Do publishers even fact-check anymore?

It's happened again: another fake memoir has come to light.

This author invented her involvement in a gang and falsified her ethnicity and background. The "memoir," Love and Consequences by Margaret B. Jones, had received really great critical acclaim and seemed destined to become another one of those great memoirs when her sister saw an article about it and realized that the woman in the photo was not who she claimed to be and called Margaret out.

The publisher, Penguin Group USA, has recalled all copies of the book and canceled her author tour. This came after they had sunk "less than $100,000" into a deal with Jones (whose real name is Margaret Seltzer). (The editor who originally gave Seltzer/Jones the deal actually started out at Simon and Schuster and moved the contract over with her when she went to Riverhead.)

I can't help but think that these publishers and editors would have saved themselves a lot of grief, embarrassment, work hours, and, um, money, had they only had someone verify the stories in the Seltzer/Jones story.

The story details why the author made up the story, but I just can't understand why people think that making up a story and passing it off as true is right. If you create composite characters and base a story off things that happen in real life, it's no longer nonfiction and cannot be passed off as such.

Interestingly enough, I just checked on Amazon.com and the book is still available for purchase. There are numerous angry one-star reviews, most posted within the last 12 hours, calling for the book to be removed from the site. I'll be interested to see if and when the site removes the book from its listings.

When Your Writing Goes Amok

Now I'm no expert on this because I've never killed anyone, but it seems to me that if someone commits a murder, he will do everything in his power to keep his crime a secret and to keep himself from getting caught.

Not so for this Polish author.

Now keep all those Polish jokes to yourself. Anyone could have honestly made this mistake--confessing to a murder he committed in a novel he wrote. Right?

Right?

The novelist, Krystian Bala, wrote in his 2003 novel about a man being found drowned with his hands tied behind his back and attached to a noose tied around his neck. Interestingly enough, three years prior, this is exactly how Dariusz Janiszewski's murdered body was found.

After an investigation, Bala was tried and sentenced to twenty-five years in prison for initiating and planning the murder.

Jokes aside (go ahead and make them, I can hear you laughing), this raises the interesting question about basing fiction on real life. Although there is some safety in writing fiction ("Hey, I made it up!"), it's not failproof. There's still the danger that someone will look at your fiction and recognize a person or situation. Many fiction writers find themselves basing their characters or the situations they're in at least on some portion of real life--be it an idiosyncrasy of their mother's, their best friend's house, their brother's weird dental problems. It's natural for fiction writers to draw inspiration from the world around them, especially those parts of it they are most intimately connected to. But fiction writers must realize that with the great power of the fictional pen comes great responsibility--especially if they have appropriated something that belongs to someone else (personality trait or characteristic or whatever) to use in their own creation.

It just goes to show: put your secrets in a diary and keep the diary under your mattress instead of in a novel meant for public consumption.

Of course, this entry doesn't address what happens in nonfiction (especially the creative forms of it), which is something we're talking about in my ethics class currently, as we're talking about New Journalism and the subject-writer relationship. That's a whole other can of worms that I have a lot to say about but this isn't quite the time or place just yet. But soon.

Also, I was recently asked in a comment a question about copyright infringement when a book is out of print and what a person's rights are in that situation. I will attempt to address this soon, in a future entry. It was an excellent question, so thank you!

Running with Scissors

Never take candy from strangers. Never swim a half hour after eating. Never run with scissors. All good advice from Mom. And, in the case of the last, advice author Augusten Burroughs should have taken to heart.

Burroughs, the author of several nonfiction books including Dry and Magical Thinking, just settled a lawsuit brought against him and his publisher over what he wrote in Running with Scissors: A Memoir.

Running with Scissors, which was also made into a movie, recounts the story of Burroughs's life with the Turcotte family when he was younger. The head of the Turcotte family was Burroughs's mother's therapist, and the therapist was made Burroughs's legal guardian so that the teen could stay with them and attend schools in Northampton.

In the book, Burroughs calls the family the Finches and alleges them of outrageous behavior (electroshock therapy, deviant sexual behaviors, and so on). I use the word "alleges" because the family felt otherwise. They sued Burroughs and his publisher, St. Martin's, for defamation, invasion of privacy, and emotional distress. (Hey, remember all those?) The Turcottes demanded $2 million because they claimed the book was mostly fiction laden with sensationalism to drive sales and also that their family was easily recognized as the fictionally named Finch family, despite the fact that the book begins with an author's note claiming that the names and identifying details of characters have been changed.

The author and his publisher settled with the family and now have to start calling Running with Scissors a "book" rather than a "memoir" in the author's note and also have to include a disclaimer in future editions that the book is based on Burroughs's memories and not those of the Turcotte/Finch family. But St. Martin's seems pretty triumphant that they were able to settle and claim that this is evidence that the book is accurate.

So Burroughs and St. Martin's defended the book as "entirely accurate." However, in a statement released earlier, Burroughs said that the book was "loosely based" on his experiences. So which is it? Accurate or not? Truth or a memoirist's interpretation of his memories?

Memoirs are an increasingly popular genre, and since very few people spend their entire lives in total isolation, by necessity memoirs also include accounts of experiences with other people. But the very nature of memoir is open to a lot of error: unlike biographies and even autobiographies, memoirs are based for the most part entirely upon the author's memories and recollections as opposed to being based on research, interviews, and other facts. The human memory is a highly fallible and changeable thing. As years pass, our recollections of incidents and people become fuzzy. We may blend incidents together, forget what happened, reinvent the truth--all in all, it's definitely not a black and white world. So a degree of relativity enters the truth-telling in the world of memoir, which is all degrees of gray. Students of literature understand this, and while some memoirists strive to be as accurate as possible, others are okay with bending the truth a little to suit creative literary conventions and devices. But the thing is, do readers understand the nuances and varying degrees of accuracy involved in memoir? Or do they believe that everything they read is substantiated fact as opposed to author memory? I think this is where the problems begin.

And in the case of the Turcottes, the problem is that their memories and the memories of the memoirist not only contradict each other but also that the memoirist has painted them in such a negative light and made them so easily identifiable that it could ruin their reputations. According to an interview with the Turcottes in Vanity Fair, several of the Turcottes have suffered emotional, mental, or in some cases physical distress over what Burroughs wrote. While the Turcottes do admit that their father was eccentric and that their family did have some unconventional experiences while growing up, they deny a lot of the experiences that Burroughs claims they experienced together. They also claim that he distorted and exaggerated the amount of time he lived with them. Burroughs claims now that what he wrote is true and that he kept extensive journals during his childhood and teenage years about his experiences. But some of the other stuff he says seems shady and he seemingly implies that not everything is as it seems. I recommend that you read the Vanity Fair article I linked to above. It's illuminating if nothing else.

So when it comes to writing, especially something with a creative bent that's so highly personal, where do we draw the line? Or are there any lines that need to be drawn? Wouldn't a simple disclaimer saying that the experiences within are the recollections of the author that aren't necessarily supported by anyone else, or does the author have a greater responsibility to his subjects and his publisher to do more? Some memoirists send the manuscript pages involving other people to those people, to make them aware that they're being written about. In the case of the Turcottes, they claim that they didn't even know Burroughs was writing about them until after the book was published and achieved bestseller status.

The memoir issue affects me rather personally as I sometimes write memoir pieces. For my senior honors thesis, I wrote a memoir about my mother and myself and how my mother's Cuban background influenced me, etc. Several other family members figured into the memoir. While my mother was very pleased with the project, her sister, who also read it, made a comment to me about how her behavior wasn't the way I'd described it in a certain section of the manuscript. My defense was that the way I described her behavior was the way I perceived things to be true. I'm sure that if I saw myself described by another writer I'd potentially find what I believed to be an inaccuracy in his description. But to the writer, his description probably rings true with the way he sees me.

