Watching the premiere of 24: Live Another Day earlier in the week gets me to thinking where it is that I have heard the name of William Devane before...
Once Upon a Time, 24 years ago strangely enough, in September 1990, a client of mine named Barbara Paul called to say that there was a TV movie on NBC by the name of Murder COD being previewed in TV Guide that sounded a lot like her book Kill Fee.
The TV movie and a perfectly respectable cast. Patrick Duffy, still on Dallas, starred as a police detective, and one William Devane was the bad guy. Devane was on Knots Landing.
And if it sounded a lot like Barbara Paul's novel Kill Fee -- well, that's because it was.
The book had been under option for a while. The option had, if memory serves, expired on September 10, which was now a few days in the past. The producers of the TV movie had not quite forgotten to pay the purchase price for the TV movie, which they should have done months before when the started filming the movie. And now, the check really was in the mail.
I don't know how it would have played out if they had sent their late check even a coupe of weeks or a month sooner, when the check would have been late but at least within the option period. Had it come in before we knew the movie and actually been shot and delivered we almost certainly would have cashed it and then been a little perturbed to find put two weeks later that they had screwed us a bit.
But here, the option had expired, the producers had no rights to the movie, and they were planning to show it on NBC in a few days. So of course the check was returned.
We ended up getting a few dollars more. Not a lot, I wonder if we could have held out longer and gotten more, but as little as it was it represented a 60% increase in what they needed to have paid had they done so just that wee bit sooner.
So this is my William Devane story that had absolutely nothing to do with William Devane.
You can give a listen to the Audible audio edition of Barbara Paul's novel Kill Fee.
Showing posts with label audio. Show all posts
Showing posts with label audio. Show all posts
Thursday, May 8, 2014
Thursday, April 4, 2013
The Night Shade Writers of America
Usually I try and refrain from posts that will ruffle too many feathers, but I can't tell everyone else we should be talking about the dissolution of Night Shade in public and then not do so myself.
For those of you who don't know, Night Shade Books is a highly regarded -- well, artistically highly regarded -- publishing company specializing in sf, fantasy and horror. It has published many excellent authors, with beautifully packaged books, published with great love. It was a company that I wanted to be in business with very, very much.
Unfortunately, the company was poorly run. In 2010, this became public knowledge. There were issues with late royalties, and with e-books being published by Night Shade when their contracts did not give them e-book rights. We were aware of those issues already, and we had stopped submitting to Night Shade. It wasn't just that they were so often late, but that we never felt entirely comfortable with the excuses or forthrightness of the people who ran the company. But we hadn't gone public. Authors don't like to admit they aren't being paid, and what high-powered literary agency talks about not being paid? You wonder: Do they just not want to pay us? We don't have the clout and everyone else is getting paid?
In fits and starts over the past few years Night Shade would occasionally make some payments and seem to be making progress, but never went a few royalty periods in a row without having problems.
And now, Night Shade has sent out a letter, the opening paragraphs of which can be found here. They can't continue as a going concern. Saviors have been found in Skyhorse Publishing and Start Publishing LLC. Not to actually purchase the company, but to maybe buy assets if enough people agree to sell them.
So the first thing to notice is that the letter starts with a sentence that, um, nightshades the truth: "Night Shade Books has had a difficult time after the demise of Borders."
Let's be clear. For all the artistic contributions Night Shade has made to sf literature, it's had problems paying royalties that go back five years. For those five years, they have repeatedly promised better things, adding new staff or new systems. I can't call this opening sentence a lie, because Night Shade has certainly had a difficult time after the demise of Borders. But since Night Shade's authors have have problems with royalties that long predate the final days of Borders, it is disingenuous.
Even though the e-mail which sent me this letter and the letter itself don't contain any confidentiality language, everyone is acting like it's a secret. They shouldn't, and these are highlights of the terms and conditions (Scribd is hosting a copy of the letter.):
Your print royalty will become 10% of net proceeds. This means an effective royalty rate that is likely at or a little under 5% of cover price. This is not an unusual royalty rate for publishers outside of the orbit of the major NYC publishing companies. But it is for many Night Shade authors half or less the royalty rate on their current contracts. It is also an across-the-board rate for all formats. All publishers usually offer higher royalties on hardcovers than paperbacks. I can't imagine there are many Night Shade authors that are better off with this royalty rate. Most are worse off; how much worse depends on publication formats and specific details of current contracts. Skyhorse handles your print books.
If Night Shade has e-book rights (for some books, it does not), those go to Start Publishing. The royalty rate is given as the current industry standard of 25% of net receipts. I am told but have no first-hand knowledge that some Night Shade contracts had offered more. I'll go off the agent's reservation here, and say no one can complain about this provision by itself. Authors and agents have often insisted on having re-visit provisions if e-book royalties go up, and if here someone has to reduce a royalty that is above the current industry standard, how upset should you be?
Regardless of what your contract currently says, you have to give Skyhorse and Start the audio rights and second serial rights to your Night Shade book, unless you have sold or are about to sell those rights yourself. This is significant, because these rights have value. Even if the underlying print book is caught up in a bankruptcy proceeding, these rights may still have value. Any author who gives up these rights has to weigh that value against the value of royalties to be paid when signing this letter, and that has to be part of the overall evaluation of the proposed assignment. The meaning of audio rights is very clear, but I'm not clear if "second serial" is intended to include only "serial" rights as narrowly defined, selling to magazines, or related rights, like selling an excerpt from your novel or a short story from your collection to an anthology or for use on a reading comprehension test. Without knowing that, it's hard to say if a client with a short story collection is giving up a lot or a little in potential future revenue. Revenue from these relinquished rights would be split 50/50. The standard practice is that the author's share will be applied against any unearned advances, and because of the lower royalty rates, your advance will earn out more slowly.
