Wednesday, December 4, 2019

Negotiating Author Advances and Royalties

Delving into the world of traditional book publishing sparks debates and bitter remarks, especially around the size of book advances. Mid-list authors, grappling with anemic advances and perpetually in-the-red royalty accounts, should note that publishing is an equal opportunity abuser. From Calvin Trillin to Edgar Allan Poe and even the venerable poet Horace, grievances about meager earnings and publishing economics abound. Join me as I uncover author grumblings about royalties and unravel the calculations behind those elusive author advances. [7 minutes]

Monkey Business and the Battles Over Advances

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 book author and screenwriter, S.J. Perelman, serves as fitting commentary on the typical earnings of authors.  According to the Authors Guild, 
the median author income in 2022, when considering both book royalties and other author-related income combined, was reported to be just $20,00.
 
Perelman, a perpetual thorn in his editor Bennett Cerf's side, faced a standoff during negotiations for his book contract with Random House. Cerf staunchly refused to budge on increasing the size of Perelman's advance. In true Algonquin Round Table  wit fashion, Perelman shot back, saying, "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." The battle of words between author and editor adds a touch of humor to the serious business of negotiating book deals.

With all the right arguments at his disposal, Perelman playfully suggested that Cerf would do well to send him back to his typewriter with a "happy grin and a high heart," rather than "donating his money to an animal hospital." Perelman, renowned for being a penny pincher, clearly recognized the importance of having a high-priced fountain pen-for-hire to scrutinize his contracts. While I'm not suggesting each negotiation should be witty dance between author and editor, don't be afraid allow humor to take center stage. It the right situation humor can break up the tension and possibly create an atmosphere of goodwill.

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 dime until their advance is earned back. An advance is a bet the publisher places on a book.  Regrettably, traditional publishers are buying fewer books, and advances have been heading south for over a decade.  

Generally, publishers base advances on the number of copies they project to sell in the first six months to a year after initial publication. Clearly, Perelman's publisher was not expecting stellar sales.  Publishers look at the royalty payout to the author on each copy sold.  They then multiply 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 nickel more than the $50,000 already paid.  During negotiations, it's important for the agent or author to ask how many copies the publisher thinks they will sell and at what price.  Before being offered a contract consider asking your editor to lunch.  After they've imbibed at least one glass of wine, it's time to ask "How many do you think you can sell?" In vino veritas.

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.
Calvin Trillin on Lunch & Advances
Author Advance Strategies
Calvin Trillin's contract negotiation advice is colored by 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, sold 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, amid 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 an analog world.  In his day, traditionally published authors would accept low royalties to get their books to market.  That was before the self-publishing revolution.  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)




Tuesday, October 8, 2019

Jassin Quoted in Fortune

I'm quoted in Fortune: Twitter Took a Trump Tweet Down, but Should It Have? And is Nickelback to Blame?

 


Lloyd Jassin discusses fair use.

In Jeff John Roberts' column in Fortune I talk about Fair Use, and the expanding scope of transformative use in the context of political discussion.   

Friday, November 23, 2018

Sometimes Success Comes Later in Life . . . Sometimes in the Afterlife MILTON’S PARADISE ROYALTIES LOST


MILTON’S PARADISE ROYALTIES LOST

Victor Bohnam Carter's Authors by Profession tells the story of John Milton, who was blind, deprived of his pension, and suffering from financial hardships, signing 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.” In today's currency, £5 is approximately £570.00
 
Under the agreement, Milton transferred "All that Booke, Copy, or Manuscript" to his publisher with "the full benefit, profit, and advantage thereof, or w[hic]h shall or may arise thereby." Milton died  in 1674.  
 
During his lifetime he received a total of £10 from his publisher Samuel Symons. Milton’s widow later sold the copyright to Symons for £8. 
 
The contract, the earliest known contract between an English author and publisher, resides in the British Library today.




Milton publishing contract
Contract for John Milton's "Paradise Lost"


Sunday, August 19, 2018

Biggest Mistake to Avoid When Drafting a Book Publishing Contract

What Publishers Should Know About Non-Assignment Clauses

When the owner of a book publishing company decides to sell their company, they will need to establish the value of the business they have built. The sale price will be based on the company's discounted cash flow, the goodwill associated with the company's trademarks, and the soundness of its author agreements. 

This article is about the most costly mistake neophyte publishers make - a simple drafting mistake that can preclude the business's eventual sale. 

A well-drafted publishing agreement allows for the sub-licensing of rights and the assignment of the contract itself.  However, when starting out, some cash-strapped publishers rely on contracts found online or slavishly copy ones found in a book.   