But this is different than making up substantial portions of a book that purports to be based on real-life experiences. That's where I feel that the issues arise, especially when many general readers aren't aware of the gray area surrounding memoir. What do you think? Should there be rules surrounding memoirs? Should they all carry disclaimers? Should the publisher be held responsible in instances like Burroughs's? Is the publisher responsible for fact-checking something like a memoir, or does that rest solely upon the author? I'd love to hear your thoughts, so please do share.


UPDATE: MORE LINKS ON THE STORY
I've found some more links for further reading about the story.
From the Boston Globe
From Publishers Weekly
From the LA Times
From USA Today
NPR's interview with Burroughs's mother including a comment written by someone who allegedly knew her
From the Milwaukee Journal Sentinel
The Book Standard interview with Augusten Burroughs
Bookslut interview with Augusten Burroughs where he describes how a person can research the identity of the Finch family
Washington Post article
Entertainment Weekly

A Ruckus over Rights: Abby's Translation Headache

Abby is a bilingual literature lover. In addition to reading books in both English and Spanish, she herself is a writer and she also does translation work.

She's found the work of a particular author (let's call him Pedro) to be particularly moving. Pedro is American but the the work is written in Spanish and Abby wants very much to translate it into English. But she's run into some problems.

First off, Pedro is dead. This means she can't contact him to find out how to get the rights to translate his work. When this is the case, the rights to an author's work are either transferred to the person stipulated in the author's will or, if the author's will doesn't make provisions, the rights are divided up with the rest of the author's property according to intestate laws. Pedro's rights were apparently transferred to a guy who, for the sake of argument, we'll call Jerk (because that's what he's ended up being). Jerk appears to have the rights to Pedro's work, and he's not letting anyone else have them. It saddens Abby, because she loves Pedro's work and she wants to translate it into English so that more people in the U.S. can read it. She even has a "hot" agent interested in her project--IF she can get the translation rights. But the agent's not really doing anything else until Abby gets those rights.

Abby found out more about the book's publication history. The book was originally published in Spanish by a small publisher in Miami as the result of Pedro winning a contest. Jerk helped him to edit the book, which may be why he's the one currently holding the rights. The original publisher of a work usually holds the translation and foreign sales rights of a book as stipulated in the author's contract, so Abby thought that the original publisher of Pedro's work might still have these rights. She contacted them but was told that they no longer held the rights to the work and that they no longer had any other information available on the author or his work either. Abby then found out that the book had been published in Spain. When she tried to contact them, she was told that the rights were held by Jerk. She's now contacted a French publisher who did a French-language edition of the book and is waiting to hear back from them.

In the meantime, what can Abby do? Pedro died in 1993, so the end of the life-plus-seventy-years term of copyright protection is rather a long ways off. Unfortunately, if Jerk is the only person still holding the rights to translate the book, Abby's hands are tied. Since the work is still protected by copyright, any translation Abby published of Pedro's work without holding the rights would be considered a copyright infringement and Abby would be involved in a lawsuit.

This is one of those maddening instances when I get really frustrated at how long copyright lasts in this country. It's particularly frustrating in this instance because there's actually an interest in publishing Pedro's work, which would financially benefit Jerk. Abby isn't sure why he's being so protective of Pedro's rights, but he is. At this point, what should Abby do? If she hears back from the French publisher and their answer is negative, does that mean all hope is lost and she must resign herself to a life of pining away for the Translation that Never Was?

Not quite yet. There's one more thing Abby can do. Since the work was written in the U.S. by an American, it is registered with the U.S. Copyright Office. The Copyright Office allows people to conduct searches to investigate the copyright status of a work. Abby can search their catalog and other records in their Washington, D.C., office for free to find out who currently holds the rights. Or, since the work was registered after 1978, she can use their online database to conduct a search. Or she can have the Copyright Office conduct the search for her for a fee of $150 an hour.

Abby can search online to get more information about Pedro's copyright registration. (I recommend viewing the tutorial that's available on this page to get a better idea of how to use the search function and understand your results.) In Abby's case, I think she should use the online search function to get more information about Pedro's copyright and then perhaps she can contact the Copyright Office with questions about contacting the current copyright holder.

This is, of course, an unfinished story, as Abby still has to conduct her search of these records and also hopefully will be hearing from the French publisher soon. I'll post an update once Abby has found out more information.

It can be frustrating to run into walls such as this one when you're trying to republish work that's still protected by copyright--a copyright closely guarded by seemingly irrational people. Certainly Abby's situation is not unique; I had a professor who encountered the same problem when he tried to publish a dead poet's collected works. Some poems were already in the public domain, but some were not and my professor discovered that the rights were still held by a poet's relative. The relative refused to allow my professor to have the rights to include the protected works in the collection. Why? The relative stood to benefit financially from the arrangement and also would not have had to go to the trouble of doing any work herself; my professor would have done everything editorially and otherwise. Perhaps she thought she could publish the work on her own? Perhaps she just didn't want to share her dead relative's work with anyone? Whatever the reason, my professor had to scrap the project and the literary world is now one work poorer. I hope things don't turn out the same way for Abby, because the last thing we need is to be deprived of a good book.


FOR MORE INFORMATION ON COPYRIGHT SEARCHES

Copyright Office Basics: http://www.copyright.gov/circs/circ1.html
This useful website provides a great deal of useful information on copyright--it's sort of like a copyright primer. There are lots of hyperlinks throughout that provide even further explanations and information.

Contract Quandary: Ted's Novel

Once again, I've changed my friend's name. However, I'm using the real name of the press he dealt with here because I want others who are potentially considering doing business with them to NOT do so, as they have been involved in lawsuits with more than one of their authors and have had seemingly countless complaints lodged against them. (Go ahead and Google them if you wish, and you'll see it for yourself.)

Ted's a novelist, and a rather talented one at that. But as I mentioned in a previous entry, the publishing industry is pretty tough right now, and Ted's been having a rough time. He sent his query out to many agents, but none of them were biting. He then started querying publishers directly. Still nothing. Finally at the end of his rope, Ted decided that he should probably just self-publish his book. After all, he believed in his book, he understood that it was somewhat unconventional and thus not being picked up by conventional publishers, and he just wanted to see his words in print. He tried for over a year to sell his book and got nowhere, so, in a very self-starter, DIY kind of way, he decided to just do it himself.

But just as he was about to undergo his self-publishing project, he was contacted by a publisher. They wanted to publish his book, they said. Ted was initially quite happy that he'd finally been picked up. He sent out an email to his friends letting them know of his success. "Publish America offered to publish my book," he said. He went on to explain that he would be making royalties from his book (though not very good ones, he admitted) and that he wouldn't have to pay to have his book produced, which is something he would have done if he self-published his work. And by being published by a press rather than being self-published, he thought it would be easier for people to buy his book.

When I received the email, I was curious because I'd never heard of Publish America, and, being a publishing student, I love to learn about different publishers. So I did an internet search to learn more.

I found the publisher's website. I wasn't too impressed with how it looked; it had a somewhat unpolished look that I didn't find terribly professional and the visuals weren't the best, but I knew I shouldn't judge a book by its cover, or a publisher by its website. I browsed around the site a bit, then I went back to the search results page and noticed that there were some articles written about them. I clicked.

What I read wasn't good. Publish America was branded as an "author mill" with countless complaints lodged against it. It was described as being nothing more than a souped-up vanity press, with books that were nearly impossible to find in bookstores, high cover prices, and little or no promotional effort. The company also did minimal editing, and actually charged authors money to edit their work substantially. I read a feature article from the Washington Post, an unflattering Wikipedia entry and posts on the Preditors and Editors site and on other author message boards. I was overwhelmed by the amount of negative feedback I found and quickly emailed Ted to warn him to proceed with caution. I was especially concerned because I read quite a few complaints about how bad the contract was and how hard it was to get out of it. Since I was in the thick of studying contracts, I also asked Ted if he'd signed the contract yet.

