Kill a Reader, Save Book Publishing (via Content Branding)

"[L]ike antivirus software which  scans for suspicious files and protects your computer, a trademark filters high risk information."

Google promises that the quality of information found on the internet (whether on depression or leasing a car) can be inferred through its search rankings.  However, often the author's credentials are unclear or inaccurate, or the commercial sponsorship of a site masked.   Currency of information is another problem.  Absent editorial control, unbranded, free information can be unreliable - even harmful information.   

Despite these concerns, we rely on the free internet to make important health and financial decisions.  While malware and viruses can take down a computer, misinformation can take a life.  I believe that as consumers become more cynical of search ranking results and online reviews, branding's role will increase.
 
Kill a Reader, Save Book Publishing

Like consumer health, the internet has put the health of commercial book publishing at risk.  Among other things, it has depressed the value of commercial nonfiction.  According to the Association of American Publishers (AAP) StatShot report for October 2012, nonfiction sales are down.  So, how does an ailing industry compete with free?  What would it take to get readers to flock back to stiff backed hardcovers, quality paperbacks, or download a  pricey eBook? 


Simple.  Branding, and a seriously injured mushroom hunting enthusiast led astray by an anonymous Wiki contributor who misidentified a poisonous mushroom as a "safe" and delicious substitute for store bought 'shrooms.   Free information is shitty information. That's the "Got Milk" message the AAP  should shout from the roof tops.  Blogs and Wikis kill!   AAP member publishers bring great ideas to life!   Publishers need to leverage their reputation.  

If you plan to birth a baby at home, traverse the Mohave Desert on foot, or forage for edible mushrooms, consult a recently revised and updated "big six" (five?) book. Put another way, a publisher's brand is a useful indicator of content quality. 

Cue the Director of Communications of the AAP 


My advice?  Prey on making insecure people feel safe when they purchase your books.  "We publish books by noted experts that you can bet your life on." 
 
Tragedy could open a door for the AAP to extoll the virtues of curated non-fiction. The AAP's current value proposition is, "We are America’s premier publishers of high-quality . . . and professional content." As such, the AAP pitch letter to the media might read:

If you are working on any stories regarding the recent mushroom poisoning deaths and health risks associated with uncurated information found on the Internet, we at that Association of American Publishers can provide a publishing industry expert for any relevant stories you are working on. Wikis kill. We 'bring great ideas to life."

In a run up to a "negligent publication"  trial,  Nancy Grace  would comment that the injuries were foreseeable, and wouldn't have happened but for a poorly researched Wikepedia artice on edible mushrooms.  One of the talking heads on the split screen would be an AAP insider-publisher.  He'd talk about publisher as curator, author credentials, branded content - but avoid the issue of currency of information, as publishers have not yet realized that creating a long-term relationship with the reader begins with creating a long-term relationship with the content, i.e., periodic revisions and reader alerts.  The phrase "negligent publication" would earn a hashtag, as people start to Tweet personal stories about their detrimental reliance on shitty, that is, non-curated information.    

The Ninth Circuit Court of Appeals recently defined the term "negligent publication" in a media liability policy as "a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct." The internet is rife with negligent information. The internet is a creepy, shadow universe of unverifiable facts, pedophiles, snake oil salesmen, substanceless self-promoters and sock puppets. Do I really believe this?  While there's truth in that statement, there are "flowers among the weeds."  

If you felt a tap on your shoulder as you read the above  paragraph, likely it was the First Amendment wishing to remind you that books are not products, and, historically negligent publication cases have gotten little traction in the courts. But, the value of a negligent publication lawsuit isn't in getting a conviction, it's the promotional value -- getting readers to question what they read.  And, to gain an appreciation for the value of a book curated by a reputable publisher. Cheap is dear. Upon big six (soon five) books you can rely. Blogs not so much.

