When You Sign Away Your Copyright To A Publisher, What If They Hold You Hostage Over It?
from the yikes dept
We’re always amused to hear people talking about how copyright “protects the creator,” when we mostly see cases where the original creators have effectively sold off their copyrights to giant gatekeepers: record labels, movie studios, book publishers, etc. That can lead to some unfortunate situations for the actual creators, such as the following story, sent in by someone who prefers to remain anonymous. Phil Foglio, author of a series of “Girl Genius” novels, recently found out that the American publisher of the books, Night Shade Books, is going out of business and is trying to sell off its contracts. However, the publisher looking to buy wanted to renegotiate the contracts in a ridiculous manner, massively decreasing Foglio’s royalties. What follows, however, would make for an interesting game theory case study:
A certain percentage of Night Shade authors have to agree to this hose job before the deal goes through. Yay! We’re safe! You’d have to be an idiot to sign onto this! True– So let’s bring out a stick and threaten you! If they don’t get enough authors willing to eat this crap, then Night Shade has no choice but to declare Chapter 7 bankruptcy.
Then all the books in question go into a legal limbo. No one has the rights until the bankruptcy is resolved, which might take years- or possibly, NEVER! This has happened before to way better authors than us. This means that once said books go out of print, the authors can’t resell them. Can’t reprint them. Can’t sell any adaptation rights. Can’t write any sequels.
A rock and a hard place, basically. If enough authors sign the deal, then bad royalty rates are forced upon them. If not enough authors sign the deal because the royalty rates are crazy, then the copyright may end up in limbo limiting what Foglio can do with the work. And I thought copyright was supposed to protect the artist?
Filed Under: copyright, ownership, phil foglio, publishing
Companies: night shade
Comments on “When You Sign Away Your Copyright To A Publisher, What If They Hold You Hostage Over It?”
Live by copyright, die by copyright. Still, I do feel bad for the authors. Maybe they should start a Kickstarter project and buy back their rights?
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Fair enough. Very true indeed.
But what I don’t get is why they are worried? Who is going to enforce the copyright once they are bankrupt?
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Whoever buys up the rights at auction will prevent them from doing anything…
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Whoever buys the rights at the auction.
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On second thoughts, copyright needs a use it or lose it clause. I know this is not an original idea (if such a thing exists) but this would be a great example of a situation where it would be useful.
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No, the rights need to be non-transferable except initial reproduction rights.
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I think you meant “yes, and”.
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Use it or lose it is simplistic, but I think that’s the right general idea.
In the case of orphaned works, then the work should enter public domain after a waiting period of not more than 1 year.
However, this specific case isn’t that. It’s a case of the current rightsholders being difficult. The current holder exists, and the works aren’t going out of print because they’re being orphaned. In this particular place, I unfortunately have to point to the Superman Copyright battle and say, “Sorry. You signed a bad deal. Do better next time.”
The problem with “use it or lose it” or even mandatory recovery of Copyright is that this system could be gamed just as much as the current system is.
The real solution to this particular problem is just better contracts. A relatively short time limit on the publishing rights would have prevented this from being much more than a nuisance.
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Copyright should be free the first five years. That covers most works. After that, you should have to pay n^2 power every five years.
$1 – 5-10
$10 – 10-15
$100 – 15-20
$1000 – 20-25
$10000 – 25-30
$100000 – 30-35
$1000000 – 35-40
If you want eternal copyrights, fine, but it’s going to cost you.
Re: Re: Re:2 Re:
My guess is, most businesses would never pay more than $100 for a work.
Re: Re: Re:3 Re:
Haven’t you ever heard of Disney. They might go for this just to protect the mouse and may be have it top out at 10^6 per decade.
Re: Re: Re:4 Re:
Yes, but then they have to put their money where their mouth is and shell out increasingly painful amounts of money. And it stops them holding everyone else’s IP hostage.
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and see, I don’t agree.
If I make something, physical or virtual, I own it. Nobody should have the power to take it away from me.
Do I think Copryights should be perpetual? No. But do I think I should have the exclusive right to use it while I’m still alive? Yes.
Is that good for society? I don’t really care. Lots of rights are good for the individual and not so much for society as a whole when the individual’s rights don’t line up with society’s needs.
Re: Re: Re:3 Re:
I see your point but…
Is that good for society? I don’t really care.
Don’t be surprised if society don’t care about your rights then. No?
It’s one of the main issues nowadays. People think only about their own noses. If we had a more collective thinking we’d be generally better.
Re: Re: Re:4 Re:
If I live alone in a big, is it better for “society” if you take my house from me and give it to a family of 5?
Sure, it’s better for those 5 people. But you’ve also just enacted Communism, and that’s worked so well everywhere it’s been tried.
Taking away Copyright is no different.
Words on paper aren’t some magic thing that has no value. Neither are bits on a hard drive or music on a recording. They’re the result of my time and energy, exactly the same way my car is the result of the time and energy.
Everything that you build, buy, or create is the result of exactly two things: time and energy, and no expression of time or energy is inherently more valuable to society than another.
People who try to eliminate Copyright are basically saying that one of form of work is more valuable than another – that the work I put in to writing a book is less valuable than the work I put in to buying my car.
People who say that society’s rights to my work are more important than my rights to my work are basically saying that all property belongs to everyone, since all property is the result of work.
We’ve seen that the only effective, long term system of economy is a well-regulated open market, one where individual rights are paramount, and even the government cannot take someone’s property without due compensation.
So my point is that you have to protect the individual’s rights first. When you take away one person’s rights, you take away the rights of anyone and therefore everyone.
So “society” must protect the individual, only then can society itself be preserved.
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I’m going to see if I can fix this post for… and free of charge no less!
If I live alone in a big (house), is it better for “society” if you take my house from me and give it to a family of 5?
Sure, it’s better for those 5 people. But you’ve also just enacted Communism, and that’s worked so well everywhere it’s been tried.
Taking away Copyright is EXTREMELY different, which is why I used a nonsensical example to make sure I’ve got your attention.
Words on paper aren’t some magic thing that has no value. Neither are bits on a hard drive or music on a recording. They’re the result of my time and energy, exactly the same way my car is the result of the time and energy expended by the design team and manufactures that built it.
Everything that you build, buy, or create is the result of exactly two things: time and energy, and no expression of time or energy is inherently more valuable to society than another, except for works covered under copyright which are the only ones that have to be continuously paid for or licensed even after they are actually sold.
People who try to maximize Copyright are basically saying that one of form of work is more valuable than another – that the work I put in to writing a book is more valuable than the work someone else put into building my car.
People who say that society’s rights to my work are more important than my rights to my work are basically saying that all idea belongs to everyone, since all ideas available to the public are the result of their public expression and presentation.
We’ve seen that the only effective, long term system of economy is a well-regulated open market, one where individual rights are paramount, and even the government cannot take someone’s property without due compensation.
So my point is that you have to protect the individual’s rights first. When you take away one person’s rights, you take away the rights of anyone and therefore everyone. Since copyright is inherently a restriction on every individual’s rights aside from the copyright holder’s, there is strong evidence to show this limitation to individual’s rights is grossly disproportionate in favor of the single copyright holder and therefore a detriment to the rest of society.
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I guess we have a fundamental disagreement, here.
I can never agree that my work as a creative type should be free. You’re essentially saying that I can never own what I create, and that somehow my creative work is not mine…
I do not agree that you can simply take something I create and give it away. Limiting the term of Copyright is one thing, but I’m seeing people say it should not exist at all, and that’s got to be one of the stupidest ideas I’ve ever heard.
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You should, because that’s the entire purpose of copyright. It is not an expression of some kind of natural property right at all. It’s a government-granted privilege intended to achieve the aim of societal good.
Re: Re: Re:4 Re:
It’s a government-granted privilege intended to achieve the aim of societal good.
Right. By granting property rights to the creations of artists, the government preserves the ability of those artists to create.
As I said to the commenter who replied just before you, any time you take away the individual’s rights in favor of “society’s” good, you end up with Communism. Communism is great in theory, but it has never gone well in practice.
Only by creating a strong tradition of individual rights can we have a stable and productive society.
It’s the foundation of our system of government, and it’s the foundation of every system of government that isn’t some sort of tyranny.
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That’s not actually true, but is beside the point anyway.
Copyright does take away individual rights for the public good — it takes away my right to use property I have legally acquired as I see fit. Your argument can be as easily applied against copyright as in support of it.