He had not. He thanked me for my honesty in warning him about the negative feedback from other Publish America authors and then sent me a copy of the contract they sent him.

At this point, I had seen a few contracts from traditional publishers and had read enough about rights and contractual clauses to have a general idea of what to look for. The contract began with a clause stating that the duration of the contract was seven years, during which time the publisher acquired the right to sell the book in the U.S. and Canada and that the publisher had the exclusive right to arrange for the book to be published in foreign countries. Hmmm, I thought. That's odd. It just sort of threw that in there but never discussed the royalty breakdown that the author would earn upon this sale. And after having read the disgruntled negative comments from Publish America authors, I deduced that the publisher didn't even bother to think about that because they didn't even bother to make the effort to sell the rights anywhere. And I noticed that their statement about selling other rights, such as dramatic and film rights, was a 50-50 split for all these rights, which differed from other publishers whose splits tend to favor the author. The contract also stipulated that the publisher had the right to publish the work electronically, but didn't stipulate royalty splits/author compensation.

The revision clause was pretty lousy, and stipulated no timeline for how much time the author had to revise the work and what constituted an acceptable work. Though through my research I found that the company not only typically didn't bother to revise or edit works but also that the company charged authors for extensive editorial services--that is, those exceeding simple copyediting. And I also noticed that the contract stipulated that if the author decided to add any material to the manuscript after signing the contract, the author had to pay the publisher in order to do this. This seemed messed up to me; I know that editorial departments in publishing houses aren't what they used to be, but surely publishers expect that material is to changed, added, and/or deleted after the contract is signed so that the book is edited up to publication standards. It's one thing to charge an author against expenses if the proofs are ready to go and the author decides to add three entirely new chapters; but it's another thing to charge the author for edits made after the contract is signed, at a point in time when the manuscript hasn't even gone through editing by the publisher.

The contract also stipulated that any revisions made to the work for future editions would not incur any additional initial payment by the publisher. What? Ted probably wouldn't revise any future editions of his novel, since fiction is very rarely revised, but I just thought that was sleazy.

That is, until I got to the portion of the contract detailing the advance. Talk about sleazy.

It was absolutely the last clause in the contract, right above the signature lines, which I also thought was odd because payment isn't usually the very last thing discussed in a contract. It said that the author would receive a one-dollar advance.

One dollar. As in, a buck.

This was what sealed the deal for me. The horror stories and testimonials and articles had me convinced that this company was crap. The one-dollar advance convinced me that not only was this company crap but also that Ted should run screaming for the hills away from this company.

What kind of traditional publisher wouldn't be willing to make an investment in an author, even if only a small $1,000 advance? The dollar advance was like a slap in the face, an insult to the writer. Publish America was nothing more than a vanity press that recovered its expenses by overpricing its books and trusting that the author and his friends and family would buy these overpriced copies directly from them--since they wouldn't be able to find them in bookstores. A paperback novel for $24.95? Why bother? You can get a new hardback novel for that price, or even less that. And you can get it at the bookstore.

Some of the testimonials I read also stated that frustrated authors found it difficult to get out of their contracts after they realized how awfully the company treated them. Others claimed that their contracts were suddenly terminated, with no explanation given by the company, but these people deduced that it was because they had the nerve to pester the company for answers about seemingly fraudulent royalty statements or to ask why bookstores had such problems ordering copies of the book. Bookstores usually don't carry print-on-demand books (which I realized that Publish America books were) because they can't be returned. Apparently, Publish America also offered booksellers a very low discount off of the already high cover price, discouraging stores from buying it. Booksellers and libraries reported having problems ordering copies of the books from major book distributors as well. What's the point of having a book in print, I wondered, if no one can buy it?

After reading the contract and the negative testimonials, I deduced that if Ted truly wanted to see his work in print, he would be better off self-publishing his book with another company. I knew it meant he would have to pay the company for their services and that he'd have to do a lot of publicity work on his own, but I felt that these expenses were Ted's way of paying for his sanity. By self-publishing, Ted would be able to retain all his rights and keep control of his work. He could determine how to market it, what subsidiary rights to sell, if any, and would get to cancel his contract with the self-publisher at any time. This meant that if a traditional publisher finally decided that it did want to publish his work, Ted could easily end his contract with the self-publisher and move on. Or if Ted's second book was picked up by a publisher and they decided to reissue his first book, he'd have the ease to do that as well. Ted may not make a boatload of money off his self-published novel, but at least he'll have the peace of mind that he can control the whole project instead of being locked into a poor contract with a nightmare company. To me, that seems priceless.

I've Got an Agent! Now What?

My previous entry dealt with contracts and assumed that you were working directly with the publisher, sans literary agent. In this entry, I'll introduce you, briefly, to what a literary agent does and doesn't do. I won't, however, spend any time telling you how to get a literary agent to work with you. There are numerous books published and revised on the subject every year, along with guides such as Literary Market Place that are updated annually with details about publishers and agents. Also, I've never tried to get a literary agent for myself, so I'll spare you all the presumption of knowing what the hell I'm talking about in that arena.

A literary agent is someone who often has previously worked in publishing and thus has a great knowledge of both literary markets and the workings of the industry. An agent is an author's representative and acts as a liaison between author and publisher. Both parties stand to benefit from the agent. The publisher benefits because the agent acts almost as a screener, scouting for and determining what manuscripts are worth buying, saving the publisher time. In fact, the nature of the business is such that pretty much all major houses and many smaller ones now don't even bother looking for material themselves, instead relying on what they get from agents. The author benefits because the agent becomes his advocate, looking out for him and many times also being the only steady person during the whole transaction. Publishing has a rather rapidly spinning revolving door as people move on to other positions and companies, so an author may suddenly find his book "orphaned" at the publishing house, meaning that the editor or person responsible for it has left and the new person taking it on is probably not paying much attention to it. Having an agent helps because she will make sure to keep track of the book, often by pestering the publisher and the staffer's predecessor about it. An agent also often gives editorial advice to the author to help improve his manuscript and also helps the author develop new projects.

Both parties benefit from a literary agent's involvement because the agent handles the negotiation of the contract, which saves the publisher the hassle of dealing with an author's inexperience and saves the author from the potential of getting royally screwed due to ignorance. The agent also handles the money from advances and royalties and gives it to the author after taking her 15% commission first. And the agent is often well-connected to others to whom she can then sell sub rights. It's in the agent's best interest to sell as many rights as she can for the author, since she gets a cut of it all, so having an agent is really helpful, especially for inexperienced authors.

So let's say you've gone through the querying process and found an agent who wants to work you, Abby D. Agent. "Leave it to me, kid," she says knowingly, after showering you with glowing accolades about your manuscript masterpiece. "I'll make you a star."

"Great!" you say, enthused. You can hardly believe your luck! This person believes in you and your work and is going to help you sell it and, if not get rich off it, at least make enough extra bucks to afford going out to dinner once in a while or getting a new couch to replace the old one your cat peed on. "This all sounds great. Where do I sign?"

"Oh, there's nothing to sign," says Abby breezily. "We're all friends here. Besides, there'll be enough paperwork once I get you that nice publishing contract. Let's not kill anymore trees."

A little feeling of uneasiness settles over you, but what do you know about the pub biz? This must be how they do it. And the environment is a hot-button issue these days. Maybe saving trees is a good idea.

