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June 2007

Richard Curtis on
Publishing in the 21st Century

CHAPTER 11

Work-for Hire

IF ONE WERE to compose a Bill of Rights for authors, ownership of copyright to their works would certainly be close to the top of the list. We hold self-evident the truth that if a person produces an original book-length work, he or she is entitled to proprietorship under the law, and to full benefit of its commercial exploitation.

Yet, it has not always been so. The piracy of literature by printers, publishers, and booksellers has been common practice throughout the world from the dawn of the printed word, and was prevalent in this country until well into the present century. Until the establishment of the first International Copyright Convention in 1891 and its refinement after World War II, respect for the sanctity of copyright was largely a matter of gentlemen's agreements based strictly on self-interest—don't steal from me and I won't steal from you.

There are still vast areas of our globe where publishers think nothing of stealing and distributing works of literature from authors and publishers of law-abiding countries, and the emergence of electronic and online media have made it a big business. A recent New York Times article asserted that piracy of books, videotapes, music, and other intellectual property in China may be condoned if not sponsored and supported by the nation's government.

Lest you become too smug that such barbarities cannot happen here, I am compelled to report my observation that the appropriation of authors' copyrights by publishers and book packagers seems to be on the upswing. Nothing so gross as piracy, mind you. More, I would say, like extortion. But the effect is the same: the deprivation of authors' rights to enjoy the fruits of their labors. The fruits of an author's labors include such bounties as royalties on copies of books sold, participation in reprint income, and revenue deriving from the exploitation of serial, translation, dramatization, electronic, and other subsidiary rights. Not everyone shares the conviction that the enjoyment of these monies is a natural and God-given right, however. Indeed, not everybody behaves as if the enjoyment of these monies is protected by statutory law.

The engagement of writers for flat fees falls into a category of employment known as "work-for-hire." Work-for-hire is a doctrine defining the relationship between a copyright owner and a writer. Note that the owner may or may not be an author; he, she, they, or it may be a corporation (like a movie studio or television production company), a syndicate of investors, or an individual who is not a writer. These entities hire writers to perform a service in pretty much the same way a homeowner hires a cabinetmaker, a painter, or a gardener, except that in this case the task is writing a text for the "boss"—the creator or owner of the idea. The owner is then free to exploit the text in any way he desires with no further obligation to the author.
Some provisions of the 1976 Copyright Act attempt to define the work-for-hire concept, but they do not do so very clearly and have left the door open to unfair exploitation of authors.

I hasten to make clear that all work-for-hire is by no means exploitive. Authors sometimes voluntarily sell all rights to their copyrighted work. And there are numerous situations in which work-for-hire may be considered reasonable and acceptable by normal ethical standards. For instance, the engagement of writers to do articles for an encyclopedia. The copyright holder of the total work is the publisher, and because it would be impractical and uneconomical to pay a royalty to each contributor, the normal arrangement is a one-time fee. As long as the fee pays for the time and effort, the author is usually content, particularly if he or she gets byline credit, for a contribution to an encyclopedia bears great prestige that helps the author endure the low wages.

Another application of the work-for-hire concept that most of us accept unquestioningly is ghostwriting. Authorities or celebrities who cannot write well or are too busy to write their own books engage writers to draft books for them. Although the principal author may agree to share some of the proceeds of the book with his ghost, the principal is the sole signatory of the contract with the publisher, thus making him the copyright owner. He then signs a separate agreement with the ghost, removing that person from claim to copyright and direct participation in revenue generated by publication of the book. Occasionally, what may have seemed a fair fee at the time it was negotiated with the ghostwriter may not seem so if the work demanded of him turns out to be excessive, or if the book becomes a runaway best-seller. Under ordinary circumstances, however, the ghostwriter accepts his lot as a worker-for-hire, and may at least secure more work for himself by telling publishers, "That book was actually written by me."

If all this seems a bit remote to you, let me point out that many garden variety authors employ other writers on a work-for-hire basis. Take the creator of a popular fictional series who, growing bored with his characters or too busy with other projects to turn out new books in his series, farms them out to other authors. He signs contracts with his publisher, then negotiates separate agreements with ghostwriters to produce first drafts or even final ones for him, which he passes off as his own. In some instances the publisher is aware of the existence of these subcontractors, in others it is not. But seldom is the subcontractor a signatory to the publication contract, and though he may receive a piece of the action as part of his deal with the principal author, it is not strictly a royalty in the sense we usually understand it, and of course the ghost forfeits any claim to copyright ownership.