However, copyright is not a right in the sense most people mean the word. It’s a privilege, the same as driving a car. The privilege is not granted to authors because they have some kind of inherent right to it, it’s granted to authors to accomplish a specific purpose. That authors benefit is a happy accident, not the point. If that purpose was better served without granting that right, then the correct thing to do is to eliminate it.
(Just so there’s no confusion, I’m not in favor of abolishing copyright. I am in favor of reforming it so it stops being abusive and causing harm to people both individually and collectively.)
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Just so there’s no confusion, I’m not in favor of abolishing copyright. I am in favor of reforming it so it stops being abusive and causing harm to people both individually and collectively.
I’ll agree with that point. The term is ridiculous, and it’s far too easy to accidentally offend.
But I do think that the creator of a work should have the exclusive right to that work for at least as long as the work is commercially viable.
If you were to limit Copyright to 5 years, for example, doesn’t that just mean that after 5 years, the author will get NO royalties to his work?
The way things are today, a book or a movie that’s 5 or more years old is already so cheap that the cost is trivial. I bought Spaceballs last night on Blu-Ray for $10.
Would the studio have bothered creating a new, HD master for that movie without some financial motivation?
Copyright serves two purposes: yes, it provides incentive to create. But the right to one’s creation is ALSO a natural right, in my opinion.
ALL of the rights in our Constitution are there for some reason other than that they’re natural rights. Look at the right of Freedom Of Speech. It’s not there because it’s a natural right. It’s there because empowering the people to speak without fear of arrest is the only way to keep a democracy functioning.
That doesn’t mean it’s not ALSO a natural right. It’s just that so-called natural rights all have their roots in a more fundamental underpinning: that society functions best when the individual’s natural rights are preserved.
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Agreed on one condition, that the work does not borrow any ideas, plot or turns of phrases from other work.
Almost all new works are derivative in some form, and therefore are taking from the common culture. They should therefore be returned to the culture so that others can take advantage of deriving from them.
This is not to sat that creators should not be able to earn a living, if their work is popular enough. However earning this living has almost nothing to do with copyright, and everything to do with finding an audience prepared to support the creator.
Allowing works to circulate widely without hindrance is the best way of building and audience and fan base prepared to support the creative person.
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If you were to limit Copyright to 5 years, for example, doesn’t that just mean that after 5 years, the author will get NO royalties to his work?
The way things are today, a book or a movie that’s 5 or more years old is already so cheap that the cost is trivial. I bought Spaceballs last night on Blu-Ray for $10.
Would the studio have bothered creating a new, HD master for that movie without some financial motivation?
The flaw in this argument is the assumption that without copyright there can be no incentive to create and release works. Not only is that not correct, but it is even possible to make money without copyright. So another argument must be found to support copyright.
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Publishers still make money publishing old public domain books if they are popular enough. And you will always have the cachet of being the ‘original’ author. Who would sell more of a new ‘Harry Potter’ book – JK Rowling, or (say) EL James? Maybe it would give authors more incentive to occasionally revisit popular worlds.
As for Spaceballs, that is a great example of a film that ‘steals’ ideas from another great film – a prime example of how creating ‘new’ culture relies on using and transforming old culture, as much as it is about novel creativity. And if the people who made it have had a chance to make loads of money already, why would I cry if they suddenly lose that ‘guaranteed’ revenue stream? Did anyone/everyone working on the film get a fair share of that money? How much of that $10 went to the shop instead of the label?
Re: Re: Re:6 Re:
Just so there’s no confusion, I’m not in favor of abolishing copyright. I am in favor of reforming it so it stops being abusive and causing harm to people both individually and collectively.
As a copyright owner, I probably shouldn’t rate the above statement at all, but not only do I like it, I also agree with it!
Re: Re: Re:3 Copyright for life
But do I think I should have the exclusive right to use it while I’m still alive? Yes.
You do realize that on a valuable enough work, that’s a motive.
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I think the proper duration of copyright is zero years, or at worst a very short fixed term (say, one year), but as a compromise to placate those who are used to the established duration of (near as makes no difference) “eternity”, I like these escalating-cost models. I particularly enjoy that their very nature implies a requirement to register the works so that fees can be properly assessed.
I would be willing to accept this one if “every five years” were changed to “every year”. So, the “protection” is free for one year. Then:
$1 – second year
$10 – third year
$100 – fourth year
$1000 – fifth year
$10000 – sixth year
… and so on.
For these models it would probably also be best to ensure that the fees for each year are adjusted relevant to the strength of the currency at the time of creation, instead of being fixed.
“This means that once said books go out of print, the authors can’t resell them. Can’t reprint them. Can’t sell any adaptation rights. Can’t write any sequels. “
Perhaps not legally. But until those rights issues are resolved (possibly never), who could sue them?
Mike, I know you frown on promoting any law-breaking. But I don’t. When the laws no longer makes sense, I urge disobedience. Laws are for the public good – and when the public does not respect a law, it has lost its power.
So, to the authors: Don’t accept the deal. Then go write your sequels. Self publish your own book once it goes out of print. Do not go meekly into obscurity, trying to deal with a game thoroughly stacked against you. Your fans will support you if you are honest about what you’re doing and why. Copyrights are a crutch – you don’t need them to succeed.
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Once everything does get sorted out with the bankruptcy, you get to face that lawsuit. The kicker is, the more successful your work happens to be – the bigger target you have painted on your back.
OMG! They’re taking HOSTAGES now!! Holy shit, those guys are pure evil. Viva la Digital Revolution!
This stuff ONLY happens in copyright, right? So glad you keep pointing out how evil it all is, Mike. You’re my digital hero!
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Fuckin’ tool.
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They’re taking hostages, Rikuo. This shit is serious. Hostages! Somebody call SWAT!
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You mean the same SWAT that had to illegally bring in Kim Dotcom?
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You mean the same SWAT that had to illegally bring in Kim Dotcom?
No. Those guys won’t do. They weren’t trigger-happy enough. This is a PUBLISHER who owns copyrights (gasp!) and he’s taking innocent people hostage. We need a SWAT team that’s man enough to get the job done.
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fucking troll/for realsies
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No, it’s idiot bankruptcy rules and a vicious publisher together. If you care so much about starving children in Africa (and I know you don’t), why don’t you go and help them instead of wasting time here?
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you don’t seem to make any valid points here and your post isn’t even deceptive enough to fool a casual passerby. If I were your employer, I’d hire a better shill.
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They pay me in peanuts, like an elephant.
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“They pay me in peanuts, like an elephant.”
With about the same brain/body mass ratio, I’d bet.
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I vote for Stegosaurus….
Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
why, yes, it does only happens in copyright. if there were no copyrights, you wouldn’t be having these problems.
Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
why, yes, it does only happens in copyright. if there were no copyrights, you wouldn’t be having these problems.
True, but we also would have no music, books, or movies, because no one would be able to raise the capital to produce them.
Re: Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
BAHAHAHAHAHA!
No.
Re: Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
Incentives, I think you do not understand them.
Not everything needs the hand of a large corporation to enable them.
Re: Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
i don’t think your words mean what you think they mean
Re: Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
“True, but we also would have no music, books, or movies, because no one would be able to raise the capital to produce them.”
Hmm… Creative works cannot exist without copyright, but copyright cannot exist without creative works. Which came first, the copyright or the egg?
Tom, you’re obviously someone who does not understand copyright… or creative works.
Re: Re: Re:2 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
And what makes you think I don’t I understand both? Have you published a book, written and published a record, a movie, or a commercial software package?
I’ve created stuff because I want to, and often to fill a need. Would I love to publish this and be a professional writer or musician? Sure, but I can’t afford to take a year out of my job to actually write, edit, and publish my works.
I’m not saying that creative works wont’ exist at all: I’m saying that they won’t exist in nearly the quantity or quality that we see today when the financial structure isn’t there to support it.
Yes, there’s some awesome, free stuff out there… but most of us need to eat, and it’s the financial model.
Oh yes, the GPL movement, including Linux, OpenOffice, and related stuff shows us that it’s possible to create quality works without encumbering it with Copyright, but let me ask you a question: Which operating system is on more computers, one that’s free or one that costs $100 a pop?
If a Copyright-free world is better, then Copyright free software should be winning the war. Businesses everywhere should be using Linux PC’s with OpenOffice on them.
But I’m typing this on a Windows 7 PC that has the full MS Office suite installed.
The world runs on money, and you’re not going to convince me you can take the profit motive out of the game and still get the same results we get now.
Re: Re: Re:3 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
This statement shows, beyond a doubt, that your understanding of copyright is not quite as complete as you seem to believe.