While some agents do operate under this no-contract policy, depending on how casually their offices are run, many do offer simple contracts or at least letters stating the terms of your working relationship with them. Even if you find an agent who doesn't seem to believe in adding more paper to her life, you should still get your agreement in writing. If your agent doesn't offer you a contract, suggest that one of you will write a letter or email outlining what the agent will do for you, how long the agent will try to sell your work for, how either of you can terminate the agreement, what happens if the agreement does get terminated, and how the agent gets paid and handles your money. When it comes to someone dealing with your intellectual property and eventually hopefully with your money, it's always wise to get it on paper.

Let's assume that you have convinced Abby Agent to draw up an agreement for the two of you to sign. Obviously a contract with an agent is not as in-depth or lengthy as a contract with a publisher (I'm starting to wonder if anything on Earth ever could be), but here are some of the basics it should cover.

A grant of authority and limits. This clause dictates the power that an agent does and doesn't have. For instance, Abby Agent may be the person responsible for negotiating and selling your rights, but you want to have some idea of what's going on. This clause would say that you want to see and approve of all deals and contracts rather than just letting Abby sign the contracts on your behalf. Let's face it: you may trust your agent with your life (and your rights), but you should still be the one to put pen to paper.

An agent's obligation. Naturally when you sign on to work with an agent, you are putting your trust in that agent to sell your rights, but you don't want to be waiting around forever. You also want some guarantee that the agent is working in your best interests. This clause usually includes phrases to the effect of the agent making her "best efforts" to sell your work and using all "commercially reasonable" means to get you a deal. The agent should submit to you all offers made on your work, even if she thinks they suck, so that the two of you can decide what's best. And your agent should keep you informed of all rejections and feedback, too, allowing you to see rejection letters if you request them and passing along comments editors have made that may help you improve your work. Your agent should work hard for you, but she can't work miracles, and you aren't her only client. Expect her to put in a very valiant effort, but don't expect her to move mountains. Expect regular communication, but don't expect daily hour-long chats. She's busy and should be using her time to sell your work, not counsel your every editorial move. However, if she seems like she's seriously slacking, puts you off, doesn't give you any time or advice, or is not upfront with you about things, it might be time to call it quits and move on. (See the length of relationship and termination clauses below.)

An author's obligation. Yes, you have an obligation to your agent, too. (What did you think, that contracts were a one-way street?) Many agents want their authors to enter into an exclusive agreement with them, meaning that while Abby's trying to sell your work you won't also have agent Betty trying to sell it too. Read this section carefully. Some agents want to represent all their authors' works, even works that the author wrote before working with that particular agent (this means retroactive commissions, which to me seems unfair, but you need to decide what you think is fair). Some agents want commission on every work their authors sell, called an "exclusive sale" arrangement, even if the author sells those works entirely on his own. (Again, you can decide if this is fair or not.) And some agents just want to opportunity to represent all their authors' future works and receive commissions from them. If you already have connections directly with editors at, say, magazines or newspapers and have sold or intend to continue selling works directly to these editors, consider whether giving your agent a commission on these works is worthwhile to you. On the other hand, if you don't already have connections with editors at periodicals but would like them so you can try your hand at the occasionally lucrative world of magazine writing, having an agent can be helpful as she can forge these connections for you, can handle contracts with the periodicals, and take care of hounding them for your money (after all, she wants her commission just as promptly as you want your payment). When it comes to this clause in an agency agreement, you need to consider how you want things handled. Personally I think it sucks for an agent to expect compensation for work she hasn't done for you, and if you think it sucks too then don't agree to it. It does seem ridiculous, but an agent's authors are her bread and butter, so she's going to try to exploit all of you as best she can.

Commissions and payments. Most agents nowadays charge a 15% commission on all money you receive from sales they make. Many times this royalty increases to 20% for the sale of sub rights because your agent is selling the work to another agent and the commission must be split. I'm putting these numbers out there so you understand that they're industry standard and are considered fair. Some agents also charge their authors for extraneous expenses: for instance, long-distance calls made on the author's behalf, excessive photocopying or mailing, etc. In publishing, it's typical for a publisher to issue payments and royalties directly to the agent and for the agent then to manage the author's accounts. It's a good idea to let your agent handle your accounts because she understands the intricately complicated web of royalties statements better than you, or even a rocket scientist, could. She'll take her commission out and then issue the remainder to you. Your contract should stipulate how much time you should expect to pass between her receiving the check and you receiving yours and any other pertinent financial information pertaining to your agreement (such as how agency expenses, if any, will be billed). Make sure the commissions structure here makes sense to you, especially that involving the employment of other agents to sell sub rights. If anything is unclear, ask. Don't take chances when it comes to your money and stay informed of what to expect.

Warranties and indemnities. This is sort of like that clause from the publishing contract, stating that you have the right to your work. It also protects the agent if you do something foolish, like sign two exclusive agency agreements simultaneously. You sign on thinking that the two never have to know about each other and that this just increases your chances of selling your work by doubling your work force. So let's say Abby sells your work to Pancake Press on Monday. You're elated. You decide to break things off with Betty. But before you can do, Betty calls you on Tuesday. "I just made an offer to Peacock Press, and they want to buy your work." Shit. Now what do you do? Two presses cannot simultaneously publish your work, so you're going to have to back down on one of the offers. But since Betty made good on her promise to sell your work, even if you decide to remain with Abby for the long haul, you still owe Betty her commission for selling your work. And Peacock Press could hold her liable for selling her a work she was no longer authorized to sell to you; since your contract with Betty also contained this clause, you are obligated to stand behind her in this situation. So, my advice is to do yourself a favor and never need to worry about these potential messes by sticking with one agent at a time. Polygamous relationships in publishing can often get very messy.

Length of relationship. Obviously, both you and your agent want a long, beautiful friendship. It works for you because you've got someone on your side to watch out for you, negotiate the best deals for you, and otherwise help usher you through what is hopefully a long and illustrious (or illustrious enough) publishing career. It works for your agent because she's got someone who will provide her with a steady enough source of income over the long term, from either your backlist items that continue to sell or from your new works (though publishing new works often revives the market for your older works). However, sometimes a relationship with an agent just doesn't seem meant to be; for whatever reason, she simply cannot sell your work. If this is the case, this clause will dictate the amount of time the agent will devote to trying to place your manuscript. Usually this term is a year. If after this year your agent hasn't been able to sell your work and she's exhausted all her avenues, it's probably time to call it quits: she wants to move on to clients whose work she can sell and you want to give it another go, either on your own or with another agent. A year may seem like forever, but remember that book publishing is a very hurry-up-and-wait kind of business, meaning that brokering deals can be very time-consuming. Give your agent at least this year, which is a reasonable amount of time, in which to sell your work.

Termination of agreement. Breaking up is hard to do. But it shouldn't be impossible. Barring the length of relationship clause, you and the agent should both have the freedom to end your relationship at any time for whatever reasons you may have. Maybe you just don't seem to get along; maybe she's lost interest in the kind of work you're producing or you think you could get better service from another agent you met at a cocktail party who seemed excited about your work and with whom you meshed well. So it's time to break up with your agent. This clause usually stipulates that either of you can terminate the agreement by putting the decision in writing and giving thirty to ninety days of notice. This amount of time is only fair to allow both of you to tie up loose ends and make the transition smooth. This clause will also indicate what will happen if the agent has sold some of your work and what will continue to happen regarding commissions. Perhaps your agent will continue to receive royalty payments for works she sold for you and will divvy out your share to you. If your parting with your agent is amicable, you may be okay with this, but if there's animosity there, you should consider having royalties paid to you (or your new agent) and then disbursing your agent's commission. Or your new agent may decide that she'll be the one to handle all royalties from past and future sales and their divvying up from here on out. Make sure you understand how commissions and royalties will continue to be handled if the two of you should split up because after all, money does cause the most grievances in relationships. Don't let it cause you angst in this one and get it all in writing.

