Intellectual Property vs. "Cultural Commons"

by Jessica

Some years ago, shortly after I moved from New York to Egypt, I was invited to participate with fellow publishing professionals in a seminar on intellectual property rights, hosted by the Cairo Book Fair. The discussion swirled around licensing translations into and out of Arabic, the plight of authors in the Arab world (who, no matter how successful, rarely make enough money to give up their day jobs) and the importance of combating piracy. Therefore it caught me by surprise when one of the participants—presumably a fellow publisher—raised his hand and pointed out, with all due respect, that intellectual property law in general, and copyright law in particular, was just one more way in which wealthy first-world nations turned a profit at the expense of poorer developing ones.

I was thunderstruck.

Although I’d heard folks in the United States—generally my tech-savvy acquaintances—bat around the notion that “knowledge wants to be free, dude,” I imagined that this applied mostly to shareware, assorted wikis, and other Wired magazine fare. Somehow, up until that moment, I’d failed to see the connection this notion has to the business in which I work, which is, of course, predicated on the idea that knowledge, at least in book form, does not wish to be free. It wants a retail price, a percentage of which (7.5% for trade paperbacks, 10-15% for hardcovers, and still tbd as far as e-books are concerned) should be given to the author.

At that seminar in Cairo, it had never even occurred to me that copyright could be regarded as anything other than capital-G Good. Intellectual property law is, after all, what allows writers to write—the knowledge that their material is protected, that they can profit by its success, that their words or ideas cannot be distorted or stolen, that writing for a living is, in fact, possible. Not easy, not likely, but possible. I’d never so much as imagined that a counter-argument existed, much less thought about ways in which intellectual property law might be seen as vehicle of exploitation. But in developing markets, the cost of commissioning a translation and paying even a modest licensing fee can make publishing a given project untenable. And of course, the issue is not just with books: Powerful pharmaceutical companies control the patents to drugs that are most acutely needed in desperately poor countries, the same is true for most all scientific and creative output—much is controlled by relatively rich entities—whether countries or corporations.

Don’t get me wrong, I’m not looking to toss out the baby with the bath water. I’m a staunch defender of copyright; it goes with the territory of being an agent. But I’d like to think I’m a little more critical—or at least open-minded--about the role intellectual property law plays in a complex, global, and (with apologies to Tom Friedman) not entirely flat world. Which is why I have been particularly interested to dig into Lewis Hyde’s Common as Air: Revolution, Art and Ownership. There’s a great (and unusual) graphic review in the Barnes and Noble review , plus an excellent non-graphic discussion in the New York Times Book Review. Hyde cites copyright law (which presently stands at the author’s lifetime, plus 70 years) as an area in which “enclosure,” i.e. fencing off areas of science, literature, innovation, etc. for commercial gain, has won at the expense of our “cultural commons,” areas of shared knowledge that are essential to the growth of a society. He does believe that artists should own their work (whew!), but questions how long that period should last. He illustrates his point with true stories drawn from agribusiness, pharmaceuticals and even the music industry. He is particularly keen to cite the ideas of the founding fathers, who, he argues, were more or less in agreement with Thomas Jefferson that "ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man."

Sounds good in theory, but how does this play out in practice? How do we see that writing, or creative output in general, is both fostered and rewarded? That the publishing industry does not collapse? I sure don’t have the answers, but given the fact that e-books (and initiatives like Google Books and Project Gutenberg) can aid and abet the Jeffersonian spread of ideas in unprecedented ways, it’s worth mulling over.

What do you think?

The book stays in the picture

by Lauren

There was some great debate in the comments when I tackled foreign rights, so let's move on to another sub right.  It seems like this is the perfect week to talk about film, since Variety just did a piece on the current state of book-to-film, complete with quotes from Jane!  (I always enjoy the Variety lingo--only in LA would we be referred to as a "Gotham-based" agency.  Clearly Batman was rights director before me. )

So we've already talked about foreign, which takes up the most time and generates the most deals, but film and television is the big one on a per deal basis in terms of money. On the one hand, a big film means big money for the author (though as Jane points out, not as big as it used to be).  That said, the percentage of books that ever reach the screen is tiny. Of those that don't, a slightly larger percentage will have the rights bought but will never be made. Another slightly larger bunch will be optioned--meaning a studio or production company has the right to try to get the funding to outright buy the rights to the material. Options, however, usually lapse before any significant progress is made.