All GPL software is encumbered by copyright. The ‘L’ in GPL stands for License, of the copyright variety. Take the Linux kernel for example: the compilation copyright owner is Linus Torvalds of the Linux Foundation. Under the GPL, I am licensed to use, modify, and/or distribute it, subject to one condition on distribution ? if I wish to distribute it, I must distribute the whole thing, not just the executable code, under the same license.
The family computers run Linux. They each have a copy of Microsoft Windows, unused, but only because of Microsoft’s treatment of PC makers, which makes it essentially impossible to get a PC without Microsoft stuff.
At work, we used Microsoft, because we wrote software for that environment. (My screensaver was Marquee, reading “A computer without Microsoft is like chocolate cake without mustard”.) We used Openoffice.org, even though we had Microsoft Office (or parts thereof) on each PC. I eventually learned which features of OO.o were too advanced for MS Word to handle, in order to be able to exchange documents with MSWord users.
We also used Eclipse, licensed like GPL but with some different terms, due to its different function.
Re: Re: Re:4 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
I know very well what GPL is. Other than simply releasing something in to public domain, it just happens that the GPL is the closest thing we have to what the world would be without Copyright.
In fact, I release most of my projects under the GPL, but they’re usually not significant enough to make an impact anyway.
Congratulations on being able to use Linux in your life. I can’t. I mean, I could use Linux at home, but there’s a lot of stuff I’d have to lose out on: most of the AAA video games come to mind. (And as to WINE… why bother with WINE when you can just run Windows? It’s the same question I have for Mac users who run a virtual Windows box in their Macs.)
Re: Re: Re:5 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
Other than simply releasing something in to public domain, it just happens that the GPL is the closest thing we have to what the world would be without Copyright.
No it isn’t. Without copyright, anyone could do what they want with software source they got their hands on. With GPL software some uses are illegal. The BSD license is much more similar to what the situation would be without copyright.
Re: Re: Re:6 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
I give up. I can’t have a meaningful discussion when you guys are simply going to argue technicalities, rather than try to talk about the actual issue at play.
My stance is simple: take away Copyright, and you take away the ability to sell books, movies, music, and computer software through any sort of conventional retail channel. People will not pay for what they can get for free.
Without Copyright, Books, recorded music, and movies would have to be produced under some sort of patronage model, where artists either have to find a rich person to support them, turn to crowdfunding and donations to earn a living, or they simply create stuff on a hobby level.
The whole purpose of Copyright is to promote artistic creation by allowing artists to own their own work. This model was put in to place, because the patronage system was obviously not working, or Copyright would not have been necessary.
If someone can outline how modern society would promote artistic creation without the need for Copyright, I’m all ears… but I have yet to see or hear a reasonable proposal that would actually work in the modern world.
Re: Re: Re:7 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
My stance is simple: take away Copyright, and you take away the ability to sell books, movies, music, and computer software through any sort of conventional retail channel. People will not pay for what they can get for free.
Your stance is factually incorrect. People can already get anything they want for free, and yet they still pay for it. Many of the same people who get it for free also pay for it. Copyright is not stopping people from getting stuff for free, so any argument that claims that without copyright stopping people from getting stuff for free nobody can make money falls on its face immediately.
If someone can outline how modern society would promote artistic creation without the need for Copyright, I’m all ears.
You couldn’t stop people from creating and distributing art if you tried. The question is, is there any additional benefit that copyright brings, and if so what kind of copyright laws maximize that benefit. It seems likely to me that a very short copyright term, something like 10 years or less, would be most beneficial to society.
Re: Re: Re:3 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
There’s your problem, Most first works are created around work commitments, as it is almost impossible for a first time author to get funded to write something. The exceptions are the rich and famous, and the writing is almost always done by a ghost writer.
Re: Re: Re:3 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
I’m not saying that creative works wont’ exist at all: I’m saying that they won’t exist in nearly the quantity or quality that we see today when the financial structure isn’t there to support it.
Why do you equate “financial structure” with “copyright”? Because that’s how you’re used to operating?
Re: Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
Indeed, why, that’s why nothing whatsoever was created prior to copyright law being enacted!
All that artwork done throughout history? Forgeries painted and/or drawn after copyright was enacted, because obviously without copyright law they could never have been created.
All the music created, played and sung for hundreds if not thousands of years? Random bits of noise that just happened to sound like music, as no one could have possibly created a song without copyright.
All the plays performed all across the world, again for hundreds if not thousands of years? Complete fabrications of history, as without copyright they couldn’t have been created or performed.
And finally, all the books and writings that have have been written for all of history? Merely random marks on paper that just so happen to look like words, as without copyright books simply cannot be written.
…
Oh, wait, that’s not even close to reality, care to try again?
Re: Re: Re:2 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
Think about what you’re saying for a minute:
Copyright laws were brought in to being about the same time as the printing press which was the first time it was cheaper to copy a book than it was to create it in the first place.
We didn’t need Copyright in the days before the printing press and the phonograph because the very act of reproducing a work was an effort in an of itself. It requires skilled musicians to play a symphony: I know because I am one. It takes a lot of time and effort to hand write a 50,000 word story. Heck, it took me a month of nights to just to type the zeroeth draft of a novel.
And don’t get me started on the work to reproduction ratio of computer software. I’m at the tail end of a decade long project that is the culmination of hundreds of thousands of man-hours… and I can copy the entire thing in five minutes with a thumb drive.
You argument is nonsense, because Copyright wasn’t necessary until technology made it so.
Re: Re: Re:3 Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
You might want to do a little research about the history of copyright, as it’s not nearly as cut-and-dried or author friendly as you seem to think it is.
(Begin short history lesson)
The early laws that would eventually be the base of copyright law do seem to have been introduced at around the same time as the printing press was seeing more and more use(around the 1500’s), but they weren’t put in place to benefit the authors, but rather to censor and control what could and could not be printed, often controlled by the church and/or the government in the country.
It was only around 1700 that the Stationer’s Company in England, after having lost their monopoly on controlling what could and could not be printed in 1694, decided to try yet again to get something similar to their previous charter put into law, though this time they presented it as something ‘for the authors'(before then the copyrights were assigned to the publishers), which eventually lead to the adoption of the Statute of Anne, arguably the first ‘modern copyright law’ even if it did end up being repealed later on.
(End short history lesson)
Re: Re: Re: Response to: Anonymous Coward on Apr 12th, 2013 @ 8:51am
That’s just a silly thing to say.
Re: Re:
“This stuff ONLY happens in copyright, right?”
For once, you’re correct, boy.
Court wont like that
When the owner finally does go to court asking for his copyrights back or even the contract to simply be enforced (as it allows for release after x years), The court will take a vary poor look at the request if they have been using the IP the whole time.
Yeah they certainly aren’t in the interests of protecting the creator.
It seems too preposterous that you can’t write and publish a sequel to a book you wrote, no matter who holds the copyright or distribution rights or whatever on the previous book.
Seriously, I don’t understand how that can fly.
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Because technically it’s supposed to keep other people from writing a sequel to your book, but if you give your copyright to someone else, then you become one of those other people.
Another reason why authors should never ever hand over copyright, but the business of publishing is against them.
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I’ve heard people in the industry talking about this kind of thing, and their conclusion? Don’t sign a contract that doesn’t give you the ability to recover your Copyright.
No one forced these authors to sign a bad contract.
Now should the industry make changes to prevent this kind of problem in the future? I can see a few ways to make that happen, but it really relies on the creative types being smarter about what they sign.
Of course, I think this will become less and less relevant in the digital age. By the time this bankruptcy clears, I’m betting conventional publishing will be all but dead anyway.
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No one forced these authors to sign a bad contract.
Says you. These are professional copyright holders, the scum of the earth. They ONLY lie and cheat and steal and rob and murder to get what they want. You need more Kool-Aid. All copyright holders are total wastes of humanity and Techdirt exists to point that out. You better get out of here with your silly comments.
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fucking troll is fucking trolling
Re: Re: Re:2 Re:
=) Nail, meet hammer.
Re: Re:
“It seems too preposterous that you can’t write and publish a sequel to a book you wrote, no matter who holds the copyright or distribution rights or whatever on the previous book.
Seriously, I don’t understand how that can fly.”
Unfortunately, the phrasing of the contract those authors signed does EXACTLY that!
Re: Re: Re:
And some contracts should be unenforceable.
Re: Re:
No more preposterous than that you can’t write a sequel to a book written by someone else.