Trademark is the New Copyright

The way I see it, trademark is the new copyright. It is the key to competing with free. Sock puppetry and fake online reviews,  further drives home the point that information quality and pedigree still matters.   Just like antivirus software which  scans for suspicious files and protects your computer, a trademark filters high risk information.  "Without trademarks to identify and distinguish products or services," John Oathout, author of Trademarks, says "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking." Regrettably, though, publishers have undervalued the goodwill associated with their colophons and imprints for years.

Whereas a trademark identifies goods, a trade name, like Random House, merely identifies a company. As Mr. Oathout points out, "Frequently, the same word identifies both the [producer] and the product. "The Random House Dictionary" for example. However, most books are identified solely by a generic (unprotectable) title, or the goodwill becomes associated with the author's (not publisher's) brand. If you are being disintermediated,  don't head for the exits by acquiring an assisted self-publishing company like Authors House.  Instead, rebrand your company as a trusted source, a marketer of books, and a policer of piracy.  

A Modest Proposal

If I were marketing manager of the Peterson’s Guides, I’d gladly forgo my entire field guide to North American mushrooms marketing budget ($0?), for one severely ill, penny wise, but dollar foolish, mushroom enthusiast who relied to his detriment on a Wiki, and a connected Howard Rubinstein Public Relations account exec.   

Seriously, if publishing houses wish to remain standing, their colophons and imprints need to stand for something.  Alfred A. Knopf (the man, not the imprint) was keenly aware of that when he wrote The Borzoi Credo, a publishing manifesto which appeared in the November 1957 issue of The Atlantic Monthly.

I believe that a publisher's imprint means something, and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less.

Of course, Knopf was talking about trademarks.  Trademarks identify the source and quality of a product.  Trademarks accrue goodwill, a valuable intangible asset, for the publisher.  If you are familiar with Vertigo comics and graphic novels, you know in advance something about the level of quality of their publications before you make a purchase.  From a marketing perspective, most major book publishers (but, not Harlequin) get failing grades.  While familiar to booksellers, publishing imprints do not, as a rule, resonate with readers.  But there are exceptions.  If you own or collect vintage vinyl, you get it.  The allure of specialty labels equates with the loyalty certain indie presses enjoy. Melville House is ESP Disk.  Akashic is Stiff Records.  Ig is Verve Records.  These brands -- like series titles -- communicate with prospective purchasers.  

Conclusion

As part of the AAP's  efforts to fend off  the digital barbarians, the EFF'ing advocates of free, Google Books, the recession, etc., they need to remind readers that their premier publisher members edit the books they publish.  They provide high-quality entertainment, education, scientific and professional content that you can bet your life on.  Read with confidence.  Download with confidence.    

Yes, flagrant flackery can save book publishing. 

Disclaimer:  This is a satire. A book published by a commercial publisher can be as dangerous to you health, wealth and well being as a blog written by a self-appointed expert, or a self-published book on a trending topic like safe self-surgery (#SSS).  As the authors of a study on the quality of web based information on the treatment of depression wrote, "The real challenge is to devise strategies that selectively eliminate the weeds but leave the flowers to bloom." Let the reader beware!

You Bet Your Life: "The secret word is . . . "

Resources

Alfred A. Knopf's (the man, not the imprint) Borzoi Credo. 

Winder v. GP Putnam's Sons (9th Cir. 1991) (Federal Appeals Court Decision concerning mushroom enthusiast who became seriously ill picking and eating mushrooms after reading The Encyclopedia of Mushrooms) 

Quality of web based information on treatment of depression: cross sectional survey Griffiths, K., Christensen, H.
 

Starting in 2013, Copyright Owners (and Heirs) Can Break Contracts & Recapture Copyrights

2013 is watershed year for authors & composers
They can now terminate virtually any post-1977 contract

The copyright termination time bomb is ticking away. In 2013 alone, thousands of the publishing and entertainment industry's cash cows -- backlist books and song catalogs -- will be decimated by copyright owners clawing back their contract rights. Some call it contract bumping. This powerful "re-valuation mechanism" found in the Copyright Act allows authors (and their heirs) to break contracts starting 35-years after signing.  The termination right trumps written agreements -- even agreements which state they are in perpetuity. Also known as “recapture” rights, termination notices for contracts and copyright licenses signed between 1978 and 1988 are currently in the mail.

