Amazon’s New Imprint: Publishers Should be Scared.

The publishing industry was shaken the week of May 1, 2011, by news that Amazon intends to use its enviable market power to launch another new publishing imprint.

Traditionally, bookselling was separated from publishing, with booksellers (including Amazon)

realizing the benefit of combining the wares of many publishers. Now that Amazon can perform all of the activities that take place between the delivery of an edited manuscript and the delivery of finished books to readers, the publishing industry needs to take a long, hard look at its current business model and start boning up on antitrust law.

As early as 2008, Amazon was actively going after new product and readers. However, at that time, it was self-published authors via what was then called Createspace, not Andrew Wylie's franchise authors.  It was clear in 2008, that if you coveted virtual shelf space at Amazon, they could lock you out if they adopted a strategy of favoring their books over your books.  

Once a Bully, Always a Bully

On May 8, 2008, in response to Amazon's threat to disable a book’s “Buy Now” button if its publisher did not subscribe to Book Surge Print, Amazon's print-on-demand service, I wrote a cautionary article for the New York Center for Independent Publishing. In it, I posed the following question: What if Amazon determines that it is profoundly profitable to publish its own books?

 

Amazon's Book Surge gambit showed its hand, and instantly, the digital publishing landscape changed forever. As chair of the Center for Independent Publishing, I mused, "If Amazon does not use its great size and ability to bring its own books to readers' attention, we will be very surprised."

We Don't Sell Books, We Aggregate Customer Data

It's no surprise that Amazon is not afraid to use its market power.  Recently, we saw Amazon remove thousands of "buy" buttons from books published by Macmillan over a dust-up on ebook prices.  Placing excessive control of content and distribution in the hands of one company -- whether Amazon or Google --- does nothing to promote the marketplace of ideas.   Unlike trade publishers, Amazon is data-driven.  Like Google, they can monetize readers' information.  Amazon reads its customers like a book.   The key takeaway is that there is a real tension between the interests of Amazon and traditional book publishers. If Amazon strays from its core business of selling books and offers free content to readers in exchange for advertising or subscription revenue, the value of literature will be devalued.

As I wrote in an earlier post, keep your eyes on the Amazon Cloud Player, its so-called music locker, and the advertising-supported version of the Kindle. Both are new platforms designed to collect revenue by monetizing consumers—not just selling books.

If you are a stakeholder in selling physical books, you must be concerned about what Amazon is doing in the clouds.  Is music a false analogy? The profound changes in the music business have led them, and perhaps Amazon, too, that uploading music to a secure server (rather than digital downloads) is that industry's panacea.  Ten years into the digital transition, 50% of music sales are physical and 50%digital.  It took fiction publishers only two years to get to where the music industry got in a decade.  Ebook sales are increasing geometrically - not arithmetically.   Technology is about access.  Copyright is about ownership and control.  Faster and cheaper trumps bricks and mortar.     

Keeping the customer happy (a cloud book service allows readers to read digitally on multiple devices -- it's device agnostic) is Amazon's mantra.   They make selecting and purchasing books convenient.  All good from a reader's perspective.  However, they have been complicit in devaluing literature, which could (if books were their core business) be a real concern for Amazon.  I suspect it isn't.                 
Legacy publishers need to examine the laws and policies surrounding the delivery of digital content. They could hire publicists and lobbyists to play the antitrust and reader privacy cards.

Imagine.  If Amazon's business model shifts from selling books to monetizing readers, what is the real cost readers will pay for free (or low-cost) content?  Answer:  Reader privacy.  A chilling thought worthy of a bumper sticker subsidized by the AAP.   The "P" in "pbook" Stands for Privacy."      

Reports from the field suggest that bookstores are becoming book showrooms, with customers browsing the shelves in person but buying online. If Amazon owns the customer data and favors its own books over your books, it is your competitor, not your partner. So, what do you do about it? Discuss among yourselves.

 

Related Posts

 2018 Publishing Predictions: Amazon & Google Agree to Antitrust Consent Decrees

 

Can You Defame the Dead?

Libel is the act of communicating a false statement of fact about a person that damages their reputation.  Under U.S. libel law

Anthony and Caesar’s Body (A. Krausse)

, the dead cannot sue for libel. However, when a defamation plaintiff dies while a case is pending, their estate* representative may continue the lawsuit.

Joseph Iseman, a former partner at 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, and Google Books (previously known as Google Book Search) 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.

The evil that men do lives after them. So, air (or publish) their grievous faults, but be careful about unflattering statements and unsupportable accusations about the living - their friends, family and associates. Unlike the dead, they can punch back.

Here are some evergreen tips on how to minimize the risk of a successful libel claim:    

(a) The Bob Marley "Who the Cap Fits" defense. Libel requires falsity, so truth is an absolute defense;

(b) Use prominent disclaimers. Although they may not shield you from a successful lawsuit, they may deter one; 

(c) If thinly veiled fiction, disassociate the doppelgänger from their real-life counterpart by writing a composite character; 

(d) Depict but do not disparage; and 

(e) Wait for the real-life person to die. 

If (e) gives you an additional reason to outlive your literary prey, consider it my gift to you. He who laughs last laughs best.  And remember, revenge is best served cold at your publication party -- preferably with a Sauvignon Blanc, Riesling, or Gewurztraminer. 

*A handful of states, 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.

###

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
  

DISCLAIMER / TERMS OF USE

Not Legal Advice. The information contained in this blog is intended as general advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information published here. Be aware that the law may vary from state to state. Therefore, this blog cannot replace the advice of an experienced attorney. No attorney-client relationship is created by your access to or use of this website. Contacting us by email does not create an attorney-client relationship. If you wish to establish a professional relationship, it must be done through a mutual agreement in writing. Please do not send us any confidential information until an attorney-client relationship has been established.

Attorney Advertising. While intended as general advice, this blog and its contents may be considered attorney advertising under the rules of certain jurisdictions. Hiring an attorney is an important decision and should not be based solely on advertising. Past results are no guarantee of future results.

Limitation of Liability. We disclaim any liability, loss, damage, injury, or cost (including, without limitation, attorneys' fees, lost profits, or data) caused by the contents of this blog or website.

Links. This website contains links to third-party websites and other resources. These links are provided solely for your convenience and for educational purposes. They should not be construed as endorsements by the Law Offices of Lloyd J. Jassin.

Jurisdiction. Using this website, you have irrevocably agreed to the U.S. federal and state courts' sole and exclusive jurisdiction and venue in New York City, USA. Any action, suit, or proceeding involving the use of this website, the information contained in this website, to the extent permitted by federal law, will be governed by the laws of the State of New York (excluding New York's choice of law rules) in the absence of applicable federal law.

 

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