Avoid the Non-Assignment Clause in Book Contractse

Don't Let a Bad Contract Ruin Your Publishing Company

Publishers should think twice when agents and authors ask to insert a non-assignment clause in their contract. Be mindful that altering boilerplate provisions,  including warranty and indemnity clauses, can have profound real-world consequences.
 
When a non-assignment clause is imposed upon you by an agent or attorney, try to mediate its impact by carving out an exception for the sale of substantially all of your company's assets or the sale of the company to a related company. If you begrudgingly agree to a non-assignment clause for a particular transaction, do not use that agreement as a template for future deals. 

Aside from creating a unique brand, protecting your intellectual property, and insuring against media perils, investing in a well-drafted publishing agreement is the best way to add value to your company. Not only will it protect you against unnecessary legal risks, but it will allow you to reap what you have sown.   


Lloyd J. Jassin is a publishing attorney and entertainment lawyer.  He counsels clients on contracts, licensing, copyright, trademark, unfair competition, defamation, right of privacy, and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution, and litigation. A Benjamin N. Cardozo Law School graduate, he is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com.


Related Blog Post

A Helpful Checklist for Book Contract Negotiations

Contact:


Law Offices of Lloyd J. Jassin
The Paramount Building
1501 Broadway, Floor 12
New York, NY 10036
212-354-4442 (tel.)
jassin@copylaw.com (email)
www.copylaw.org


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Friday, October 28, 2016

I'm a Copyright Attorney, Not a Sorcerer (Updated 2022)

Steal Not this Book
 
Modern Day Book Curses
Several weeks before her death, I watched Bonnie Foreman laughing and joking as she downloaded a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition. She read a lot and drove too fast. I said I'd give her six weeks to live. The autopsy carried out on her body was inconclusive. But, here's what I can tell you. She expired around page 36. Somewhere between out-of-print works and special fair use situations. Curse or coincidence? I cannot say for sure. I'm a copyright attorney, not a sorcerer. But I know it wasn't the copyright notice that did her in.

When confronted with a book curse, we are forced to reflect on our mortality. Three thousand years after the pharaoh's death, the Curse of Pharaoh Tutankhamun still conjures up fear (unlike an FBI anti-piracy warning or copyright notice). While a three-thousand-year-old curse may retain its potency, copyrights wither and fall into the public domain a mere 70 years after the creator's death. From the standpoint of being an effective deterrent, it doesn't help that copyright notices resemble frown emoticons resting on their side.   

Book Curses the Forerunner of Copyright Damages

Do you wish to protect your intellectual property but don't have the means to hire a lawyer? Gory, gruesome, nasty, cautionary, score-settling book curses were once used to stop literary thieves and plagiarists in their tracks. Unlike the copyright notice, which simply proclaims "I own this" (with reservations), curses make it abundantly clear that some profound form of adversity or misfortune will befall the person who ignores it.

While there are some issues to iron out, I have come to believe that a mix of legislative solutions, works licensed under Creative Commons licenses, and cursing offers a workable solution to an internet that wants to be free and authors who want to eat. 

Cloistered monks, ancient rabbis and old sorcerers wrote the following ancient warnings. While dormant for years, these precursors of the modern copyright notice are a creative and cost-effective way to protect your intellectual property.    

In Biblioclasm, a book about the magic powers of the written word, the author identifies the following as the most famous literary curse. It still has what it takes.
"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book." -- Revelations, 22:19

Aleppo Codex
The Christian church didn't have a monopoly on literary curses. Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew Bible since each of its 304,805 letters had divine meaning. For example, the following lines, written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:

"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord. He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."
The Ben-Asher curse focuses on the integrity of the text, not theft. Under copyright law, the exclusive right to alter or adapt the text resides with the author, in this case, Yahweh. Elsewhere in the Codex, atop certain pages, it reads, "Sacred to Yahweh, not to be sold or defiled." Disgorgement of profits (a copyright remedy) better fits this type of crime than broken bones or necrotizing fasciitis. Parenthetically, the Nazi face-melting scene from Raiders of the Lost Ark has my vote for the most iconic scary movie scene in cinematic history.  

Curses and Copyright Notices 


Medieval colophons, the antecedent to the copyright notice, initially appeared as concluding statements at the end of a book or manuscript. They provided information about the scribe or copyist, the date and place of copying, and contained either a blessing or a curse. To thwart piracy, printers' marks appeared at the dawn of Western typography. So, while a direct connection between the colophon (and printer's mark) and the copyright notice may appear fuzzy, the common assertion of ownership rights and the threat of consequences for those who publish "impudent frauds" cements the connection in my mind.