Story Update
Apparently, Skyhorse has offered a new (better?) set of terms in the wake of the outcry:
http://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/56733-skyhorse-start-offer-night-shade-authors-new-terms.html
Re: Story Update
Yay! I love seeing public outcry actually accomplish something.
You’re looking at this all wrong – copyright DOES protect the artist.
See, writing a book is easy. Getting people who write books to pay you for literally nothing, THAT is the true ‘art’.
Why do publishers require a full-fledged copyright transfer in the first place as opposed to a simple license? I certainly wouldn’t want to give up the ability to do what I want with my work… In fact, a provision requiring me to give up my copyrights would be an absolute deal breaker.
I do, of course, think that copyright is completely out of hand these days, but if there has to be a copyright on my work, I’d rather it be mine. Then I can CC it or do whatever else I want.
Re: Re:
Why do publishers require a full-fledged copyright transfer in the first place as opposed to a simple license?
When you control the distribution, why not force the producers of the product into terms that are best for you?
They require this because creators have (well, had) no other avenue.
Re: Re: Re:
You’re right – they had no other avenue… but that’s no longer the case. In the age of the internet, self-publishing is now a viable route for almost anyone. There is no valid excuse for traditional publishers to continue acting as if they still had all the power.
All these terms do in the current environment is make the publisher look like a bully. How they are even still getting business is beyond me.
Re: Re: Re: Re:
“All these terms do in the current environment is make the publisher look like a bully. How they are even still getting business is beyond me.“
They are probably still getting business because there is still a sufficient number of ossified old people that never adapted to the modern age and never will. The internet might as well not exist for people like that, and therefore for probably a lot of older authors the publishers are still seen as the only way to get your book out there. Give it time. Most people that grew up with the internet as a way of life are only at the beginning of their careers or not even out of school yet.
(I really do think all these copyright and internet wars will die down gradually as old people die off)
Re: Re: Re:2 Re:
that’s the way it always works
Re: Re:
The problem is that for the publishers, not having that provision is an absolute deal breaker. Don’t want to sign away all the rights? Fine, we won’t publish your work.
Of course, now the publishers’ problem is that publish is a button, so their ability to hold the unilateral transfer as bare minimum conditions for the contract is quickly deteriorating.
Re: Re:
“Why do publishers require a full-fledged copyright transfer in the first place as opposed to a simple license?”
Moat publishers (both prose and graphic novels) demand at least a percentage of ancillary profits (tv/movie adaptations of the project, licensed products like t-shirts/lunchboxes/etc based on the properties, etc) or control over said ancillary profits.
For example, when a George RR Martin book series (like Game of Thrones) is adapted to tv, his current publisher gets a percentage!
The real irony is, naturally, that the Foglio’s should know better — ANY webcartoonist should, honestly — this is where that whole idea about “There’s no contract that works in your favor better than just doing it yourself” comes from. If you’re too small, you may as well do it yourself rather than waiting for a contract. If you’re big enough, you don’t NEED a contract.
And as big as the Foglio’s are, why they didn’t keep control firmly in their camp is a little beyond me.
Re: Re:
Actually it is ok to sell your copyright to the paperback industry, but never sell the digital right to your work, it is just too easy to market your own books online and you don’t need the publishers for that, in fact from stories i have read on here people make much more money from online content if they control the marketing of their works.
Publishers have a role to play in the real world but in the virtual world they are not necessary.
This Comic is actually a fairly wide print distribution. In addition the owner sold the reproduction rights, not the design or anything specific. Not to mention does anyone you know have the skill needed to manage large scale printing and shipping, order handling, and scale from a few to thousands of orders? That’s basically what the contract is for.
In bankruptcy the court is basically able to take that reproduction contract and give it to someone else. The issue is that someone made an offer, for those rights, but demanded a new contract to replace the old one. If the contract was bought at the bankruptcy sale then it would be an all or nothing deal which is much better.
This kind of contract is needed otherwise I could go to 5 publishers and have each of them flood the market with my book. There are publishers who will offer this kind of service, like amazon print on demand, but you pay much more per copy to do it that way.
Re: Re:
” In addition the owner sold the reproduction rights, not the design or anything specific.”
The contract includes reprint, sequel, and adaptation into other media (tv/movies) rights which were given to the publisher in exchange for a percentage of profits (if any).
Oops, guess I was logged out when I submitted that.
Thanks for the story update Gary,
http://www.publishersweekly.com/pw/by-topic/industry-news/publisher-news/article/56733-skyhorse-start-offer-night-shade-authors-new-terms.html
And here’s an update from Phil Foglio,
http://girlgeniusadventures.com/2013/04/08/the-power-of-positive-screaming/
No, Mike, copyright doesn't protect against bankruptcy.
Where the HELL were you educated to believe that it does? Have you NO common sense? Is your anti-copyright mania the only standard by which you judge not only pieces to run here but all economics? Ya got yersef a genu-wine mania, college boy. What the frog call an id?e fixe. An obsession.
Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
Where Mike Monetizes Mania.
05:15:27[g-226-0]
Re: No, Mike, copyright doesn't protect against bankruptcy.
Yes, right, of course – MIKE is the one with the obsession here.
You are certifiably fucking insane.
Re: No, Mike, copyright doesn't protect against bankruptcy.
For fuck’s sake, Mike didn’t say anything of the sort. What he’s reporting on is that a PUBLISHER is facing bankrupty, it’s titles are being sold off, but until the deal goes through, no-one, not even the original authors, can legally sell the works, or write sequels.
God, every day I pray for someone on the opposite side of the fence to give us a sane discussion, an honest attempt to convince us of the merits of copyright, but each and every day, that prayer goes unanswered.
Do you honestly enjoy putting together statements no-one has said, and then attack them?
Re: No, Mike, copyright doesn't protect against bankruptcy.
Erm.. He didn’t say anything that even remotely resembled what you took out of your arse. He said that bankruptcy can put copyrighted works that had their copyrights transferred from the creators to the copyright holder into a legal limbo that virtually locks them to every and any use regardless if the original artist is the person willing to further creating on what they created in the first place but signed their rights away to the failing company.
I think you ought to read more carefully. You are capable of making better comments (though it seems you have a pathological need to attack SOMEONE be it Mike, the rest of the world or some weird strawman you produced. A fascinating psychiatric case study.
Re: No, Mike, copyright doesn't protect against bankruptcy.
Have you NO common sense?
I’d ask you the same question. Apparently, in your quick scan of the article in your rush to post something you missed the whole point.
No one implied that copyright would protect against bankruptcy – but in this case, the authors are being dragged right along side of the publisher towards bankruptcy because of copyright.
That’s why Copyrights should not be transferable (ie: no such thing as intellectual property) so basically an artist would have a license granted by the Govt (or rather society) to have SOME control over his EXECUTION of an idea and this license is personal and not transferable.
So you came up with the idea of blue aliens having sex via their hair? No problem, if I want to make a story about other bluish aliens having some hair orgy then fine, it’s another story. Sure studios can ENABLE making of, distribution and marketing but they’ll never own the result. It’ll be a product like any other that they chose to sell you for specific deals registered in individual contracts.
Re: Re:
That’s why Copyrights should not be transferable (ie: no such thing as intellectual property) so basically an artist would have a license granted by the Govt (or rather society) to have SOME control over his EXECUTION of an idea and this license is personal and not transferable.
So how does this work for everyone else? If I’m a big movie studio and I want to make a film adaptation of an author’s book, do I have to get a license from the author? Can I get an exclusive license, so that I don’t have to compete with other adaptations of the exact same thing during the copyright term? Can I get a license that lasts for the duration of the copyright? If so, what’s the difference that you think will help authors?
Re: Re: Re:
That one of the problems of copyright. Changing it alone will solve nothing.
However you pose interesting questions. It’s the idea vs expression discussion. I’m not quite sure about it. If it’s an adaptation of a book for instance then it’s an entire new expression of that idea since most of those adapted plots differ from the original. However, when an adaptation comes to life an specific book sales soar so why would the studio need any permission at all if it’s benefiting the author indirectly?
What do you think about this?
Re: the REAL problem
We don’t transfer Copyright via the publisher contract NOW. At least not unless the author is writing in a world (on spec) that is owned BY the publisher, but that’s a special situation and doesn’t occur often, overall.
Way too many people don’t understand what an actual contract says. Every one of mine says that the material is still my copyright. The only thing I actually do is temporarily (2-7 years, in most cases) license the ability to reproduce and distribute my titles to a publisher, only as long as the publisher keeps up their end of the contract (payment, book availability, etc.). By definition, the bankrupt publisher going out of business stops royalty payments and often takes books off sale, therefore breaching their end of contract at that point. The contract says the publisher can aid me in defending my copyright…but they are under no obligation to do so, since it’s my copyright. My contracts also say that the license cannot be sold and immediately reverts TO me in a case of bankruptcy or dissolution/sale of the publisher. Sounds good? It does.
