Friday, May 20, 2016

Simon & Schuster Slapped with eBook Royalty Class Action Lawsuit

A book is a book, except when it comes to eBook royalties. That's the premise of a class action lawsuit filed on Thursday, May 19, 2016, in the Supreme Court of the State of New York by class representative Sheldon Blau, MD.   

The lawsuit alleges Simon & Schuster has been cheating its authors by improperly categorizing eBook transactions as "sales" rather than "licenses."  

The distinction is significant, because the royalty rate for sales is much lower than the rate for the license of rights.  If categorized as a license the author receives 50% of net receipts, rather than 25% of net typically paid to authors for the "sale" of an eBook.

A book is a book, except when it comes to eBook royalties
According to a report in Law360, an unnamed spokesman for Simon & Schuster told Law360 that the division that published Dr. Blau's book, was sold (or was it licensed?) to another company in 1998, and that the publisher never published a digital edition of the book.

The eBook royalty class action looks back approximately six years, the statute of limitations on contract actions in New York State.  It alleges Simon & Schuster engaged in a "pattern and practice of paying Plaintiff and others similarly situated royalty payments for the distribution of licenses for electronic books, or "e-books," at a rate for book "sales," or some other lower rate than that required for "license" transactions."

This issue arose, in a different context, in F.B.T. Productions v. Aftermath Records, a 2007 federal lawsuit brought by Eminem's management company against his record label over digital royalty rate splits.  Like the music industry, book publishers have taken the position that digital downloads should be accounted for as sales not licenses.

In its 2010 decision, the F.B.T court held that digital downloads should not be treated as auditable physical units for royalty accounting purposes.   The Ninth Circuit ruling was important for the recording industry, because recording artists (like book authors) receive 50% of the record company’s net receipts from rights licensed to third parties -- as opposed to 12% to 20% of the retail price when a recording is "sold."

In the wake of the Eminem decision, most publishers amended their contracts, so the sale or license of  an "eBook" is unambiguously treated as a sale.   The lawsuit, therefore, challenges the publisher's interpretation of their legacy or backlist contracts.    

Monday, February 22, 2016

Four Ways to Tame Your Permission Fee Budget


You hate clearing rights and permissions. It's time consuming and permission fees add up quickly. Fortunately, the Copyright Act contains exceptions and limitations to infringement which can save you time and cut those costs. Before you send out your requests for permission, take a moment to answer these four questions. If you can answer yes to any one of these questions, the use you are contemplating may be undertaken without permission.

  1. Is the work is in the public domain (i.e. out of copyright)? 
  2. Is the material uncopyrightable (e.g., unadorned ideas are common property)?  
  3. Is the use a fair use? 
  4. Is the material offered under a Creative Commons License?
    Below is more information about these important copyright exceptions and limitations. If after reading this you are still unsure whether a work is protected by copyright, or falls within the parameters of a Creative Commons license (more on that below) you should seek permission or the advice of counsel.
     
    1.  Public Domain (Expired & Forfeited Copyrights)
    Copyright protection does not last forever. That is why copyright is referred to as a "limited monopoly.” When copyrights grow old and die, the work they once protected falls into the public domain. How long copyright protection lasts depends upon a number of factors, including, the date of publication, the date of the author's death, and in which countries you intend to publish the work. Literary and artistic works published before 1923 are out of copyright in the United States, and can be used (subject to the below caveats) without permission.

    For works created after December 31, 1977, the duration of copyright is 70 years from the end of the year in which the author dies. For works for hire created after December 31, 1977, the duration of copyright is 95 years after publication. 

    For works published between 1923 and 1977 the term of copyright is 95 years from initial publication. However, special rules apply to works created or published before 1978. Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright. If the owner failed to renew, their copyright was forfeited. 