If you agree to this, and if enough other authors agree to this, you get paid your current royalties owed. Which is a good thing, but one that has to be weighed against what you relinquish in future royalty rates and other rights granted.
Author Michael Stackpole has an excellent post going through the above provisions and others in very good detail; keep in mind that he is opposed to the agreement, and as he says in his post, he can afford to be.
The alternatives:
If not enough authors agree, Night Shade goes into (probably Chapter 7) bankruptcy. The contracted rights for your book are tied up in the bankruptcy. Who knows when or if you get paid royalties and advances currently owed, or how long it will take to resolve.
If enough authors agree, the authors who agree are now with their new publishing companies and get royalties currently owed in exchange for granting new rights and for accepting a (most likely) substantially reduced royalty on future sales.
If enough authors agree but you do not, the rights to your book remain with the partners in Night Shade. Will they subsequently liquidate/go bankrupt? Who knows? None of us are being told how much is being allocated to pay off other creditors, and we have no way to determine whether books left behind will be tied up, or reverted, or in purgatory.
Author by author, it isn't for me to say if this is a good deal or a bad deal.
For one of my clients it's clearly a bad deal. The audio and second serial rights to be given up have more prospective value than the present value of anticipated royalties. For another author, maybe you've already sold audio rights so that doesn't weigh down on the equation, or maybe your unpaid royalties for 2011 are so much bigger than likely future royalties that it is more important to get full payment for the past than to worry about the reduced royalties in the future.
But even if I had a client who might benefit from the deal, I'd have a long hard talk with myself and with my client if any of my clients should sign off on this.
Most important, the deal is structured in such a way that authors who might benefit have to start arm-twisting to get authors who shouldn't sign to sign anyway, to be sure the mysterious unknown threshold of authors is met. This isn't a hypothetical. I am told but haven't seen for myself that this is already happening, with authors who want this getting on other authors who do not.
To put this another way, the deal is structured to encourage authors to band together to take what is for some of them clearly a bad deal, rather than to band together to get a better deal for all.
Also implicit in the structure of the deal: Night Shade authors get to spend the rest of their lives looking at one another, wondering who's gotten the better deal in this process. There's a mysterious process by which there is this rumor that some authors are going to Skyhorse and negotiating changes, but is anyone willing to tell us whom they've spoken to and what changes have been agreed to? Tony Lyons isn't responding to my e-mails yet. Is he too busy? Is the book I want to talk about not important? Will the company be willing to offer global changes based on comments it is hearing in these side negotiations?
Authors are being enlisted to fight against one another, but without knowing what constitutes a win. Is the acceptable number of assignments received based on number of authors, number of books, percentage of Night Shade's sales billing? A book like Paolo Bacigalupi's The Windup Girl, which won every award in the field and sells well, is clearly worth more in this process than any Night Shade book by a JABberwocky client, but I don't know if or how that is reflected in determining if the deal goes through.
The "or else" to the process: The alternative is a bankruptcy proceeding where authors might get pennies on the dollar and have their work tied up for years.
This is quite true. Authors are unsecured creditors, and are at or toward the back of the line in a bankruptcy proceeding. Some publishing bankruptcies have dragged on for years and had unpleasant outcomes. Here is an article from a while back about an author caught up in the Stein and Day bankruptcy that inspired a jeremiad about the process from one of the owners. This was a poster child for a bad publishing bankruptcy in my early years in the business.
I am not a bankruptcy attorney and don't know how a Chapter 7 might differ from a Chapter 11 (the kind big public companies, which Night Shade is not, go through, which we read about in the news) or other kinds of bankruptcy.
But any bankruptcy is a public filing, and it goes before a judge. Creditors are put into classes. Writers might be unsecured creditors and somewhere back in the line to get paid, but our interests would be represented as a class. It might also be possible for authors to group together as a class to hire attorneys to represent us as a class.
The current process is a private free-for-all with no supervision, and we are relying on the same people who've had challenges paying us royalties for several years to now do the right thing for all of us in the private sale process. If you wonder why this concerns me, you can check out Staffers Book Review which has a "what went wrong" about Night Shade business practices. Where that post overlaps with my personal experiences, I can concur with everything that's said.
We would also know in public how much Night Shade owes to unsecured authors vs. secured creditors, to authors vs. the printer or other non-author creditors, how much it owes in total vs. its assets. Nobody is volunteering and nobody is asking for any of these important pieces of information to be provided to us in this private process. These are important questions. Sometimes a bankruptcy proceeding drags down the benefit to creditors. In going bankrupt, Borders was able to pay far less to its creditors than suggested by the straight-up asset/liability calculation because the assets were liquidated in going-out-of-business sales at fire sale prices and a lot of expense was incurred just to go through the process. But it's still helpful to know in evaluating just how deep the hole is.
With the current process, it is very difficult if not impossible for another bidder to emerge.
The Science Fiction and Fantasy Writers of America (SFWA) has been on Night Shade for the past three years, since their issues became public in 2010. The organization can be a forceful advocate for writers. Just a few weeks ago, SFWA got a lot of good press for putting public pressure on Random House (each word there is a different link; I want to make it very clear how much well-deserved good press SFWA got here) regarding the contract terms for some new e-imprints that Random House had started up.
If SFWA thinks this is a good deal, it should be willing to be as public in its support and its discussion of the terms being offered as it was in sharing the terms of the Random House e-imprint contract that was provided to it.
