follow me, but it seems to have got worse in the last few years. I used to work in the airline business and ten years ago, or even perhaps even five, if you said that the future of the travel agent was limited given the power of the airlines to go direct to customers via the web you were laughed at. I believe we will see new developments in the next few years as the web plays an increasing part in book marketing (as opposed to be selling)
There’s an awful lot of fashion associated with the books that people buy already, let’s not have it happen even more as a result of what people are reading them on!
Posted by SUSAN HILL on 21 May 2007
It has more to do with POD than with e-books..once you allow a single copy of a book to be printed on demand then it is always going to be available – even if not in the sense we now know it – and never going ‘out of print.’ It has been on the way – S and S are just the first but all publishers will go this route from now. I disagree about passion in publishing.. the accountants have none but twas ever thus; I know a great many editors in major publishing all of whom are very passionate indeed about literature and the books they publish and the authors they look after.
Posted by Emma Darwin on 23 May 2007
It’s true that S&S are only the first to formalise this issue, but it can’t be impossible to come up with a solution, just as in the theatre world a show can be closed if the audience falls below a certain percentage. A clause along the lines of ‘if in any one year of PoD fewer than X copies are sold, the rights will revert to the author at their request…’ could easily be included as part of a standard contract, or be negotiated further. There may be some authors, after all, who have no interest in getting the rights back, at least for the moment, and are happy to sell the occasional PoD copy. But they shouldn’t be forced into that position willy-nilly.
Posted by Brian Guerin on 1 June 2007
The way around this one is, I think, in making shorter term contracts the norm for exclusive rights to publish material. The ‘long tail’ model of book retail is here already thanks to Amazon, and as publishers are already used to their backlist or less publicised titles bringing in most of their revenue, it is not a huge logical leap for them to adapt to it. So the S&S move is likely to become common. I think it is up to the agents to solve the potential problems for the authors. If agents can somehow adopt an LT approach to their clients (the idea that representing a mass of authors selling small numbers through websites could be profitable) then I’m sure they will be able to overcome the contract hurdle on behalf of the authors, who should also benefit from the S&S style of rights acquisition.
Posted by After some consideration... « Twitches in the tail. on 4 June 2007
[...] 1) Legal teething problems: If the concern from the online writing community over the S&S move is to be taken seriously, then not all authors will accept such a revision of their contracts. This could cause authors to change publishing house rather than signing new contracts with their existing ones, causing a power shift away from innovators like S&S. [...]