And Now, A Few Words From My Lawyer

*This gentleman is the person who got me my rights to my backlist (all but Baen and two of the mysteries) back.  I’ll warn you he told me upfront he wasn’t “right” because he didn’t practice in NYC … but I had a feeling, and I liked his mind, which happens to be twisty, and I insisted.  He still says it wasn’t him, it was the good bond paper.  But I was there, I saw it.  It was him.*

Greetings all, thanks to Sarah’s generosity, I have the opportunity to write a short post here on her blog about … well, I guess I better figure out what the post is about before the end of it.
I’m Robin Roberts and I’ve been practicing law for about 17 years now, first in California and then here in Colorado. My wife and I have a law practice in Denver. Intellectual property law was my original interest in getting into the legal field from my software development career.
Sarah has written often in this space about how the publishing business has been in so much turbulent change in recent years. We noted just a couple of weeks ago Kristine Rusch and Dean Smith’s short-lived Ella Distributing venture – for getting Indie published works into bookstores – which looked like a great idea just months ago but was subsumed by changes in the existing distribution systems. The reality is that the legal field has been undergoing similar chaotic changes in recent decades. I’d like to write about the kind of legal services that I think writers need and how to get those services at a reasonable price. First I want to talk about the areas of law that affect writers – especially indie published writers – and then I want to talk about the need for legal services to navigate those areas.
I have done a bunch of local seminars at various venues where I speak on Copyright Basics for Writers. About an hour and half where I cram in the basics of copyright law – the scope of copyright, the term of copyright (I want to do a short post on why you see authors lodging the copyright of their works in corporations e.g. Tom Clancy, Kevin J. Anderson), work for hire, fair use doctrine and infringement. But for this post, I just want to talk about licensing, which is what a traditionally published author does with his/her work and an indie author basically doesn’t.
Once a work exists in a tangible form, i.e., you’ve pounded out your work on that keyboard and have it saved to that hard drive or USB stick – manuscripts are just so 19th Century – you of course have a choice in how to proceed to publication. If you try indie publishing, the main hurdle in form of legal gobbledygook for you is the terms and conditions of the publishing channels you use – Smashwords, Kindle Direct Publishing and Nook Press. Recent changes in Nook Press got some coverage as Holly Lisle and others dissected the terms of Nook Press’ agreement. That resulted in some changes to those terms, but the reality is that most of the core issues there come from the clauses in those agreements on pricing. That’s really where the important issues arise in those channels – how you are allowed to price your work among the competing channels, the resulting royalties and the amount of control on pricing you surrender. Holly Lisle, on her blog, recently reacted negatively to some changes Nook Press tried to adopt but in reality the indie author still retains far more control of their work in those channels than the traditionally published author on pricing and royalties.
The traditional publishing route presents a far more complex legal hurdle – that of the publishing contract. But first, I want to make a short digression about agents.
Recently, I had a conversation with an aspiring author who was being courted by some name agencies, and I tried to explain to that author why the agency model has been breaking down in traditional publishing but in truth Dean Wesley Smith does a better job of explaining that here. The bottom line is that the agency model is not doing a good job of representing the author’s interests while fighting hard to protect the agencies’ interests. And one of those areas of conflict shows up with the publishing contract. Since your agent is representing many authors to each publishing house, their own interest is dominated by their relationship to that publishing house – not to an individual author. So that conflict of interest can result in an agent not looking out for the author’s interests in the terms of a contract. As another aside, many states’ ethical rules for lawyers won’t permit lawyers to have a percentage stake in a contract that they are representing a client regarding. Think about your opinion of lawyers’ ethics and consider what it means that often attorney’s ethical rules are too strict to allow them to do what “agents” do …
So that is where I recommend that a writer with a publishing contract in hand get that contract reviewed by a good attorney with an intellectual property law background. (Perhaps later Sarah will let me write my rant about the difference between “intellectual property law” and “entertainment law” – but for now, be wary of “entertainment law” practitioners). You want an attorney with some experience in Copyright law issues over and above an understanding of contract law principles because Copyright law includes some provisions that supersede common contract law principles. You want an attorney who is going to make sure you understand the contract you are considering – even if you don’t want to be “bothered” – so that you can make a rational business decision.
There are several important areas for an author to scrutinize on a traditional publishing contract. First, the issue of what exactly you are licensing to the publisher. This sounds obvious but it is a very complex question in modern publishing contracts. The industry has a lot of terms, which it pretends are all “standard” terms, but are not always so, to describe the various ways that the copyright of a work is sliced up. Copyright law provides several “exclusive rights” in a work and the first is the eponymous “Exclusive right to make copies”. And the publishing business divides that up into a score of variations upon “hardcover”, “trade paperback”, and “mass market paperback” and divides up the geography by country. So one can license the mass market paperback rights to a work for the United States, Canada, United Kingdom, Australia and New Zealand countries while the author retains the rights to all the rest. Many variations upon this exist and nothing is truly “standard”.
Also important, when reviewing a contract’s licensing clauses, is understanding what kind of derivative works rights you are transferring. In Copyright law, “derivative work” refers to things that are straight forward transformations of your work like translation to another language. But “derivative works” also refer to transformations to another media like audiobooks, video games, stage plays and screen plays. These rights are sometimes left to the author and sometimes they are transferred to the publisher who then owes the author some share of what the publisher receives. All is negotiable regardless of what an agent or a publisher tells you. Most of the time if an editor says that the contract terms are not negotiable it is more likely that they don’t understand their own contract in the first place.
The second issue of a traditional publishing contract review is how royalties are calculated. Intertwined with this issue is that of how the advance is credited to the author for those royalties. The issue of how publishers account for royalties and advances for multiple books – often in contradiction to their own contract terms – is fodder of a blog post of its own. The music business taught publishers a lot of dirty practices and poring through a publisher’s statement for an author’s titles can be an exercise equivalent to working for the NSA decrypting Russian transmissions. And in fact, there is an undercurrent in the business that publishers have been dishonest in reporting sales for some time. But the author should still clearly understand how royalties are being calculated, what terms like “reserves” mean and the exceptions for when an author will be paid little or no royalty on discounted or clearance books.
Third, an author really needs to understand how and when that author will get the rights returned to him, e.g., how to terminate the contract. Because sadly, too few people think about what happens when the publisher loses interest in a work, and yet the author thinks that there is still market value for it. Termination clauses in publishing contracts are very obtuse, and it is where the objective eye of the attorney is most useful. Because authors have a common practice of reading a contract for what happens when all goes well, and good attorneys read a contract for what happens when things go bad. You should understand how and when you are going to get the rights to the work back when you want to put your work out before your fans, and you want to exploit any market for sequels you think that the publisher is ignoring.
When I’m done reviewing a contract for a client, I either talk to the client about the contract and my concerns or I write a report to them in memo form, whichever they want. What I don’t do is simply say “You can’t sign this” or “You can sign this”. That’s not advice, that’s making their decision for them. A publishing contract is a business decision and the author has to consider the advantages and disadvantages of the contract in detail and make a rational business decision of their own.
The costs of a attorney to review a contract for you can seem daunting. Certainly, sometimes people focus on the hourly rates of attorneys without considering context. An agent is going to take his or her percentage of every dollar that the author’s work ever generates but an attorney is going to bill you for the time actually spent and no more. Because of their overhead, attorneys in such metropolitan areas as New York charge very high rates but there is a lot of competition for legal services in this country these days. Hourly rates in Denver for instance for good attorneys outside the white shoe firms range from $175 to $225 an hour. A review of a publishing contract plus the time spent by the attorney to explain it to you should not exceed more than an hour and a half to two hours billed time. Some attorneys will happily quote a flat fee for services if you are concerned with an indeterminate cost.
The reality is that the legal business is in a similar state of chaotic change regarding how legal services are priced, you have a lot of choices. I currently believe that the large, high overhead, “Biglaw” law firms are a thing of the past and are seeing their pricing models crumble. The future is for smaller, lower overhead and more nimble firms and individual practitioners. I’m pretty sure that you can find such attorneys in your community is you look around.
There are membership based legal services like “Pre Paid Legal” which offer various bundles of services for a monthly fee including supposedly “free” contract reviews. I’ve had some experience with such services and while I’ve seen a few people get good value from them, in general they are not good deals. You have no control over which attorney actually reviews a contract for you, no control over their actual experience and competence or understanding of the industry-specific issues presented and so very uneven quality of legal services. Such plans also purport to offer “discounted” rates for legal services beyond those in the scope of the “free” services, but in reality the attorneys that are on the referral panels for such plans would often discount their services to the same degree for any client that they valued.
Robin D. Roberts