    A tremendous number of works entered the public domain because renewal was not made during the 28th year. The renewal scenario requires a further qualification. If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner. For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew during the 28th year, the owner of the underlying work, a short story by Cornell Woolrich, did renew their copyright. Since the copyright in the film only extended to the new material added by the producers of the film, the owner of the copyright in the underlying short story was able to stop unauthorized distribution of the film. The takeaway? If a work is an adaption of another work, both the underlying rightsholder, and the holder of the copyright in the derivative work may hold rights. Similarly, before 1988, publication without a proper copyright notice could invalidate the copyright. Today, there are no renewal or notice formalities.

    Caution! Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as trademark or unfair competition law (which protects against confusingly similar usage by another); the right of privacy (which protects a person's right to be left alone); the right of publicity (which protects an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad. Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new copyrightable material, may also require permission. 


    Although a work may be in the public domain in the United States, it may still be protected in other countries. For example a work by a United States author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany, where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas.

    2. Uncopyrightable Material

    There are certain types of works that are immune from copyright protection altogether. Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to facts. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed, explained or illustrated. Be aware that where the dividing line between an unadorned or unprotectable idea lies, and one that is sufficiently developed to enjoy copyright protection, sometimes is hard to discern. As a general rule, copyright does not protect short phrases, names or titles either. However, short phrases, names and titles may be protected by trademark or unfair competition law if they serve a branding purpose. Fortunately, the use of a trademark as a point of reference in a story, or used in a non-deceptive way to criticize a product or service, will generally be deemed a fair or non-infringing use.

    3. Fair Use

    Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. 


    While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement. The central point is that fair use determinations involve risk. So, if you can't make the decision yourself, and are risk adverse, seek permission.

    To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors. No one factor is determinative, although factor four, which relates to economic harm, weighs heavily in any fair use decision. 
     
    • The purposes and character of the use, including whether the use is primarily commercial;
    • The nature of the work that's been copied;
    • The amount and importance of what was taken in relation to the original work as a whole;
    • The effect the copying has on the marketability of the original work and its derivatives
    Cutting Through the Fair Use Gobbledygook
    While there are no mechanical rules to define with precision what is a fair use, the following criterion, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.        
    Fair use favors transformative uses. Use the work as a springboard for new insights. Critique the original. Make a connection between it and other works. Use it to buttress your own arguments, or the arguments of others. 
    Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one. That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music. 
    Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works.  
    Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.  
    Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement. Make sure the amount you use is reasonable in light of the purpose of the copying.
    Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively. 
    Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.
    Parody is a work that that ridicules or mocks another work. Fair use favors parody. It does not favor satire. Make certain the parody is apparent. A conservative approach is to conjure up just enough of the original to convey your parodic points.  
    Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  
    The most important consideration concerns economic harm. Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.  
    4. Creative Commons
    Creative Commons Buttons
    Devised by the Creative Commons ("CC"), a non-profit organization, standardized CC licenses give the public permission to share and use a creative work on conditions set by the copyright owner. While neither an exception nor limitation on copyright, by clearly stating what is a permissible use, a CC license short circuits the need to seek formal permission. A CC license button (or link to the license) will appear in close proximity to the work. If you violate the terms of a CC license, in addition to termination of the license, the potential consequences include compensatory or statutory damages, or an injunction. Therefore, you must read a CC license very carefully. Common to all CC licenses are the following conditions: "Licensees must credit the licensor, keep copyright notices intact on all copies of the work, and link to the license from copies of the work. Licensees cannot use technological measures to restrict access to the work by others." CC licenses are generally associated with online use.

    If you plan to make use of a work that does not fall within the above four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early.
    Locating rights holders is not always easy, and negotiating rights and permissions takes time.

    Additional Resources:
    Classroom Use Guidelines (not legal authority; but agreed-upon minimums)
     
    DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  When in doubt, seek permission or the advice of counsel.

    LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley &; Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

    He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin























    Thursday, February 4, 2016

    No Copyright Infringement Intended (Yeah Right)


    Empty Heads
     
    "No Copyright Infringement Intended" appears next to countless YouTube videos and other online works. However, it is a hollow disclaimer.  There is no pure heart and empty head defense to copyright infringement.  Copyright is what is known as a strict liability tort. If the use is unfair (i.e., not a fair use), a plaintiff does not have to prove any knowledge or intent to make its case.
    In the Harrisongs case, the court determined that George Harrison's My Sweet Lord subconsciously infringed the Chiffons’ 1963 hit He’s So Fine.   Innocence is only significant when it comes to calculating monetary damages and attorney's fees.  Bad-faith infringers are treated more harshly than innocent ones.
    When Mark Twain was accused of subconsciously cribbing the dedication to the ironically titled The Innocents Abroad from a book of poems by Oliver Wendell Holmes, he quipped, "Adam was the only man who, when he said a good thing, knew that nobody had said it before him.”  An argument can be made that "No Copyright Infringement Intended" trumpets the fact that the defendant knew they were infringing, or recklessly disregarded that possibility.  If the infringement is willful, or your behavior reckless, a court can award up $150,000 per infringement together with attorney's fees.
    As George Harrison learned, under copyright law, ignorance (or innocent intent) is not bliss. If you intend to use or reuse someone else’s copyrighted work, first educate yourself about fair use, the public domain, and what is - and isn't -- protected by copyright.
     
    Resources
    Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F. 2d 1110 - Court of Appeals, 2nd Circuit 1986

    ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F. 2d 988 - Court of Appeals, 2nd Circuit 1983



     

    Friday, December 4, 2015

    Outside of a Dog # 4: Authors Experiencing a Slump in Earnings

    New Guild Survey Reveals Majority of Authors Earn Below Poverty Line Outside of a Dog is an irregular series that features publishing wisdom from a variety of classic and contemporary sources. As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases.


    "It is better to have a permanent
    income than to be fascinating."
                       - Oscar Wilde
    How are authors paid?  Generally, poorly.  So poorly, that a recent Authors Guild survey revealed that the majority of authors earn below the poverty line.  

    While there is a romantic Left Bank notion of the self-sacrificing writer turning their back on convention, proper writers must eat. To that point Samuel Johnson said, "No man but a blockhead ever wrote except for money." 

    There have been many bitter remarks written about the size of book advances and the economics of traditional book publishing. Mid-list authors, demoralized by anemic advances, whose royalty accounts are perennially in-the-red, should take note that publishing is an equal opportunity abuser.  Calvin Trillin, Edgar Allan Poe, and even the poet Horace have groused about the meager earnings and economics endemic to the publishing industry. What follows is a sampling of those author grumblings (and a discussion of how author advances are calculated).

    Publishing Monkey Business

    In the 1932 comedy Monkey Business, Groucho Marx says “Oh, I know it’s a penny here and a penny there, but look at me. I worked myself up from nothing to a state of extreme poverty.” The line, attributed to screenwriter, S.J. Perelman, is an apt statement about typical author earnings, which, according to the Authors' Licensing and Collecting Society has fallen by 29% since 2005.

    Perelman was a thorn in the side of  his editor, Bennett Cerf, when it came time to negotiate his book contract with Random House.  In response to Cerf's refusal to increase his book advance, Perelman, the Algonquin Round Table wit, countered: “I am afraid that a $250 advance is mandatory; after fourteen months of my life on my Sabine farm, I have practically no worms to drop into the bills of my young and the movie business isn’t helping to any degree.” Marshaling all the right arguments, he added that Cerf would be better served by sending him back to his typewriter with a “happy grin and a high heart,” than "leaving his money to an animal hospital."

     “[C]all in Swaine, Cravath, deGersdoff & Wood and draw up those tortuous contracts." Perelman wrote Cerf.  "I’ll have Samuel Untermyer [Perelman's attorney] go over them (I pay him fifty or sixty thou a year just to handle my book contracts) and send them on without delay.”  While a notorious penny-pincher, Perelman understood the value of having a fountain pen-for-hire to look over his contracts. 