The right to assign you to another agent. This clause is somewhat straightforward. Many agents work for agencies where there are other agents (sometimes a few, sometimes dozens depending on the size of the agency). This clause states that the agent has the right to transfer you to another agent of her choosing, typically within the same agency. If you're not comfortable with this idea and would prefer this not to happen, speak up and don't allow for this clause to appear. But if you're fine with transferring agents, just state under what terms it would acceptable to you: the agent must be at the same agency, or it must be an agent that you both mutually consent to. If this clause doesn't appear in your contract, ask your agent what her or her agency's policy is on the matter.

The right to represent your competition. You're a mystery writer, and mysteries are what Abby Agent sells best. It's a match made in heaven. But as you look through her client list, you realize that Abby's got quite a few other clients who write mysteries very similar to yours (say, involving telepathic animals or little old lady detectives). It's within her right to do so. By taking you on, Abby isn't going to forsake all these other writers who write similar subject matter to yours. In fact, it's to your benefit if she represents other authors who write the same sort of thing. It means she's had success selling work similar to yours, which means there's a market for it--which means your odds of a sale are that much better. Don't begrudge your agent her right to represent however many of whatever kind of client she wants.

The right to multiple agents. Some agents have relationships with sub rights agents and will thus handle these deals for you. But sometimes an agent doesn't want to deal with certain sub rights, like foreign sales or film sales. This clause will spell out if she's okay with you hiring these agents on your own. Be sure you understand how the commission structure works here; your agent will usually want a piece of the sub rights sale pie, no matter how small. It's wise either way to find out how your agent deals with sub rights sales before you enter into an agreement with her since sub rights can often be quite lucrative.

As you can see, there's actually quite a lot more that goes into an agreement with an agent than the blind faith that she'll sell your work. This is why it's wise to get an agreement with your agent, even if it's just a letter laying all these things out. If any of these parts are missing, talk to her about it and insert them if necessary. Understanding how the relationship works before you even begin will save both of you a lot of time, confusion, and grief later on.

For more information on literary agents (let's face it, if you want to get one, inform yourself thoroughly of what they do and what they want from you), try some of these books:

Literary Agents: A Writer's Introduction, by John F. Baker. This is a great book featuring profiles of many leading industry agents reflecting on the business and offering tips for writers as to how to get and keep an agent.

Mastering the Business of Writing and How to Be Your Own Literary Agent, by Richard Curtis. Curtis is a big-name agent who's been at it a long time and he's got a lot of good things to say. Any work by him is quite helpful, and it helps that his style of writing has some humor sprinkled throughout.

How to Get a Literary Agent, by Michael Larsen. This book has tips on how to get an agent and keep them written in a friendly, accessible style.

And for listings of literary agents, try the annual literary agent guide published by Writers Digest Books, Jeff Herman's annual guide to publishers, editors, and agents, or the annual edition of Literary Market Place (check your local library for this one, it's pricey and of an unwieldy size).

The Anatomy of a Publishing Contract

So I’ve been absent from the blogosphere for a few days, mostly because I’ve been poring over books about publishing and agency contracts, the role of literary agents, and the ways different rights are bought and sold in the publishing universe (which is a whole other planet as far as I’m concerned), and there’s been so much to digest that I’ve only just come up for air. And now, fellow readers, rejoice! For here I am to share it all with you.

But before I start, a disclaimer: don’t consider any of this to be legal advice. If you actually have a contract and have questions about it, certainly use the information I’m providing as a starting point for deciphering what all the different clauses mean, but if you have any questions, doubts, or concerns, or need help negotiating, turn to a lawyer who’s got publishing experience, or try to get an agent to work with you. (That’s me covering my arse so I don’t get in trouble.)

And now: the anatomy of a publishing contract.

What is a publishing contract, anyway?
To understand what goes into a publishing contract (and why each one seemingly uses up half a ream of paper), one must first understand the nature of the publishing industry—or, as my old coworker used to call it with a snarl on her face, the “pub biz.” Some people have compared publishing to a casino, involving books. I tend to agree, because it’s all a gamble.

As genteel or artistic as it may seem, publishing is, bottom line, a business. And like any other business, it involves the exchange of goods for money. But unlike some other businesses, publishing is a highly speculative business. A publisher may be pretty good at predicting how certain books will do on the market, but it’s an imperfect science. “Guaranteed” best-sellers may fall flat on their faces while novels of a literary bent may suddenly catch on, thanks to a number of factors that are hard to control: word of mouth, intriguing or timely subject matter, a hot new trend (like ethnic lit or chick lit), a memorable title, Oprah. So like any business based on speculation, publishing is a risky endeavor.

Think about it. Books aren’t a necessity, like toothpaste or gasoline. Books are more of a luxury commodity, something purchased to enhance a buyer’s life by providing extra information or offering entertainment. This means books are purchased with expendable entertainment income and are not necessarily factored into people’s budgets. So when a publisher is determining whether or not your book deserves to be published by their company, they’re not necessarily evaluating the merit or quality of your book, or at least that’s not the most important aspect they’re looking at. They’re evaluating its salability, its potential to make a buyer look at it and say, “Yes, this is worth spending between twelve to thirty dollars of my expendable income on.”

So when a publisher draws up a contract with a writer, they’re making an investment that they hope will be profitable at a later date. Buy low, sell high, hope to earn back the initial investment and some profit. This is why the first version of a publishing contract has terms that generally tend to financially benefit the publisher at the writer’s expense.

Every publisher is different and each one has a unique contract, but they all include the same basic information:
• which parties are entering into the agreement (the author[s] and publisher);
• when the contract begins and how long it lasts;
• what rights are transferred from author to publisher;
• what compensation the author and publisher will receive when and under what conditions;
• when rights revert back to the author;
• what happens if there are legal problems (I’ll go further into the sorts of legal issues writers could face in a future entry).

Of course, you’ll probably see even more clauses in your contract, but you should be sure that your contract has all these clauses, since they cover essentially all the steps of the publishing business.

Someone’s buying my book! Now what?
After months, or years, of toil, a publisher has finally agreed to buy your book. Your excitement is palpable. You get a copy of the contract in the mail or via email or fax. You’re so excited to get the process started and see your words bound in a book that you sign on the lines and send the contract back to the publisher with hardly a glance at the terms and conditions therein.

If you do this, I’ll be perfectly honest: you deserve a good flogging, preferably with a massively heavy copy of the OED. Common sense dictates that you read something before you sign it or else the only person to blame when you get screwed (because trust me, you will get screwed) is yourself.

Perhaps as a first-time published author you don’t think you’ll understand the legalese. Or perhaps you think that you have to take whatever they offer you or they’ll withdraw the offer and move on to another author desperate to be published. Or maybe you think you have to act fast or they’ll lose interest. None of this is true. Publishers are used to writers (or their agents) negotiating with them to get a mutually beneficial (or at least more mutually beneficial) deal. Publishers are okay with you taking a day or two or more to digest everything, figure it out, get help if you need it. Things don’t happen overnight in book publishing; it may take a year or two for your book to even appear on shelves. Be smart and take the extra time to determine what you’re being offered and what you can do to be sure you don’t get screwed. Don’t sign anything until you’re at least satisfied that you’ve done your best to get what you wanted.

Clauses, clauses, clauses! What do they all mean?
A publishing contract will begin with an introductory clause that lays out the parties involved in the contract (the author and the publisher) and what the contract is in regards to (the manuscript). It also lays out the date when the contract comes into effect. There’s also usually a brief description of the work the author’s submitting. Sometimes this is vague to the point of being nearly indecipherable—just a title and then a few words of description: “Eighteen Wheels: A novel about truckers” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide.” You may want to flesh this description out a bit on the contract (or on an attached page that you can refer to as a rider) so that it’s more specific what you understand that the publisher expects from you. “Eighteen Wheels: A novel of approximately 70,000 words about a group of truckers and their adventures traveling across America” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide of approximately 50,000 words including directions for working with wiring and projects, along with illustrations and photos.” Inserting this little bit of extra information will give you a little peace of mind, especially considering the next clause that’s included in a publishing contract: delivery and acceptance of the manuscript.

