Category Archives: Business

A interview post with Jen Greyson.

I think it’s safe to assume most authors would jump at the chance to work with the publisher behind Fifty Shades of Grey, one of the most successful book titles of the past few years. For author Jen Greyson, this was the dream scenario—and it came true! I had an opportunity recently to sit down and ask Jen a few questions about her experience working with the publisher. Read on, and come back tomorrow to hear the rest of the story.

EB: First of all, Jen, could tell us about your first book?

JG: Lightning Rider is about Evy Rivera, the first female time traveler, but she has no idea that she comes from a long line of lightning riders—travelers who use lightning to cross dimensional chess boards and affect history. In fact, none of her living family knows. Their mentors lost them about six decades ago, but they haven’t been looking for a girl… because there’s never been one. Evy’s a badass, complete with lightning bullwhips and an attitude to match. Her first historical alteration takes her back to ancient Spain where her fate tangles with a Roman warrior set on conquering northern Spain. Together they must work to defeat a legendary man in order for Spain to fall. The Roman teaches her how to handle her lightning and there’s more electricity between the two of them than any of her weapons. Her mentors don’t always tell her the truth and Evy has to figure out the hidden agendas before she unmakes the wrong history. (The sequel, Shadow Boxer, is also available.)

EB: How did you attract the attention of your publisher?

JR: After E.L. James landed her seven figure deal with Random House for Fifty Shades, I went looking for the publisher that made it happen. I found the tiny Australian house, The Writer’s Coffee Shop, and send my manuscript in. They loved it and I was really excited to learn the marketing techniques they used to make Fifty Shades a household name.

EB: Talk about the initial contract you received from them, and your initial reaction to it.

JR: The initial contract was surprisingly simple and didn’t have a lot of the clauses I’d heard horror stories about. They asked things that I didn’t agree with and because I’d attended a Superstars Writing Seminar and read a lot of Kris Rusch’s blog, I knew that I could push back on the terms that needed adjusting. But I was also willing to give up some things in order to gain their marketing team.

EB: What did you do next?

JR: I consulted with my mentors about several of the terms and they suggested some new ones to include. I already had a list from reading How to Be Your Own Literary Agent and Kris’s blogs/books, but knew that the negotiation process was critical and I needed to ask for everything I wanted in the first swing to begin the back and forth. Because they were an Australian house, their paperback prices were super high, so we did an ebook only deal. The negotiations were all handled via email with some back and forth. In the end, I was happy with the final terms and it was a fair negotiation with lots of back and forth.

EB: How difficult overall was it to negotiate these clauses? A lot of people believe that first-time authors have no leverage and therefore can’t negotiate much of any significance. How does your experience stack up against that?

JR: I was under that myth too! And honestly, had I not gone to Superstars just a few months before, I’d have signed the original contract. I had my eyes opened at that seminar and really understood the positioning I had and was then in a mental place that I treated it like any other negotiation/business deal I’d have done in the non-publishing world.

In my experience, I was able to ask for what I wanted, and for the most part, got everything I asked for. The publishers were willing to negotiate nearly all the points I wanted. There were also a few that I had to willingly give up, so it was a typical business transaction where each side met in the middle.

I was working with a very small boutique/indie publisher. I would imagine every publisher handles things differently, so my experience may differ vastly from what someone might find with a different house.

Even with this publisher, the negotiations for book two did not go as smoothly, and I ultimately did not accept their second contract because I didn’t feel the terms where acceptable. We negotiated for a couple months and couldn’t come to an agreement… so even with the same author, same publisher, the experiences were vastly different.

Come back tomorrow for the interview’s conclusion.

Guest Bio:
From the moment she decided on a degree in Equestrian Studies, Jen Greyson’s life has been one unscripted adventure after another. Leaving the cowboy state of Wyoming to train show horses in France, Switzerland, and Germany, she’s lived life without much of a plan, but always a book in her suitcase. Now a wife and mom to two young boys, she relies on her adventurous, passionate characters to be the risk-takers. Jen also writes university courses and corporate training material when she’s not enjoying the wilds of the west via wakeboard or snowmobile.

The Basics of Copyright

March 12, 2014

fictorians

Business Guest Posts Legal Issues The Writing Life 1 Comment

A guest post by Scott Boone.

Why are we talking about copyright?

As a writer, copyright is one of your primary assets. I’d put it right next to your reputation. If you are trying to build a career, copyright provides you with a legally enforceable means to reap monetary benefits from your work. It also gives you a high level of control over what is done with your work. Realize that what that means is that once you give up the copyright (by transferring it to someone else), you lose both, and you are limited to whatever the contract gives you.