Although I'm not at liberty to detail the many instances I know of authors who farm their work out, fans of those authors might be shocked to learn that their favorite books are produced, as it were, in a shop. There is in particular one best-selling male action-adventure series whose creator, to my knowledge, no longer writes his own books at all. In conjunction with his publisher, he puts the production of his books on an assembly line basis. A series "bible" describing the characters and general story line of the series is issued to writers, who submit plots for the approval of the creator and/or the publisher. Upon approval, a contract is issued to the writers. At first glance it looks like a typical publishing contract, but closer scrutiny reveals that the copyright is owned by a corporate entity; the advance is not called an advance (it's simply called a "sum"); and the royalty is not called a royalty (it's called a "bonus payment") and is expressed in cents rather than as a percentage of the list price of the book, presumably to further remove the writer-for-hire's labor from any association with creation of the work. I estimate the payments to the writer-for-hire to be approximately one-fourth to one-third of the traditional royalty that might normally accrue to him if he were the original creator of the book. I assume that the balance of the royalty is shared between the originator and the publisher.

In the above example, the originator of the series is in effect a packager. Packagers, as I have stated elsewhere, are sui generis. They are not exactly authors even though they frequently create the ideas and story lines for books; they are not exactly agents even though they take a kind of commission for their roles as go-betweens among authors and publishers; and they are not exactly publishers even though they buy the services of authors.

I've never been comfortable with packagers either in theory or in practice. Packagers are both buyers and sellers at the same time (so that "broker" might be the most apposite synonym), and there is inherent in their function the potential for mischief, abuse, and downright dishonesty. Some book packagers are as honest, open in their business dealings, and caring about authors as is possible under the circumstances. But a number are little short of rapacious, hiring authors for the smallest fees they can get away with and paying them no royalty or participation in subsidiary rights revenue whatsoever, while selling their books to publishers for very large multiples of what they pay the writers for them.

Furthermore, while these packagers manage to sell publishers on the concepts of books or series, they often contribute little or nothing by way of editorial input or guidance. An author is given the most general ideas ("How about a Dirty Dozen set in Bosnia!"), then is required to create characters, situations, and plots—create, in short, the entire series. The packager's argument is that were it not for his initiative in creating an idea and selling it to a publisher, writers would have no work and no pay. As the level of pay is all too frequently subsistence, the cause for heartfelt gratitude frequently escapes the writer-for-hire.

Because many publishers don't particularly care where their product comes from as long as it is good, is delivered on time, and is not too expensive, they provide fertile ground in which packagers can flourish. That is one key reason for my concern that the packaging phenomenon, with all the implications of author exploitation that it represents, is on the rise. The other reason is that some publishers are taking their cues from packagers and doing the same thing. They cook up series ideas in their offices, produce a series bible, then hire writers to write books in the series under a house pseudonym. Because such publishers maintain that they created the series, they have been scaling back advances, royalties, and author participation in subsidiary rights for those books, and their contracts are, in fact if not in actual language, work-for-hire agreements. In many instances, the publishers offer flat fees to authors interested in writing books for publisher-originated series, take it or leave it.

Of more recent vintage, but a phenomenon that will grow to major proportions as time goes by, is the use of writers-for-hire for electronic and multimedia works, where text is but one element along with still and moving pictures, music, animation, etc. And the exploitation without compensation of electronic versions of stories and articles for magazines has become a source of bitter warfare between writers groups and newspaper and magazine publishers.

You might infer that I refuse to do business with the more exploitative of packagers and publishers, but that is not the case. Some of my clients are hungry, and occasionally some are desperate for any kind of work, and though I may judge certain packagers and publisher-packagers harshly, practically speaking I don't feel it is fair for me to turn down, out of hand, work for clients who might be grateful for a few thousand dollars and a job that gets them through a financial squeeze or crisis. It's easy for an agent to tell an author, "I'd rather see you starve than accept that deal"; it's not so easy for an author to agree with him.

f, after a writer has weighed all aspects of a work-for-hire deal, he or she still wants the job, then the only thing an agent can do is negotiate what few safeguards he can, such as making sure the writer is not legally liable for changes or additions to his text rendered by the packager or publisher. The quality of help an agent can render in these cases is the equivalent of telling the tenant of an avaricious landlord, "You have two choices: sign the lease or don't sign the lease."

Because packagers prosper from a supply-and-demand dynamic that is clearly—at this time, anyway—in their favor, there is little that individual authors or agents can do to roll conditions back. It must be done through collective action. Sad to say, authors and literary agents are scarcely closer to effective collective activism than they were when I started advocating it in my column years ago. So if you've been holding your breath, let it out.