I've heard it said that the ideal situation for the author is for the option producer to get enough traction to keep optioning and eventually buy the rights, but never make the movie.  Though I don't know how many authors would really want to lose the upside—significantly inflated booksales—to get rid of the downside—a corrupted version of the story they wrote making it into the world.

To BEA or not to BEA

by Jane

So, as we've already mentioned, last week was Book Expo, and it took place mid-week for the first time in its history (I believe) and was shortened from three and a half to two days of exhibits with an additional meeting day. The question this raises for me is how relevant is BEA anymore; is it necessary and will it continue?

Historically this annual meeting was known as the American Books Sellers Association (ABA) meeting. It began in the basement of the Shoreham Hotel in Washington, D.C., and was held annually—initially over Memorial Day Weekend. The convention’s purpose was for book publishers to present their fall publishing lists to bookstore owners who would actually place their orders on the floor. Those in attendance from the publishing companies were mainly sales people with some executives making an appearance now and then; editors weren’t included.

Over the years, the ABA convention grew larger and larger. More and more publishers added more and more staff and they began to build larger and larger exhibits. The ABA outgrew the Shoreham and was moved to a convention center in Washington and then began traveling to a different city in different parts of the country each year.

The convention has been held everywhere in the continental U.S. from Chicago, to Los Angeles and Anaheim, to San Francisco, Las Vegas, New Orleans and even Miami (I remember that ABA well—for many reasons, it was a disaster). And each year it grew, with publishers spending more and more money on their exhibits, and having hugely lavish parties to entertain booksellers, authors and agents.

Slowly but surely foreign publishers began to participate and the ABA became a rights fair as well, sort of a mini-Frankfurt (before the London Book Fair grew as large as it now is).

Then as the chains became all powerful and publishers took orders on fall books from these huge accounts before the ABA (or at least outside of the convention), that reason for the meeting became irrelevant. Smaller accounts also started to order less at the meeting and more in other ways and at other times.

Publishers began to realize that the enormous sums of money spent on exhibits, on parties and on travel could not be justified. Displays began to get smaller; some publishers skipped years coming and eventually the exhibit was sold to an organization that became Book Expo. Now, it is a truncated and less interesting event.

My question is what really happens at BEA nowadays? Sure, it is wonderful to see old friends, but the individual exhibits are so small now that one can’t even find the fall books one is looking for. Last week I saw very little activity at the parts of the convention occupied by foreign publishers and the exhibits were downsized from two floors to one in the Javits Center. Very little actual business in terms of the initial book ordering is done anymore and with the other rights fairs around the world, those sold at BEA for the most part are also insignificant.

As I wandered around the floor last week at BEA 2010, I honestly thought to myself that the money still being spent by publishers on this meeting could be much better allocated toward finding new and effective ways to sell books in an age when our business is changing enormously and very quickly.

I would love to know what those of you who have participated in BEA in the past think about all of this.

Happy BEA!

by Lauren

By the time this posts, I'll already be at the DGLM table in the International Rights Center at the Jacob Javits Center, doing my duty at Book Expo America as the agency's subsidiary rights director. Today is the beginning of American publishing's largest trade show and, for me, a three-day extravaganza of back-to-back meetings with foreign publishers, sub-agents, scouts, audio editors, and film producers. I’ll leave it to one of my colleagues to give you the BEA scoop in another post, but in the meantime, I thought it might be a good time to talk subrights.

I offered a basic rundown of how subrights works a couple years ago, but maybe now would be a good time to talk in more depth. Since foreign rights take up the bulk of my time—and will account for most of my meetings this week—why don’t we start there? If you’d like to know more about audio, film, and serial, just let me know below, and I’ll tackle them in future posts.

Foreign is the biggest rights market. When a book sells to an American publisher, there are more or less three options: North American, world English, or world. Occasionally a book sells separately to Canada and the US, but that’s not the norm unless the author is Canadian, and even then, it really depends on the type of book.

