Is An Ebook 'In Book Form'? Question Means Everything For Authors Trying To Get New Ebook Publishers

from the not-so-easy dept

We've been discussing some of the problems book publishers have had in coming to terms with the new age of ebooks -- such as by trying to delay the release of ebooks with a "windowing" system. However, there's another issue that's coming up as quite important for back catalog authors. Many of them are looking to sign their own ebook deals with other publishers than those who published their physical books, and they note that the old contracts make no mention of electronic or ebook rights -- mainly because such things didn't exist at the time. But the publishers are pushing back and telling authors who seek to sign separate ebook publishing deals that those deals violate their existing agreements while also seeking to amend older agreements to add in ebook rights and royalties.

Unfortunately for the publishers, they may not have much of a legal leg to stand on. As the article notes, there have already been lawsuits on this topic, and Random House repeatedly lost in its attempt to sue ebook publisher Rosetta Books a while ago. The court didn't find Random House's argument that the phrase "in book form" in its contracts covered ebooks as well. While that case was eventually settled, that only happened after Random House came out on the losing side in the earlier battles. Random House is among the publishers still claiming that "in book form" means ebooks as well, but it must be relying on the likelihood that some authors won't bother to look up those earlier rulings (or hire lawyers who are aware of them).


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    The Infamous Joe (profile), Dec 15th, 2009 @ 4:49am

    IANAL

    How can a contract cover something that didn't exist at the time the contract was written?

    Furthermore, why are middlemen so damn greedy?

     

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      Griff (profile), Dec 15th, 2009 @ 7:47am

      Founding fathers

      -- How can a contract cover something that didn't exist at the time the contract was written?--

      What, like the constitution and automatic weapons ?

       

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        Alan Gerow (profile), Dec 15th, 2009 @ 12:38pm

        Re: Founding fathers

        Well automatic weapons are firearms, firearms are covered in the Constitution. Its parent classification covers that.

        Now, had they said "the right to bear a musket" then we'd be in trouble.

         

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      Alan Gerow (profile), Dec 15th, 2009 @ 12:37pm

      Re: IANAL

      It all depends on definitions.

      If they wrote the contract regarding the use in a physical product, then it would cover bound printed words on paper.

      However, if the contract covered something more ethereal, such the content or general distribution of the story, then the actual physical mechanism isn't relevant.

      Newer contracts regarding television shows in the wake of the writer's strike a bit ago now include more general language to attempt to cover current and future technology distribution.

       

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    Anonymous Coward, Dec 15th, 2009 @ 5:02am

    I think the courts took a very literal (no pun intended) view of what "in book form" means, referring to the physical package. But for me, in book form would include the sorting of stuff into chapters, etc. It would be different from "in research paper form" or "in magazine article form" or "in voice form".

    Heck, audio books are much less "in book form" than an ebook version of a book.

     

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      Mr RC (profile), Dec 15th, 2009 @ 6:32am

      Re:

      Audio books are considered to be a different format..

      In 'book form' to me, speaks of physical copies..

      ebooks are digital and require either a ereader or computer in order to be able to use. They require a 3rd party product to be used, what's next? Bookcase makers suing storage manufacturers to prop up the bookcase market?

      'oh noes, people aren't buying books... and don't need bookcases anymore.. lets sue storage manufacturers for making ebookshelves'

      actually.. that's a bit of a stretch... but funny nonetheless.. funnier if it happens..

       

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        Anonymous Coward, Dec 15th, 2009 @ 7:57am

        Re: Re:

        Sorry,but the bookcases have nothing to do with the product. I can use bookcases to hold anything, not just books.

        Ebooks are the book product (edited and completed) in a digital format. It would be like saying that a hardcover and paperback are two different formats of books, so the rights can be sold to different companies. It's a foolish concept.

         

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        Angry Dude, Dec 15th, 2009 @ 8:01am

        Re: Re:

        You punks don't understand that the world will end without bookcases.

         

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    nasch (profile), Dec 15th, 2009 @ 9:07am

    Contradiction

    But the publishers are pushing back and telling authors who seek to sign separate ebook publishing deals that those deals violate their existing agreements while also seeking to amend older agreements to add in ebook rights and royalties.

    Isn't this contradictory? If they old contracts already cover ebooks, why amend them to cover ebooks? Or the other way around, if they need to amend contracts to include ebooks, doesn't that by definition mean they didn't already?

     

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    Brian Dahill (profile), Dec 15th, 2009 @ 9:11am

    I think MR.RC hit the nail on the head. His suggestion that Bookcase makers sue storage companies, (which was quite funny by the way) shows just how slippery this slope is. I feel for publishers to a point, but the idea that 'in book form' means e-books is a stretch. Where does it end? Publishers should have been more forward thinking when they first developed audio books.

     

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    Stephen, Dec 15th, 2009 @ 10:05am

    from the publishers' point of view

    From the publishers' point of view, yes, an ebook is just another format like hardcover, trade paperback and mass market paperback, whereas an audio book is considered a derivative right.

    It's important to remember the history of electronic rights. About 15-20 years ago there was much gnashing of teeth over books on CD that would include multimedia elements like video, music, etc. Thus electronic rights were split in two: verbatim rights, that is, the text of the book in trade form, which the publisher kept because, if there came a day when books went totally digital, then they'd have no product if they gave up these rights; and multimedia rights, which authors often kept, waiting for this market to explode. The fuse seems a bit damp in retrospect.

    Of course it's in the authors' interest to argue otherwise for those contracts written in which electronic rights weren't mentioned specifically, falling under the catchall language about future media; because this way they or, more likely, their estates, can get a new payday.