What is copyright?

Copyright is a set of rights in a work of authorship. The exact scope of those rights differs slightly from country to country, particularly with respect to limitations and to moral rights, but the basic ones are the same. In the US, copyright gives the owner the exclusive right to reproduce the work, to prepare derivative works based on the work, and to distribute copies of the work. US copyright also gives additional rights depending on the types of work: to publicly perform the work (conduct a book reading, put on a play), to publicly display the work (hang a painting in a gallery), and to digitally transmit an audio work (streaming a sound recording).

These rights are “exclusive.” That means that they give the holder of copyright the power to prevent others from doing them. They do not affirmatively give the copyright owner the right to do them. So, the owner of a copyright in a work might not be able to distribute the work if some other law made it illegal to do so (e.g. because it was obscene or defamatory).

The rights last for a long time. In most countries, the duration is set at the life of the author plus an additional 70 years.

Importantly, copyright can be transferred in small bits and pieces. In other words, you do not have to transfer all the rights as one unitary block. You can limit a transfer by time (e.g. 6 months from publication for a short story) or by geography (e.g. North America) or by type of copy (e.g. hardback or trade paperback or eBook). The key is not to give away more than what a publisher is paying you for it.

What does it take to get copyright?

For the vast majority of countries, you simply need to either (1) create the work or (2) create the work and fix it in a tangible medium of expression. That’s the standard set for countries that are members of the Berne Convention (166 countries and the Holy See). That’s it. Now, the US gives you some nice benefits for doing more (registration and notice), but it’s not required for obtaining copyright.

US Copyright Law

I’m going to focus the rest of the discussion on US copyright law. Partly because that is what I know best and partly because the US cut its own path in copyright law for a long time and so has some differences in its law and lingering confusion among its creative professionals. Essentially, most of the rest of the world agreed on the basics of copyright in the late 19^th century and the US dragged it feet screaming it didn’t want to play for the better part of a hundred years.

Registration – Not required, but recommended

Registering your work with the Copyright Office is not required for you to obtain copyright. Remember you have copyright in your work as soon as it is fixed in a tangible medium of expression. However, registration does convey significant advantages that you may want to consider. First, after five years, registration of the work serves as prima facie evidence in a lawsuit that the registrant owns the rights in the work. In other words, it shifts the burden to the other party in the lawsuit to prove you don’t own the copyright. Second, timely registration of your work makes statutory damages available to you in an infringement lawsuit. Actual damages are often quite hard to prove. So having the option of statutory damages, where the court just sets a dollar amount for each work infringed, can be quite helpful. Third, timely registration also makes attorney’s fees available if you prevail in an infringement suit. If you win a suit, the infringer has to pay your attorney’s fees. The latter two benefits can make a huge difference in whether it is financially worth it to pursue an infringement claim. They can also serve as a large sword hovering over infringers, making them more amenable to settlement.

So what constitutes “timely registration”? A published work is timely registered for these purposes if it is registered either within three months of first publication or before the infringement begins. An unpublished work needs an effective registration date prior to the infringement.

Copyright Notice – Not required, but useful

Copyright notice is either the word “copyright” or the copyright symbol (a ‘c’ in a circle) followed by the date of first publication and the name of the copyright holder.

Before the US became a signatory to the international copyright treaty, the Berne Convention, copyright notice used to be required for obtaining any federal copyright protection. If you published the work without copyright notice, it was dedicated to the public. In other words, it was not protected by copyright and was free to all. However, since 1989, the US has not required copyright notice. This was a part of the US harmonizing its law to the international standards set by the Berne Convention.

But you still probably want to put copyright notice on your published works. First, it tells the world that someone is claiming the rights in the work. There are still people out there who think what they find on the internet is free. Second, copyright notice removes the statutory defense of “innocent infringement,” a defense that can lessen damages in an infringement suit. Lastly, it is cheap. In fact, it’s pretty much free. So why not do it?

You will note that I did say “put copyright notice on your PUBLISHED works.” I specified published works because you can create confusion about the works publication status if you put copyright notice on something that has not yet been published. If you submit a work to an editor with a copyright notice on it, the editor may think it has been previously published because the industry practice is to use copyright notice after publication. At the very least, the editor will think you do not know how the industry works or think they may have a potential problem with prior publication. Do you really want to create more hurdles for yourself?

Guest Writer Bio:
M. Scott Boone lives in Atlanta, Georgia, where he works as a law professor in order to support a clowder of cats. He writes about legal issues affecting writers at writerinlaw.com. When not writing or teaching, he is a self-proclaimed soccervangelist.

Intellectual Property – What Is It?