Invisible "Reset" Button Levels the Contractual Playing Field

Designed to protect authors of older works, who, in hindsight, signed away their rights for less than adequate compensation, Congress devised a "reset" button that wipes out bad copyright contracts.  

Provided authors (or their heirs) satisfy the statutory notice requirements and maneuver properly, they can break any post-1977 copyright contract, provided it isn't a true work-for-hire agreement.

To avoid the loss of evergreen or backlist titles, publishers and record labels must renegotiate vintage contracts and obtain a re-grant of rights. If negotiations fail, creators or their successors can recapture control of those copyrights. 
What is a threat to mainstream publishers, is otherwise an opportunity for a cheaper, more flexible kind of publishing. With the ability to recapture rights; access to a plethora of digital publishing and media solutions, artists, authors and composers (and their heirs) will have to decide how much faith they should place in their existing publisher or label relationships.

The Mechanics of Copyright Termination

The termination right applies to grants of copyrights signed on or after January 1, 1978 by the author -- it does not apply to grants or licenses signed by an author's heirs. So, family members must be careful what they sign. As long as the work being terminated is not a “work made for hire,” the right of termination cannot be waived -- even if there are contractual provisions to the contrary. In short, copyright law trumps contract law. 

For an author or songwriter agreement entered into on or after January 1, 1978, the agreement can be terminated, and copyright recaptured, during a five year period beginning the earlier of 35-years after publication; or 40- years after the contract was executed.  Succinctly stated, “Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.” The author (or author's heirs) selects the date termination will take effect and must send a termination notice within the above termination window outlined in the Copyright Act. That notice must be served between two and 10 years prior to the effective date of termination. And, the process is not considered complete until the termination notice has been recorded with the Copyright Office, which must be prior to the date of termination.   

Practical Examples

Here are practical examples of how the termination right works:

Example 1: If a book contract was signed in 1978, rights could have been recaptured as early 2013, i.e., 35-years after the contract date.  In this instance, the earliest the author (or his heirs) could have served a notice of termination would have been 2003, i.e., ten years before the recapture date. 

Example 2: If a songwriter agreement was signed in 1978, the notice of termination could be served as late as two years before the latest recapture date. In this instance, 40-years from date of execution would be 2018, which means the notice of termination can be served as late as 2016.
 
Like the deed to a house, a notice of termination filed with the Copyright Act becomes part of the copyrighted work's chain of title. If anyone were to review the Copyright Office’s database, the author or composer's name will show up in the "notice of termination” document.

Going, Going, Gone

As you have read, the rules governing termination are dense.  They can also  be unforgiving.   Calculating the notice and recapture dates is the author or composer's sole responsibility.  The Copyright Office does not provide forms, and they cannot calculate the notice and recapture dates for you.  Ergo, consult with a knowledgeable copyright attorney -- not your average wills or estate planning attorney. 

Generally, wills, trusts and estates attorneys know little about copyright law.  Do not consult your book or music publisher, as they hope you  never read this article.  All that is necessary for your publisher to win the copyright termination game is for you to do nothing.  

Clawing Back Rights to Pre '78 Works

While the current focus is on works published after 1977, the Copyright Act also gives creators and their families (if the creator is deceased) an opportunity to terminate pre '78 contracts and, dramatically, challenge (or rewrite)  an author's will.  This subset of the Copyright Act, provides for recapture of rights any time during a five year period beginning at the end of 56 and 75-years from the date the copyright was secured.  The reasons for this are explained below.