CHAPTER 12

Audio

IN CASE YOU'VE been in a coma for the last few years, a revolution has taken place in the audio and video fields. After a period of uncertainty following the technological refinement of Walkman-type audiocassette players, automobile audiocassette systems, and home videocassette recorders, the audio and video industries have found their legs. Consumer demand for audio and video electronics has permanently altered our nation's habits: people would no sooner leave their homes without their audio headphones than they would without their keys, and the videotape recorder has become an indispensable component of the television set that spawned it.

Because of the close relationship between these technologies and the book publishing business, many publishers have jumped into the creation, production, and distribution of audio- and video-cassettes. Most of the publishers that are allied to entertainment complexes are taking advantage of the know-how, facilities, and product inventories of their affiliated companies to develop lines of book-record, book-cassette, and book-film tie-ins. Most bookstores of any appreciable size have departments devoted to selling audiocassettes, videocassettes, or both. And although the outlets for the sale or rental of videocassettes are at this time not always connected with bookstore chains, it is clear that in due time we will see a consolidation of the videocassette retail market and its eventual absorption into the bookstore chain system—or the other way around.

Just as political revolutions take a long time to affect the lives of rural people, the electronics revolution has only recently begun to filter down to the point where it affects the livelihood of the writers whose work is the basis for so much of the audio and video businesses. But the changes can now be palpably felt in the form of provisions in book contracts. Language over which very little fuss was made a few years ago is now being scrutinized and haggled over by publishers. For a while we experienced great uncertainty if not downright confusion about contractual standards. What is a good royalty on audio deals, anyway? Can one license the same property to two different audio companies? Should there be reserves against returns in audio as there are in the book business? However, some coherent trends have developed, and the time has come for authors to know what they are.

Provisions for audio and video have existed in publishing contracts for a very long time. It's just that the publishers didn't call the media "audio" or "video." Typical is a 1969 Doubleday contract in which the appropriate provisions are headed, "Sound Recording, Filmstrips, Teaching Machines, Microfilm":

Author grants to Publisher the sole and exclusive right to sell the Work or parts of it for mechanical reproduction and transmission, including, but not by way of limitation (a) sound and picture recording or any other method hereafter known or devised; (b) filmstrips; (c) programs for machine teaching; (d) microfilm and photocopying (except motion picture), or any other method now or hereafter known or devised for information storage, reproduction, and retrieval.

Today, publishers' legal advisors are rewriting contracts with more precise definitions of "audio" and "video," definitions that painstakingly differentiate those media from such kinfolk as television, radio, stage, motion picture, computer software, records, and electronic publishing. And whereas those mechanical and electronic recording rights were as often as not ceded to publishers by authors and agents who didn't see much value in them, now those rights have become serious bones of contention, and often they are deal-breakers. Several publishers that are tied to entertainment companies insist on those rights as a matter of policy whether they have any real intention of exploiting them or not. And even when they don't have any such intention, they have proven highly uncooperative in licensing those rights to competitive companies. Some publishers that are not allied with entertainment companies nevertheless try to get a position on electronic rights just in case. One publisher, for instance, installed language in the boilerplate of its publishing contract stating that in the event the author controls any rights (such as movie or audio) "which the publisher has the capacity to exercise itself, the Author agrees to give the publisher the right of first refusal for the separate acquisition of such rights before licensing such rights elsewhere." In other words, if the owners of this publishing company buy or start a movie, audiotape, or videotape company, you would have to submit your book to that company before being free to make a movie, audio, or video deal with another firm.

Although we often talk about audio and video in the same breath, in terms of adaptation of your work, the two media are as far apart as their wavelengths are in the electromagnetic spectrum. As far as the immediate future is concerned, the chances are better that you will be dealing with audio than with video. By far, the predominant application of video right now is adaptation of motion pictures for use on home videocassette recorders. If your novel is adaptable to a dramatic medium, it will be acquired by a movie or television company, not a videotape one. If your book is nonfiction, the odds that it will be acquired by a videotape company are low unless it is a best-seller and has distinctive visual potential. There is a budding industry of making films originally on video, but the above remarks still stand.

Audio, on the other hand, is far cheaper to produce, requiring infinitely less technology, personnel, and capital to stimulate the listener's imagination than movies or video require to entertain the viewer. Therefore this chapter focuses on audio.

The terms for audio deals generally follow those for book deals—with some interesting exceptions. The tapes that are sold through bookstores are offered at discounts resembling those that apply to the book business—starting at 40 percent. But unlike the prevailing method of calculating book royalties on the list price, audio royalties for the most part are based on the net receipts after discount. If a tape package retailing for $50 is sold to a bookstore for 40 percent off, the licensor's royalty will be based on the $30 actually received by the tape company.