    Still, at least this gets people considering ebooks as books. My worry is that ebooks become considered licenses, and that opens an enormous can of worms not just for publishers when it comes to rights but to consumers when it comes to their rights of use.

    When authors win their verbatim rights, though, they and their ebook publishers should then be stuck, in my humble opinion, with a significant monetary cost they haven't anticipated: recreating the text of the book for the ebook. Right now, if a publisher licenses a paperback reprint from a hardcover publisher or a US publisher licenses US rights from a UK publisher, the licensee buys the licensor production files (it used to be film) and often their cover. The cost isn't that much usually as production costs go, perhaps a couple thousand dollars.

    But do you really think a publisher is going to sell these files to someone that just screwed them out of rights they thought they had? No way. Ebook publishers will then have to rekey the entire book, copyedit it to make sure there are no mistakes, design the pages and a cover, the whole works. This could run them many many thousands of dollars, although they would save some money by creating the text in a way that doesn't then require any ebook conversion.

    Of course, at this point, you know authors will be chummying up to their book publishers and saying they should just sell the ebook publishers their files in order to maintain their own relationship with the authors.

     

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      Rooker, Dec 15th, 2009 @ 4:31pm

      Re: from the publishers' point of view

      "But do you really think a publisher is going to sell these files to someone that just screwed them out of rights they thought they had?"

      I doubt any publisher - including Random House - thought realistically that they owned these rights. This is little more than an attempt to seize the property of people they hope won't be able to afford to defend their rights. This exact legal question has long since been answered and put to bed.

      As for the production files, that's a technical issue that's never hindered unauthorized copies of books showing up on Usenet. I'm sure e-book publishers will be just fine.

       

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    Me, Dec 15th, 2009 @ 3:02pm

    need a CDBaby for Ebooks

    first -same, not same? interesting how what is considered "the same thing as" is defined by who stands to gain what advantage. SAG struck in 1980 one of the many issues was residuals for a non-traditional medium - Cable TV. The studios didnt want to pay the actors residual payments when a movie went to cable. Actors wanted to be paid for that on a separate schedule from theater release.

    Same thing is going on here. Publishers want to extend their purchased right to publish into the digital realm without paying any more residual payments. Authors of course want a piece of that pie.

    The smartest thing for publishers to do in this case is to offer authors a sweet deal in exchange for them explicitly adding the digital copyright.

    The smartest thing for the authors would be to refuse all but the most irresistible of deals.

    In looking around, I dont seem to see a good "CDBaby" for ebooks. I see some attempts. sort of. But all seem to be pretty tentative. Scribd's rebranded ebook site makes a lot of hullabaloo about its DRM (standard Adobe stuff. Stripped via python script in no time) and fictionwise wont take any authors that arent "established" by some arbitrary criteria they have decided upon.

    hmm. business opportunity? Being the "new" publisher. helping fans and authors connect...etc etc

     

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    Stephen, Dec 15th, 2009 @ 5:16pm

    A quick note to Rooker: the quality of downloaded ebooks scanned from a print edition on someone's home scanner is hardly the same as what publishers require and consumers want. You might as well sell xeroxes of a book held together with a butterfly clip.

    Me: residual payments for movies and royalties for books are entirely different things.

    Bizparents.org says this about residuals: "In general, actors aren’t paid for the first exhibition of their work—that is included in the session fee (your work day wages). Residuals are paid to actors when their performance is used AGAIN, or in a new way that was not intended when you originally worked. For example: A re-run of a television show; A feature film that was released in the movie theater, but is now being released on DVD; A television Movie of the Week that is now being sold on DVD; A second use of a commercial (or a third use, or 300th use!); A TV series that is now being used on the internet as a “Webisode” (a.k.a. “new media”); A TV series that is sold into syndication; A network TV show that gets shown again on a cable channel."

    Royalties, however, pay an author a cut of the sale price of the work, which is first applied to any unearned advance. What publishers are saying is that, if the ebook is just another format of the book--if electronic verbatim rights are a primary right--then the royalties accrued by ebooks sales would count against the original advance, if it hasn't already been earned out. If it has, then they would get their ebook royalties as part of their next check.

    What the authors are saying is, electronic verbatim rights, when not addressed in a contract already, are a subsidiary right for which an additional advance should be paid by the publisher of the treeware version of the book, an advance which would then have to be earned back by sales of the ebook (which, if the history of book advances in general is any guide, is less than 50% likely to happen) or by sales in general if the royalties of all editions are joint accounted.

    But you're on the right track. A better example would be the webisodes that the writers of "The Office" wrote up as marketing pieces for the show, that is, as part of their job as writers. They were rightly indignant when the network started selling them for profit, not just giving them away, in which case the writers should have been paid upfront and then received residuals.

     

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      me, Dec 16th, 2009 @ 3:43pm

      Kinda missed the point steve

      Dont get bogged down into the fine details of how a profit share works - whether by residual or percentage of sale - it doesnt matter. What does matter is whether or not it s taking place and whether or not the system is a proper one. actors, musicians and writers are finding alternatives to the current and previous models. And that is a good thing. But the publishers, instead of attracting thre authors by showing then *why* they should stay and enter into further agreements with the publisher instead try to loophole thier way out and in the end piss off *their* own customers...the writers.

      Everyone has a customer. The trick is finding who they are and building a business model that makes them not even consider an alternative...the difference now is that they have to *want* to be your customer you cant force them to be a customer.

      thats why I referred to a CDbaby for ebooks. provide tools, offer services, deliver content - the more the author participates, the larger amount he can keep in his pocket. The more he wants to just sit, the less per sale he makes.

       

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