Omitted from a Will?  The Act Trumps a Copyright Creator's Will  

Sacrosanct as wills may appear, Congress wanted copyrights to go to an author's family according to federal rules -- not state law.   So, it may come as a big surprise that a will is not the final word on who gets a deceased creator's pre '78 copyrights.  It's worth repeating.  The Copyright Act, not an author's will dictates who receives the author's copyright interest in death.  And, unlike state law will contests, you don't have to prove suspicious circumstances surrounding the drafting of a will.  Where a spouse or child has been intentionally or unintentionally omitted under a will, the spouse or child (including adopted children or those born out-of-wedlock) are entitled to claim recapture rights.  But you may ask, "What are they recapturing?"  Over time, Congress lengthened the original 56-year copyright term to 75-years, and again from 75-years to 95-years.  The recapture rules allow heirs to claim the bonus 39-years copyright (or, in the case of works published in the late 30's, the final 20-years) Congress tacked onto the original, shorter copyright term.

Another termination quirk, exemplified by example three below, allows family members to recapture a full 67-years of copyright if the creator died within 28-years of initially publishing the work.        

Example 3. Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew. Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his four children according to the Copyright Act -- cutting off  a brother, sister and nephew mentioned in his will. Today, his sons (two of whom were not included in their father's will) and his daughter, jointly control the remaining 67-years of copyright in Bitches Brew and other songs. Here, the Copyright Act rewrote both Miles Davis' will and songwriter agreements.

Similarly, in 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work.  Starting in 1999, using Section 304 of the Copyright Act, Siegel’s heirs recaptured his rights to the Superman character.  Similarly, the estates of James Baldwin, Truman Capote, William Saroyan, Lorenz Hart, as well as children born out-of-wedlock to creators and composers like Hank Williams, have availed themselves of these valuable rights.

Termination "To Do" List for Heirs

You must prepare for the opportunities ahead.

Review Old Files.  If ever there was a time to review old copyright files, it's now.  If you can, locate copies of old contracts and license agreements.  Make a list of titles and publication dates.  If the author or creator is deceased, compile a list of possible heirs.  


Don't Dawdle.  Doing nothing is not an option.  If you simply do nothing, the termination window will close.   

Copyrighted Between 1935 & 1945?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights.

Copyrighted Between 1954 & 1967?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights.  


Contract Signed Between 1978 & 1988?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights.   

Published After 1977?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights.

Don't sign anything without consulting an attorney.  It's easy to inadvertently waive the termination right.  Regrettably, time-and-money crunches cause some people to basically just say “yes” to what is put in front of them.  Don't be one of those people. Congress provided only one do-over.  

Alert!  If you invoke your termination right, and re-grant rights, you may have to live with that second deal.  That is what happened to Christopher Robin who re-granted rights to Winnie-the-Pooh to Disney in 1983.  That agreement to re-grant rights cut off his daughter's right terminate the original 1930 agreement signed by her grandfather, A.A. Milne.  The lesson in all of this is don't sign anything without consulting an attorney. 

Negotiate.  If authors wish to renegotiate the terms of an existing contract, they must wrestle with contract details that seem daunting.  Don't make the same mistake twice.  There is no such thing as a standard agreement.  Contract provisions such as advances, royalty rates, fees, the grant of rights and  territories, the duration of the agreement, the right to create new works based on the old, are all negotiable. If you retain us to represent you, we will negotiate with your original publisher on your behalf.

Terminate.  Original publisher not an option?  Consider taking control of these rights yourself, or entrusting them to another partner for better terms, including a new advance, higher royalties, catalog promotion, etc.  Again, if you retain us to represent you, or your family members, we will negotiate with your new publisher on your behalf, or help you to set up your own publishing company   

Don't Assume Your Estate Planning Attorney Understands Any of This.  Suffice it to say, due to its complexity, and the dearth of case law interpreting the copyright termination statute, it's not surprising that agents, as well as many trusts and estates attorneys, are not conversant in the ins-and-outs of this esoteric topic.  We are happy to work cooperatively with your trusts and estates attorney.  