    How Book Advances Are Calculated

    When a contract is negotiated between an author and a publisher, the author is generally paid a nonrefundable advance against future royalty income. That means the author won't see another dollar until the advance is earned back. One of looking at the advance is that it is the bet the publisher is placing on the book.  Regrettably, traditional publishers are buying fewer books, and advances have been heading south for over a decade.  

    While there is no set formula, publishers base advances on the number of copies they project to sell in first six months to a year after a book first goes on sale. Clearly, Perelman's publisher, Random House, was not expecting much.  To calculate an advance, a publisher looks at what the royalty payout to the author is on each copy, then multiplies that by the number of copies they project to sell (less a deduction for anticipated returns).  If a publisher pays an advance of $50,000 for a first novel,  assuming a royalty of 8% of a cover price of $19.95 (think trade paperback original), or $1.59 a copy, that means the publisher will have to sell more than 31,446 copies before the advance is earned out and the author earns a dollar more than the $50,000 already paid to her.  For this reason, during negotiations it's important for an author to ask how many copies the publisher thinks it will sell, and at what price.  If you are fortunate enough to be taken to lunch before an offer is made, a good time to slip in the "How many do you think you can sell?" question is after the first glass of wine has been polished off.  In vino veritas.


    The Strange Relationship Between Writers & Money 

    Unlike Perelman, author Kurt Vonnegut had a different relationship with money and the writing process. Rebelling against the "more is better" approach to advances, he advised his son (author Mark Vonnegut) “to carry on without an advance” while working on his first book. You can read the complete letter he wrote to his son in Kurt Vonnegut: Letters, but here's an excerpt:
    I have mixed feelings about advances on first books. They are hard to get, for one thing, and are usually so small that they tie you up without appreciably improving your financial situation. Also, I have seen a lot of writers stop writing or at least slow down after getting an advance. They have a feeling of completion after making a deal. That’s bad news creatively. If you are within a few months of having a finished, edited manuscript, I advise you to carry on without an advance, without that false feeling of completion, without that bit of good news to announce to a lot of people before the job is really done.
    Trillin's Extravagant Lunch Principle

    Calvin Trillin's contract negotiation advice is colored by a an insider's cynicism fed by extravagant author lunches and familiarity with the entire publishing scene - not a law degree. His singular advice was “the advance for a book should be at least as much as the cost of the lunch at which it was discussed.”  


    A corollary to Trillins’ formula governing advances: The cost of clearing permissions should never exceed the size of the advance.  Think carefully about the book you want to write as the cost of clearing rights to previously published material can bankrupt you.  


    You Can't Make a Living, But you Can Make a Killing in [Publishing]*

    Thackery wrote "the rewards of the profession are not to be measured by the money standard."  While the size of the advance is not always an accurate predictor of a book's success, an author who receives a small advance invariably receives less promotional support from their publisher than one who receives what PublishersMarketplace calls good deal ($50,000 - $99,000), or a significant deal ($100,000 - $250,000).  nice deal ranges from $0 - $49,000.   

    But, it's not all doom and gloom for the recipients of a nice deal. Tom Clancy's The Hunt for Red October ($5,000), published by The Naval Institute Press, went on to sell millions of copies. Terry Pratchett, Stephen King, Jacqueline Susann, and JK Rowling all received small advances for their first books, which goes to show that publishing is a perplexing business where small bets can pay off big, and big ones can come back to haunt you.

    According to Victor Bohnam Carter's book, Authors by Profession, John Milton, in the midst of a financial crisis, signed a hellish publishing contract for his epic poem, Paradise Lost.  “The agreement was dated April 27, 1667, and provided that Milton receive £5 for the first edition or impression of 1300 copies,  £5 for the second, and the same for the third.”  During his lifetime, Milton received a total of £10 from his publisher Samuel Symons.  Milton’s widow later sold the copyright to Symons for £8.   Edgar Allan Poe died virtually penniless, having risen above the poverty line only once during a fourteen year period between 1835 and 1849.  Similarly, Walt Whitman lived his whole life in poverty.  To paraphrase Kinky Friedman, they were ahead of their time and behind on the rent.  