In a North American rights deal, the American publisher will distribute their edition in English in the US, Canada, the US territories, and the open market. The open market is the term for those territories where English-language rights are fair game. American and British publishers have essentially carved up the world into three sections: US exclusive territories; UK & Commonwealth exclusive territories; and everywhere else. Occasionally, there’s a land grab from one side or the other insisting that they must have exclusive rights to a particular place (BEA 2006 featured a panel on the whole kerfuffle). I’ve seen British publishers insist that they should get Europe exclusively because they’re…nearby? And I’ve seen US publishers insist that India’s not in the British Commonwealth. The part of it that always perplexes me is that the major players on both sides are generally owned by the same parent companies. The open market is the territories in which both the US and the UK publishers are allowed to sell. In the end, all that matters from the authors’ and agents’ perspectives is that the publishers’ dispute doesn’t prevent a sale to both territories and that the book is widely available. The notion that an island nation that no one involved could pick out on a map is a deal breaker is really quite silly. Fortunately, it usually works out.

In a world English deal, this is blessedly not our problem, though unfortunately we also lose the chance to do a separate deal in the UK. This typically means that the US publisher has a UK arm that they feel will publish or distribute the book well. All non-English rights, though, are controlled by the author, which means that we’re trying to place those where possible.

In a world rights deal, it’s all—English and every other language—in the publisher’s hands.
The way that foreign rights deals are typically done is through a network of subagents in the major territories throughout the world. In countries like the UK, Germany, Japan, etc., there are agencies that represent American publishers and agents, and those are the people I work most closely with on foreign rights deals. Our subagents represent the full list of rights that we represent on behalf of our authors in their territories, though of course not all books will sell in all countries.

Sometimes, books don’t sell internationally at all—it’s often said that such books “don’t travel.” Books that depend largely on pre-existing interest in the author or subject, for example, are less likely to sell internationally if that pre-existing interest isn’t also international. A novel by a small publisher in the US is more likely to sell than a bestselling American cookbook by a celebrity chef who is not on TV outside the US market. This is one of the things I love most about foreign rights: the rules are totally different and sometimes the little guy in the US market gets to be a bigshot elsewhere. As part of that, there’s a lot of information to manage: true crime sometimes sells in Australia, Germany and Japan, but rarely elsewhere unless the case has international reach; memoirs are tough in Spain; and you can’t typically sell to a foreign country those things that they feel they do better than the US. For example, literary fiction is tough to sell in France, but commercial novels are easier. (The French don’t exactly clamor for American attempts at high culture.) Horror’s tough to sell in Asia, because their standards for what’s frightening are quite different than the American one: think of The Ring as compared to an American slasher flick.

I really love these little glimpses into foreign cultures, and it’s always really satisfying when I choose a book to highlight for a particular subagent or publisher and get a sale. And it’s a huge pleasure to work directly with clients of the agency who aren’t my own, some of whom I’ll be lucky enough to see for a bit at the fair!

Any questions?

Get organized

by Lauren

As the rights director, part of my job is trying to synthesize information on an author’s entire career to pitch front and backlist titles—and to know what is available to be sold or resold now. Foreign rights don’t have as short a shelf life as many others, and we still make foreign deals on books years down the line, sometimes after they’re out of print in the U.S.  Recently, I asked one of our clients to send me a copy of an old contract from before we represented him, and he quickly pulled it from his files and got it in my hands. He remarked that he had heard from other authors that they didn’t really keep accurate files, and he couldn’t understand how they functioned. The truth is, sometimes, they don’t do it very well.

So if I can offer you one piece of advice today, it’s this: get organized. Even if organization doesn’t come naturally to you. Even if you find it inherently loathsome. Do not assume that other people will keep records of things you’re getting copies of and don’t assume that you’ll still be in touch with them when you need those things later. Don’t assume that people who you’ve stopped doing business with will prioritize giving you information you want at the speed with which you need it. Keep every single contract, license, and royalty statement you receive. Any time you sign a legal document or are given a financial statement, be sure you can get your hands on it in the future and within a few hours of it being asked of you. Think about saving things digitally to make them easier to find and save space (though you should still keep hard copies with original signatures of any legal agreement as well). 