141 thoughts on “And Now, A Few Words From My Lawyer

  1. Thank you! I hope that the answer to all of your “if Sarah lets me” questions is a resounding “Yes!”

      1. Perhaps the Lord intended to set an example when He rested on the seventh day. 😉

          1. You’re fast enough to dodge lightning bolts? Why aren’t you in the Olympics? 8^) Hey, He said He took a day off, and I believe Him. A day off now and then keeps whatever you’re doing from becoming a slog. And then sometimes, you just don’t have a choice, and the Guy Upstairs will see to it you take a day off.

            1. Having worked 7/12’s, I know that after about two weeks your performance starts to suffer. Just one day off is enough to clear your head. I have no doubt why the concept of Sabbath has persisted.

          1. I spent a good part of the afternoon at a gun show talking to a guy about where he works and how they use the lost-wax method of casting Titanium parts for jet engines.
            Last week I was talking to my niece’s husband at a family dinner about his work in recovering recordings that were made on proprietary equipment that hadn’t been for 30 years and discussing the cheapest way to copy old 78’s for archiving. Friday I discovered that Justin Beiber is scheduled to perform in Paraguay.
            Obscure information that fascinates other people also fascinates me

            1. Yep. Fascination is fascinating. For any field of human endeavor that I have observed, I have found that the experts and fans find as much depth and detail as anyone could ask for, even though I can’t see it as an outsider. Some fascinations may be more remunerative than others (as a computer programmer, I certainly know that), but there’s rich detail in almost any field if you just ask questions and listen.

  2. > I recommend that a writer with a publishing contract in hand get that contract reviewed by a good attorney with an intellectual property law background.

    This is good advice; all the thousands of funny attorney jokes aside, in running a small business for 10 years I’ve used perhaps six different attorneys (a different one for each of patent, copyright, trademark, employment – etc.), and a bit of money spent on a good lawyer up front is a lot cheaper than the headaches you can get without one.

    That said, there’s a huge inefficiency in negotiating different contracts with different publishers. In many areas the wastefullness of a new unique contract for each interaction has been acknowledged – many states have default rental contracts, there’s the uniform commercial code, in the startup world Paul Graham has come up with a default seed round investing contract, etc.

    I wonder if there’s a role for a default contract that’s fair to both sides that an organization (not the SFWA bc screw them) could come up with and throw out as a standard.

    Sarah, you’ve talked before about various ideals in the Human Wave / software guild / online publishing / new model whatever space. I think that one very concrete and universally useful thing that such a project could do would be to call a few representatives together (authors, small publishers, lawyers) and hammer out a default publishing contract (maybe with a few optional check boxes) and then throw the result out there as an open sourced standard.

    Such a project would:

    a) be of huge use
    b) help get some attention and respect for the group that initiated it / backed it

  3. One of the services such an association could provide for its’ members would be to keep a copyright / IP attorney on retainer.

  4. The music business taught publishers a lot of dirty practices …

    I’m reminded yet again of Steve Albini’s extremely informative essay on practices in the music industry (it’s the one that famously ends, after analysing how a record with $3 million in sales can leave a band $14,000 in the hole on royalties, with the phrase “Some of your friends are probably already this f****d.”)

    In both industries, it seems, the solution to industry abuses was for the content producers to walk away from the abusers and go indie — and those that have are doing better, overall, than those that haven’t. It’s more work, but at least they’re not $14K in the hole on an album (or book) that grossed $3 million.

          1. Given that most TV I watch these days is Yogscast, or foreign, I believe the betting window is already closed.

            *Ok, technically, Yogscast is foreign too.

              1. “That’s an awfully nice everything you’ve got there…”

                That phrase now only happens in Louis/Simon’s voices, at least in my head.