But with this Night Shade situation, SFWA is communicating to members or a subset of members known to be published by Night Shade like this: "The purpose of this report is to answer some of the questions we have been receiving from you. We ask that you not share this report outside the membership." Their annotated version of the Night Shade assignment letter is hidden in a non-public area of their website. And most of what they do say is always accurate as far as it goes, but it's what they choose to say or not say that tilts the entire conversation. All the risks of saying "no" are prominently highlighted, all the risks of saying "yes" are obscured. SFWA makes it abundantly clear that there are huge risks in bankruptcy and you may get pennies on the dollar and have your book tied up for years, but the best it can do on the print royalties is say (paraphrasing) "maybe it's better, maybe it's worse" when I suspect the typical author will see a considerable reduction. It tells us that the 50/50 split on audio and second serial rights which you relinquish is industry standard, but it doesn't say with similar clarity that you are giving up control and one-half of potentially valuable rights in order to get your royalties currently owed. SFWA is right to add the "talk to your agent" disclaimers, but why in this instance vs. almost every other instance is SFWA not informing its members regarding the best right questions to ask when having those discussions.
Another example:
The secret SFWA e-mail says "The branch of [Start] involved here is the publishing subsidiary, headed by Jarred Weisfeld. They indicate they are acquiring Night Shade’s assets specifically because the owner of Start has a passion for science-fiction and wants to be in this genre." Wouldn't it be preferable for SFWA to ask about and actually identify the owner of Start, instead of only telling us about the mystery owner's passion for sf? Is SFWA aware that Jarred Weisfeld is also a principal in a literary agency, Objective Entertainment, and is this information that SFWA might wish to provide? As another example, if you look at the books from Start Publishing that are for sale on Kobo, it appears that their current publishing program is public domain work.
With regard to Skyhorse, the sf/fantasy genre isn't currently represented on the company's website.
None of these things are, prima facie, bad things. Perhaps: (a) The mysterious owner of Start has been practicing with public domain waiting for a moment like this to have a strong list of copyrighted titles. (b) The owners of Skyhorse recognize the sf/f genre is an important one where they need a presence and have a plan for entering the genre successfully. (c) The objections in the sf/f community to having literary agents as publishers have died down for good reason in the 30 years since SFWA objected to having Scott Meredith run an sf/f program for Baen Books, and Richard Curtis has run eReads for many years now.
But why is SFWA leaving me to do the research? Why aren't they informing authors of relevant facts so authors can make good decisions in consultation with their agents, representatives and IP attorneys?
Since SFWA was aware of the process, does SFWA know if Night Shade was approached by these two companies, or if Night Shade did a vigorous search for other buyers before concluding that these two companies were the best or only alternative to bankruptcy? Does SFWA know why Skyhorse and Start are splitting the assets, when Skyhorse can publish the e-books itself? There might be details that would violate confidentiality, like other potential buyers who kicked the tires on the Night Shade car, but total silence leaves me queasy. If you've ever read a formal SEC filing from a company asking for merger approval, it includes a history. Written by management, likely self-serving, but with this kind of information presented.
I'm not a big fan of this deal. But I have tried in this blog post not just to rail against it. Rather, I'm trying to suggest questions we deserve answers to, either collectively or to grapple with in making our individual decisions. How rigorous a sale process was there? If bankruptcy puts us at the back of the line, how long is the line? What is the value of receiving my current royalties in full vs. the reduction in my future royalties, or the value of my current royalties against having full control of my audio rights? If such a thing could be found would it be better to have a buyer purchase the whole company instead of select assets, even if it meant secure royalties moving forward but a hit on current royalties owed, rather than getting all royalties owed today in exchange for future concessions?
Last but not least, to what extent should my decision on the deal itself be influenced by the structure of the arrangement, the effect it has on the community of sf/f authors as whole?
AN UPDATE:
Jeremy Lassen, one of the partners in Night Shade, has replied to critics of the deal. You can find that via Charlie Jane Anders at io9. Jeremy's main argument is this. "This deal is the last chance I have to keep my promise. This is the last chance I have to make sure that ALL OF MY AUTHORS GET PAID ALL OF THE MONEY THEY ARE OWED. Right now the deal is in the hands of the individual authors, and their agents. I am asking you. Please. Sign off on this deal. Help me make sure all my authors get paid."
One comment I will make: You can't be so fixated on one specific goal in life that you lose track of the big picture. The goal of Night Shade here is admirable. Who wouldn't want every Night Shade author to get the royalties they are owed. But as I've discussed above, every author needs to evaluate the benefits of getting paid what they are owed today against the costs of this tomorrow.
FURTHER READING:
This post by literary agent Andrew Zack fills in, very nicely, some gaps in my own post. He knows the people at Skyhorse better than I, and asks directly why, when as he puts it:
In a sense, this entire deal seems to me to be:
Bottom-feeding
Extortionist
I recognize that these are terms that both publishers might find offensive, but surely they must understand how offensive this deal is to the authors involved.
the publisher doesn't want to step up to the plate and be proactive in making people feel more comfortable.
And something Jeremy Lassen would disagree with, also in Andrew's post:
The fact that they want to change the contracts and get extra rights seems to me an attempt to ensure they have jobs when this all gets wrapped up, but if authors are going to lose money in the form of lower royalties and new rights granted, shouldn't these guys lose something, too? Where is their skin in this game? If this all goes through, they are in a better-than-ever situation, it seems: free of the burdens of administration, free of debt, employed, and walking tall. That hardly seems fair, does it?
So the first thing to notice is that the letter starts with a sentence that, um, nightshades the truth: "Night Shade Books has had a difficult time after the demise of Borders."
Let's be clear. For all the artistic contributions Night Shade has made to sf literature, it's had problems paying royalties that go back five years. For those five years, they have repeatedly promised better things, adding new staff or new systems. I can't call this opening sentence a lie, because Night Shade has certainly had a difficult time after the demise of Borders. But since Night Shade's authors have have problems with royalties that long predate the final days of Borders, it is disingenuous.