March 11, 2014

fictorians

Business Guest Posts Legal Issues The Writing Life 1 Comment

A guest post by M. Scott Boone.

One of the very first things I teach my first year law students is the difference between what a layman thinks property is and what a lawyer thinks property is. If we were to ask most non-lawyers what property is, they would give us examples like a ring, a car or a parcel of land. However, a lawyer (or at least one that has taken my property class) would say that property is a set of rights in a thing. So property is a bundle of rights that attaches to the ring, the car or the parcel of land.

Intellectual property is also a bundle of rights, but unlike personal property (the rights in a car) or real property (the rights in a parcel of land), the thing to which the rights attach is not physical. Instead the thing is an intangible such as a work of authorship, an invention, or a source identifier.

Because intellectual property covers an intangible while personal property covers physical objects (called chattels), both types of property can be embodied in the same object. For example, a book is a physical object made of paper, ink and binding materials. As such, an individual can have personal property rights in it. At the same time, the book represents an embodiment of an intangible work of authorship. Thus, copyright applies to it as well. Note that each type of property is frequently owned by different people. You might own the personal property rights in the book, but the author or publisher still owns the copyright rights in the work of authorship.

The three primary types of intellectual property are copyrights, patents, and trademarks. Trade secrets are a fourth type of intellectual property, though you will see debate as to whether they are better characterized as property or torts. Rights of privacy and publicity are torts often listed as types of intellectual property. Finally, there are a number of very subject matter specific types of intellectual property, referred to as sui generis protections; examples include federal protections for the designs of boat hulls and semiconductor chips.

Let’s look at the basis of the three main types: copyrights, patents, and trademarks.

Copyright subsists in any original work of authorship fixed in a tangible medium of expression. It is based almost exclusively on federal statutory law, primarily the Copyright Act of 1976. Examples of types of works that copyright attaches to include music, written works, visual art, computer software, and audiovisual works.

Copyright provides a set of six exclusive rights – to reproduce the work, to prepare derivative works based on the work, to distribute the work, to display the work publicly, to perform the work publicly, and to transmit a digital audio performance of the work. The last three apply to only certain types of works. Creation and fixation are the only requirements for obtaining copyright, but registration of the work and copyright notice placed on copies of the work can provide additional benefits.

Patents are grants of exclusive rights and can be gained in the US only through an involved application process before the United States Patent And Trademark Office. The US has three types of patents: utility, design and plant. Utility patents are what people typically mean when they say patent; for inventions that are novel, nonobvious and useful, utility patents provide the exclusive right to make, sell, use, or import the patented invention.

Both copyrights and patents provide exclusive rights. That doesn’t mean that they are kept behind a velvet rope and your name needs to be on the bouncer’s clipboard. What it means is that what you get is the right to exclude others. This distinction is best understood through what exclusive rights are not. Exclusive rights do not provide the holder a right to use the work in and of themselves. For example, you might have a right to exclude others from making copies of your book but might not be able to sell copies yourself if your book violates some other law (for example, if it is defamatory or obscene). In the case of patents, you might have exclusive rights to a new pharmaceutical drug but not be able to sell the drug because you do not have FDA approval.

The purpose of both copyright law and patent law is to create incentives that ultimately benefit society as a whole. They exchange private property rights for the creation and publication of works of authorship and inventions. Essentially, both bodies of law say, “If you put in the work and tell us about it, we’ll give you exclusive rights that you can exploit in the market.” Note that modern US copyright law has removed publication component as a requirement for gaining copyright.

Trademarks serve as identifiers of source. In other words, a mark (in the broadest sense) is a word, image, product configuration, or product package that communicates to a consumer the source of a product or service. Examples include the term Xerox, the apple silhouette with a bite out of it used by Apple Computers, and the curved shape of glass Coca Cola bottles. Trademarks originated in the law of unfair competition but are treated very much like property today.

The owner of a trademark can stop someone else from using the same mark or a similar mark that is likely to cause consumer confusion as to the source of goods or services, and, in the case of famous marks, is likely to dilute the mark’s distinctiveness. The purpose of trademark law is to prevent consumer confusion and to allow entities to develop goodwill in their provision of products and services. The latter is then understood to create incentives to provide higher quality goods and services. Trademark rights are obtained by using a distinctive mark to identify the source of goods or services. As with copyright law, registration is not required, but registration can convey significant advantages.

Literary Agents are Still a Good Idea . . . Sometimes

March 10, 2014

Frank Morin

Business Frank Morin Publishing 1 Comment

When the ebook revolution first began a few years ago, people rallied into two very distinct camps: one was the camp of the revolutionaries who pomoted the ebook-only route and
proclaimed the death of traditional publishing and teased those who still believed in the ‘old ways’ of being dinosaurs.