      1. By definition, no “Hollywood” isn’t. Hollywood *is* the big studio system.

        You’re already seeing a rise in “independent” movies however.

        Here as in all things where vice goes the rest of the arts follow.

        1. By definition, no “Hollywood” isn’t. Hollywood *is* the big studio system.

          Precisely. What Foxfier meant (if I understood her correctly, and in this case I’m 100% positive that I did) is that Hollywood is the next exploitative industry that will see indie producers walking away from their corrupt system.

        2. That’s why I suggested they’d be next in the “getting nimble little guys stealing their lunch because big guy uses creative accounting” parade.

    1. And this is how the song “Death On Two Legs (Dedicated To…)” wound up on _A Night at the Opera_…. >:)

      (And probably explains a large part of why no one’s seen John Deacon since Freddie Mercury died — guess who wound up handling Queen’s day-to-day business….)

  5. Presence of a good IP lawyer in these forums is most welcome.

    The future is for smaller, lower overhead and more nimble firms and individual practitioners.

    This strikes me as a description of the future of commerce in general and ONLY those projects which require massive capital investment and manpower will accrete large, inefficient corporate structures around them. IOW, in the future, we will all be cottage industrialists.

    Wonder what that portends for commercial real estate. Will all those skyscrapers abuilding ever have full occupancy?


    1. Mark, I’ve thought for a long time we’re headed for a commercial real estate crash that dwarfs the residential one. What’s more, I think that after that it will whip around to residential again — mainly condos. Because many buildings will be abandoned and therefore lower the price of urban condos, while others will be transformed to condos, which…

      1. Extend that to how all of this will affect the size and structure of cities in general. There will be no need for huge cities with massive buildings filled with workers. Employees in just about everything but manufacturing can be scattered all over the globe, yet “work” together. The same thing will happen to schools: the “classroom” will be much like a television studio, while the students will be in their living/dining/bedroom/den. Perhaps those too poor to own a computer will gather in the local library, or perhaps in a group setting, but the large, commercial school facility will no longer exist.

        1. Then it must be fortuitous timing that America’s city centers are falling into desuetude, decrepitude, and decay just as their relevancy in the life of the nation is coming to an end.

          Funny how that happens. Think of it as creative destruction.

          How unfortunate for the soi-disant ruling classes that their power base is centered in those cities.

          And how fortunate for the liberty of America what that portends as to the relevance of said power structures. (As Bill Whittle among others have alluded: the true withering away of the state. Such a desideratum.)

          What a shame that the trend is not so much global.


          1. I think the city centers decaying is more of a driver than a coincidence. People like living in cities, you can get everything there. Generally the Safeway in Seattle has more than the Safeway in the small fishing village of Crab-Thumb because there is more demand, money, etc. Also, Crab Thumb probably doesn’t have a Trader Joes and a Market of Choice and more than one latte joint. If it were just less dangerous, dirty, dangerous and toxic to your kids’ childhood and future, people would prefer to stay there. Since people have to work with the skills that do them the best, when the flee from the cities they need to find a way to work the way they can earn best, and the new tools help make that flight successful.
            Also, as far as I can tell, it is global, the only places that seem to not be having urban decay are places where it is traditional

            1. Respectfully, you’re generalizing a lot. SOME people like the cities for such convenience. Some people hate them, regardless of the convenience. I loved to visit New York and get great Indian food at 1 in the morning; but there’s not enough money in the world to pay me to live there. The idea that people naturally prefer cities is something city dwellers take for granted — just like suburbanites “know” that people naturally prefer the suburbs, and rural people “know” that people naturally prefer the country.

              1. True. I was trying to refer to people who live and thrive in big cities. I wouldn’t live or even commute to a city the size of Portland OR unless I had an overwhelming need, but my cousins, my aunts and so forth couldn’t be moved out of larger urban areas without dynamite.

                1. Ah! I misunderstood. Sorry. I just find it alternately amusing and annoying that city dwellers can be the most parochial people in the world.

                  Me, I live by Niven and Pournelle’s Oath of Fealty, and the last line: “There are lots of ways to be human.”

                    1. Not really.

                      I like living places where my AK handles all the range I’ll ever need 🙂

                      The only reason we don’t live in Denver is their stupid assault weapons ban.

                  1. With you on this frustration. We have family who have always been city people, at least for 4 generations back … and I have had to address their provincial attitudes head-on by reminding them that there are people who want to live in those small towns they are disparaging or in the country. They are always a little astonished to have that thought thrust upon them … sigh …

                2. Portland’s not too bad — the Urban Growth Boundary has mitigated somewhat the problem of “this neighborhood’s a shithole — let’s build anew miles away”.

                  1. I beg to disagree. Portland is an unpleasant place where they are attempting to create densification without sufficient transportation net to support day-to-day living required for any modern community. Limited urban growth boundaries means that house prices and apartment prices soar, and a terrible transportation net means that people who work in the city can’t afford the commute time to conduct life in a sane setting that normal people can afford.
                    Really good Lebanese food is not worth the hassle, even really good Lebanese food with a side trip to the Chicago style sausage place and to Voodoo Doughnuts.

                1. I used to work on the 10th floor of a building, and at least twice a week I would gaze out the window at the cluster of high-rise office buildings across the river and the houses crawling up the hills into the trees and think, “what do they all do over there?”
                  I suppose it is as much a lack of imagination as anything. I never had that question looking at an industrial park.

        2. Re: education in the future:

          I am not sure that, with so many two income household where both parents employed in service-industry, construction or repair jobs that we will see the loss of institutional settings for schools.

          Even if we do move away from big schools there will remain certain group activities. There will be some use of large group settings. Youth sports teams will continue, although they will probably be leagues. There will also likely be science labs or other settings that require special equipment and safety measures, where you can sign up for courses.

          1. That applies to a number of personal services type jobs as well, such as dental hygienist or even hairdresser, that require a quantity of specialized equipment or supplies…. especially unless zoning laws are changed.

            1. As well as working as a consulting specialist at a major hospital, momma’s father had practiced medicine out of a home office in Queens. We had ever so much trouble properly disposing of one item of his medical equipment after his death. He had an early x-ray machine …

              1. Please tell me it was because of the lead shielding. Because if it was because of radiological concerns I’m going to have to call in an orbital cluestrike on NYC.