The royalty scale is generally in the area of 7 to 10 percent, and if you're weighing a royalty based on list price versus one based on net, in the above example you would be receiving $2.10 to $3.00 royalty per set instead of the $3.50 to $5.00 you'd get if your royalty was calculated on the list price. That's quite a difference!

Unlike book publishing, where royalties are accounted twice annually, audiotape royalties are accounted quarterly by many companies, and a few firms send statements and checks on a monthly basis. Tapes sold via mail order are usually not returnable, but those sold in stores are, and producers therefore hold a reserve of royalties against possible returns, as in the book business.

An even more interesting and important difference is that while book publishers insist on exclusive rights in their territories, many audiotape producers will consent to your selling the same material to their competitors for distribution in essentially the same, or at least in overlapping, markets. We recently made deals with no fewer than three different audio producers to adapt the same best-selling nonfiction book for audio sold in the retail, direct-mail, and subscription markets. Also, you can sometimes distinguish between an abridged audio version of your book and an unabridged one, and sell them to two different publishers.

When literary works are adapted to audio, the authors frequently ask to perform the reading themselves. Unless the author is a very big name and/or has a professionally trained voice, the producers prefer to employ professional actors or narrators to read or perform the adaptation. In cases where the producers do agree to let the author read his or her own work, there is usually no additional performance fee paid for the privilege though it's not unreasonable to have expenses paid by the producer if the author has to travel to the sound studio.

Advances at this writing are low compared to book prices—$5,000 or less for most properties—and there isn't that much leeway even for star authors of best-selling books. That's because the volume of sales on even popular audiotapes is lower than it is for popular books. A good sale of a single cassette is in the low to mid tens of thousands of units; a good sale of a six-cassette package is anything over seven thousand units.

Although the tape companies generally acquire or try to acquire world rights, translations are not much of a factor right now, and if you try to restrict the tape producer to worldwide English language rights only, or even U.S. and Canadian, reserving British and translation rights for yourself, you probably won't be jeopardizing your deal.

Because certain audio rights, such as exploitation of the soundtrack, are conveyed to a movie or television producer when you sell your work to one, you must be very careful when making an audio deal not to sell anything that might threaten a movie deal later on, or conflict with rights already conveyed to a movie producer. Straight reading of your book is usually okay, but when you venture into any kind of dramatization (even two different voices conducting a dialogue) you start to run the risk of treading on territory owned, or coveted, by a movie or television producer. So use the utmost caution when negotiating your audio deal, and consult your agent or lawyer about the appropriate language to be employed in the contract.

What sort of literary material is attractive to audio producers? One, of course, is fiction, in the form of either dramatizations or readings. Despite my warnings about selling dramatic audio rights, most novels are not suitable for acquisition by movies and television, because they aren't dramatic or visual enough. Those same books may well be adaptable to the audio medium, where much drama can be made out of little content, the listener's imagination furnishing the rest of the entertainment experience.

Straight readings are also very popular, particularly if the narrator has an appealing voice. Children's audio is a very big market. Some genre fiction, such as romance, mysteries, westerns, and science fiction, has been successfully adapted, but audio publishers usually demand brand-name authors in those categories and turn their noses up at novels not published in hardcover and in big printings.

The other important category of material sought by audio producers is instructional: self-help, how-to, and the like. Video is great for many instructional topics that call for high visual content or activity such as cooking, exercise, sports instruction, and hobbies, but for topics that don't require visual stimulation, such as language instruction, business advice, or religious wisdom, audio is the perfect medium. A critical reason is the portability of audiotapes: they may be listened to while one is doing something else, like walking to work, jogging, or commuting. For most people these are not particularly pleasurable activities, and they feel they could be using their time to improve themselves intellectually, emotionally, or spiritually. The answer, obviously, is for them to listen to a tape.

The audio business is very young, and there are a great many companies fighting for a place in the sun. A couple of years ago there was a sort of feeding frenzy as these firms snapped up all sorts of literary properties in order to have something, anything, for their lists. But a slowdown ensued as the producers, distributors, and sales outlets paused —to observe just what was selling. What they discovered was that audio buyers are not unlike book buyers: they look for the familiar name or the unique gimmick or premise.

One last but critically important criterion: audio publishers almost always insist on publishing their editions simultaneously with the first printing of the book. That means that as soon as you sell your book to a publisher, you must get cracking on submitting it to audio publishers. If your book publisher has the option to do the audio version, insist on a fast decision. If your publisher declines to do it, you can get it to other audio houses in time for them to get their edition out at the same time as publication date of the book.

All the best,

Richard Curtis

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