Now, the problem comes in the form of the way bankruptcy courts function and their mistaken ideas about authors and contracts. They view contracts as “assets” of the publisher and don’t pay attention to the time limits on the contracts. If the contract runs out while held by the courts, they still hold it as if it has value that doesn’t exist to the business going bankrupt. Further, ownership of the actual valuable object (copyright) is misattributed to the publisher, where it never actually existed. Moreover, authors are not treated like the debtors they are, IMO. The publisher, almost without exception, owes the authors money. So, it’s adding insult to injury. The bankruptcy courts not only hold up the rightful ownership of the stories, but they further don’t protect author earnings and instead rule that authors get paid last in line. IOW, not at all, by the time the big fish have their bites of the pie.
Some people will argue that bankruptcy law trumps contract law, but that only goes so far in argument. Any way you look at it, they are holding the property of a debtor to satisfy the bills of a bankrupt entity. Something seriously whacked in execution there, any way you dissect it.
Brenna
Re: Re: correction
I used debtor when I wanted to use the term creditor. Is there no edit feature? Guess I should check my posts better before I hit send.
Re: Re: the REAL problem
Very enlightening, thank you very much. But there may be contracts that are problematic on top of the courts getting them wrong. Or not? And can the copyrights be forfeited in favor of a publisher?
Re: Re: the REAL problem
They view contracts as “assets” of the publisher and don’t pay attention to the time limits on the contracts. If the contract runs out while held by the courts, they still hold it as if it has value that doesn’t exist to the business going bankrupt.
I’m not an expert on bankruptcy proceedings, but I think this is incorrect. While you can’t necessarily get out of your contract with a bankrupt entity, I don’t think the time countdown is tolled by the proceeding. If your contract is set to expire on a date, it would expire on that date regardless.
If you still hold the copyright and are only licensing the publisher, then you still have the copyright even during bankruptcy and you could license the works to a new publisher. Assuming that the original license was exclusive, a non-exclusivity clause contingent on the publisher entering bankruptcy might allow you to re-license the work, despite the bankruptcy proceeding. The idea is that while terminating the original license with the bankrupt publisher might be disallowed, you would be free to issue a new license. Of course, the original license would still be floating around out there until expiration, so a new licensee might be unhappy about that. It might be a good thing to ask your attorney.
Re: Re: Re: the REAL problem
The problem with the bankruptcy court treating even an expired contract as an asset of the bankrupt publisher is they will possibly sell that asset to someone as if it had value.
The buyer of the expired contract has spent money for it and expects a return on investment. The reality of contract lawsuits are that small authors usually can’t afford to fight the lawsuit even if it has no merit, and then the company wins despite the contract being expired/invalid.
That's one way to look at it.
However, if they wrote better books more people would buy them and the publisher wouldn’t have to go bankrupt. See how well that fits now?
Re: That's one way to look at it.
i dont know if your reply is sarcasm or are you being serious
Re: Re: That's one way to look at it.
One would hope it’s sarcasm, but it’s hard to call. There are plenty of examples of publishing houses that died due to the mishandling of the owner/s. The authors have no control over a publishing house. They don’t usually cause one to fail, though I have seen a few authors with chips on their shoulders try their best to do it.
The Pinball Arcade
There is a similar issue with “The Pinball Arcade” on XBoX 360 – the publisher Crave Entertainment went bankrupt and now the developer Farsight needs to get the rights back through the bankruptcy judge in order to sign with another publisher.
This means that XBoX 360 owners haven’t seen a new table in ages.
While I do sympathize with these authors, I have a hard time building up any outrage.
Scott Kurtz, an independent comic artist, has said quite clearly and repeatedly that when you sell out, any problems you have with your copyrights down the road are your own fault.
These people are not in this situation because of problems with Copyright. They’re in this situation because they signed bad contracts. It’s really that simple.
I would think that a good publishing contract would have had stipulations for an event like bankruptcy or some sort of limit on the time frame of the contract. Simply giving away your publishing rights forever is a bad idea… unless you don’t believe in yourself, and you’re thinking that the advance is all the money you’re ever going to get.
What’s stopping these authors from writing new books? I realize sequels are a problem, but I can’t see what’s stopping them from starting new series and either self-publishing them or going to another publishing house. If they’re quality authors, I imagine other publishers would be chomping at the bit for their contracts.
Re: Re:
It doesn’t matter. I sign good contracts, but we’ve been told in no uncertain terms that bankruptcy courts ignore the contract terms, even when you are signing contracts that include non-assignability, reverting rights in the case of bankruptcy or sale, and so forth.
Not to mention a few conglomerates and larger indies tie authors for life, but that is not the case in indie press, in general. None of my contracts are life; one of the reasons I work in indie press is that I refuse to sign a lifetime plus 70 contract. Ever.
Re: Re: Re:
If the BK court is not honoring the length of a license’s term, I have a problem with that. If the license expires after 5 years, and the BK starts 4 years in, then that asset only exists for one more year. After that, the lease is up.
However, I can see why BK reversion clauses would be worthless. An aspect of bankruptcy is that you specifically cannot dump assets prior to or during the bankruptcy process. In fact, the court can go back and seize money paid out by the debtor just prior to the debtor declaring bankruptcy. This rule is designed to protect creditors from being ripped off by the debtor paying one creditor off and hanging the rest out to dry. By reverting a copyright license automatically, you’re essentially dumping an asset. Since that asset is worth money, you can’t dispose of it once the bankruptcy has been filed (or for 90 days before that, actually.)
So yeah… I feel bad for these authors, but that’s part of the business. The only defense here is to make sure your terms are short enough that you can recover your rights regardless of what happens in a drawn out fight.
Re: Re: Re: Re:
What about the author’s freedom to contract? The contracts are not just assets. They are agreements with authors. An author may be interested in contracting with Night Shade, but that doesn’t mean he or she wants to hold to an agreement to some other third party.
It doesn’t seem to me that the current contracts are really be treated as their own asset anyway, given that the buyer is trying to get the authors to agree to new terms. In essence, doesn’t that make it a whole new contract?
Re: Re: Re:2 Re:
You’re right, they’re not just assets, and it’s clear that the authors have the choice about whether to go to the new publisher.
But it’s a Hobson’s choice, since NOT going to the new publisher means that your IP gets tied up in court for quite some time.
Man, if it’s this complicated for a single book, imagine what it’s like for a movie – with overlapping contracts, Copyrights, and licenses for everything from the soundtrack music to the merchandising.
Sheesh.
Re: Re:
I would like to know on what basis the free market “corrects” the issue of bad contracts here, as Libertarians would probably claim.
In free market theory, if an alternative label in this case were to offer a better deal to an artist, the artist would take that deal instead, meaning that the other labels would likewise have to offer those kind of deals in order to stay competitive. The end result is supposedly economic value that best reflects what everybody thinks they are worth.
But with copyright, you can never really be sure this is the case. It is perfectly possible for all artists across the world to unite together and insist to ALL labels that they will never give them their copyrights (instead, negotiating profits separately). Surely, with something as powerful as copyright, an artist would want to hold onto it, right? Therefore free market theory must say that the best reflected value is that artists retain all copyrights, right? But it is not like this. Labels can and do insist that their word is final when it comes to snatching up the copyrights of hard-working artists, and the free market cannot correct it.
Why do labels do it? Because they can. Because they are able to. Because it is merely possible for them to do it. This is why copyright is so poisonous: it creates a buck of power that’s existence was never necessary, and for those of us who think that the separation of powers is a real thing, we have to be skeptical about bringing in certain unnecessary powers of our own choosing. According to copyright, the only way artists can make any living at all is to pass on this buck of power, their “natural” rights, to the middlemen – in this case the broadcasters – and the middlemen do this because, as I need to stress again, they can. The artists get locked out of their own “property”, supposedly in their own best interests.
http://en.wikipedia.org/wiki/Complete_Control
The above gives you a brief summary of what I am on about. This quote sums it up:
Bernie [Rhodes] had a meeting in The Ship in Soho after the Anarchy Tour. He said he wanted complete control…I came out of the club with Paul [Simonon] collapsing on the pavement in hysterics at those words.
