Amazon's Evolving Role in Publishing: A Decade of Change

Introduction

On May 1, 2011, the publishing industry was shaken by the news that Amazon intended to use its enviable market power to launch its fourth publishing imprint. At the time, I commented that Amazon could perform all of the activities between the delivery of an edited manuscript and the delivery of finished books, thus bypassing the role of traditional publishers.

Now, over a decade later, it's crucial to revisit these observations and examine how the landscape has shifted. This updated article combines insights from 2011 with a fresh analysis of the current state of publishing, demonstrating both the prescience of earlier concerns and the emergence of new challenges.

Amazon's Evolving Role in Publishing: A Decade Later

The publishing industry has undergone significant changes since 2011, but many concerns about Amazon's market power and its impact on the book industry remain relevant. Let's revisit these issues and examine how they've evolved over the past decade.

The Consolidation of Amazon's Power

In 2011, we worried about Amazon launching new publishing imprints. Today, Amazon Publishing is a major player with 16 imprints across various genres. As of 2024, Amazon Publishing has expanded to include 17 imprints, releasing over 1,000 titles, everything from nonfiction, to fiction, to children's books.  

Amazon's power now extends beyond just books:

• Audible dominates the audiobook market
• Kindle Direct Publishing is the go-to platform for self-published authors
• Amazon Web Services (AWS) hosts many publishers' digital infrastructure.

The Evolving Bookselling Landscape

The "showrooming" effect predicted in 2011 has become a reality, with many customers browsing in physical stores but making their purchases online. However, the landscape has evolved in unexpected ways. Many large bookstore chains have faced significant challenges, with some closing their doors.

 Notable closures include:

• Borders Group, which liquidated its remaining 399 stores in 2011, just before the original article.
• Family Christian Stores, which closed all 240 locations in 2017 after 85 years in business.
• Book World, which shut down its 45 stores across the Midwest in 2017.
• Hastings Entertainment, which closed all 123 stores in 2016.

While many brick-and-mortar retailers have struggled or downsized in the face of e-commerce growth, Barnes & Noble has found success by focusing on local communities and smaller store formats. Under the leadership of CEO James Daunt, the company has revamped its business model, allowing individual store managers more autonomy in selecting books and creating a unique customer experience tailored to local tastes. Similarly, between 2020 and 2021, independent bookstore sales have grown 31.6 percent, to $633 million. 

Antitrust Concerns

Antitrust scrutiny of Amazon has intensified. In 2021, the company faced lawsuits alleging anticompetitive practices in e-book pricing. While no major regulatory actions have been taken against Amazon in the U.S. book market, the conversation around big tech's market power continues.

Data and Privacy

The concern about Amazon monetizing reader data has only grown more relevant. With the rise of e-books and Kindle devices, Amazon has unprecedented insight into reading habits. Publishers and authors should continue to advocate for reader privacy and transparency in data collection practices.

The Rise of Subscription Models

Kindle Unlimited, launched in 2014, has become a significant player in how readers consume books. This subscription model presents new challenges for publishers and authors in terms of compensation and discoverability.

Looking Ahead

As we move forward, publishers and authors should focus on:

• Diversifying distribution channels
• Leveraging direct-to-consumer relationships
• Advocating for fair competition and transparent practices in the digital marketplace
• Exploring new technologies like blockchain for rights management and royalty tracking

The publishing industry must continue to adapt to the digital landscape while working to ensure that no single entity wields excessive control over the marketplace of ideas.

Writing About the Dead

While the dead cannot be defamed, those left behind—such as family members or associates—can pursue legal action over perceived injury to their reputation. This article provides tips for minimizing legal risks when writing about the deceased.

How 'Look Inside the Book' Previews Increase Legal Risks for Authors

Joseph Iseman, a former partner at the law firm of Paul, Weiss, Rifkind & Garrison, once advised Peter Schwed, the editorial director of Simon & Schuster, that preparing an index for any nonfiction book was a dangerous activity if any of the characters were still alive.