    Things were no better for authors in ancient Rome.  How do we know?  The poet Horace (who coined the phrase “carpe diem”), grumbled loudly that his works brought the Sosii brothers (his publishers) gold, but, him, only fame.  Hic meret aera liber Sosiis, hic et mare transit, Et longum noto scriptori prorogat alvum. — (Art. Poet., 345)

    UK publisher, Michael Joseph in his autobiography, The Adventure of a Publishing  writes:
    I do not believe that the terms of a contract are often the reason for an author’s dissatisfaction, as may be supposed.  There are barrack room lawyers among authors, but they are very few.  For the most part authors are content with the terms they receive.  If they have an agent, the publisher cannot be held responsible; if they have not, they usually have little understanding of royalty scales and advances and are grateful for what they receive." Joseph went on to say that "nowadays there can be few publishers foolish enough to underpay their authors.  
    Joseph was living in a pre-Kindle world.  In his day, traditionally published authors would accept low royalties in order to get their books to market.  That was before the self-publishing revolution.  Today, many authors are saying no to 25% royalties offered by traditional publishers, opting for self-publishing, where they can receive 70% of the list price of an eBook sold on Amazon.  At the same time, it's not uncommon for published authors to jump from house to house, seduced by financial offers from competing publishers.“I never saw an author in my life,” wrote Oliver Wendell Holmes, “saving perhaps one, that did not purr audibly as a full grown domestic cat on his fur smoothed the right way by a skilled hand.” 

    Conclusion

    In a 1956 letter to travel writer Leila Hadley, S.J. Perelman shared his philosophy about the business of publishing: “[T]he only rule of thumb I know is, get the biggest advance you can (which in turn forces them to try to recoup their investment) and be as demanding on advertising, publicity, etc. as is consonant with your decency.”  Categorizing the common practice of only advertising a book after it begins to sell as “Alice-in-Wonderland” thinking, he urged Ms. Hadley to “be on the ground and participate in all the Martha Dean, Tex and Jinx, and TV panels merde you can evolve.”  Not bad advice.  


    *apologies to Robert Anderson who once said: "You can make a killing on Broadway, but you can’t make a living."

    Related Posts


    Outside of Dog #1: Mark Twain's 1900 eBook Contract

    (http://www.copylaw.org/2010/02/mark-twains-1909-e-book-deal.html)

    Outside of a Dog#3:  Poe's Legal Woes

    http://www.copylaw.org/2011/12/inside-dog-quarrel-among-literati.html)



    Wednesday, November 25, 2015

    What Every Author (and Publisher) Should Know About Media Liablity Insurance

    By Lloyd J. Jassin & Steven C. Schechter

    Adapted from their Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers 

    Publishing is a risky business.  Copyright infringement, defamation and invasion of privacy are just three of the media perils that freelance writers, bloggers, authors and their publisher
    partners must protect themselves against.  In addition to providing your own insurance by becoming well-versed in fair use, and clearing rights to preexisting materials when permission is required, you can manage risk with media perils insurance.  

    Media perils policies are available to authors and publishers to protect against intellectual property, defamation and invasion of privacy claims.  Unlike so-called comprehensive general liability policies, these policies cover claims of copyright and trademark infringement, invasion of privacy, defamation and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas, as well as a number of other media perils. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

    What Should I Look for in a Media Perils Policy?

    Insurance policies vary widely. It is important to emphasize your comprehensive general liability policy almost never protects you against the types of claims discussed in this article. However, if you are sued, or threatened with a lawsuit, your attorney should consult your policy to ascertain the scope of protection - if any - offered.  Keep in mind as well, that if your publisher is sued, the indemnity clause in your publishing agreement will make you responsible for legal defense costs, as well as for any settlement or damage award. 