The delivery and acceptance clause gives the date when the publisher expects you to turn in the completed manuscript of your project, and it often also spells out in what format they wish to receive it. If you’re writing fiction, you most likely have the manuscript completed and perhaps only have a few tweaks or formatting issues to resolve before turning the book in, but nonfiction books are often sold on the proposal and one or two sample chapters alone, so the due date is especially important. If you feel that you simply can’t turn in the manuscript by the publisher-assigned date, negotiate it, don’t just ignore it, as turning your work in late can render you in breach of contract.

Also be certain to pay attention to the terms of acceptance included in this clause. It should spell out what you’re expected to turn in and what happens if the publisher is unhappy with the work. Often the wording here is vague, merely saying that the manuscript should be “satisfactory” to the publisher or the publisher can drop the project. But that means different things to different people, so this phrase is a sort of “get-out-of-contract-free” card for the publisher. Make sure you discuss what “satisfactory” (or any other sort of vague wording) means with your editor so that you have an idea of what’s expected from you. You should add in more specific wording as to what “satisfactory” means. And you should add in a phrase saying that if the manuscript isn’t up to the publisher’s standards that you’ll then get a certain amount of time to revise the manuscript to their recommendations.

You'll then find a grant of rights clause listing the rights the author is giving the publisher, the territory in which the rights apply (for instance, the United States and Canada), the amount of time the contract will remain in effect. Basically, what this clause means is that you are transferring ownership of whatever rights are listed to the publisher to do with as he pleases while the agreement is valid. This is where I'm asking you to dredge your memory a bit. Remember when I listed the "bundle of rights" that are yours and are protected by copyright? Here's where they come into play. When you first examine your rights clause, you'll find that your publisher probably wants all of them, and that's not necessarily in your favor. Naturally you want your publisher to have the rights to duplicate and sell your work, otherwise known as primary rights; that's the whole reason you entered into this arrangement in the first place. (Most publishers, however, will allow you to keep your name next to the copyright notice in the front of the book; they just want the right to publish the book, so they don't care if you yourself appear as the copyright owner.) But do you want your publisher to take on ownership of your subsidiary rights (otherwise known as sub rights) to create derivative works, such as screenplays, foreign editions, translations, and audio books? It's a tough call.

Sub rights are a sort of inexact science (what a surprise). Sometimes it's to your benefit to allow your publisher to own and sell these rights; your publisher may already have well-established connections with publishers of mass market paperbacks who'd be interested in printing an edition, or with foreign publishers eager for American books. Or perhaps they're good at getting audio book deals for their authors. If your publisher is a larger house with a separate sub rights department or has a good past track record of successfully selling sub rights for many of their authors, and you also don't have an agent who will help you in the sale of these sub rights (more on this in the agents entry), it's in your best interest to allow your publisher to sell these rights on your behalf and split the profits with you. On the other hand, if you're publishing with a small house that lacks a sub rights department and that doesn't seem to have much clout when it comes to sub rights sales, you're probably better off retaining these rights for yourself and trying to sell them on your own. Think of it this way: why would you give away something that could potentially be valuable to you to another person who's just going to let that potentially valuable thing sit on a shelf and collect dust? You may not make any more headway selling these rights than your publisher would, but at least you retain them so that you have the option to do with them as you please.

Sub rights can be incredibly profitable--sometimes more so than the original book--which is why your publisher, and in turn you, should be so interested in keeping as many of them as possible. These have thus become a big negotiating point. When negotiating with your publisher over sub rights, keep in mind that most publishers tend to split the proceeds from sub rights sales with authors in percentages that favor the author, by 5 or 10 percent or more. Negotiate to get the best deal for you. Determine which rights you want to keep, if any, and which you want your publisher to have. Also decide what percentage of profit will make it worth your while to let your publisher have them. You may also want to add a phrase such as, "All rights not expressly granted to the publisher are hereby reserved by the author." This gets a little knit picky, but it's worthwhile to include. “Rights not expressly granted” could include the right to create and use your name as a website domain, the right to sell author copies, and so on. You can also limit the rights you give your publisher by language or territory, and you can limit the amount of time that the publisher can own specific rights. For instance, if certain rights haven't been sold within 2 or 3 years, you can stipulate that they then automatically revert to you. When it comes to deciding what you want to do with your sub rights, it depends on what kind of potential you and your publisher think the book has for being converted into other formats. Does your how-to book lend itself to a home improvement television series? Does your novel have the potential to be a blockbuster on the big screen? Consider what sort of “life” your manuscript has beyond the bookshelf to determine what sub rights negotiations will be best for you.

Then we come to the lovely advance and royalties clause that determines how and when you’ll get paid. An advance is just what it sounds like: an advanced payment from the publisher paid out before your book is even published. Royalties are a percentage of money that you earn from the sale of each book.

An advance is paid out against royalties—in essence it’s a loan from your publisher. Let’s say you are paid a $5,000 advance against royalties. This means that you get the $5,000 in advance of publication of your book. When your book starts selling, the first $5,000 of royalties you earn won’t go to you; it goes back to your publisher. Any royalties you earn after $5,000 will then be paid to you. If you earn more than $5,000 in royalties, you are said to have earned out your advance, a joyous day in the life of your publisher because many books nowadays don’t even earn that much back.

Advances are usually paid out in 2 or 3 installments: when the contract is signed, when the manuscript is submitted, and when the book is published. Be sure to read your contract carefully to determine whether your publisher expects you to pay back any portions of your advance if your manuscript is rejected, as some publishers expect this.

Royalties are a percentage of money you earn on every book sold. They are often based on an escalating scale—for instance, you might earn 6% royalties on the first 5,000 copies sold, 8% on copies from 5,001 to 10,000, and 10% on copies 10,001 and up. Royalty percentages tend to be lower for paperbacks and higher for hardcovers due to differences in cover price (and thus profitability) of each. Some publishers pay royalties based on the cover price, but this is becoming increasingly rare. Due to rising publishing, warehousing, and distribution costs and the larger discounts being given to booksellers, publishers are more commonly basing royalties on the net profits received by the publisher. Make sure you understand which of these systems your publisher is basing your royalties on and ask how much of a discount they give booksellers and what percentage of the cover price is given to distributors so you’ll have a better idea of how much income to expect from your royalties. You should also find out if nontraditional sales—such as bulk sales to organizations or sales to libraries—are based on a different royalty scale.

If you can, negotiate with your publisher to get a bonus structure if your book achieves bestseller status or wins a literary prize, since these things usually mean increased book sales and subsequently increased profits for the publisher. And be sure to check when you’ll be paid your royalties. Publishers usually pay out royalties in installments during the year, sometimes quarterly, sometimes only once a year.

And what about if you’re using copyrighted material in your manuscript? For instance, each chapter of your novel starts with a song lyric, or you’re using reprints of photographs in your travel guidebook. You’ll need to get permission for these materials. Note the use of the word “you.” Most publishers require the author to go about securing the permissions before publication, and this can be a lengthy and sometimes expensive process. However, if the copyrighted material is something the publisher wants added in (say, additional photos for your guidebook), or if you have to secure a lot of permissions, negotiate with the publisher for assistance, either financial or just help in getting the sources to give permission. Sometimes the clout of the publisher can help you get permission more quickly. But be sure that if getting permission for any material will be important to your book that you work out the details with your publisher.