                1. We don’t have sufficient cluebombs in inventory to do more than ablate the first layer.

          2. You may be right. And, to the extent that they remain independent of the state, “public” schools may survive. But what will likely eventuate is that their funding mechanism will collapse.

            On a tangent, look for a backlash against unions — particularly public employee unions.


        3. “There will be no need for huge cities with massive buildings filled with workers”

          Pruitt–Igoe was never filled with workers. It will be long time before case workers do their work by tele-presence. There’s even an ego trip in demanding office visits that some folks seem to find addicting.

        4. And yet, the sustainable development crowd is pushing people more and more toward the urban centers because they see humanity as a blight on the planet.

  6. I appreciate the update on contract and copyright law. The best advice I ever got, from 25 years ago, is “Everything on a contract is subject to change, including the names at the top”.

    I hope Sarah does allow you another pitch.

    About 1997, I doid a bit of write-for-hire with a company. I offered hourly rates, and expressed a willingness to provide a flat rate. For whatever reason, they took the hourly rate of $35/hour.

    At the end of the project I gave them the bill for over 200 hours of work, In actuality, I dropped over 100 hours, even thought the project was made harder by integral changes made mid-stream, lack of input by the business, and many long drives for meeting that never transpired.

    I almost didn’t get paid. What saved me was the contract they signed before work started.

    I think that too many writers, engrossed in a creative process, forget that they are less than one step from ruin. Many companies (and I’m not going Business is Bad – destroy!) will use their resources – including people- to destruction. And a writer not aware of his or her legal rights, or ceding them unwisely, is going to be crushed. As Tom Clancy found out, as I recall.

      1. Yep, the government is the most abusive employer of record known. I wrote probably 200 technical documents for the Air Force, a few of which are still in use. It wasn’t my job, but there was a need and I filled it. Not an extra cent in my paycheck… 8^)

  7. Industry-standard contracts can be a great idea in many fields–not because anyone will necessarily end up using one in its original form, but because a lot of practitioners from both sides of the deal have looked it over and thought about the wide range of possibilities and hammered out a middle-of-the-road position on a variety of issues that come up over and over. The real estate and construction industries have benefited from forms like these.

    I didn’t find any great standard copyright contracts in a quick search, but here’s a somewhat specialized application from Cornell that’s aimed at scientific publishers:

    1. I make it a point, on any “standard Contract” I sign, to check mark approval or cross out and initial any points I want deleted.
      I haven’t ran into any issues with this yet, but it does make known my intent.

  8. Thanks, Robin. If anyone hasn’t been following the fisking and dissecting of Random-Penguin’s Author Solutions contracts over at the Passive Guy’s blog, it’s a great follow-up to Robin’s advice and suggestions. It also gives an idea of things that should make you run from a contract as fast as if Old Scratch himself was on your heels, be it an IP contract or an employment contract.

  9. Because authors Laymen have a common practice of reading a contract for what happens when all goes well, and good attorneys read a contract for what happens when things go bad.

    I am preparing to pitch a business idea, so this is well worth keeping in mind.

      1. *Sigh* Perhaps it’s because I’m so used to having something bad happen every time I feel like I’m finally going to be able to get something going, but this is something that I always thought would be self-evident.

        1. Well, Wayne, you know nothing will go wrong with a deal … unless the attorney discusses those possibilities. Or at least that’s the apparent superstition.

      2. I try to explain it like this: a contract and a lawyer’s opinion on that contract are so that you can settle difficult matters in advance, when they haven’t happened yet and everyone is still friends. If you wait until the problem has happened and everyone is angry, it will be harder to settle, it will STILL need a lawyer, it will cost a lot more, and you won’t have a say in how it gets settled. That will be up to the court.

        1. Agreed – the primary benefit of a contract is the degree to which it forces you to take a close look at whom you’re jumping into bed with. A well-done contract will also involve examining the bed.

          Thanks for the justification to deploy this quote:

          [Mattie is arguing with Col. Stonehill]
          Col. G. Stonehill: I’ll take it up with my attorney.
          Mattie Ross: And I will take it up with mine – Lawyer Daggett. And he will make money and I will make money and your lawyer will make money… and you, Mr. Licensed Auctioneer, you will foot the bill.

      3. Engineering or programming might be a useful metaphor.

        In programming, exception handling is a big deal. This is older, but what if someone inputs ‘four’ instead of ‘4’? Will the program barf, not function, etc…? Humans implementing a contract are more flexible than computers running a program, but that doesn’t mean that we won’t have problems with bugs. It just means that we can use simpler, shorter language to describe more complicated things. We also sometimes have different understandings of words and stuff. You can see this in, say, political arguments across a language barrier.

        Engineering, fail-safe, dead-man’s switch, or safety interlocks that shut things correctly.

        Or safety in general. You rarely really need it, but when you really need it, you really need it, and doing it every time when you don’t have an accident insures that you have it when you do.

    1. My man Fred puts it this way:

      Therefore, since the world has still
      Much good, but much less good than ill,
      And while the sun and moon endure
      Luck’s a chance, but trouble’s sure,
      I’d face it as a wise man would,
      And train for ill and not for good.

  10. I find it interesting that in a year and a half of following self-publishing blogs I have never seen anyone complain about Amazon being unfair, or welshing on royalties.

    I have yet to delve into the actual things one agrees to when publishing and distributing with Amazon – anything customizable there?

    And do you have any warnings on that side of the publishing field?

    Thanks – great information. I knew a bit about it, but I’m feeling a little for poor Dickens, who must have been livid that his work could just be stolen like that.

    There has been something similar going on for many years in China – and before them it was Japan stealing technical know-how from us.

    Maybe all the worldwide pirating of books in English has also helped English become the default world language?

    1. I should mention, ABE that some of the pirating is justified (but perhaps you know that, since you also grew up abroad.) The fees and tariffs on “foreign books” are insane most places. Kate has told me about OZ and Portugal was WORSE.

      1. Afaic the system of intellectual “property” is broken. Wrt media, the big corporate middlemen are acting like bandits while consumers are overcharged and creators are badly shortchanged.