In his autobiography, Turning the Pages: An Insider's Story of Simon & Schuster, Schwed explained Iseman's reasoning.  "Anybody who thinks he is likely to be in a book but doesn’t intend actually to read it is likely to scan the index to see if there are any references to him." 

Amazon's Look Inside the Book feature, which allows potential customers to preview a book's content before making a purchase, has made Iseman's advice to omit the names of living individuals from the index a relic of a pre-internet age. Whereas, in the 1990s, you could still minimize the chances of getting sued for libel by omitting an index to your book, there's no hiding in today's digital world.

Rest in Peace? Libel Law and the Deceased

Under U.S. law, the dead cannot be defamed. However, a person's estate may continue to pursue a defamation claim filed before death.  

Here are some strategies for minimizing legal risks when writing about the dead: 

(a) Consider the Deceased's Family. While the dead cannot be defamed, be careful about making unsupportable accusations about the living—their family, friends, and associates. Unlike the dead, they can fight back.

(b) Utilize Disclaimers. A prominent disclaimer stating that your work is fiction or that certain elements are fictionalized may help deter claims by the living. Still, as explained below, it is not an impenetrable shield against defamation.

(c) Fictionalize. Changing names, locations, and certain details can help minimize claims. However, even if labeled as fiction, if someone closely resembles a real person in ways that make them identifiable to others, that person may have grounds to sue for libel.  

(d) Truth. Truth is an absolute defense against defamation claims. If the statement can be proven true, it cannot be considered libelous, even if it harms someone's reputation. 

The most foolproof strategy for minimizing libel claims is to wait for your literary prey to die. As the old saying goes, "He who laughs last laughs best. Revenge is best served cold at your publication party—preferably with a glass of Sauvignon Blanc, Riesling, or Gewürztraminer.

*A handful of states as of this writing, including Colorado and Georgia, have criminal libel statutes that allow the dead, i.e., their estates, to sue for libel.  In Colorado, any statement "tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred contempt or ridicule,” can get you into hot water if writing about a private individual.  For more information about criminal libel, click here.

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Related Articles 

• Legal Consequences of Using Real People in Fiction
• When Can I Legally Use, Repurpose and Publish Without Permission? 
• How to Choose a Book Title and Not Get Sued
  

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The Future of Publishing: Know Your eBook Rights

 

Do publishers control eBook right to their legacy titles?

"Arguably, yes, but not for much longer."
-- Lloyd Jassin

 

 On September 28, 2010, Publishers Weekly and the Book Industry Study Group held a seminar at the Random House building entitled The Future of Publishing: Know Your eBook Rights.   It was moderated by Jim Milliot of PW.  I was honored to be on the dais with Paul Aiken, Exec. Dir., Authors Guild; Neil de Young, Exec. Dir, Hachette Digital; and  Scott Waxman, Waxman Literary Agency.  The following concerns future technology rights and the threat copyright termination -- and Andrew Wylie -- pose to legacy publishers.

JIM MILLIOT (PW): Great. Thanks very much. Lloyd?

LLOYD JASSIN: If Paul (Aiken) is a glass half full kind of guy, then you’ll slit your wrists after I’m done speaking. (laughter) I’m Lloyd Jassin and I want to thank Publishers Weekly and the Book Industry Study Group for inviting all of us here. Because I’m an attorney, I evoke a lot of hostility so let me lay a little foundation.  

While I am an attorney I also consider myself a part of this industry. I started out in book publishing 25 years ago, originally at St. Martin’s Press, and then Simon & Schuster. I was a director of publicity for a division of S&S that published long-shelf-life branded nonfiction, which was a good idea then and is even a better idea now for a variety of reasons dealing with electronic publishing. So I’m an exile from publishing. I then went to law school and worked in television and syndication distribution, doing a lot of trademark licensing. I’m also an author. I currently have a boutique law firm, and I represent franchise authors, midlist authors, some literary agencies, midsized book publishers, and the like. So I don’t see things just through the eyes of an attorney/advocate, or a publisher/author. I think I see things a little differently. Plus I have a lot of friends in the music business and we all know what’s happened to them.