Beware the option/first right of refusal clause. This clause lets your publisher look at your next manuscript before anyone else does, thus giving them the first chance to either accept or reject it. While this isn’t so bad, be sure to examine the terms surrounding this. Some publishers may say that acceptance of your next manuscript carries with it the same terms as the contract you’re currently signing. This is a lousy deal. By the time your publisher takes on your next book, you’re already an established author and they already have an idea of how your book sold. If your book sold modestly, you may be offered a similar advance and royalty scale as for your first book. But if your book sold very well and had subsequent printings, proving that you’re a valuable commodity to the publisher, it would be pretty crappy to get the same paltry advance and low royalty scale you got the first time around. So be sure that you indicate in your options clause that if the publisher does choose to take on your next project that the terms will be negotiated at the time of acceptance, thereby preventing you from being locked into a contract that could screw you financially.

And be sure that your option clause indicates deadlines for how long your publisher has with your next manuscript—say, 30 days or 90 days. You don’t want to be kept waiting indefinitely for your publisher to make a decision; it’s valuable time you could be using to shop the manuscript around to someone else if your publisher turns it down.

Your contract will also contain a warranties and indemnities clause. This clause basically states that by signing the contract, you verify that you are the sole author of the work in question, that the work doesn’t infringe any copyrights, that it doesn’t contain any deliberately harmful information (recipes containing mushrooms you know are poisonous, for instance), and that it’s free of violations of privacy, defamation, libel, and other potential legal problems. It also states that the author indemnifies the publisher and holds them harmless if legal actions are brought against the book. Although publishers will often help authors somewhat if there are legal problems or will cover authors under the insurance they take out for these very purposes. Sometimes publishers will withhold an author’s royalties towards covering legal fees. So try to cover your bum and be sure your manuscript is as free of potential legal problems as possible. (A little more on these issues later.)

No writer ever wants to think about their book being out of print, but as depressing as the topic may be, it’s important to consider before signing the contract. You should know when a book is considered out of print by your publisher because you want to be sure your rights revert back to you.

One of the most depressing aspects of the publishing industry is how quickly books go out of print. Some cheeses have a longer shelf life than do books. In an industry where the shelf life of a book (the time during which the book is available on shelves in major bookstores) is a year or less, it’s important to know what happens when your book is considered out of print (or OOP in pub biz lingo).

Make sure there’s language in your contract that allows you to get your rights back after your book’s been OOP after a certain amount of time. You should be sure your contract states that your book is considered out of print after a certain amount of time when it’s no longer readily available in bookstores, or after it’s no longer earning a minimal amount of royalties per year.

Obviously this list isn’t exhaustive, because there are so many clauses that make up a publishing contract, but I wanted to try to cover some of the clauses covering rights and payments that can cause writers confusion and angst. I’ll be listing some books soon that list more detailed information on all the parts of a publishing contract that you should use to better familiarize yourself with everything that goes into this complicated—but no longer confusing, hopefully—document.

The Stuff I'm Studying, In the Flesh!

Last night I was having dinner with one of my new roommates, who is completing her fifth year in the chemistry PhD program at MIT (!). We talked for a while about what she does each day in the lab, and then she started asking me questions about the Emerson publishing program. Of course I got excited, because I love talking about publishing, and I told her how much of a crazy hit-or-miss kind of industry publishing is. Then she asked me a question that actually relates to some of the things I'll be studying more in-depth later this semester.

Her parents live in Switzerland and she asked, "Why is it that some books seem to come out sooner in other countries, or that the paperbacks come out sooner in other countries?"

I was then able to explain to her a little bit about subsidiary (sub) rights and how the sale of these rights impacts when books are published in what country. For instance, My Great Novel may be published by Pidal Press in the U.S. in hardback, but the rights have also been sold for it to be published in English and in paperback in France. (Of course there's more to this subject but I'd like to delve into it more deeply as I learn more about it later this summer.)

She had no idea that the whole sale of rights in publishing was such a huge thing, and she seemed genuinely interested. It served to further validate what I'm studying and it also made me think that yes, people who aren't involved in publishing are interested in this stuff too, because they genuinely have no idea what goes on behind the closed doors of the publishing industry. (Not that I know a ton more than they do, having not yet worked in the "pub biz" [as my old coworker used to call it] myself, but I'm just going by what my professors are telling me.)

So there you have it. Relevance! Interest in my studies by someone who is not studying anything remotely related to it! Validation! Fun anecdote! Call it what you will, but it was really cool to talk about the stuff I'm studying outside of the classroom. I just wanted to share/brag about that in here. Longer post on fair use coming soon.

International Copyright: The Saga Continues

Picking up in 1891: 101 years after first adopting federal copyright protection, the United States finally passed an ammendment protecting foreign authors. But, as history (and the previous entry) proves, the U.S. wasn't going to give up without a fight. Or without being somewhat sneaky about things. The protection afforded to foreign authors by this U.S. ammendment involved some smoke and mirrors. For instance, foreign authors could keep their rights but foreign publishers had none. And foreign authors had to follow all sorts of strict conventions, such as registering and depositing copies of their works in the U.S. on or before their date of publication anywhere else in the world. Also, foreign authors' works had to be printed from type that was set in the U.S. The firm restrictions were eventually relaxed somewhat, though they were still far more strict than anything followed by Berne countries.

Meanwhile, Americans discoverd a "back door" into Berne that allowed them to reap the benefits of publishing in foreign countries without having to actually comply by what was set forth by Berne: if a work was first published in a Berne country simultaneously, it would be protected in all Berne countries even if the author wasn't a Berne author. This meant that many American authors were simultaneously publishing their books in Berne countries like Canada or England. This pissed off the Berne countries so they created a protocol that allowed its members to decide if they would deny protection to authors whose native countries didn't provide adequate protection to foreign authors.

At this point, the term "cat fight" is coming to prominence in my mind...

All this back and forth does indeed seem catty, especially when we can see that the majority of the rest of the world was cheerily humming along under the happy umbrella of Berne. Why was the United States so resistant to foreign protection? Because American publishers were reaping huge benefits from the sale of foreign books--books that they weren't paying foreign authors to use.

But by midway through the twentieth century, things absolutely needed to change. The tumultuous first half of the century (war, depression, more war) meant that the tussle over copyright was shelved in favor of other things. But after the United States emerged victorious from World War II not only as a world superpower but also as a huge exporter of entertainment, the need for a less isolated (perhaps even sobbish?) stance on foreign copyright was necessary. The United States still wasn't interested in Berne, whose countries by this point had added "moral rights" that allowed authors to prevent mutilation of their works and whose authors were protected for life plus 50 years (U.S. term was a max of 56 years), so it decided, "If you can't beat 'em, create something that'll placate 'em." Here the Universal Copyright Convention (UCC) was born.

Despite being negotiated under the brand new United Nations Educational, Scientific, and Cultural Organization (UNESCO), the UCC was really created for the U.S. It was the only country that really needed to get itself straightened out in terms of foreign copyright because the rest of the world happily held hands under Berne. By 1955, the UCC went into effect, protecting the United States through a lower level of protection. A minimal protection time period of 25 years was established, so the U.S. was covered with its twenty-eight-year first term of protection. The UCC also got rid of the manufacturing stipulations and the need for a formal registration of copyright. Now all that was needed was for the author to indicate his or her name and the year of publication next to the copyright symbol of a "c" enclosed in a circle.

The fact that the United States had finally caved in, in its own unique way, was enough for the other Berne countries, and authors from other countries started using the UCC copyright notice on their works. This went on for 33 years, until even more changes. (Stay tuned for more on that in the next entry.)

I think one of the things that amazes me so much about the United States' unwillingness to play nice with basically the rest of the world on the copyright issue up until this point is the fact that freedom of speech was purportedly of such great value in the U.S. Free expression and freedom of the press were encouraged and in fact protected since the very infancy of the country. So why then did the same country make it so difficult for authors from other countries (who were freely expressing themselves) to have some level of protection from being taken advantage of? Was it an "our way or the highway" mentality? Did the U.S. feel threatened? Was the U.S. just being greedy and allowing publishers to swindle foreign authors for as long as possible?