Curses and copyright notices should be displayed prominently in a manner that stands out from the accompanying text.  In the Encyclopedia of the Book (Oak Knoll/British Library), Geoffrey Glaister explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen.  Today, copyright law provides more potent penalties against willful or knowing infringers than innocent ones. 


Similarly, with a curse, knowing you've been cursed makes the curse more potent. Although, many "sorcerers claim that curses can be just as effective without the victim's knowledge of them." See Mystica. Whether you are an "Eye of newt and toe of frog" practitioner, or a pragmatic publishing type, I  recommend you display your disclosures prominently.  

By the early 18th Century, secular threats of legal action largely supplanted curses. With the passage of the Statute of Anne in 1709, England's first copyright act, the regulation of unauthorized copying was transferred from god's jurisdiction to her Majesty's courts. In 1802, the U.S. Copyright Act, inspired by the Statute of Anne, was amended to require notice to be placed on each copy of a work.

Like colophons, copyright notices generally appear on the title page or reverse of the title page of books. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a fey warning, not a curse. Here's a mildly threatening one:

ALL RIGHTS RESERVED. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher.
Not too scary. Compare the painfully polite "All Rights Reserved" statement in use today with the average illuminated manuscript curse. If you absconded with a late medieval psalter or made an unauthorized copy, you (and sometimes your forebears and children) were forever cursed. In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets. Copyright notice or curse? No contest.

According to Drogin, the oldest known book curse appears on 
cuneiform tablets found in the biblical city of Ninevah. Like today's authors, Babylonian King Assur-bani-pal (668–626 BC) wasn't just concerned with protecting against theft but receiving credit for his work. Droit Moral is the French term for moral rights, which includes the author's right to defend the integrity of their work and the use of their name. King Assur-bani-pal personal cuneiform tablet collection bore the following warning: 
"Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land."
King Assur-bani-pal

Clearly, the profound fear of being forgotten loomed as large in Babylonia as in Hollywood today. Removing the name of a king from a cuneiform tablet meant he never existed. Much the same can be said for failing to credit a screenplay writer whose livelihood (and footnote in history) depends on the works that bear their name.

Whether a curse or a copyright notice, these admonitions are powerful starts to the reading experience. Where does the power come from? Fear.
"May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment."
Before Gutenberg invented the printing press, between the 5th and 13th centuries CE, books were precious handwritten objects coveted by the wealthy elite and marauding Norsemen. The heathen marauders targeted Christian churches, killing defenseless monks and hauling away intricately detailed illuminated manuscripts containing equally detailed book curses. As the monks of early Christian Ireland discovered, a curse is unlikely to have a persuasive impact if the marauder can't read. But if you use a curse and a chain with a heavy rod to lock your psalter to a desk, you are more than twice as safe as you would be with either of them alone. 

In the 16th Century, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies and protect the livelihood of authors and publishers  German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:

Dürer's Engraving of  Erasmus

"Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximilian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger."
A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind  Dürer's transitional curse succeeds at both tasks. 

Conclusion 
 
Tensions between copyright law and freedom of speech aside, magic offers an intriguing pre-movable type solution to a 21st Century dilemma. On January 1, 2024, Mickey Mouse will pass into the public domain. With Disney unable to extend the copyright term, one can imagine Mickey bedecked in a magic blue hat with white stars and a crescent moon conjuring up an army of battling brooms to delay the move into the public domain. Unlike a copyright, a curse has no expiration date.  


©ðŸ’€ 2016 - 2022 Lloyd J. Jassin  All Rights Reserved. 

Disclaimer & Curse: This article is not designed to give specific advice concerning specific circumstances  Readers are strongly cautioned to consult an attorney or practitioner of the dark arts  This article may be reproduced in whole for non-commercial purposes, provided the author and website are credited  If you violate these term you will be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.






Lloyd J. Jassin is a publishing attorney and head of his private practice, concentrating on legal issues affecting authors, literary agents, publishers, and composers  He began his career in book publishing, working for companies such as Prentice Hall / Simon & Schuster and St. Martin's Press in publicity and marketing, which may explain his affinity for trademark law  He's the coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). 

Contact:   Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (email) jassin@copylaw.com,  Follow on Twitter: http://twitter.com/LloydJassin

Resources


The 'Weird Tale' Behind the Malcolm Ferguson Book Plate 
The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.
Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy  U. Chi  L.J. 1992





Threatening Bookplate via 'Confessions of a
Bookplate Junkie' Blog