So if somebody asked me about the future of book publishing, which I think is the subtext of this morning’s discussion, I’d say, to paraphrase one of my music business friends, “the future of publishing is bright, but the future of the ‘Big 6’ publishing industry is cloudy.” I think publishing has always been in disaster mode, and it will reassess and reform and maybe get smaller, but it’ll adjust to the changes. So big publishing is in peril; you don’t need me to tell you that. But I don’t think it’s just the recession, I don’t think it’s just disintermediation. It’s the fact that, in large part, older contracts didn’t contemplate the digital future. That is an error that you can lay at the feet of the publishers, because they drafted those contracts, and future technology clauses have existed for at least a hundred years. I handed something to Paul that he probably is familiar with, which is Mark Twain’s contract, in his handwriting, which talks about future technologies. So it wasn’t that they didn’t know about future technologies. It’s just that the lawyers were asleep at the wheel, in my opinion.

So respectfully, and it’s very respectful because I’m here at Random House, I disagree with Marcus Dohle, Random House’s CEO’s statement that the vast majority of backlist contracts granted Random House e-book rights. I believe he wasn’t speaking just for Random House but for the industry.  Those contracts need to be reviewed on  a case-by-case basis. Some contracts  granted them e-book rights; a lot of them certainly didn’t. But I think whether they did or didn’t may  actually moot, and what I mean by that is, evenif they did grant Random House and Simon & Schuster and their brethren electronic book rights, they have them only for the short term, not the long term. The Copyright Act giveth and it taketh away, and already, and with greater velocity in two years, authors will be able to exercise their statutory termination rights. These are rights found in the Copyright Act that allow authors who didn’t know their worth when they negotiated their publishing contracts 35, 56, 75 years ago, the right to go back and negotiate  a better deal. Is it fair to publishers? It’s really not a question of fairness; it’s the law. And wherever you come out on this issue, the copyright termination provisions of the Copyright Act are going to allow authors to reboot their pre-Internet contracts, and clear up any of the ambiguities regarding e-book in the author’s favor.  So, if the question is, do publishers control e-book rights to their legacy titles?  Arguably they do, but not for much longer.

What happens when the right to reprint classic titles is threatened  is the subject of another evening, but what it comes down to is, agents and publishers disagree on two key issues.  Who controls e-book rights? I think the question’s been answered, whether it’s the Rosetta books decision which Random House lost, or the reversion of rights in favor of  heritage or legacy authors. The historical irony is that 301 years ago, the Copyright Act gave authors the exclusive right to control their writings and other intellectual property and authors in turn gave publishers an exclusive monopoly over their works. The reason authors needed publishers was that publishers controlled the printing presses.  That’s what came between readers e and the writers of the time. Now that the printing press is less important and authors can control their own printing presses, I think we’re going to see a dislocation, a disruption, in the way business has been done for a lot of years.

I did the math and 2013, which is first date rights can be recaptured, is two years, 95 days, and approximately 16 hours from now. That’s when the copyright termination or “contract bumping recapture” first time bomb goes off.  It will threaten publishing’s backlist and all of the books on the backlist that begin with the words “Vintage,” “Classic,” ”Heritage”; titles published 35, 56 and 75 years ago are at risk. When a publisher’s backlist has to be renegotiated, it has profound implications for the industry, and makes authors and publishers reassess their relationship. I think what will happen is old contracts will be renegotiated – publishers will  compromise rather than lose authors. And, it’s generally a good idea to leave the dance with the party you came to the dance with, so while authors have the ability to put a knife to the throat of publishers—it’s the Copyright Act that allows them to do that—I think there’ll be accommodations. If you synthesize  this, agent Andrew Wylie, by settling for a 40 percent royalty on backlist titles for his legacy authors, makes me question his negotiation skill. It could be that Random House had pictures of him in a compromising position in Frankfurt. I don’t know.  Perhaps, he didn’t consult his  attorney before accepting Random House’s offer.  Why?   In in two, three, four years, all the rights he bargained away are going to revert to his authors.  Before long, it’s going to be a 50 percent – or better – deal that authors and agents will be striking.  Maybe Mr. Wylie  got large advances in exchange, and it’s a short-term license, so there are lots of ways that you can work things out. Forty percent wouldn’t look so bad to me if I got several million dollars up front. Money today versus money tomorrow. 