International Copyright, Part 1: America versus England, or, Mo' Money, Mo' Problems

So the brand-new United States took the time to protect its authors by creating copyright laws right from the get-go, using laws that were based on those being used in other countries such as England. But even though the U.S. was eager to borrow heavily from England's laws, it wasn't in any hurry to share content fairly. In fact, the United States has often been a rather does-not-play-well-with-others player in the game of international copyright.

For the first 101 years of American copyright law's existence (1790-1891), the act only protected American authors. There was no thought given to foreign authors, but this wasn't a rarity as many other countries also hadn't bothered with protection for foreign authors. In the 18th century, there were very few American authors who could produce books, so the majority of books in America came from other countries. This situation didn't last for long though; by mid-nineteenth century, the list of notable American authors was growing (think: all the "dead white men" with three names you had to read in your literature survey courses), and America was now a contender in the international literary marketplace.

"Hmmm," thought the British, "those rapscallions across the ocean who thumbed their noses at us and were cocky enough to think they could start a country all on their own... the writers over there aren't half-bad."

And while the British were noticing the American authors, they were also noticing the impunity with which American publishers printed books. Sure, they were printing the books of all their Thoreaus and Emersons. But they were also printing works by foreign authors, mostly those of British authors, without securing copyrights and without really caring what the end product was like. This pissed the British off and led them, in 1837, to submit to Congress a petition demanding that foreign authors be protected in the U.S., citing the fact that the "reputation and property" of British authors were being harmed by the uncopyrighted publication of their works in the U.S. The American publication of foreign works was also hurting American authors, the British petition went on to say, because the uncopyrighted foreign works were much cheaper for American publishers to produce than copyrighted domestic works. This meant that an American browsing for a new book to read would be more inclined to pick up a cheap novel by a British author rather than shelling out more for a pricier American novel. Couldn't America see that granting copyright protection to foreign authors would benefit everyone?

It couldn't. So the following year, England took matters into its own hands and began the process of protecting foreign authors by passing the International Copyright Acts. These acts only worked in a reciprocal fashion, however, so while other countries were happily playing along with England, America was still giving it the cold shoulder. It was also keeping its copyright laws basically the same as they had been since their inception.

During these times, authors who were particularly clever were attempting to simultaneously publish their works in both America and England, though this could prove to be tricky because the authors needed to be able to travel from England to America, or vice versa, and reside there at the time that the book was published. Not a particularly easy or effective means of securing international copyright, especially when one considers that in those days travel was, to put it quite frankly, a bitch.

In 1878 a group of authors, artists, academics, and publishers formed the Association Litteraire et Artistique Internationale, an organization that drafted what would would later (1886) become the Berne Union for the Protection of Literary and Artistic Works. This was an international copyright treaty where participating countries would follow the golden rule: treating others (foreign authors) as they (domestic authors) would like to be treated. England signed on. Many countries in Europe signed on. Other countries signed on. The United States did not. Oh, they sent someone along to the proceedings to scope out the scene, but then Congress decided that they had to first think about how America would protect foreign works (if at all). Way to play nice with others, U.S.

The story of international copyright doesn't end there, and I'll pick up on what happened after 1891 in the next entry. But I just have to pause and briefly reflect on things up to this point. The fact that many countries came together and unanimously decided that they should protect the work of authors regardless of their country of origin gives me a warm, fuzzy-ish feeling. The fact that the United States decided to peace out of the Berne Union initially gives me a headache. Why wouldn't this young country willingly join in this mutually beneficial agreement with other countries? Was it trying to prove itself as being independent? Was it unsure of itself? Was it just an example of Congress being its usual ridiculous self? Or was the American publishing industry just to happy raking in the profits? This is something I'd like to explore further, but it certainly bears thinking about.

How did we get here? The birth of copyright

After a horrendous weekend of moving (let's face it, no matter how excited you are to live in a new place, the lugging of boxes and furniture from one place to another is never fun), I'm finally back in gear and back into the swing of all things academic.

I've been reading about the evolution of copyright, and following is a brief summary and my thoughts.

So when and where did copyright come from? It began over 500 years ago with Gutenberg's invention in 1440 of a moveable type press. Before this invention, copying printed works was a royal pain in the behind-or arm. Books were copied one at a time by hand by monks or other scribes. Not exactly an efficient system, and perhaps the cuase of the first cases of carpal tunnel syndrome? But after the printing press was invented, copies could be made much more quickly and efficiently than before, and so copies of Ye Olde Manuscripte were suddenly available to a much wider audience.

But with this glorious invention came a whole new slew of problems for authors. Previous to the printing press, it was very difficult for copies of a book to be made, so authors had no real need for protection against unauthorized copies. Hell, considering how hard it was to produce even one copy of the book, I would have jumped for joy if a monk somewhere had actually wanted to copy my book, so that then I might have a few more readers and two copies in existence instead of just one. After the printing press made multiple copies of any given work the norm, however, the need to protect an author's right to duplicate his or her work came into play.

Authors weren't immediately protected though. Initially, the rights to publish a book went to the printer who first printed the work and not to the author, meaning that if Ye Olde Manuscripte Printer was the first to publish Ye Olde Manuscripte, Ye Olde Manuscripte Printer had the right to publish Ye Olde Manuscripte for as long as they wished and the author had no say. Pretty lousy deal for authors. In the 1550s in England, the Stationers Company was chartered by royal decree to control book printing and distribution. This arrangement benefitted the Crown because they had given publishers the power to control content and act as censors or what would and would not be published. Publishing soon turned into a huge monopoly (and you thought corporatization was a modern-day problem); the original press to publish a book was protected against piracy and authors had no say. To make it even worse for would-be authors, the poor schmucks had to petition to even have their books printed for a set period of time.

Naturally this led to discontent amongst authors, and in 1694 Parliament allowed the Stationers' Licensing Act to expire. After this came the Statute of Anne in 1710, which offered authors 28 years of copyright protection. As a part of registration for copyright protection, authors had to donate 9 copies of each of their published books to major libraries in England and the UK. Clever way to build a library.

MEANWHILE, ACROSS THE OCEAN IN 1787...

The newly formed United States was tinkering around with its Constitution and established copyright as a way to protect the authors whose works would in turn help contribute knowledge to society. A subsequent law, passed in 1790 by George Washington, allowed authors to hold copyright for 28 years and required 1 copy of the published work to be deposited with the local district court clerk and 1 copy delivered to the secretary of state-who at the time was Thomas Jefferson. The American law borrowed from the British one, so despite the fact that the Americans no longer considered the British good enough to rule over them, they still considered their laws good enough to copy off of. (An interesting aside to ponder at a later date: could the Brits have copyrighted their law, thereby rendering the Americans unable to copy it? Don't know the answer but it is interesting to think that laws on copyright were being copied.)

It's interesting to note that even though the First Amendment protected free speech and freedom of the press, copyright was still seen as worthy of protection. The coexistence of the First Amendment and copyright law proved that even though lawmakers believed publishers should be able to print whatever they wanted, the authors who created the words still had a right to be protected from unauthorized copies that would prevent them from profiting from their work.

So, in essence, copyright law evolved from the publishing monopoly that censored and exploited authors in England. Lawmakers realized that authors would have no incentive to create new works that would enhance society unless they were protected from exploitation, and thus copyright laws were established. Copyright protection became an incentive for authors to write; for the most part, authors could not be paid to create, so copyright protection became like the currency authors were given in place of money. Sounds suspiciously a lot like the "psychic currency" we publishing students are told we'll be getting paid in rather than dollars once we get jobs in the biz.