Maneuvering the Other Complexities

There is also a whole emotional side to copyright termination. These are not just business and financial decisions, but decisions that may involve family members, and the revisiting of past relationships. Fortunately, the invisible copyright "reset" button found in virtually every copyright grant or license, and certain wills, also has the potential to set right injured relationships -- provided the focus is on the future, not past injustices.  

It's Time to Break Bad Contracts and "Bump" Wills

With the exception of true "works for hire," it is not hypothetical speculation to say that every author contract entered into on or after January 1, 1978 is vulnerable to termination.  To that end, we can we can: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare and record your Notices of Termination; (iv) assist you recover rights to copyrighted works you thought were irrevocably assigned or bequeathed to others; (v) help you negotiate new, better contracts; and, if requested (vi) work cooperatively with your trusts and estates attorney on reopening an estate. 

The opportunity to break or renegotiate a contract comes around just once every 35-years (if a pre '78 work, that's once every 56 or 75-years).  If what you sign is a revoke and re-grant of rights agreement, you (or your agent) may be signing away valuable rights for less than market rate.  Contact us to discuss business and legal strategies.

Contact us at jassin@copylaw.com 

The Best 1978*

Select Backlist Books

 1. The Stand - Stephen King

2. Eye of the Needle - Ken Follett

3. The House of God - Samuel Shem

4. The Far Pavilions - M.M. Kaye

5. Holcroft Covenant - Robert Ludlum

6. Chesapeake - James Michener

7. If Life Is a Bowl of Cherries . . . - E. Bombeck

 Select Songs (artist, not composer shown)

1. Is This Love - Bob Marley

2. Le Freak - Chic

3. My Life - Billy Joel

4. Life's Been Good - Joe Walsh

5. Night Fever - The Bee Gees

6. Miss You - The Rolling Stones

7. YMCA - The Village People

*For a work published on January 1, 1978 the latest the termination notice can go out is January 1, 2016

NOTICE: 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.
 
Contact:  Jassin@copylaw.com or at (212) 354-4442. Law Offices of Lloyd J. Jassin, The Actors' Equity Bldg., 1560 Broadway, Suite 1100, New York, NY 10036.

(c) 2011 - 2013. Lloyd J. Jassin. All Rights Reserved.

2018 Publishing Predictions: Mass Digitization a Fair Use, Amazon & Google Agree to Antitrust Consent Decrees

2018 Publishing Predictions

My 2013 predictions mainly concern the year 2018. Why?  It's easy to predict the near term (unless you are trying to accurately predict where the markets will go over the course of one year).  Also, the practical utility of a short term prediction is limited.  When the air raid siren has sounded, it's too late to build a shelter.  Predicting the mid term allows time to adjust behaviors and positions.  And, as a celebrity seer once said to me, "If you engage in fortune telling, foretell the mid-term.  That gives them time to forget your inaccurate or mistaken predictions."   His other advice was to "predict outcomes not details."  On that one, I've broken with accepted prophetic practice. 

[Suggested musical accompaniment:  Bob Dylan's Went to See the Gypsy.  Video embedded at end of post.]

Prediction 1

FTC Cuts Amazon & Google Down to Size

Depiction of FTC Attack on Google

(New York) November 22, 2018.  The FTC concerned about vertical integration (control of content production and distribution) will prohibit Amazon and Google from having a monetary interest in content they distribute or display.  Amazon and Google will agree to consent decrees, whereby Amazon* is forced to spin off its Simon & Schuster, Avalon, Dorchester, Sony Records and Showtime divisions.  Likewise, in response to accusations it abused its market power i.e. the ability to control price or reduce competition, in internet searches,   Google will agree to divest its Dummies, Frommer, Google Maps, JK Lasser Tax Institute, Automobile Club of America, Zagat and ESPN divisions. In a complicated formula to be worked out by FTC and European regulators, within 90 days of the decree, Google will be ordered to start sharing proceeds of revenues derived from sale of personal data of users who click a new "Monetize Me"  button.  Neither Google nor United Parcel Service (UPS)  will be willing to comment on how the  consent decrees will impact their proposed merger.  Lloyd Jassin will be quoted as saying, "Privacy is the new copyright."