Even though the e-mail which sent me this letter and the letter itself don't contain any confidentiality language, everyone is acting like it's a secret. They shouldn't, and these are highlights of the terms and conditions (Scribd is hosting a copy of the letter.):
Your print royalty will become 10% of net proceeds. This means an effective royalty rate that is likely at or a little under 5% of cover price. This is not an unusual royalty rate for publishers outside of the orbit of the major NYC publishing companies. But it is for many Night Shade authors half or less the royalty rate on their current contracts. It is also an across-the-board rate for all formats. All publishers usually offer higher royalties on hardcovers than paperbacks. I can't imagine there are many Night Shade authors that are better off with this royalty rate. Most are worse off; how much worse depends on publication formats and specific details of current contracts. Skyhorse handles your print books.
If Night Shade has e-book rights (for some books, it does not), those go to Start Publishing. The royalty rate is given as the current industry standard of 25% of net receipts. I am told but have no first-hand knowledge that some Night Shade contracts had offered more. I'll go off the agent's reservation here, and say no one can complain about this provision by itself. Authors and agents have often insisted on having re-visit provisions if e-book royalties go up, and if here someone has to reduce a royalty that is above the current industry standard, how upset should you be?
Regardless of what your contract currently says, you have to give Skyhorse and Start the audio rights and second serial rights to your Night Shade book, unless you have sold or are about to sell those rights yourself. This is significant, because these rights have value. Even if the underlying print book is caught up in a bankruptcy proceeding, these rights may still have value. Any author who gives up these rights has to weigh that value against the value of royalties to be paid when signing this letter, and that has to be part of the overall evaluation of the proposed assignment. The meaning of audio rights is very clear, but I'm not clear if "second serial" is intended to include only "serial" rights as narrowly defined, selling to magazines, or related rights, like selling an excerpt from your novel or a short story from your collection to an anthology or for use on a reading comprehension test. Without knowing that, it's hard to say if a client with a short story collection is giving up a lot or a little in potential future revenue. Revenue from these relinquished rights would be split 50/50. The standard practice is that the author's share will be applied against any unearned advances, and because of the lower royalty rates, your advance will earn out more slowly.
If you agree to this, and if enough other authors agree to this, you get paid your current royalties owed. Which is a good thing, but one that has to be weighed against what you relinquish in future royalty rates and other rights granted.
Author Michael Stackpole has an excellent post going through the above provisions and others in very good detail; keep in mind that he is opposed to the agreement, and as he says in his post, he can afford to be.
The alternatives:
If not enough authors agree, Night Shade goes into (probably Chapter 7) bankruptcy. The contracted rights for your book are tied up in the bankruptcy. Who knows when or if you get paid royalties and advances currently owed, or how long it will take to resolve.
If enough authors agree, the authors who agree are now with their new publishing companies and get royalties currently owed in exchange for granting new rights and for accepting a (most likely) substantially reduced royalty on future sales.
If enough authors agree but you do not, the rights to your book remain with the partners in Night Shade. Will they subsequently liquidate/go bankrupt? Who knows? None of us are being told how much is being allocated to pay off other creditors, and we have no way to determine whether books left behind will be tied up, or reverted, or in purgatory.
Author by author, it isn't for me to say if this is a good deal or a bad deal.
For one of my clients it's clearly a bad deal. The audio and second serial rights to be given up have more prospective value than the present value of anticipated royalties. For another author, maybe you've already sold audio rights so that doesn't weigh down on the equation, or maybe your unpaid royalties for 2011 are so much bigger than likely future royalties that it is more important to get full payment for the past than to worry about the reduced royalties in the future.
But even if I had a client who might benefit from the deal, I'd have a long hard talk with myself and with my client if any of my clients should sign off on this.
Most important, the deal is structured in such a way that authors who might benefit have to start arm-twisting to get authors who shouldn't sign to sign anyway, to be sure the mysterious unknown threshold of authors is met. This isn't a hypothetical. I am told but haven't seen for myself that this is already happening, with authors who want this getting on other authors who do not.
To put this another way, the deal is structured to encourage authors to band together to take what is for some of them clearly a bad deal, rather than to band together to get a better deal for all.
Also implicit in the structure of the deal: Night Shade authors get to spend the rest of their lives looking at one another, wondering who's gotten the better deal in this process. There's a mysterious process by which there is this rumor that some authors are going to Skyhorse and negotiating changes, but is anyone willing to tell us whom they've spoken to and what changes have been agreed to? Tony Lyons isn't responding to my e-mails yet. Is he too busy? Is the book I want to talk about not important? Will the company be willing to offer global changes based on comments it is hearing in these side negotiations?
Authors are being enlisted to fight against one another, but without knowing what constitutes a win. Is the acceptable number of assignments received based on number of authors, number of books, percentage of Night Shade's sales billing? A book like Paolo Bacigalupi's The Windup Girl, which won every award in the field and sells well, is clearly worth more in this process than any Night Shade book by a JABberwocky client, but I don't know if or how that is reflected in determining if the deal goes through.
The "or else" to the process: The alternative is a bankruptcy proceeding where authors might get pennies on the dollar and have their work tied up for years.
This is quite true. Authors are unsecured creditors, and are at or toward the back of the line in a bankruptcy proceeding. Some publishing bankruptcies have dragged on for years and had unpleasant outcomes. Here is an article from a while back about an author caught up in the Stein and Day bankruptcy that inspired a jeremiad about the process from one of the owners. This was a poster child for a bad publishing bankruptcy in my early years in the business.
I am not a bankruptcy attorney and don't know how a Chapter 7 might differ from a Chapter 11 (the kind big public companies, which Night Shade is not, go through, which we read about in the news) or other kinds of bankruptcy.
But any bankruptcy is a public filing, and it goes before a judge. Creditors are put into classes. Writers might be unsecured creditors and somewhere back in the line to get paid, but our interests would be represented as a class. It might also be possible for authors to group together as a class to hire attorneys to represent us as a class.