Complete Control. It is no wonder that The Clash named their famous anti-label song with this title. I really do not think the criticism of “well, you should have known that the labels would take total control over your band when you signed away your copyrights to them” is valid, since those making this criticism have no way of explaining how the artists can stand up for themselves.
Labels wield this unwelcome sword because they have many vulnerable, desperate and/or naive artists to exploit. This is disgraceful. The ability to strip an artist of his deserved natural rights would be impossible if copyright did not exist to begin with. Those natural rights can be defended so much more eloquently: we have crowdfunding, which quite rightfully treats creative arts as services, which is what they ultimately are. The labels are terrified of crowdfunding for this reason: they will never be able to strip an artist of his rights in the same way if artists can turn to crowdfunding instead of copyright.
This is an exaggeration, but I am going to say it anyway (the person I’m about to reference was a much, much greater emancipator): crowdfunding (the peak of ticket-based admission economics) is to copyright as what Darwin’s theory of evolution by natural selection was to religious creationism: an Occam’s Razor explanation that explains so much while using as few constants as possible. Everything claimed by advocates of John Locke, primarily “life, liberty and property”, can be defended with tickets/crowdfunding. They surely have to appreciate that no private liberties need to be sacrificed in order to enforce a futile “fence”, and that free-riders can be held to account through the simple fact that if they free-ride too much, what they hope to gain won’t be as high a standard as they wanted.
Plus, derivative artists will obtain THEIR rights to life, liberty and property that has been blocked by copyright for so long. They have fruits of labour worth defending, in my opinion. And they don’t get nearly enough recognition. Lockeans, take note.
So in this case, I have to side with the artists who find it hard to compete with the labels who wield the power to say “We can take copyrights to works we never worked on, because we hold the gates to the communication channels and noone can challenge our ability to do this. What are you going to do about it? You want a living, don’t you? Then give us your rights!” Artists do not have to put up with it. Which is why copyright needs to be abolished. Why is the process of giving copyrights to a label called “selling the rights to” the record, anyway? Hasn’t it occurred to anybody how disgusting that tone of voice is? The very idea that I could “sell” rights to anybody, anywhere, anytime, ever…
Re: Re: Re:
Sorry about the editing in that last paragraph. I only meant to make the sentence “What are you going to do about it?” be in italics.
Re: Re: Re:
If Copyright did not exist, then the instant I wrote a book, anyone could copy it and give it to whomever they want.
How would I make a living if I could not charge for my work?
Now things like crowdfunding may work in today’s market, where we can actually exchange money instantly, but that would have been impractical 20 years ago, when the Internet was still basically a government and university toy.
Copyright is certainly necessary, and I believe that the ownership of one’s work IS a natural right. If you want to discuss how to fix the problem within the bounds of a healthy Copyright system, I’m all ears, but if you try to tell me that we should eliminate Intellectual Property rights, there’s simply no room for conversation.
Re: Re: Re: Re:
They can right now anyway.
Who says you can’t charge for your work? This sounds like a “you can’t compete with free” argument, which has never been accurate.
Re: Re: Re: Re:
This assumes two things: first, that a world without copyright would mean that artists could not charge anything, which is what I refute with treating the property as a service via crowdfunding and accountability of free-riders; second, which is far more important, that it is somehow not possible to steal from the artists while following every copyright law in the book… when it is.
If a retailer were to sell a DVD to a person who walks into his shop, he would have no problem. But he may have a problem with twenty people of the same crowd walking in at the same time demanding to buy a single DVD for them all to watch. The copyright advocate must say that it should be perfectly legal for all twenty of them to watch that single DVD, either simultaneously or taking it in turns by passing the DVD between them. In any case, the artist loses out on nineteen sales. Copyright is ultimately a utopia in this sense – free-riders can still work around the system and still follow all the rules.
“But we’d raise the initial prices to compensate for that” is often the rebuttal here, but you still do not solve this problem, you only displace it further. A rise in prices would encourage more DVD swapping and reselling – or a slowdown of sales as a result of the free-riders waiting for either the original or resale price to drop. Indeed, you only need to buy, watch and then resell whenever you want to experience the creativity again. If you believe in the way that IP can be stolen from a party by people within their own private spheres, which is what is meant by unauthorised copying, you have to see the comparison.
Isn’t that retailer entitled to sell twenty copies instead of one? If so, why so?
Another conundrum is the following: if a retailer were to buy CDs at ?10 each from the artist, then go on to resell them at ?20 each because the artist was not aware of the potential market, is the retailer taking part in fair capitalism or committing IP theft? There is no way to know. But of course, at this point copyright advocates will cherry-pick physical property rights at just this moment when it suits them, saying that the profit making is justified here.
And to your other points: it is perfectly possible to create a form of crowdfunding without the internet. As long as we can communicate with each other, we can keep ourselves updated on how the project is going, as well as collecting refundable pledges. So do not mistake me as somebody who is only advocating crowdfunding because of the internet. I would be advocating it whether the internet existed or not. Ticket-based admission has been around for hundreds of years.
And on the contrary, I think I defend “intellectual property”, i.e. the Lockean sense of Life, Liberty and Property, much stronger than copyright advocates do. As you know, the “intellectual property” of derivative artists gets stamped on and in some cases the very existence of their Life, Liberty and Property is denied. The euphemism that is often to describe this behaviour is “you must make your own works and not use works that do not belong to you”. A complete and utter refusal to acknowledge the rights of artists to fruits of labour, in other words. Try demanding the shutting down of deviantArt on this basis, and see how far you get. Or indeed, insist that Disney should not have retold certain stories. Or even further, stop the swapping of fan fiction. Or even more, insist that all remixes, anime music videos, etc should be forbidden.
The rebuttal to this is usually “but if everyone makes derivative works from originals, there would be no investment in originals and the derivative artists would lose out, too.” Not with crowdfunding. Here, BOTH these markets can exist (why is it that nobody is willing to trust the free market to do the right thing when it actually CAN, for a change?).
Re: Re: Re:2 Re:
Oh, there are systems that could work… but aside from crowdfunding, I can’t see any that don’t rely on limited access.
Selling tickets? That’s the essence of what Copyright is. You’re only making the product available to people who pay for it.
Your example about DVD rental is a pretty good one: of course, you’re also making the MPAA, RIAA, and video game publishers’ arguments for them.
Here’s a hypothetical:
I have an idea for a AAA video game title. I think it’ll cost about $50 million to create, since I want fully voiced and acted cut scenes, a full orchestral score, the works.
I take that idea to Kickstarter, along with some storyboard, some concept art, and maybe even a pre-rendered “prototype gameplay demo.”
So I take that $50 million game idea to Kickstarter and ask people to fund it… oh, and it will take 3-5 years to make.
How many people will buy in to that model? Do you think the game would actually get made?
I’m not saying the model can’t work – I just don’t think it will work in our current society. People want to buy a finished product, and they want to get it as cheaply as possible… hence the reason people wait until sales to buy things, or they buy the paperback version of Harry Potter, rather than buying the hardback the day it comes out.
I just don’t see any sustainable business model for content creators that doesn’t involve restricted access. Call it what you want, but it comes down to some form of Copyright.
Re: Re: Re:3 Re:
What arguments am I making for the MPAA and RIAA, exactly?
I would say there are big differences between copyright and selling tickets: copyright necessarily compromises other freedoms, while selling tickets does not. Not to mention that you can still steal from artists when you are following copyright law, while selling tickets makes it impossible to steal and not break laws. A band can choose not to go ahead with the gig if they do not sell enough tickets at a venue, which is the “all-or-nothing” model as described by Kickstarter. A band can therefore hold the free-riders accountable: if not enough people pay, the free-riders cannot gain anything. This is a vital insight that gets overlooked. Crowdfunding has a greater chance of making pirates pay for content than copyright law does.
And do not underestimate this form for big budget stuff: I promise you that within the next ten years you will see the big companies using crowdfunding as their primary means of gaining incentives, and it will become THE model for artists. It will not be Netflix nor Spotify. If someone like Justin Bieber announced on his Facebook and Twitter feeds to his hopeless cult followers that he will be gaining funding for his next album through enough Kickstarter/IndieGoGo funds, I promise you he will make millions within days.
And as for this issue of buying “finished products” over funding creativity as a service, I should mention that one of my criticisms of crowdfunding websites is that they seem to not want to keep funding campaigns open after the deadline has passed, and after the artist has successfully gathered initial funds. I am not sure why the sites do this, as they have nothing to lose and everything to gain from pledges put after deadlines (5% of each pledge).