"Protecting competition in the digital marketplace is a high priority for the FTC," will say Bureau of Competition Director Richard Feinstein. "This order will ensure that vigorous competition continues in the worldwide online market for entertainment and information products, and that consumers are not faced with reduced innovation as a result of digital favoritism and dwindling access to markets for independent publishers and other independent content producers." 

"The Internet is better served with less regulation," David Crane, a Google-friendly legal scholar will be quoted as saying. "This violates nearly every tenet of laissez faire capitalism.   What Google is doing is good business.  It's not exclusionary.  While Google is invaluable, it's not essential.  Stop complaining about your inability to compete. Start competing."   

*Why the FTC Took Amazon & Google Apart: An Antitrust Analysis: By 2016, the FTC determined that Amazon and Google had turned their backs on their original missions of openness and innovation. The platforms, via exclusionary tactics, have  become toxic to healthy innovation. Responding to real or perceived external threats, both companies had abused their market power by raising barriers to entry,  making it difficult for potential new entrants as well as large companies to compete.   It started in earnest in June 2012, when Amazon Publishing acquired category publishers Avalon and Dorchester. Four years later, Forrester Research reported that 70% of America's online shoppers began their search for a product at Amazon. Google which tied search to advertising, controlled 70% of America's advertising sales by 2016, and was rumored to be in talks with UPS about a possible merger. That same year, the EU fined Google $500M Euros for cooking search results, i.e., favoring its own content over the content of others. Book publishers and more so, film and television studios and the interactive gaming industry had become a threat to Amazon. They could withhold products, or, in the case of studios and the interactive gaming industry, increase license fees at the end of a license term. Google, now a mature business, simply lost its way. The FTC determined it was time to regulate the platforms. But they needed to make their case.  Amazon had shown an unsavory willingness to withhold technological innovations from suppliers and vendors for its own advantage. Using its position of dominance, it often disabled "buy now" and "buy" buttons to address threats from its publishing suppliers. But, it wasn't just about books. Similar tactics were used to punish suppliers and deny threats to entry in gaming, music, publishing, motion pictures, kitchenware, infant diapers and formula, and shoes. Hoping to mimic the trading template created by Amazon, Google eyed UPS as a way to fill in the gaps in creating a fully integrated trading company. Amazon and Google's entrepreneurial audacity were tolerated until they exhibited parallel habits of willful exclusion of others - otherwise known as conscious parallelism in the rubric of antitrust law. After being scrutinized for possible antitrust violations for several years, the FTC determined that they ceased to be the instruments  of innovation; so the FTC cut them down to size. Reflecting on the Apple "Agency Pricing" consent decrees of 2012 - 2013, a former Justice Department attorney (anonymously) observed that "Price fixing cases were easy to sell, both politically and as a coherent story. There were clear villains. Apple. Big publishing. The consumer felt it in their wallets. The price of eBooks went up. When former innovators go bad, those are the tough cases. When do you bring an enforcement action? It's a matter of timing. The FTC waited until they believed innovation and openness had taken a back seat to discriminatory practices."

Prediction 2 
 
Google Wins Fair Use Battle 

If you are looking for something short-term, something 2013'ish, I predict that Google wins (or The Authors Guild settles) the fair use litigation commenced in 2005; that Google does not seek attorney fees or otherwise act punitively.  Is the mass digitization of  books a good thing?  Yes, unless Google favors its own content over yours.  See, 2018 Predictions above. 


Resources 

Looking Back on My 2008 Predictions (article) (Lloyd Jassin)