The current process is a private free-for-all with no supervision, and we are relying on the same people who've had challenges paying us royalties for several years to now do the right thing for all of us in the private sale process. If you wonder why this concerns me, you can check out Staffers Book Review which has a "what went wrong" about Night Shade business practices. Where that post overlaps with my personal experiences, I can concur with everything that's said.
We would also know in public how much Night Shade owes to unsecured authors vs. secured creditors, to authors vs. the printer or other non-author creditors, how much it owes in total vs. its assets. Nobody is volunteering and nobody is asking for any of these important pieces of information to be provided to us in this private process. These are important questions. Sometimes a bankruptcy proceeding drags down the benefit to creditors. In going bankrupt, Borders was able to pay far less to its creditors than suggested by the straight-up asset/liability calculation because the assets were liquidated in going-out-of-business sales at fire sale prices and a lot of expense was incurred just to go through the process. But it's still helpful to know in evaluating just how deep the hole is.
With the current process, it is very difficult if not impossible for another bidder to emerge.
The Science Fiction and Fantasy Writers of America (SFWA) has been on Night Shade for the past three years, since their issues became public in 2010. The organization can be a forceful advocate for writers. Just a few weeks ago, SFWA got a lot of good press for putting public pressure on Random House (each word there is a different link; I want to make it very clear how much well-deserved good press SFWA got here) regarding the contract terms for some new e-imprints that Random House had started up.
If SFWA thinks this is a good deal, it should be willing to be as public in its support and its discussion of the terms being offered as it was in sharing the terms of the Random House e-imprint contract that was provided to it.
But with this Night Shade situation, SFWA is communicating to members or a subset of members known to be published by Night Shade like this: "The purpose of this report is to answer some of the questions we have been receiving from you. We ask that you not share this report outside the membership." Their annotated version of the Night Shade assignment letter is hidden in a non-public area of their website. And most of what they do say is always accurate as far as it goes, but it's what they choose to say or not say that tilts the entire conversation. All the risks of saying "no" are prominently highlighted, all the risks of saying "yes" are obscured. SFWA makes it abundantly clear that there are huge risks in bankruptcy and you may get pennies on the dollar and have your book tied up for years, but the best it can do on the print royalties is say (paraphrasing) "maybe it's better, maybe it's worse" when I suspect the typical author will see a considerable reduction. It tells us that the 50/50 split on audio and second serial rights which you relinquish is industry standard, but it doesn't say with similar clarity that you are giving up control and one-half of potentially valuable rights in order to get your royalties currently owed. SFWA is right to add the "talk to your agent" disclaimers, but why in this instance vs. almost every other instance is SFWA not informing its members regarding the best right questions to ask when having those discussions.
Another example:
The secret SFWA e-mail says "The branch of [Start] involved here is the publishing subsidiary, headed by Jarred Weisfeld. They indicate they are acquiring Night Shade’s assets specifically because the owner of Start has a passion for science-fiction and wants to be in this genre." Wouldn't it be preferable for SFWA to ask about and actually identify the owner of Start, instead of only telling us about the mystery owner's passion for sf? Is SFWA aware that Jarred Weisfeld is also a principal in a literary agency, Objective Entertainment, and is this information that SFWA might wish to provide? As another example, if you look at the books from Start Publishing that are for sale on Kobo, it appears that their current publishing program is public domain work.
With regard to Skyhorse, the sf/fantasy genre isn't currently represented on the company's website.
None of these things are, prima facie, bad things. Perhaps: (a) The mysterious owner of Start has been practicing with public domain waiting for a moment like this to have a strong list of copyrighted titles. (b) The owners of Skyhorse recognize the sf/f genre is an important one where they need a presence and have a plan for entering the genre successfully. (c) The objections in the sf/f community to having literary agents as publishers have died down for good reason in the 30 years since SFWA objected to having Scott Meredith run an sf/f program for Baen Books, and Richard Curtis has run eReads for many years now.
But why is SFWA leaving me to do the research? Why aren't they informing authors of relevant facts so authors can make good decisions in consultation with their agents, representatives and IP attorneys?
Since SFWA was aware of the process, does SFWA know if Night Shade was approached by these two companies, or if Night Shade did a vigorous search for other buyers before concluding that these two companies were the best or only alternative to bankruptcy? Does SFWA know why Skyhorse and Start are splitting the assets, when Skyhorse can publish the e-books itself? There might be details that would violate confidentiality, like other potential buyers who kicked the tires on the Night Shade car, but total silence leaves me queasy. If you've ever read a formal SEC filing from a company asking for merger approval, it includes a history. Written by management, likely self-serving, but with this kind of information presented.
I'm not a big fan of this deal. But I have tried in this blog post not just to rail against it. Rather, I'm trying to suggest questions we deserve answers to, either collectively or to grapple with in making our individual decisions. How rigorous a sale process was there? If bankruptcy puts us at the back of the line, how long is the line? What is the value of receiving my current royalties in full vs. the reduction in my future royalties, or the value of my current royalties against having full control of my audio rights? If such a thing could be found would it be better to have a buyer purchase the whole company instead of select assets, even if it meant secure royalties moving forward but a hit on current royalties owed, rather than getting all royalties owed today in exchange for future concessions?
Last but not least, to what extent should my decision on the deal itself be influenced by the structure of the arrangement, the effect it has on the community of sf/f authors as whole?
AN UPDATE:
Jeremy Lassen, one of the partners in Night Shade, has replied to critics of the deal. You can find that via Charlie Jane Anders at io9. Jeremy's main argument is this. "This deal is the last chance I have to keep my promise. This is the last chance I have to make sure that ALL OF MY AUTHORS GET PAID ALL OF THE MONEY THEY ARE OWED. Right now the deal is in the hands of the individual authors, and their agents. I am asking you. Please. Sign off on this deal. Help me make sure all my authors get paid."