I claim that this is one of the best things they can do because it will culturally affirm that the more money people put in, the higher quality work will come out. It will also mean the chance to hold money until the consumer gains more information about the project as it progresses. As the project moves forward and as more progress is displayed on the page, the more people will be willing to fund after the deadline in order to boost the quality to a standard they want. This is backed up by the proliferation of “stretch goals” that you are seeing on crowdfunding websites – if the artists get more money, they’ll make more stuff. Accountability forced upon the market, in other words.
In fact, the “stretch goals” are more or less the “limited access” that you are asking for.
Re: Re:
You’re missing the point of this article entirely. The purpose isn’t to generate sympathy for authors who signed bad deals, but to show how copyright can tie up rights and prevent new works from coming into being, and how the major beneficiaries of copyright aren’t “artists” but gatekeeping institutions who use it in controlling ways to work against the interests of artists.
By the way, signing a bad contract in and of itself isn’t ironclad. The law, contrary to popular belief, is flexible on this point: if you can show financial duress a one-sided or exploitative contract is invalid.
Re: Re: Re:
Oh, I agree on both points.
The model espoused by the publishing, video, and music industries has long been flawed, and it is definitely exploitative. It’s a good thing that independent publishing is now becoming a viable alternative.
In this particular example, I still have to say, basically, As to the second point: this is EXACTLY my argument when it comes to “clickwrap” agreements. Those are never an agreement among equals, and I don’t think that anything other than pure Copyright should be allowed to govern the use of any sort of media purchased in a retail channel: this goes for movies, books, music, or computer software. The ONLY time I think a license agreement should be valid is for the use of an on-line service or contracted work, such as custom software development or works for hire.
It should be noted that the problems in this case are not really Copyright issues, though. They’re contract issues and issues with how bankruptcy court apparently sees Copyrights.
I have been on the receiving end of this, and it sucks: I worked for a business that got screwed by the BK court when a client went belly up. The court took our last 90 days of invoice payments from the client and treated us as a creditor.
IMO, as much as it sucks, I don’t see that authors should get different treatment than any other creditor in this agreement. I’m not saying it doesn’t suck, but I’m also not sure there’s really a better answer here.
Now don’t get me wrong: coming in and offering basically nothing (if I understand correctly, a “net” contract means that they can easily fudge the numbers and end up paying you Zero) is dirty pool. But that’s apparently how this company has done business for a while, based on other threads in this post. Again, not Copyright issues.
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It should be noted that the problems in this case are not really Copyright issues, though. They’re contract issues and issues with how bankruptcy court apparently sees Copyrights.
I agree. This isn’t a copyright issue. This is exactly the problem you’d have with a piece of machinery or another asset of the bankrupt entity. This is pretty much what would happen if someone had leased a physical asset to a bankrupt entity- you couldn’t just seize it back.
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Actually, I think you could recover a leased or rented asset, since the debtor doesn’t own it… but you’re not going to get full value for any collateral against loans, such as the money used to buy the building.
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The bankruptcy trustee generally can choose to assume the lease (many caveats not listed), so if they think the contract in place is worth more than it would cost to maintain it, the lease would remain in force and the assets couldn’t be recovered just because there was a bankruptcy. While probably it wouldn’t be worth maintaining in most cases, if the lease is a bargain at current market rates, it might be worth keeping that lease in the bankruptcy estate.
As for collateral, it’s actually the exact opposite of what you stated. If the lessor has perfected a valid lien against the collateral, then they’ll have priority over general creditors. For example, that’s the point of a mortgage- the property is the collateral against the loan, and in the event of bankruptcy, the lender gets the property (up to the value of what’s owed). Collateral could also be a bank account, accounts receivable, physical assets, or something else.
Re: tomxp411
Just start a new series? The Foglio’s are in the middle of a series they’ve been working on for over a decade now, and you’re suggesting they just ditch that and go start something else? That’s nuts, and it would be a tragedy for the fans if Girl Genius were left unfinished due to copyright constraints.
Re: Re: tomxp411
It won’t go unfinished… they’ll just have to wait until the bankruptcy is discharged and they can negoiate with the new owners.
In the meantime, why can’t they start another series? Are you saying that they only have ONE good idea?
I know lots of creative people, and NONE of them has just ONE good idea. Look at how many pans Scott Kurtz has in the fire…. look at authors like Jim Butcher, who has a cash cow in the form of the Dresden Files novels, but is still producing other stuff.
Like I said, it sucks. But this isn’t a Copyright problem. It’s a contract problem.
Re: Re:
These people are not in this situation because of problems with Copyright. They’re in this situation because they signed bad contracts… Simply giving away your publishing rights forever is a bad idea.
One that would be impossible without copyright. 🙂
The story is actually much worse…
http://www.the-digital-reader.com/2013/04/08/night-shade-books-puts-assets-up-for-sale-to-avoid-bankruptcy-offers-authors-a-deal-that-rates-a-full-wtf/
But as bad as that sounds, this story gets worse.
Night Shade Books has also decided to sell the print and ebook rights separately. The print rights would go to Skyhorse Publishing, a small publisher that specializes in nonfiction. As strange as it may sound for a nonfiction publisher to suddenly develop an interest in SF and Fantasy, the ebook situation is even crazier.
At this point I hope you?re sitting down.
Night Shade Books wants to sell the ebook rights contracts to Start Publishing LLC. Start Publishing is a relatively unknown firm with obscure ownership, at least one division run by a literary agent, and questionable experience in publishing ebooks. In fact, Start Publishing?s total current catalog consists of some hundreds of public domain titles.
But wait, there?s more.
Jarred Weisfeld, the literary agent in question, is a principle agent at Objective Entertainment. That agency has in the past rejected authors while suggesting that the authors consider self-pubbing with AuthorHouse (now a part of Author Solutions). Why did Objective do this? Because they got a commission from AuthorHouse. Here?s more about that story:
But Objective isn?t just suggesting that rejected clients check out a self-publishing service?it?s encouraging them to do so in a wholly misleading manner. Not only is AuthorHouse described as a ?publisher? they ?trust,? it?s described as ?our Publisher? and an ?amazing opportunity for you.?
So Night Shade Books wants to sell the ebook rights to a sleazy literary agent with questionable ethics and no real experience in publishing. Yeah, I?m sure that?s going to go well.
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Actually, you’re late on the draw. Skyhorse has already apparently raised its bid to something that sounds more like industry standard, and the SFWA has already put their stamp of approval on it.
Sounds like there is a strong case for breach of contract. With accounting errors and royalties not being paid.
http://www.sfwa.org/tag/night-shade-books/
As many of you are aware, on July 8, 2010 the SFWA board of directors voted unanimously to place Night Shade Books on probation for a period of one year, following concerns about contractual issues with their authors.
As part of the process, SFWA asked Night Shade to meet a series of benchmarks as a measure of a good faith effort to return to a solid standing. After a review of Night Shade Books and after requesting information from our members about the publisher?s activities during the period of probation, based upon the information currently available, the board believes that Night Shade has met the following conditions for it to remain on the qualifying list after its probation period:
a. That it examined its catalogue to ensure it is no longer offering fiction in formats for which it has no rights, and makes whole those authors whose rights it has violated;
b. That it instituted procedures and hired sufficient staff to ensure accurate record keeping for contracts and payments, both for previously published and future authors;
c. That there are no instances of contractual violations on the part of Night Shade Books against authors signed to publishing deals after the start of the probationary period.
d. Night Shade Books fulfills its contractual and financial obligations to the authors it has already published, including full and accurate accounting of royalties per contract, with payment of any royalties outstanding.
Therefore, the term of probation for Night Shade is lifted. Fiction contracted during that term is acceptable for qualification for SFWA membership. It may remain on the list so long as it continues to fulfill its contractual obligations to its authors and meets SFWA?s qualifying market standards. SFWA remains interested in the health of Night Shade books and will act at any time to deal with a member complaint against Night Shade.
The very idea that I could be excluded from my own works. No. Fuck off.
What happens when the next tech...
I am sitting here thinking of the next big technology.
Imagine when we get the Star Trek style replicator in our homes. Instead of going to the market for a gallon of milk, we can push a button and just get what we need out of a magic box.
Picture the massive unemployment as retail stores everywhere basically shutter their businesses overnight. Picture the mass riots as the people who can’t afford to pay their rent demand that government “Do something.”
Local stores going out of business is not a problem. It’s simply one visible effect of a fundamental shift in our society. In other words, it’s a growing pain.
