Mark Terry

Thursday, October 15, 2009

Crap Happens


October 15, 2009
If you're from the not-to-be-named-here publisher or one of the not-to-be-named clients, go somewhere else, this will just piss you off.

Ahem.

Last year I was hired by a couple doctors to help them write a proposal for a book about medical practice management, a subject I (and them) write about quite a bit. We hammered out a contract and I did so, got paid, etc. Then I helped us find an agent. She then marketed it to the best of her abilities, about 12 publishers, with nothing coming of it. Then, I did some research and found another possible 8 & sent out queries. One said "no thanks," six fell into the black hole of the publishing industry never to be heard from again, and one said, "Hmm, we're interested." We all had a conference call, they offered a contract, then our agent got a look at the contract (which sucked, or as our agent said, "It's more unfriendly to authors than I was afraid of.") There were numerous issues with the contract, but the first sticking point, which our agent wanted us to all agree was a "deal breaker" involved the fact that instead of having the copyright in the name of the authors (in this case, most likely, the two docs, not me, I'm just the hired help), it was in the name of the publisher. We all agreed.

So our agent told the publisher the copyright had to be in the two docs' names. She said no, all of their books were in the publisher's name.

So we walked.

Now, I was on Facebook yesterday and I mentioned this and SpyScribbler asked why this was a big deal. I wrote:

It gets a bit complicated, but the gist of it is who actually owns the intellectual property versus who's licensing the intellectual property. Work-for-hire often is handled that way, but it's not really all that common in terms of royalty-based projects.

That didn't quite satisfy her, so I then wrote:

The difference is what they can do with it without your permission because they own the content. So the concern has to do with repurposing.

My brother, who is a music professor and composer who has published a great deal of music and won many awards, wrote this, which was news to me, but I would have been about 18 at the time in question:

"(I) Created a soundtrack for an "educational video" back in about 1982. I didn't see a market for it so when they kept the copyright I didn't mind. They then sold it to PBS where it ran nationally for about 8 years...not a nickel did I get, and the fun part was getting cards from people congratulating me on my success...live and learn."
That well and truly sucks. Then, because it's all about me, me, me, I wrote:

The bulk of my writing is work-for-hire, rather than contracted so I can repurpose. 99% of the time that's fine, there really is no other market. But two of the pubs I've worked with re-used and reprinted a lot of material without me getting anything from it. The one time that really bugged me was a piece I did for Bankrate.com that got reprinted on MSN.com and I didn't get a cent.

(And by the way, if I did the math on the ones I've actually heard about, it's possible that over the years these repurposing, etc., would have amounted to a couple thousand dollars in my pocket. It really depends on the resale value and the type of article, as well as what rights you can hold on to, but I mostly write for trade journals where it's typically work-for-hire. Often work-for-hire makes up for it--not always--by paying you more upfront).

Anyway, my agent and the docs had a flurry of e-mails, as well as some cc'ed communications with the publisher. In ways that don't entirely surprise me, the docs started to say, "Welllllll, maybe it would be okay if..." which had me rolling my eyes, because when you say "deal breaker" I generally think that means if they won't change it, you walk away. Which, for the writers, is always the toughest part of contract negotiations, because most aspiring novelists I know would pretty much sell their soul to get published (don't lie to me, you would and probably already have!). If there's anything to give an author the shakes and the cold sweats, it's when their agent says to a publisher, "that's a deal breaker."

So where are we? Nowhere, as far as I know. There have been a number of problems with this deal, as far as I'm concerned. One was, no advance. Okay, we've had that discussion before. I told the docs I could go with a 3-way split on royalties or they could just pay me to help them write it and then I'd be on my way. Now that they've started hemming and hawing on this, and included in the contract is the news that this publisher only pays royalties once a year in January (you do some figuring: I spend the next 3 or 4 months writing the book, which then gets published at the end of 2010, but because of the January royalty schedule, no payment will arrive in anybody's hands until January 2012), I came back to say if they go with this publisher, I don't want to be part of the royalty structure, they can pay me to help with the writing and they can split the royalties between themselves. Who knows how that news will go over. I gave them other options like self-publishing and a few other things, but, ya know, at least one of them really, really wants to be an author, y'know?

So really, folks. When I suggest that publishing is a business and it helps to have some clue as to what that business is all about, this is a big part of what I'm talkin' about.

8 Comments:

Blogger Natasha Fondren said...

LOL, well, I still see no reason why I retain copyright when I sell all rights, LOL. There's only two pubs in my genre, and neither will buy what's been sold to the other, so there was never any reason to retain any of them. Until now, when self-publishing is getting more and more viable.

Unless I need up front cash, I doubt I'll sell to either of them again until I find out how much I can make by myself.

6:01 PM  
Anonymous Eric Mayer said...

Your brother sure has a horror story there. You've got to be suspicious of publishers that want the copyright. Sure, it might seem like usually it wouldn't matter, and usually, as it turns out, doesn't, but you can't know exactly what the future holds.

One would think two doctors wouldn't be so desperate to see their names on a book. I'd think they would be angry at the publisher trying to rook them. I hope that whole deal doesn't turn out and you find a better one.

6:54 PM  
Blogger LurkerMonkey said...

Whew, Mark. That's a crappy one because of the time already invested, but it sounds like one of those deals where I'd want to make sure, first and foremost, that I got paid. I would have done exactly the same thing you did ...

7:27 PM  
Blogger Mark Terry said...

How about these scenarios?

1. The e-publisher decided to take a collection of your stories and novellas and publish them in a book form? And you can't say yes or no to it or get a dime?

2. You decide you want to take a collection of your stories and novellas and publish them as a collection, in print or as a Kindle book? But you can't, because you don't own the copyright.

4:33 AM  
Blogger Mark Terry said...

Eric,
One of the problems is we can't seem to get a clear reason for why the publisher insists on the copyright besides "it's part of the value of the company." And we then say, "But do you plan on repurposing it?" No, they say. "Then how is it part of the value of the company?" Well? No real answer.

As for the doctors, nobody likes to fail, and my suspicion from knowing many doctors over the years is they're not terribly accustomed on the professional space to not getting what they want. That's not a slam on either of these guys. They're good guys and I like them personally and respect them professionally. They have very positive attitudes. But I don't get a sense that when they set out to accomplish something they want that they have very often hit dead ends. I'm not sure we're at a dead end, but we might be with this particular publisher.

6:34 AM  
Blogger Mark Terry said...

Jon,
Well, I got paid well to write the proposal, so it's okay. But the deal was starting to look more and more like a financial loser for me. They want the book for professional reasons & say they would donate their royalties to some fund or charity they named, but I don't have that luxury. I appreciate that, for them, having the book gives them credibility. Once I saw how little money might come my way, I justified my involvement that having a nonfiction book in my portfolio would be useful for more collaborations and ghostwriting. But the contract was just starting to look worse and worse and I'm busy enough as it is at the moment, so I'm not brokenhearted.

6:37 AM  
Blogger Natasha Fondren said...

LOL, Mark, they did expand to print and e-book in the past six years. And for some wonderful and bizarre reason, which of course I won't complain about, they re-negotiated terms so that I would get 50% of the royalties.

They didn't have to, but they thought that was fair, LOL. I suppose that's the advantage of small presses owned by former writers.

7:16 AM  
Blogger Mark Terry said...

Natasha,
You got lucky. And it may not have anything to do with small presses owned by writers, but you working with someone who has a sense of fairness. Glad it worked out for you.

9:39 AM  

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