One comment I will make: You can't be so fixated on one specific goal in life that you lose track of the big picture. The goal of Night Shade here is admirable. Who wouldn't want every Night Shade author to get the royalties they are owed. But as I've discussed above, every author needs to evaluate the benefits of getting paid what they are owed today against the costs of this tomorrow.
FURTHER READING:
This post by literary agent Andrew Zack fills in, very nicely, some gaps in my own post. He knows the people at Skyhorse better than I, and asks directly why, when as he puts it:
In a sense, this entire deal seems to me to be:
Bottom-feeding
Extortionist
I recognize that these are terms that both publishers might find offensive, but surely they must understand how offensive this deal is to the authors involved.
the publisher doesn't want to step up to the plate and be proactive in making people feel more comfortable.
And something Jeremy Lassen would disagree with, also in Andrew's post:
The fact that they want to change the contracts and get extra rights seems to me an attempt to ensure they have jobs when this all gets wrapped up, but if authors are going to lose money in the form of lower royalties and new rights granted, shouldn't these guys lose something, too? Where is their skin in this game? If this all goes through, they are in a better-than-ever situation, it seems: free of the burdens of administration, free of debt, employed, and walking tall. That hardly seems fair, does it?
Saturday, September 29, 2012
Calling an Audible
Way back toward the dawn of Brillig, in fact it's hard for me to believe it's close to five years I've had the blog, I did a post called Audio Rules!, where I discussed how, in 2007, Audible essentially decreed that there should be science fiction and fantasy on audio, where previously there had been very little. Looking back on it, this was just a few months before Amazon announced it was purchasing Audible, it's interesting to speculate on if the imminent purchase was a factor in that decision, or if it was an all-Audible thing. Doesn't really matter, doesn't make the speculation less interesting.
Since then, we've sold a ton of audio rights, whatever it was we were selling when I did that blog post in 2008 was kind of the tip of the iceberg. As with all things like this in the content business, it's been interesting to see it play out. As an example, the Lost Fleet books have performed on audio well beyond any reasonable expectation. I spoke in that long ago post about the rule that an audio book would sell 10% of the hardcover, the Lost Fleet books by Jack Campbell are selling something like four times that. The series also really outperforms on e-book, but even if we looked at audio as a percentage of combined e-book and print sales the percentage would be way higher than the rules would suggest. Other clients of ours, their audience might be in print and might be in e-book, it just doesn't want to be in audio.
Now, and this is definitely an Amazon thing, the audio market is taking another great leap forward.
Publishers Weekly and other places reported in the spring on a major 200+ title deal between Audible and Richard Curtis Associates, another literary agency. Not entirely a surprise. This was a year or so after Audible introduced ACX, a service to match authors, publishers, and audio narrators to allow brokered self-publication of audio to help boost content availability, and a few weeks after we'd gotten word from Audible that their next step was going to be to buy up huge amounts of content. The stated goal was to beef up overall sales by increasing the likelihood that readers would find things they wanted whenever they visited Audible. Or, to put it another way, they might not make money on every new piece of content they obtained, but they would boost their sales and profits nonetheless because Audible would be to audio what Amazon was/is to pretty much everything, if you wanted to buy something it would be there for you to buy. In that Amazon was, there was a hidden and unspoken subtext that was revealed simultaneous with the launch of the new generation of Kindles. They'd mastered the code for enhancing their "whispersync" so that you could read six pages of a book on your Kindle while downing your breakfast, have the audio pick up right where you left off when you got into the car, have the Kindle take it from there during lunch hour, and then back to the audio again right where you left off on the ride home. So the more audio on Audible with this feature enabled, the more books with matches for Kindle, the more likelihood that they might be able to get you to buy the book in both formats to have a seamless whenever/wherever reading/listening experience across devices, formats and media.
So suffice to say that there are a lot of those 200+ title audio deals going around, and we've been mailing off contracts to clients this week for a large helping of titles.
Some of these are recent backlist, some are books that haven't been in print for 20 years, all kinds of books in-between. As above, another great leap forward, from not being able to sell anything just five years ago, to at least being able to sell everything with a reasonable argument. To being able to sell the occasional surprising thing. And now to being able to sell lots and lots and lots of things.
Some observations:
If you want to take a very negative approach, these deals are a bad thing for the authors involved. Because of the volume of titles involved, I will admit the prospect that Audible has received a volume discount. Perhaps some of the individual authors could have been more aggressive in seeking higher advances for their individual titles. The counterargument is that the deals might not exist at all if the titles weren't being offered by agents or publishers that would allow Audible to buy a lot of content quickly. Do you want to buy 200 books via Richard Curtis, 200 books from us, 500 books from some other agency, or do you want to have 62 separate negotiations with 62 authors to buy up those 900 titles?
Will we be able to retain audio rights as often in the future? We've always tried to keep them, where we haven't been able to keep them we've tried to get provisions to recapture the rights if the publisher wasn't actually using them, now we come to a place when it's possible that there will be a market for audio rights to everything. Once upon a time the publishers could say they weren't missing out on much if they let the rights stay with the authors, now maybe they are, maybe they insist, and even if we get "use of lose" provisions maybe not using is a thing of the past. When you're in the publishing business, you can find the down side to anything.
This is the inverse to our own bottom line of a film option. Most of those, you lose money doing the deal but hope you'll make it up down the line by having one of those options actually get purchased some day, thus making up for all the times you spent six months haggling with a Hollywood or studio attorney over a $2500 option. Here, the immediate effect to our bottom line is nice because we've just sold rights to lots and lots of books. However, over time, we're going to have a much bigger pile of royalty paperwork from Audible, some of the titles will sell in moderate quantity, and over time we may have a lot of processing costs that will weigh on our resources.