The other was the traditionalist camp scoffing at the young upstarts and their wild west approach to books, promising that no good end could come to those who started down that dark and unproven path.

It was a pretty exciting (some might say nerve-wracking) time, and no one was sure which camp would ultimately win the war of words.

The situation reminded me of the Reeses Peanut Butter Cup commercials arguing about chocolate vs peanut butter. And like the commercial, reality seems to have found a way to bring those two great approaches to book publishing together. It is no longer an either/or discussion.

The most recent evidence suggests that the market is stabilizing. Ebooks now make up a large part of the new landscape, particularly the US market, while traditional publishing has survived the coup and has stabilized. The good news is that more books are being sold through both mediums. As of today, neither ebooks nor traditionally published physical copies appear to be heading the way of the dodo any time soon.

That’s great news for writers.

But the world has definitely shifted and writers need to approach this new world intelligently. The two markets are different, and different types of books tend to fit better in different slots, so writers need a plan.

As Brandon Sanderson, best-selling fantasy author recommends, it is a good idea to take shorter novels that can be produced more quickly (every 6 months max) and publish them as ebooks while taking longer novels like epic fantasy and publish those via traditional publishing, probably at the rate of one book per year. It makes so much sense that most of the authors I speak with are considering or actively pursuing the Reeses Approach, trying to establish a presence in both markets to leverage different strengths in each.

That is the approach I am taking.

Last year I entered the ebook world with an urban fantasy novella, Saving Face. This year I will complete and e-publish a trilogy set in the same urban fantasy setting. Those books are the beginning of my indie publishing market penetration, the chocolate in my Reeses.

At the same time, I still chose to secure the help of an agent, and am working with him to find a traditional publisher for my big fat epic fantasy novel, and another large YA fantasy novel. The signs are promising, so hopefully deals will be struck with both of those series this year. These are the beginning of my traditional publishing market penetration, the peanut butter side to the equation.

Some people ask, “Why do I need an agent now that we have ebooks?”

The answer is, “You may not.”

If you are convinced your only road to publishing is to directly e-publish your own novels as an indie author, or perhaps go with an ebook-only publisher like Musa Publishing, then an agent is not going to be able to add any value to you.

But in the traditionally published book world, agents still make a lot of sense. They not only have access to many publishers that authors just cannot reach, but they have established relationships with sub-agents to sell their authors’ works internationally. Those international sales can provide a huge advantage for authors, as the ebook revolution has not made such inroads in much of the rest of the world and physical copies still make up the majority of book sales there.

So when a writer decides to pursue traditional publishing for some of their works and they find an agent who extends an offer of representation, the next step is to establish the writer/agent relationship.

This generally results in a short legal document that both parties sign that lays out the agreement between them. It should include the percentage commission the agent expects to receive from the various types of media through which the books can be marketed. For example, a common commission rating is:

US Rights: 15%
UK or Foreign Rights: 20% inclusive of sub-agent’s commission. 15% if direct.
Translation Rights: 20% inclusive of sub-agent’s commission. 15% if direct.
RADIO 15%
THEATRE 15% Subject to negotiation
TELEVISION 15% Subject to negotiation
NEWSPAPER & MAGAZINE ARTICLES, S,SHORT FICTION,ANTHOLOGY 15% when applicable (7.5% when contract vetting only)
FILM 15% Subject to negotiation

The agreement should also include a termination clause, which allows for either party to terminate the agreement, usually with a month’s prior notice. Generally the agent still collects commission on those works which were sold through them, and will collect commission for any works sold within a set period of time after the termination of the contract if they were the ones who submitted those works to publishers (usually 90 day window).

Given that many authors now follow the hybrid Reeses Approach, it is a good idea to include a clause in any agreement signed that explicitly states that those books which the author directly e-publishes on their own instead of traditionally publishing through the agent and a publisher who will produce physical copies are exempt. But any ebook royalties on the electronic sales of those books published through traditional publishers and negotiated with the help of the agent are included in the commissions they would expect to receive.

The agreement should be short, simple, and clear. I am not a lawyer, but that is my opinion.

So yes, I am a believer in the Reeses Approach to book publishing. I did sign with an agent and I am anxious to sign that first deal with a traditional publisher that he is working to line up for me because I see value in getting hard copies into bookstores and gaining access to the international markets that would be difficult to penetrate as an indie-only writer. I am also loving the indie publishing route and am looking forward to completing the new trilogy, getting those books online, and participating in all of the exciting marketing opportunities for indie writers.