[The full interview will run in the Spring issue of The Authors Guild Bulletin]


Resources

The Copyright Termination Time Bomb

Halloween Copyright Suit: Albert Einstein Costume Case

Did Albert Einstein's right of publicity go to the grave with him? 

That's what a Halloween what a costume manufacturer alleged in a declaratory relief action recently filed in New York federal court.  The suit was brought to challenge Hebrew University of Jerusalem's claim that using Einstein's name, image and likeness for a "Heroes in Disguise" costume kit , without their consent violated Einstein's postmortem right of publicity. 

Forum Novelties claims that Einstein's right of publicity, which Hebrew University allegedly obtained under Einstein's will, was not descendable since Einstein did not exploit it during his lifetime.  Einstein who once said, "Why is it that nobody understands me, and everybody likes me?," would likely consider Forum's argument nonsensical, as he clearly knew his identity had commercial value beyond his field of professional activity.

Like copyrights and trademarks, the right of publicity can be assigned or licensed, or in the case of Einstein, a former New Jersey resident, bequeathed by will.  Eighteen states recognize a right of publicity that continues after death - some have statutes that cover both the living and the dead, and others, like New Jersey, recognize a common law right of publicity.

Some states have a controversial requirement that the deceased personality must have exploited their right of publicity during their lives.  Professor J. Thomas McCarthy, in his well-regarded treatise, The Rights of Publicity and Privacy (2d Ed), states that the "overwhelming majority rule under either statute or common law is that the right of publicity . . . is not conditioned on lifetime exploitation."

First Amendment Defense

Separate and distinct from the failure to exploit during his lifetime defense, Forum also lays a foundation for a First Amendment defense.   In its complaint it refers to the Heroes in Disguise kits as "intended to be worn by children acting in historically based school plays and in every day play."  Free speech concerns often factor into right of publicity cases.  In this instance, Forum is hoping that the court will see its Einstein disguise kit not just as a commercial product, but as an expressive or communicative work, like a biographic book or film conveying some historical fact.  Whether a mixed use disguise kit used in connection with Halloween "trick or treating" and school plays, takes the use out of the realm of commercial speech, remains to be seen.

While filed in the Southern District of New York, the case ultimately turns on New Jersey law.  New Jersey was the place where Einstein last lived, as such, that state's law governs the postmortem right of publicity issue.  Had Einstein last lived in New York, he would have had no descendible right of publicity, as New York does not recognize postmortem publicity rights. 

New Jersey has a well developed body of right of publicity law.  In fact, New Jersey was one of the first states to recognize a right of publicity.  In Edison v. Edison Polyform Mfg., 67 A. 392 (N.J. Ch. 1907), the court granted Edison an injunction, restraining the use of his name and likeness in the corporate name and in advertisements for a company that sold pain killers.   In Edison, the court reasoned that "[i]f a man's name be his own property ... it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it."  Another famous New Jersey  lawsuit, which involved a photograph of an Elvis look-alike entertainer, held that  New Jersey recognized a  postmortem right of publicity.  Presley's Estate v. Russen, 513 F. Supp. 1339 (D. N.J. 1981) (Presley imitator's live concert "experience" neither social commentary nor parody).  In dicta, Russen touched on the lifetime exploitation issue, but according to McCarthy, did not resolve it.