In spite of that fact, I decided to sell as broad a package of titles as we could muster within the JABberwocky family. I suspect there will be days in the future when I'll look at a lot at large stacks of paper and large stacks of checks and wonder what I was thinking, but in my heart I think the decision was correct, and in general, when I've felt in my heart that something was right to do for the JABberwocky family it's been right to do.
And not only that, we're going to talk to some people about reinvesting the Audible proceeds to do e-book conversions for books that we might not rush to do otherwise for fear of a long payback period. In many instances, this is doubling down on paperwork madness, to add potentially small bits of e-book royalties to potentially small bits of audio royalties. But again, it seems right. If the ability to drive accretive sales across formats is part of the goal Audible has with enhanced whispersync and enhanced availability on Audible, let's help drive that process along.
It's all going to be very interesting.
And if you'd asked me about the likelihood of any of this five years ago... well, not very! As I've said, the whole e-book revolution took longer than people expected to arrive, and once it arrived it's changing things way faster than I'd have thought. The growth and development of the digital download market for audio is a part of that even without the ability to cross-sync with an e-book, and with that ability all the moreso.
Since then, we've sold a ton of audio rights, whatever it was we were selling when I did that blog post in 2008 was kind of the tip of the iceberg. As with all things like this in the content business, it's been interesting to see it play out. As an example, the Lost Fleet books have performed on audio well beyond any reasonable expectation. I spoke in that long ago post about the rule that an audio book would sell 10% of the hardcover, the Lost Fleet books by Jack Campbell are selling something like four times that. The series also really outperforms on e-book, but even if we looked at audio as a percentage of combined e-book and print sales the percentage would be way higher than the rules would suggest. Other clients of ours, their audience might be in print and might be in e-book, it just doesn't want to be in audio.
Now, and this is definitely an Amazon thing, the audio market is taking another great leap forward.
Publishers Weekly and other places reported in the spring on a major 200+ title deal between Audible and Richard Curtis Associates, another literary agency. Not entirely a surprise. This was a year or so after Audible introduced ACX, a service to match authors, publishers, and audio narrators to allow brokered self-publication of audio to help boost content availability, and a few weeks after we'd gotten word from Audible that their next step was going to be to buy up huge amounts of content. The stated goal was to beef up overall sales by increasing the likelihood that readers would find things they wanted whenever they visited Audible. Or, to put it another way, they might not make money on every new piece of content they obtained, but they would boost their sales and profits nonetheless because Audible would be to audio what Amazon was/is to pretty much everything, if you wanted to buy something it would be there for you to buy. In that Amazon was, there was a hidden and unspoken subtext that was revealed simultaneous with the launch of the new generation of Kindles. They'd mastered the code for enhancing their "whispersync" so that you could read six pages of a book on your Kindle while downing your breakfast, have the audio pick up right where you left off when you got into the car, have the Kindle take it from there during lunch hour, and then back to the audio again right where you left off on the ride home. So the more audio on Audible with this feature enabled, the more books with matches for Kindle, the more likelihood that they might be able to get you to buy the book in both formats to have a seamless whenever/wherever reading/listening experience across devices, formats and media.
So suffice to say that there are a lot of those 200+ title audio deals going around, and we've been mailing off contracts to clients this week for a large helping of titles.
Some of these are recent backlist, some are books that haven't been in print for 20 years, all kinds of books in-between. As above, another great leap forward, from not being able to sell anything just five years ago, to at least being able to sell everything with a reasonable argument. To being able to sell the occasional surprising thing. And now to being able to sell lots and lots and lots of things.
Some observations:
If you want to take a very negative approach, these deals are a bad thing for the authors involved. Because of the volume of titles involved, I will admit the prospect that Audible has received a volume discount. Perhaps some of the individual authors could have been more aggressive in seeking higher advances for their individual titles. The counterargument is that the deals might not exist at all if the titles weren't being offered by agents or publishers that would allow Audible to buy a lot of content quickly. Do you want to buy 200 books via Richard Curtis, 200 books from us, 500 books from some other agency, or do you want to have 62 separate negotiations with 62 authors to buy up those 900 titles?
Will we be able to retain audio rights as often in the future? We've always tried to keep them, where we haven't been able to keep them we've tried to get provisions to recapture the rights if the publisher wasn't actually using them, now we come to a place when it's possible that there will be a market for audio rights to everything. Once upon a time the publishers could say they weren't missing out on much if they let the rights stay with the authors, now maybe they are, maybe they insist, and even if we get "use of lose" provisions maybe not using is a thing of the past. When you're in the publishing business, you can find the down side to anything.
This is the inverse to our own bottom line of a film option. Most of those, you lose money doing the deal but hope you'll make it up down the line by having one of those options actually get purchased some day, thus making up for all the times you spent six months haggling with a Hollywood or studio attorney over a $2500 option. Here, the immediate effect to our bottom line is nice because we've just sold rights to lots and lots of books. However, over time, we're going to have a much bigger pile of royalty paperwork from Audible, some of the titles will sell in moderate quantity, and over time we may have a lot of processing costs that will weigh on our resources.
In spite of that fact, I decided to sell as broad a package of titles as we could muster within the JABberwocky family. I suspect there will be days in the future when I'll look at a lot at large stacks of paper and large stacks of checks and wonder what I was thinking, but in my heart I think the decision was correct, and in general, when I've felt in my heart that something was right to do for the JABberwocky family it's been right to do.
And not only that, we're going to talk to some people about reinvesting the Audible proceeds to do e-book conversions for books that we might not rush to do otherwise for fear of a long payback period. In many instances, this is doubling down on paperwork madness, to add potentially small bits of e-book royalties to potentially small bits of audio royalties. But again, it seems right. If the ability to drive accretive sales across formats is part of the goal Audible has with enhanced whispersync and enhanced availability on Audible, let's help drive that process along.