        I’d like to hear from creators but this is not a good time for an engaged discussion.

        Besides, after that discussion I might have to pay Sarah not to tuckerize me, and right now I can’t afford it…

        1. There are some really broken areas of Patent law. And trademark law has some gray areas arising from new technology that have not settled out yet. But Copyright law is pretty stable – and while I think that there is a good argument that terms are too long and there are some narrow issues in software that are not settled out entirely yet – not “broken” in my opinion.

          1. Heh. For once I managed to write what I meant, namely that the system of intellectual “property” is broken. The Constitution authorizes the government to establish intellectual property for the benefit of society as a whole:

            To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

            IMHO, in the media at least, the appropriate tradeoffs between creators, consumers and middlemen have been perverted grossly to the benefit of corporate middlemen, and it is the creators who suffer the most.

            What I consider broken is the inappropriate influence the media corporatists have on Congress and the executive branch. I remember Orrin Hatch’s bright idea to let copyright holders remotely disable computers they consider infringing. More recently there was SOPA. Never mind the Democrats: these and other cases should make it clear (not that more clarity was needed) that the GOP is the party of big business, not the party of free markets.

            IMHO copyright terms are far too long. Since things move faster nowadays than they did at the Founding, I’d like to see a term of five to ten years, and I lean toward the shorter period.

            1. Come to think of it, it might have merit to require artistic creations to enter the public domain significantly before derivative works can be made without the original creator’s permission. Two forms of copyright, in effect, so if the creator wants his work utilized by others, he can make that clear.

              Submitted in the spirit of brainstorming. I may be unduly influenced by my perspective as a consumer.

            2. I would fight you to the death — at least on copyright (not so bright line on patents). The mind of the individual is the apotheosis of mankind. To steal the produce of that mind is tantamount to murder and sacrilege all in one.

              I should have the right to my work for my lifetime and to be able to pass it along to my heirs. Since that implies true property rights, I should also have the right to sell it to a corporation, though that, to me, is incidental.

              I burn with the outrage of a billion suns that people with no creative ability, nor the drive to produce anything original find it meet to steal my work from me and make an intellectual jump ball of it — so to speak — throwing it in the air for anyone to take and make his own. Oh, HELL no!

              Now, I would support, in exchange for unlimited terms, a proviso that copyright must reside in an individual creator and cannot be sold or willed to a corporation or divided among a group (as of heirs). But that’s as far as I would take it. Not saying or arguing pro or con that that would eviscerate a good many businesses and business models. I’m actually agnostic on that. But denying a creator the exploitation of his creation is one of the worser characteristics of collectivism and I, for one, won’t have it.

              I recognize that, to some extent, all works are derivative. But, please, have the decency to file off the serial numbers.. Why does your talking animal have to be Mickey Mouse? So you can deface the work of Ub Iwerks? GTFO!


              1. The Founding Fathers would have disagreed with you on unlimited terms:

                “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

                They saw a balance between the rights of the author (who, if his rights were not respected, would have no incentive to create) and the benefit to the country as a whole of having older works pass into the public domain where anyone could make use of them without conditions. (For more on the benefits of the public domain, see here.

                Personally, I’m in favor of returning to the 1978 terms (28 years, optionally renewable for another 28), with one change: I like the removal of the notice requirement that was passed in 1989, and would argue for keeping that so that all creative works are automatically copyrighted, without the author needing to include the magic © sign to gain the benefits of copyright. But whatever the term should be, it should be limited — large enough that the author can gain substantial value from his work (56 years of exclusive sales), but not so large that nobody else can ever benefit from it either. I’m glad, for instance, that the works of Mark Twain, Jules Verne, etc. are now free for anyone to read and base derivative works on; our culture would be poorer without that.

                I take your point about the abuses of collectivism, but there are other reasons besides collectivism to argue for creative works passing out of their author’s control after a certain time. Would you call James Madison a collectivist?

                1. I’ve always preferred the lifetime of the author (and the author must be a natural person) or 20 years, whichever is longer. That allows the author to derive benefit from *her* work as well as provide for any children in the event of her untimely death (call it the U.S. Grant condition).

                  The idea that Micky Mouse can still generate profit for someone long after the brain that generated the idea hit 80 Kelvin is absurd and, by denying us the fruits other minds could produce from those ideas, makes us all poorer.

                2. I would call him, if he agreed with the limitation on private property rights a collectivist, yes. He has, in essence, asserted that the power of the state ought, as a matter of right, be superior to the sovereign individual. How in the HELL is that consistent with the principles of the Founding?

                  I argue to counter it that there is no such thing as a greater good which tramples the rights of the individual, for it must ALWAYS comprise a greater evil, as well.

                  My answer to “when is it proper for the collective to do what the individual is forbidden?” is “Never.”

                  I also disagree with the Founders on their use of the word “reasonable” in all its forms. “No unreasonable search and seizure…” Really? unreasonable by whose terms?

                  I consider it utterly unreasonable that the government has scraped all of our phone records, all of our emails and blog posts and Facebook statuses and likes and shares. And yet, it appears that the case is being made that due process was followed, that some sort of warrant — however over-broad — was issued, that some judge some where was persuaded that there was probable cause. That Congress was briefed in and — albeit in secret — concurred. But it is a complete and utter vitiation of the individual’s right to privacy. And for what? A chimera that in twelve years has not stopped one plot, prevented one bombing, and has rendered the citizenry of the country vulnerable to these tactics? No, it’s not reasonable. But I degrease.

                  No. The words, thoughts, and deeds of the Founders are not holy writ, to be obeyed without question, and here is where I draw the line. It is NOT reasonable to steal the produce of a man’s mind. Nor do I find the arguments adduced at all persuasive. If you want to read an author’s works, pay for them. If you want to create a derivative work, make it ORIGINAL. It’s not hard. If you want, instead (and this is what’s really despicable) to STEAL someone’s work, make it your own, and use it for your purposes, for purposes possibly inimical to the original author, and you’re NOT will to do the work necessary to file off the serial numbers, then you’re despicable, a thief, and — by extension — an intellectual murderer. I’m not having it.


                  1. He has, in essence, asserted that the power of the state ought, as a matter of right, be superior to the sovereign individual.