Trademark Claim

In addition to the right of publicity, Albert Einstein, like Marilyn Monroe, Babe Ruth and Al Capone, is a federally registered trademark.  Right of publicity and trademark claims often overlap.  Hebrew University owns several Albert Einstein federal trademarks (Reg No. 3591305) for among other things, clocks, bumper stickers, socks, imitation luggage, cookie jars, flower pots, toy butterfly nets and sweatshirts -- but curiously, not sweaters, for which he is closely associated.

In order to prevail on a federal trademark claim, Hebrew University must show that Forum's use of the words "Albert Einstein" is likely to create confusion as to the origin or source of the costumes.  In its complaint, Forum attempts to deflect federal trademark or Lanham Act claims for public confusion, by emphasizing the ample use of disclaimers, such as its house mark and its "Heroes in History" trademark on the packaging.  

Where the commercialization of celebrity rights seems to be forever expanding, the Forum case is a rare, somewhat risky, preemptive attempt to expand the bounds of permissible use of a celebrity's name and likeness.  Exploitative or informational?   A First Amendment protected costume or an advertisement in disguise?  Whatever the court decides, Einstein is clearly a bankable cultural icon worth fighting over.
     
Forum Novelties, Inc. v. Greenlight, LLC and Hebrew Univ. of Jerusalem (10 Civ. 9414, SDNY), filed 12/17/10


Related Links

New York Post

Jassins Settle Claims Against Original Dixieland Jass Band

Happy Holidays!

(or a Transparent Attempt to Fair Use Dr. King's Words About Faith, Love & Jazz?) 
 

 Jim Morrison is not the only musician who has been pardoned this holiday season.  In ceremony on Friday, which exuded warmth and openness, the Jazz world and Jassins came together and reconciled a 95-year dispute over the derivation of the term "Jazz".
Sometime between 1916 and 1918 the Original Dixieland Jass Band (aka Stein’s Original Dixieland Jass Band), in a lame attempt to obviate the likelihood of confusion with the name Jassin, dropped the word “Jass” from the band's name and replaced it with the confusingly similar word “Jazz."   

The word "Jazz" stuck, and recording artists and companies and have used the term Jazz to describe what one commentator called "an ever changing and evolving musical style." 

The name Jassin had been used in commerce since at least as early as 1910 -- prior to the date the ODJB adopted the mark.  I was adopted with knowledge of the A. Jassin & Sons butcher shop, purveyors of fine meats and poultry on the Lower East Side of Manhattan, which purveyed, among other things, flanken and short ribs to a professional klezmer musician named Sol.  

As such, Bix, Fats, Bird, Miles, Trane, Dizzy, Monk, Satchmo, Duke and the Count's widespread misappropriation of "Jass" (and related terms), has long constituted trademark infringement, unfair competition, false endorsement, under §§ 43(a) & (c) of the Lanham Act, as well as misappropriation of the right of publicity, and other nasty stuff.  By engaging in this wrongful conduct, they have reaped ill-gotten profits, but given us so much.  

In the spirit of the holidays, which brings pardons to turkeys (can you actuallty pardon a turkey if it hasn't committed a crime?) and dead rock stars, I hereby release any and all claims the Jassins currently have, or may have in the future, against the jazz community relating to the use of "Jass" (or any confusingly similar term) in connection with the advertising,  marketing, promotion and performance of jazz music.  Perhaps, Dr. Martin Luther King said it best:

"Everyone has the blues.  Everyone longs for meaning.  Everybody needs to love and be loved.  Everybody needs to clap hands and be happy. Everybody longs for Faith.  In music, especially that broad category called Jazz, there is a stepping stone towards all of these."

Martin Luther King, Jr.,

in his opening address

to the 1964 Berlin Jazz Festival 

+

Happy Holidays!

 Law Offices of Lloyd J. Jassin