It's all going to be very interesting.
And if you'd asked me about the likelihood of any of this five years ago... well, not very! As I've said, the whole e-book revolution took longer than people expected to arrive, and once it arrived it's changing things way faster than I'd have thought. The growth and development of the digital download market for audio is a part of that even without the ability to cross-sync with an e-book, and with that ability all the moreso.
Wednesday, April 23, 2008
Audio Rules!
Once upon a not so very long time ago, it was virtually impossible to sell audio rights to anything in the way of science fiction and fantasy. This, to me, was not a good thing.
Why was this? I do think sf/fantasy is an acquired taste, so much so maybe it's in the genes, and for some reason it's been an acquired taste that is looked down upon. To the rest of the world, the entire sf convention is going around in Star Trek costumes and taking Klingonese lessons from Lawrence Schoen. Why do indie bookstores have better mystery sections than sf if they deign to have an sf section at all, why do libraries have better mystery sections. Do sf readers avoid libraries because they don't have sf, or do the libraries avoid because sf readers have an allergy. That's clearly part of it. In order for them to buy sf/fantasy they first had to be educated about it.
There were also these rules. Fixed cost in audio can be high because of recording costs. You need to have some prayer of geting the fixed costs back. So audio companies would say they would only buy books if they knew the publisher would be shipping 100,000 copies and if they could have them in time to be out when the hardcover was out and if they didn't go a clause over 79.940 words in length. All told, only a smattering of very top authors like Robert Jordan had audio editions out unless they were with smaller publishers selling their wares at conventions. Cutting had a little bit in their Graphic Audio line, like some of the Deathstalker books. This did not stop clients from wanting audio editions, but it was an easy time to explain why the odds were against. I had to work hard even at selling Charlaine Harris as she started to climb up the bestseller lists before finally getting Recorded Books on board.
And then six months ago, the world changes.
Audible decides there is more of a market for sf/fantasy than they have product. They start to put the word out to their content providers that the order of the day is more, please, more. And if you don't want to give us more maybe we'll go out ourselves and get it. Now, pretty much all of the top clients at the agency are under contract for audio editions or soon will be. Where I never had anyone wanting to buy, now I can have multiple people competing against one another in actual bidding wars. I can have this publisher wanting the abridged and that publisher the unabridged. Whodathunkit. It's nice to finally have the revenue stream kicking in for my clients. More work, but the right kind, though it might have been nice if there had been a steady group of sales over many years instead of having to sell the entire list all at once.
As a side issue, never a good idea to sell publishers more rights than you need to. If you sold audio rights to your publisher when nobody was doing sf/fantasy on audio, it's not as if they were going to sell them, because nobody was buying them. Now, everyone wants to buy them and it's not so difficult all of a sudden, and the publisher gets 50% for being in the right place at the right time. Maybe 100% if your advance isn't earned out. As an agent, I like for the author to get as much benefit from right place at right time as I can.
I wanted to do one more post before Malice Domestic, at least one. Done! Probably next week before I''ll have another. But May is a much lighter travel month until Balticon on Memorial Day weekend, and should totally be a better Brillig month than April was.
Why was this? I do think sf/fantasy is an acquired taste, so much so maybe it's in the genes, and for some reason it's been an acquired taste that is looked down upon. To the rest of the world, the entire sf convention is going around in Star Trek costumes and taking Klingonese lessons from Lawrence Schoen. Why do indie bookstores have better mystery sections than sf if they deign to have an sf section at all, why do libraries have better mystery sections. Do sf readers avoid libraries because they don't have sf, or do the libraries avoid because sf readers have an allergy. That's clearly part of it. In order for them to buy sf/fantasy they first had to be educated about it.
There were also these rules. Fixed cost in audio can be high because of recording costs. You need to have some prayer of geting the fixed costs back. So audio companies would say they would only buy books if they knew the publisher would be shipping 100,000 copies and if they could have them in time to be out when the hardcover was out and if they didn't go a clause over 79.940 words in length. All told, only a smattering of very top authors like Robert Jordan had audio editions out unless they were with smaller publishers selling their wares at conventions. Cutting had a little bit in their Graphic Audio line, like some of the Deathstalker books. This did not stop clients from wanting audio editions, but it was an easy time to explain why the odds were against. I had to work hard even at selling Charlaine Harris as she started to climb up the bestseller lists before finally getting Recorded Books on board.
And then six months ago, the world changes.
Audible decides there is more of a market for sf/fantasy than they have product. They start to put the word out to their content providers that the order of the day is more, please, more. And if you don't want to give us more maybe we'll go out ourselves and get it. Now, pretty much all of the top clients at the agency are under contract for audio editions or soon will be. Where I never had anyone wanting to buy, now I can have multiple people competing against one another in actual bidding wars. I can have this publisher wanting the abridged and that publisher the unabridged. Whodathunkit. It's nice to finally have the revenue stream kicking in for my clients. More work, but the right kind, though it might have been nice if there had been a steady group of sales over many years instead of having to sell the entire list all at once.
As a side issue, never a good idea to sell publishers more rights than you need to. If you sold audio rights to your publisher when nobody was doing sf/fantasy on audio, it's not as if they were going to sell them, because nobody was buying them. Now, everyone wants to buy them and it's not so difficult all of a sudden, and the publisher gets 50% for being in the right place at the right time. Maybe 100% if your advance isn't earned out. As an agent, I like for the author to get as much benefit from right place at right time as I can.
I wanted to do one more post before Malice Domestic, at least one. Done! Probably next week before I''ll have another. But May is a much lighter travel month until Balticon on Memorial Day weekend, and should totally be a better Brillig month than April was.
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