                    I think it is more a matter of limiting the state’s willingness to protect an individual’s rights in the case of intellectual property. Arguably, once you publish and sell (your publication) your right to tell buyers what they can do with their purchase ends.

                    Clearly it is not in the public’s interest to enforce such an abrupt limitation on creator’s rights, nor is it in the public’s interest to defend those rights indefinitely.

                    1. My understanding of Intellectual Property is that a copyright and a patent is essentially a registration of the concept or work, and in return for allowing it to be used or sold you have the right to enforce your exclusive control over it, to sell or lease or loan the rights for the reproduction for a limited amount of time. I also understand that the exlusive period is limited because eternal exclusivity would act as a brake to future development or use, like a hypothetical eternal patent on the wheel could be a block on other developments like the track, the propeller or a jet engine: we would all still be traveling by animal powered carts and paying a royalty to the wheel corporation (who would probably have little incentive to innovate since they would have a steady revenue stream the way things existed already).
                      Does this patent model explain IP rights over works of fiction?

              2. I should have the right to my work for my lifetime and to be able to pass it along to my heirs.

                And so you do, if you keep the work undisclosed as your personal property.

                Once a creative work is available in the public square, it is a valid question whether and when the power and resources of the State should be deployed to enforce the creator’s monopoly. As Robin Nunn and I noted wrt the Constitution, the Framers did not single out a creator’s feelings of entitlement; nor a middleman’s wish for big profits; nor a consumer’s wish for cheap/free stuff. Their criterion was progress.

                1. While I would agree that in perpetuity may be a bit too much, you posited 5 to 10 years, with a preference for 5. Oh, HELL no. No one who had any expectation of creating for a living would even bother, any more. If you’ve been paying attention here, Sarah has explained that a lot of indie-published work depends on numbers being available for people to find. This would mean that any jackhole with time on his hands could suck up everything he could find that was more than 5 years old, repackage it (break it up into parts, consolidate it into a larger work, or whatever), and sell it with his name on it, paying the creator nothing. I’m sure the big publishing houses would LOVE this.

                  This would destroy the industry as nothing has been able to do yet. NO one would bother to write anything new anymore. Just about the only things that would get written would be technical manuals, either as work-for-hire or about something that would become obsolete before the 5 years were up. Nothing fun would get written anymore, except by those who don’t need money.

                  1. Perhaps you overlooked my openness to a separate copyright with jurisdiction over derivative works.

                    It seems at least possible that a shortened copyright period would result in price increases since authors and publishers would try to make a critical mass of money in a reduced time frame.

                    1. And it’s at least possible that consumers would say, “Price increases? Screw that! I can wait 5 years until it’s free!”

                      And the long-tail revenue model is not about derivative works, it’s about an author able to profit from a single work for years, growing readers over time instead of madly scrambling for them all at once.

                      5 years might as well be 0 years. No one’s going to write under those terms.

                    2. It’s not how it works, GS, there is a set time, for instance for “word of mouth” — it’s about three years. Trad publishing tried to “make money faster” and just managed to destroy the market.

                    3. Why would someone pay a higher prices for a new book when they can wait 5 years and get it for a nominal fee?

                      I mean sure, hard core fans will, but you’d have to be working a HECK of a series for that.

                      Especially since there will be a constant stream of stuff just coming off copyright?

                  2. Indie-publishing is my retirement plan. I should be able to live from my work — it often pays very little up front, but it climbs with time.
                    However the boys? They should be making their own money. And the grandkids? Hell yeah, make it themselves.

                    1. “I’d pay my right arm to get to do a Have Space Suit Will Travel sequel with them as adults.” That and “Mote” are two of my “castaway on a desert island” books, very much re-read. I’ve bought multiple copies of each over the years.

                    2. Confession time. I am a HUGE Niven and Pournelle fan. They could announce a book, no title and no details, and I would preorder it as soon as they would take my money. I quote from their works constantly.

                      But… I’ve never quite understood why Mote gets so much praise. Yes, it’s inventive and well imagined and thoroughly thought out; but it’s clear to me that it’s their first collaboration, and they were still working out the magic that would make the rest of their works so phenomenal. It’s a good Niven work, on a par with Ringworld or Draco Tavern. It’s a good Pournelle work, on a par with King David’s Spaceship or Higher Education. But it’s only a middling Niven and Pournelle work. They’ve done sooooooo much better, yet this is the one I hear mentioned most often.

                    3. Odd–I’m quite fond of some of their other collaborations, and will happily buy and read anything they put out to this day, but “Mote” is still my favorite.

                  3. Which is why I suggested the 1978 terms: 28 years, renewable once for another 28 years. 56 years is long enough to get nearly all the commercial value out of your property, but short enough to allow remixes and derivative works of “classics” that are still in living memory (e.g., Casablanca).

                    1. I understand Jerry is still making a good deal out of The Mote In God’s Eye, so… 28 is too short, fifty six about right. I could go for that. Mind you, I, myself, only do derivative stuff of works that have got in the bloodstream of the culture. That said I’d pay my right arm to get to do a Have Space Suit Will Travel sequel with them as adults. That said, I think I’ll just do it, and file the serial numbers 😉

                    2. As Kris Rusch might advise Idiot Lawyer: never admit to that in public!

                      I kid, I kid…

                    3. Eh, you can do that to Heinlein without worry. He gave implicit permission, when he said that’s what all storytellers do. 🙂

                    4. Fortunately for me! My Tycho Under stories would not exist without Heinlein’s influence, especially The Moon is a Harsh Mistress.

                      In a discussion with Tony Daniel from Baen, I mentioned that I might turn my story “Scramble” into a novel; but I worried it “might turn out too Heinlein.” I forgot who I was speaking with (and which publisher). Tony just looked at me and asked, “And what’s wrong with that?”

                    5. It’s like Dan — can we all shout and get him to finish the d*mn thing? — getting his novel rejected at Berkley because “It’s too much like Bujold” — we’re still trying to figure out what’s WRONG with that. It’s not (even vaguely) close enough to be a steal or even an homage (I THINK.) It just “evokes” and they didn’t like that.

