Considering the future of publishing

Few industries have escaped feeling the dark economic news of recent weeks (and months). Although articles and opinion pieces about the future of publishing run the gamut from glowingly hopeful reports to the-sky-is-falling predictions of doom, some observers are taking a more balanced view of how belt tightening has affected the industry, and what kinds of changes are taking place in day-to-day business.

One such perspective is offered by Leon Neyfakh in the 14 October 2008 New York Observer, available online and worth reading for anyone considering a trek down the path to publication. While larger houses and agencies may be facing greater challenges to meet revenue projections, the economic downturn may present opportunities to smaller publishers, university presses, and other, more nimble members of the industry. (Thanks to MediaBistro for the pointer.)

Rowling prevails in Harry Potter Lexicon suit

J.K. Rowling and Warner Bros. have prevailed in their action again RDR Books, who were readying Steven Vander Ark’s Harry Potter Lexicon for publication. Although the author’s fan site had previously been singled out for praise by Rowling, news that a print edition has been prepared and was going to be published sparked the legal dispute between the parties, and a larger debate about when reference guides cross the threshold of copyright infringement.

The New York trial was closely watched by copyright scholars, publishers, and others in the publishing community involved with the creation and production of so-called companion books, works that reference, explain, and in large measure rely upon previously published works. Of concern was how Judge Patterson’s decision would affect the market for such works and whether it would signal a shift toward a narrower and more restrictive test for what constitutes an infringing work.

A copy of Judge Patterson’s opinion is available online; Mark Hamblett’s summary for the New York Law Journal is available via law.com.

A battle over Flat Stanley

What happens when a character takes on a life beyond its author’s original work, and who should benefit?

The Flat Stanley Project was started by Dale Hubert in 1995. By several accounts Mr. Hubert was encouraged in his promotion of Flat Stanley (and related literacy and community development efforts) by Jeff Brown, the creator of the Flat Stanley character and author of numerous Flat Stanley Books, and by HarperCollins Publishers.

Mr. Brown died in 2003. No formal agreements had been made between Mr. Brown or HarperCollins and Mr. Hubert. It appears Mr. Hubert may be paying a price for relying on a good faith understanding as there are other parties who now wish to capitalize on the popularity of the Flat Stanley character, a popularity, one could argue, that was stimulated significantly by Mr. Hubert’s efforts.

Thanks to LAist for a summary of the dispute and links to additional information.

Defining “out of print”

With an increasing number of options for print-on-demand (POD) and electronic publishing available to publishers and authors alike, it’s important for both to pay careful attention to the provisions in their contracts that define what conditions must exist for a work to be considered out of print and the rights subject to reversion.

These are perennial points of negotiation because the market for these formats is still evolving. Benedicte Page writes for today’s Bookseller.com (UK) about how both sides are characterizing their concerns, with input from Random House UK and the Society of Authors.

In tandem with a careful evaluation of the out-of-print provision of their contracts, publishers and authors need to be aware of what rights have been granted, whether a publisher has the right to produce an electronic edition (and what forms of electronic editions), and whether there are any contractual barriers to publishing in POD or to licensing a work for a third party’s POD program. Provisions for reasonable royalty rates, or the ability to revisit the rates at appropriate times, are also key.

Inspiration or misappropriation?

Steven Galloway, the author of The Cellist of Sarajevo, asserts that although the title character of his novel was inspired by a real-life musician, he is under no obligation to secure the real person’s permission for depicting him–or a character very much like him–in a work of fiction. The author has used the same setting, the number of days the cellist plays, the same musical selection (Albinoni’s Adagio), and the moniker given to the cellist by members of the media who originally covered the story.

Vedran Smailovic is the cellist who received worldwide attention during the war in Bosnia for playing his cello amidst the rubble (and sniper fire) in Sarajevo in the wake of a deadly mortar attack. He claims that his story has been inappropriately used by Galloway, without permission, for Galloway’s–and his publisher’s–financial gain.

Complicating the matter, or perhaps making it clearer, is that Galloway’s Canadian publisher, Knopf Canada, used a photo of Smailovic on the cover of the book without Smailovic’s permission. (As of this writing, the cover is displayed on Knopf Canada’s web page for the book.)

Reports on the dispute on the CBC News website and via the Times (London) Online.

Although the tongue-in-cheek guideline for many authors and publishers has been that “it is easier to ask for forgiveness than permission,” asking for forgiveness may be a more costly proposition.

Attorney or Agent?

“Do I need an attorney or an agent?” is a question we often hear, and the answer depends on your needs as an author, illustrator, publisher, or other publishing professional.

Some authors who retain our legal services have already placed their work with a publisher and would like assistance negotiating their contract or addressing difficult, complicated, or unusual issues. Other clients have made arrangements to contribute to a project and are generally comfortable with the terms, but are faced with a contract that contains provisions they don’t fully understand. Some of our clients have their own literary agent, but desire an independent and additional level of review.

Some clients seek our legal advice while preparing their manuscripts if questions arise about (for example) seeking permissions for the use of others’ work, securing releases for interviews they have conducted or will conduct, or understanding when releases may be required from individuals in photographs.

Lucas LLP also advises clients who have decided to work with others on a project, preparing collaboration agreements, assignments of copyright, or work-made-for-hire agreements.

The examples noted above also reflect some of the work we perform for our publisher clients in both print and electronic media, and for clients who work in other creative endeavors.

In an attorney-client relationship, our clients compensate us for our services on a fee basis as services are provided, as well as for out-of-pocket expenses we incur on a client’s behalf. Payment of fees and expenses is not dependent on the outcome of a particular matter or on successful completion of a negotiation or transaction. Fees, anticipated expenses, and other details of arrangements for our legal services are discussed between Lucas LLP and potential clients before work begins, and are confirmed in a written engagement letter.