    In the following section we discuss what questions you need to ask when shopping for a media perils insurance policy.

    1. Does the Policy Cover Attorneys' Fees?

    Determine if the policy provides coverage for legal fees and defense costs, as well as payment of damages. Some policies have defense costs within the limit of liability, while others offer defense costs in addition to the limit of liability. Defense costs outside the limits of the policy provide broader coverage.  Other policies require you to obtain approval before incurring any attorneys' fee or expenses. It's also important to determine whether the policy requires the insurance company to defend a lawsuit against you.  If it does, you can save a tremendous amount of money in legal fees.  A secondary concern is whether the policy will allow you to choose your own defense counsel. 

    2. Does the Policy Cover Punitive Damages?

    Another key point to investigate is whether the insurance policy covers punitive or exemplary damage awards. Some states, such as New York, do not permit insurance companies to insure you against punitive damages. Because an award of punitive damages may be substantial (sometimes even more than actual damages and attorneys' fees), where permissible, you should make sure that your insurance policy will cover any punitive or exemplary damage award. 

    3. Does the Policy Require a Lawyer's Opinion?

    Many insurers will not issue a media risks policy unless the publisher, or author, provides an opinion letter from a publishing lawyer analyzing the risks of a lawsuit. While the cost of hiring a lawyer to vet your manuscript can be significant, it is another form of insurance in and of itself.  However, it is a cost that should also be taken into account when comparing policies and their rates.

    While more common when insuring a film production, some policies will not insure the title of a work unless they receive a lawyer's title report.  While titles are not protected by copyright law, some may fall under the rubric of trademark law, especially titles that evoke an established brand, thus, creating a likelihood of confusion as to source or association with that brand.  Therefore, the cost of obtaining a title report should should be taken into consideration when shopping for coverage.  

    4. What Types of Claims Are Covered?

    It is important to speak with an insurance broker familiar with this type of coverage to find out exactly which types of claims are covered and which are not. For example, some policies cover claims of intentional infliction of emotional distress or misappropriation of ideas, while others do not. Other insurance policies offer optional coverage, for an additional fee, for claims for bodily injury or property damage resulting from negligent advice or instructions.

    All writers and publishers should obtain a policy that covers, at a minimum, claims of libel (written defamation) slander (spoken defamation), invasion of privacy, violation of the right of publicity, copyright infringement, trademark infringement and unfair competition. Obviously, the more types of claims covered, the better the policy. Many insurance policies exclude certain claims, such as those alleging intentional or malicious acts, from coverage. It is important to find out what types of claims are excluded, as you will bear the cost of defending excluded claims yourself.

    5. Which Versions of the Work Are Covered?

    You should investigate whether the insurance policy will cover more than one version of your work. If your work will be published in hardcover, paperback, traditional eBook and multimedia form, make sure the insurance policy covers all of those versions.  Additionally, find out whether the policy covers condensed versions, serializations, audiobook and other versions of your work. Similarly, you should find out if coverage extends to book jackets, flap copy, press releases, advertising and promotional materials (including catalog copy and companion blog),  interviews and personal appearances.

    6. Where Is the Policy Effective?

    It may seem like a simple question, but many policyholders fail to ask whether their policy covers claims outside the United States. Most insurance policies cover claims only brought in the US. If your work is going to be distributed outside of the United States, you'd better make sure that your insurance policy will cover claims and lawsuits brought in any country where your work is sold, or translated.

    7. Is the Policy a "Claims Made" or "Occurrence" Policy?

    There are two types of insurance policies: "claims made" policies and "occurrence" policies.  An occurrence policy offers broader coverage.  A "claims made" policy covers claims made during the policy period, whether or not the actual activity which gives rise to the claim occurred before the policy came into effect. An "occurrence" policy covers material published during the policy period.  If your policy is a "claims made" policy, and a lawsuit or claim is brought the day after your policy expires, the insurance policy will not cover the claim even though the acts giving rise to the claim occurred while your policy was in effect. Alternatively, with an occurrence policy, it doesn't matter when the claim is made. As a rule, you should avoid "claims made" policies.