Instead of fearing this, what local governments should do is anticipate it. Look at it not as a disaster, but as a sign of the next stage of society’s evolution. Be ready to convert those abandoned storefronts for some other use.
And be ready to adjust society’s expectations of employment. We’re quickly reaching the point where fewer people are producing the goods we need. This WILL result in unemployment, so we simply need to find a way to either funnel those people in to new types of work or find a way for a larger part of our society to *not* work in the conventional sense.
Re: What happens when the next tech...
There’s a reason the Federation in Star Trek was not a monetary society. Their worth was based not on some random number, but by how they benefited society.
But this has already happened. Remember the big scares with outsourcing and robot workers? Yes, people lost their jobs, but better jobs were waiting for those who were willing to adapt.
It’ll be the same if replicators are invented or if copyright ever goes away. The opportunities will be there, you just have to be smart enough to take them.
Re: Re: What happens when the next tech...
Exactly right.
When Replicators come in to being, it will end nearly every form of manufacturing and distribution job there is… but it will create a serious need for energy and replicator mass.
But in the end, we’ll probably have 25% of our population without steady jobs and probably half of what’s left would work a lot less.
Fortunately, the cost of living would also plummet to the point where you don’t need to work to eat.
Now imagine the creative potential of 2 or 3 billion people with nothing but time on their hands… a lot of those people would just waste their life in front of the TV or on the beach, but can you imagine how many Michaelangelos or Shakespeares are out there working at 7-11 or flipping bugers?
Re: Re: Re: What happens when the next tech...
There may well be a large market for replicator ‘designs’, depending on how well they can ‘copy’ an existing item or not without special coding. Also, they are hardly going to be suddenly rolled out overnight and therefore decimating the supply and retail industries just yet.
Re: Re: What happens when the next tech...
Yes, people lost their jobs, but better jobs were waiting for those who were willing to adapt.
We’re not doing a very good job making educational and training opportunities available to everyone though. I would be a lot more sanguine about big disruptive forces if we (meaning the US) were better at that.
The contract in question could have easily been signed years before now, Self publishing as a real source of money is still fairly new, in fact many authors are just discovering it right now.
Previously most authors were stuck in a take it or leave it environment where self publish was thought as insane.
It's all about bargaining power
In an ideal world of equal bargaining power, there would still be an argument made that copyright protects the author, even in situations like this. Yes, an author who signs over their copyright to their publisher runs the risk of something like this happening. However, ideally the price they would have initially been paid for their copyright would compensate them for that risk.
However, we don’t live in a world of equal bargaining power. We live in a world where many contracts were signed at a time where signing with a publisher was considered the only way to get your book out there. This allows publishers to convince new authors to sign crappy deals in which they weren’t adequately compensated for signing away their copyright. In a way, this is almost more of a contract law problem than a copyright problem.
Re: It's all about bargaining power
, this is almost more of a contract law problem than a copyright problem.
I agree. And if anything, that’s where this issue needs to be resolved.
However, bankruptcy in general ties up physical and financial assets, too: do you think the creditors who loaned that company money are any more deserving of being screwed than the authors are?
The real problem here is the bankruptcy system. It serves a vital purpose, but it also screws a lot of people along the way.
I said “copyright” but I guess I really should have said “exclusive license”, if authors aren’t really signing away copyright but only limited term rights to do certain things.
We’re always amused to hear people talking about how copyright “protects the creator,” when we mostly see cases where the original creators have effectively sold off their copyrights to giant gatekeepers: record labels, movie studios, book publishers, etc.
I keep seeing this concept in TechDirt articles and I don’t think it helps our cause. The gatekeepers paid real money for the rights and the creators got paid to transfer those rights. It’s not a valid criticism of copyright to say that the creators got some kind of a bad deal.
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I’d say it varies but there are very bad deals out there. I think the alarming problem here is that they can’t develop their own freaking work because of such transfers. That’s insanity.
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I think it’s valid to criticize copyright for being transferable at all. I don’t think it should be, and if it weren’t, then there would be no such contractual issues. Authors would sell a license to publishers rather than the copyright.
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There would be sweet irony in seeing the gatekeepers have to buy licenses instead of property, seeing as they love to do that to us.
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I don’t think it should be, and if it weren’t, then there would be no such contractual issues. Authors would sell a license to publishers rather than the copyright.
What would be the difference between selling the copyright and selling a worldwide, exclusive license with the longest term the lawyer could figure out how to write in? Such as the life of the copyright holder.
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Because a licence could be pulled, or wouldn’t necessarily stop the original creator from publishing their own work in absentia of the publisher marketing the product. In the end, the licensor has the balance of power, which is how it should be if this is ‘for the benefit of creators’.
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Because a licence could be pulled, or wouldn’t necessarily stop the original creator from publishing their own work in absentia of the publisher marketing the product.
I’m talking about a contract with no escape clause, and one that is exclusive like I said. That means nobody but the publisher can use the rights, including the author. If copyright were non-transferable, it seems likely the publishers/labels would have simply demanded such contracts instead of demanding the copyrights as they have done.
I think the fundamental problem is the existence (and long term) of copyright combined with the (fading) massive imbalance of power. I don’t see how making copyright non-transferable would have solved anything.
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The gatekeepers paid real money for the rights and the creators got paid to transfer those rights. It’s not a valid criticism of copyright to say that the creators got some kind of a bad deal.
I think the point is not that copyright is bad because creators are getting a bad deal. The point is that the argument that copyright protects creators is not generally born out by evidence.
The Best thing is to never sign your stuff to a Business.I live that way and have since the 70’s.
I will Control my Art without a Business taking advantage of me.
As another Commenter said
“Live By Copyright, Die by Copyright”
no sympathy from me. the deals were signed originally under the expectation of getting plenty of money. whether that happened or not, i dont know, but a lesson to be learned seems to be that any company can go bankrupt, even the ones that are supposed to be ‘protecting artists’! now crap is hitting fan, perhaps the original deal wasn’t so hot after all?
Leasing a copyright?
I think it’s time that authors and other content creators started leasing their copyrights, with a clause that if the company that has the lease goes into bankruptcy, the copyright immediately reverts to the author/creator. I’m not an attorney, so I don’t know if this is possible, but it seems reasonable to me!
Re: Leasing a copyright?
That’s called a “license” and yes, that’s the way it should be done. It’s what I’ve done with all of my works except those that I was doing as work-for-hire.
Is that legal?
How does that work? It’s one thing for a publisher to acquire a contract as written (including all of the publisher’s obligations to the author), but it’s quite another thing for a publisher to acquire a contract and then rewrite it to suit its whims. I don’t think that’s legal, but if it is then it’s really fucked up.
What’s the deal?
Re: Is that legal?
I don’t think the buyer is forcing a new deal on anyone. I think the buyer wants to offer the Night Shade authors a new set of contracts based on their existing deal.
It’s more of a “rock and a hard place” thing, because the authors don’t have to take the offer… but if they don’t, then they have to wait through a Bankruptcy proceeding before they can work on these projects again.
really
Weel this is simply solved, everyone stops writing for the publisher and join forces to start a new online publishing company, they change their names and the name of their books and thus make all contracts irrelevant. Seems too simple but most times the simple solution is the way to go.Oh and who is going to sue them for copyright when the business is not running any more.I am sure the courts would not want to rule that authors are not allowed to work for a living until the bankruptcy is resolved and if they change their names and stick together they could easily gain popularity, especially if they let people know they used to write the previous books.
Re: really
everyone stops writing for the publisher and join forces to start a new online publishing company, they change their names and the name of their books and thus make all contracts irrelevant.
Yeah, didn’t you know you can get out of any contract by changing your name?
Answering the questions
I just want to settle any doubts out there. If the bankrupt company is bought out, all contracts owned by the bankrupt company become assets of the new company. The contracts remain in effect, by the original agreement, and cannot be changed unless the author agrees to a change. The author is therefore protected under the original agreement. If the bankrupt company is not purchased, whatever rights the author had still remain even while the bankrupt company goes through bankruptcy. The unfortunate issue is that the bankrupt company will not be promoting any books.
As far as continuing writing of a book series goes, the author’s ability to do this while the company undergoes bankruptcy would depend on the specific contract the author agreed to. In some cases this would not be a problem, but in others it would not be allowed. You need to check the wording of the agreement.
It would make a lot of sense to have all your contracts reviewed by a qualified attorney before agreeing to anything with any publisher or agent.
Re: Answering the questions
Just one point of clarification. If a new company purchases some of the assets of the bankrupt company but not all of them, any contracts that were not purchased would not cause the purchasing company to be bound to them.