                    6. I’ll bet it was his radical associations that they didn’t like. Some suspicious person named Sarah keeps showing up in his background checks…

                    7. Oh, this was when I was deep in the political closet. My outspokenness worries me for the boys re: graduate studies, though. So before I decloaked, I dragged them to the kitchen table and we had a family council. Which we never do, since this house was never a democracy. BUT I’ll note with pride that younger son’s answer was “Publish and be damned”

                    8. By all means, file the serial numbers.

                      I accept I am not normal in this (not normal in much, apparently) but I detest the modern practice of strip-mining the work of earlier authors, even when done superbly. You can write a Further Adventures of Mr & Mrs Darcy of Pemberley so long as you file off the serial numbers. Write more Sherlock Holmes, but at least call him Solar Pons. Give us Mr & Mrs Russell, Planetary Explorers (Worlds Saved Cheap; Ask about our bulk discounts) — but change the d*mn names. As with sequels to Gone With The Wind, even if authorized you’re milking somebody else’s cow.

                      When you publish fanfic, however professionally performed, it always leaves this reader thinking you didn’t trust the merits of your own work and so attempted to piggyback on another author’s established market. Special exceptions allowed for “the publisher made me do it” or for characters who have so long outlived their creator that modern readers likely have never read the source material, e.g., Rob the Hood, King Arfur, Charlemagne and a certain trio quartet of musketeers. Once characters become that deeply embedded in the culture they are fair game.

                      Don’t even open the rant box labelled “And don’t think you’re fooling anybody by adding zombies!”

                    9. The only reason I did the musketeers is that they needed changing. I.e. Porthos is not stupid. And it’s mysteries. Also (blushes) I have a crush on Athos…

                      The problem with doing a follow up to HSSWT with suitably filed numbers is “Can this be written without their previous adventure coming in” Don’t know. Will tell you when I figure it out.

                      And as medical tests prove daily, I’m not normal at much either. “This is a severe concern!” “Really, it’s been like that since I was three.” “You shouldn’t be alive!” “And yet I am.”

                    10. I admit to mixed feelings — on the one hand, whassername (Allingham?) is a Big Enuf Name that she didn’t need to raid Austen baggage train to sell her book. OTOH, the promiscuity with which publishers are encouraging unknown hacks to loot our cultural library is appalling. So, I live with the contradiction (one benefit of being a Gemini is I can sneer at Astrology.)

                      Hard to further the adventures of Kip & Peewee without referencing how they met. Perhaps you could look at how they handle being parents? Parents often are discreet about explaining to the kids how they came to be.

                    11. I rather like fanfic that’s “Oooh, I get to play with these shiny toys!” type things– or “what happens if I twist this part?”

                      That said, I’m flatly pissed that they did the opposite of your advice with the new Star Trek movies– THOSE ARE THE STARFLEET ACADEMY SERIES CHARACTERS WITH TOS SKINS!

                    12. I think what has annoyed me the most about these has been Gregory Maguire’s (I think that’s the culprit) gutting and reassemblage of Baum’s Oz characters.

                      Fanfic is one thing, and is generally respectful (even the Trek stuff at least does the courtesy of re-effing-booting the series) and I can even tolerate slash fanfic although I have no interest in it.

                      But I draw the line at subverting the original characters, even if you get a Broadway Musical out of it. And, just to be clear, if you want to put Holmes and Watson in a gay relationship file the friggin’ serial numbers off!

                    13. Serial numbers off is always a good technique. If for no other reason than to steal ideas where you would have to change canon to get them to work.

                      (I hold forth on it here)

              3. There simply isn’t any realistic chance of substantial change in our copyright laws. Certainly none that would reduce terms, and note that many of you are proposing terms that would force us out of the Berne Convention.

                Frankly, although orphan works are an issue I’d like to see a good solution for, the real issue for me is the breadth of Copyright, not its term. That’s why, in software, I find the Oracle vs. Google case on whether or not Google’s Android Dalvik interpreter is an infringement of Oracle’s Java so interesting. (Currently being briefed on appeal from a District Court ruling that API’s are not copyrightable – a brilliantly written opinion). Limiting the scope of Copyright is more important to me in curtailing abuses.

                And then there is the Prenda Law circus …

                1. There simply isn’t any realistic chance of substantial change in our copyright laws.

                  Agreed, but afaic there are few realistic chances of the USA pulling out of its nose dive. That doesn’t preclude wild cards from fluttering in from heaven knows where and saving our butts. Again.

                  In the meantime, one way or another, I will continue to explore my views about the form a just and dynamic society would take.

                  But not anymore tonight: I’m trying to adjust my sleep cycle to a more productive one and my new bedtime is well overdue. Sarah et al, thx for your assessments & sorry not to respond at this time.

          2. For this trade broken in terms of obscure rights holders.

            This especially for works that would have long since entered the public domain save for Berne and Sonny Bono. See most especially the recurrent discussion by Dr. Pournelle on rights to works in copyright but no one knows the rights holder. Such orphaned writings can’t be anthologized even to the rights holder’s presumed and likely benefit – see some of the laments chez Baen on works omitted from The World Turned Upside Down and stories wanted. Sometimes the rights holder is unknown, sometimes dog in the mange, sometimes like the iron general scattered in many pieces. There are a fair number of books that would see some use in Academic circles if the given book could be reprinted and reissued but they can’t. See also all the discussion chez Google et al on cataloging and preserving existing material in a durable and eternally readable format against the day when the material will become indisputably public domain.

            And of course the intellectual property in genetics and intellectual property in patents for the obvious without a working example are currently in much dispute. Some may well think the current situation peachy keen while others think things broken.

      2. My mother used to be terribly upset that all the obviously shoddy mystery reading I did in green and white covers was – for copyright reasons – not for sale in the United States and Canada. She assumed they must be only one step ahead of the Olympia Press Traveler’s Library.

        There’s something to be said for the notion common in parts of the U.S. of A., if not as part of the received religion :), that after the Founder’s copyright the work is properly public domain with a due polite but limited respect for the rights of living but not dead authors in derivative works.