    8. Settlement

    As an author or publisher your freedom of speech or press rights are protected under the First Amendment of the United States Constitution, as well under most state constitutions.   Therefore, it's important to ask the broker if the policy gives you input into the selection of a qualified First Amendment or media defense counsel. 

    Insurance Policy Prices

    The premiums for media insurance policies vary depending a number of factors, including the amount or limit of protection you elect.  The premiums generally take into consideration several additional factors, including:


    Whether you consulted a qualified publishing attorney. Most insurers allow rate card credits to authors and publishers who have their manuscripts reviewed by an experienced publishing attorney.
    The type of book. For example, the premium for a science-fiction novel will be less than that for an investigative report, or roman a clef, which might result in a lawsuit for defamation or invasion of privacy.
    Whether releases and permission forms have been secured, and if their scope cover all the uses, versions and editions of the work during the term and throughout the territory in which the work will be exploited.      
    Whether you've cleared the title of the book.
    Whether any claims have been threatened.
    The amount of coverage sought and the deductible. As coverage goes up, so do the premiums, but as deductibles go up, premiums go down.
    The writer's experience and reputation.
    If you are a publisher, the adequacy of the author or other contributor's contractual representations and warranties as to originality of content and factual accuracy of information.  
    The use of appropriate disclaimers.
              The revenues you expect to derive from the sale of your work.  


    If you are an author, you can ask your publisher to name you as an additional insured under their media perils policy, if they carry one.  However, don't be lulled into a false sense of security, as these policies often have very high deductibles, which are used to lower the publisher's insurance costs. 

    If there is already a claim made against a book, an insurance company may refuse to insure you, or exclude the preexisting claim.   For this reason, think twice about publishing all or part of the book online, or in a magazine or newspaper before the official book is published.

    TIP:  If you do obtain insurance, your insurance company will require that you promptly report any incident to them.  So, it's important to check your policy to find out how long you have to make a report.  Failure to make a timely report can result in a denial of a claim.

    INSURANCE CHECKLIST

    While not an exhaustive list, here is a checklist of points to raise with the broker when shopping for a media perils policy:

              What types of claims are covered?  

         
              What is the period of coverage? 
    What is the deductible and the limits of coverage for each claim? 
    Are legal fees and defense costs covered separately or in addition to the maximum policy coverage? 
    What are the conditions for coverage, i.e., is prepublication review and an opinion letter by an attorney required? 
    Who is covered (publisher, author, or both)? 
    Is there an additional charge or fee for naming an author as an "additional insured" party? 
    Are lawsuits outside the United States covered? 
    Is the policy a "claims made" policy or an "occurrence" policy? 
    Does it cover translations or other editions of the work (e.g., mass market paperback, trade paperback,  eBook versions, etc.)? 
    Are punitive damages covered? 
    Do you have the right to have your own attorney represent you or does the insurance company require their attorney? 
    Can the insurance company settle a case without your approval or do you have the right to approve settlements?
    Resources

    Organizations such as the Authors Guild and National Federation of Press Women, offer its writer members affordable media perils insurance policies. If you are a small independent publisher, contact the Independent Book Publishers Association (IBPA). 

    DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

    LLOYD J. JASSIN is a New York-based publishing and entertainment attorney in private practice. He is co-author of the bestselling Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg, FL 12, 1501 Broadway, New York, NY 10036, Tel: (212) 354-4442, email: jassin@copylaw.com. Follow him on Tweeter:  https://twitter.com/lloydjassin

    STEVEN C. SCHECHTER is a media and entertainment law attorney based in Paramus, NJ, and co-author of The Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Steven C. Schechter, 36 Farview Ter, Paramus, NJ 07652, Tel: (201) 880-9818, email: schechter@medialawyer.tv