      3. I was reading an manga series that was being translated by volunteers and put on the internet. I had discovered this series on my first trip to japan and was immediately fascinated by it’s take on an British maid in the late Victorian era. The manga was licensed and the translators stopped putting the series up on the internet. One of the other readers was a young lady who was muslim, living in Yemen and about to be married. I suspect that “Emma” the manga was one of her few freedoms. She begged the translators to continue posting, but tragically they didn’t want the potnetial hassles. So it’s not just fees and tariffs, but having acess at all. A few months ago the Wall Street Journal had a short article on pirate trackers tracking an NBC program and pointing out how pirating was spreading the show all over the world. The take was how horrible the pirating was. My take was, you have an audience of fans in Romania and you are complaining? In the current internet world even if you don’t care about other markets somebody else will and more than likely will voluntarily, just because they love whatever it is make sure that an audience gets what it wants.

        1. There are revenue models where “piracy” is a benefit to the author. But it should be the author’s choice what their revenue model is, not the “pirate’s”.

            1. If this were a blog post comment thread, I’d “Plus One” that comment, Martin…

              Oh. wait!


          1. There are revenue models where “piracy” is a benefit to the author. But it should be the author’s choice what their revenue model is, not the “pirate’s”.

            I have friends who work in voice acting for anime dubs into English; they’ve filled me in on how it works in that industry. The fansubs* are in clear violation of copyright law, and the rights holders could shut them down with a single Cease & Desist letter — but it benefits everyone involved to let them continue, so for the most part they’re allowed to exist. The American dubbing companies like Funimation then use the download statistics of the “pirate” fansubs to decide which shows are most popular and thus most likely to make money if licensed. Once the American dubbing company announces that the show is licensed, the “pirate” fansubbers generally stop subbing that show. (There are some exceptions, and it’s those cases that tend to generate Cease & Desist letters.)

            Not everyone is well-behaved in this area, of course, and there are plenty of people who never buy the licensed shows, so the piracy does cost the dubbing companies some money. But it also creates some new customers (I, for one, would never have bought Planetes without the opportunity to watch it first, but when I realised this was a hard sci-fi show that had actually done the research, I snapped it up), so as a general rule the dubbing companies are happy to let it continue.

            * For those not familiar with the terminology: fansub = an unauthorized group takes a copy of the Japanese-audio release, puts their own English (or whatever language) subtitles on it, and releases that file over the Internet, usually by BitTorrent.

            1. Fansubs are how my family discovered Naruto, and almost ten years later (over ten? Holy cow.) we’re still watching it. Through a legitimate streaming service now, of course (Crunchyroll)

        1. Right and no, no benefit to the author. When I was growing up, MMpbacks from the US were around the equivalent of $30, most of it taxes and tariffs. After I knew people in the US I got them to send me care packages. Dan sent me three in the year we were long distance dating.

    1. Sadly such behavior is hard to distinguish from good or at least accepted practice lawyering. (compare the following with the ex-post discussion of bad behavior in domestic disputes – and the legal system resolution for such disputes).

      What is now a long time ago – in the early 80s of the last century the then President of the American Trial Lawyers Association wrote an editorial in the President’s column of their journal. He began and ended by asking is this what the profession has come to?

      The narrative began with a friend asking for a recommended trial lawyer and the answer was so and so is a very good man to which the friend replied that no good men need apply the job was for a junk yard dog.

      Given that delays in the official court systems have reached the point of a market driven alternative trial/arbitration system it has followed that in effect whitewashing clients and arbitrary even essentially meaningless threats can be a common part of the opening moves in a dispute that Dickens would have recognized and even written about.

    2. As we say in my circle, that’s weapons-grade stupidity right there. I hope Idiot Lawyer’s associates go after IL with cluebats for being so stupid. After Kris and her lawyer gets their $$$, that is.

  11. For a history of copyright and copyright laws in general and SFWA in particular search Dr. Pournelle’s musings and links. See also various iterations of the SFWA handbook including what I recall was the second edition as put together by Kris and Dean. No need to reinvent the wheel and as for creating a bureaucracy immune to Pournelle’s iron law I can only say yea surely this time for sure.

    Notice that current intellectual property laws, quite properly described as Mickey Mouse (see Sonny Bono and such for why), are such that a skilled layman with a personal interest needs that is really needs advice not just from an attorney – though Dean Wesley Smith say went to a fine fine law school it was better on a miner’s inch than a contract with a German owned publisher – but a subject matter expert. A far cry from Thoreau’s notion that t all the rules from all the levels of government should be simple enough that anybody could carry the single slim book around for ready reference.

    Might as well try organizing here to fight the system that bleeds off, wears down and stifles individual effort and initiative.

  12. I am mortally dismayed over my inability to find a Youtube clip of Little Mattie Ross drawing her lawyer, J. Noble Daggett, “loke a gun.”

  13. Thank you for posting this. I mostly practice real estate law, but I’ve had too many people ask me to review a contract after the fact. It is rather difficult to think of a polite variation of “you’re screwed”. Avoiding saying that is always good.

    1. At the very least, run your agent or contract through Preditors & Editors, or Writer Beware, first.

      1. Ignoring other less than stellar personalities at SFWA, Ann Crispin and Victoria Strauss do a good job of educating writers on the pitfalls of scam literary contests, scam vanity publishers, crooked agents, and others in the publishing business.

        For those unaware of their work, its not genre specific.

  14. Sarah, I would like to post this on LinkedIn. May I do so. I also want to post Kristine Kathryn Rush’s tale of woe, there as well, but am awaiting permission. This could help a F—Ton of business owners, as they write e-books for their business.

  15. Is there any chance this could be re-posted elsewhere, with proper paragraph breaks and such-like? In its current form, it is difficult-bordering-on-physically-painful to read…. 😛

      1. Do you use strict HTML (Text view)? I’ve found that keeps WP from messing with text. Also, watch the text for odd line breaks.

        But I always use HTML and [goes and checks BTB to make sure he’s not talking out his hat] my paragraph breaks mostly seem to work right.

        Of course, I put basic block and style tags IN the text manually, which may not be everybody’s cup of tea. (And I’m not on, but on a hosted site.)


    1. I am sure the author would have no objection to your copying this into a word processing program then doing a S&R to replace every paragraph break with a pair of them — or right click the body and adjust the paragraph spacing.

      Crikey, CF – must we chew your food for you? 🙂

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