And start early. Plenty of well meaning authors tell me--as they sigh with dismay that they think they maybe did a deal with some country that begins with T for their 3rd or 4th book--that they’re going to organize their paperwork this time.  But 20 years in, that’s a much more difficult task than if you start organizing yourself from Day 1. And who wouldn’t want a career with that kind of longevity and potential?

Why I Am an Agent (Michael)

by Michael

I figure it’s my turn to explain why it is I do what I do, as Jane, Jim, Lauren, Chasya, and Rachel have—if only to satisfy the clients who keep asking when I’d do one of these!

It all started at the end of the last decade, December of 1999. It was my senior year, and I really needed a job. I had no idea what to do, and was thinking of finding something in retail, as I love a good discount. But my friend Jim McCarthy told me that the literary agency where he was interning was looking for another paid intern. Now, Jim had told me what he was doing, but frankly I never quite understood. These people were agents for authors? Why did authors need agents? And isn’t publishing for rich kids who want a hobby career? Though I didn’t think it was the job or industry for me, I figured it couldn’t hurt to go in and interview.

Like Jim, I was interviewed by Stacey Glick. If you talk to her, she’ll tell you that I had blue hair at the time. This is not true. I had bright, bleached-blond hair. The blue hair came later. (And the blue dye largely ran out of my hair when I had to make a delivery to one of our most important clients in the pouring rain that summer.) I believe she hired me on the spot, and I started working Friday of the same week.
I had no idea what I was doing in the beginning. I did what people requested, paid lots of attention, and started asking questions. Slowly, but surely, I came to be very interested and involved in what was going on at the agency. I’d loved books growing up, but I’d not been the same kind of reader in college. It was great to get back to reading things that were fresh, new and contemporary. And, as I looked around, I liked what I saw: a group of smart, creative, engaged, interesting people helping authors manage their careers. Just a few short months later, I was hooked—on publishing, agenting, and DGLM. When Jane and Miriam offered me a job in September of that year, I was honored, and I jumped at the chance.

When I started full-time, I was doing much of what I did as an intern, along with managing royalties and helping Jane with submissions. But quickly, I took on new responsibilities. I began assisting the rights director, learning the ins and outs of the foreign and domestic rights markets. When she left the agency a few years later, I took over the agency’s rights, eventually attending the London Book Fair with Jane and selling rights around the world. At the same time, I was building a list of my own, something Jane encouraged me to do within my first year at the agency. I started representing children’s books at Jane’s suggestion, something I was unsure of at the time(!). But quickly I found that I had a passion for middle grade and YA books, and my career as an agent really took off then. Several years ago now, I became a full agent, and the talented Lauren Abramo took over as our rights director, freeing me up to focus on my own projects.
Last year I was very excited to be promoted to vice president at the agency, and just as pleased this past December when I moved to Los Angeles to open a West Coast office for DGLM. I tell people all the time—I’d never have had these opportunities at any other agency or in any other job, and I’m forever grateful to Jane for that.

Our industry is going through big, drastic, challenging changes, and I’m glad that Jane, Miriam, the rest of the DGLM staff and I are working together to attack them head-on. My ten-year journey with the agency has been full of amazing experiences and opportunities, and I am just as enthusiastic about the ten years to come.

E-book rights wars are on!

by Miriam

Continuing the theme of Jim’s post yesterday, the e-book rights wars are on! Clearly Markus Dohle’s announcement that Random House has a retroactive claim on electronic rights that weren’t in existence when certain of their contracts were signed (as well as your grandma’s china and your first-born), has raised quite a stir in some circles--authors, agents, people who don’t like legal documents manipulated to mean whatever a powerful corporation decides they mean...

As PW reports, the Authors Guild is, rightly, miffed about this power play by one of the industry’s biggest players, not just because of the immediate implication to RH authors but because of the precedent such a move may set.

My sense is that Mr. Dohle’s move will not have legal legs to stand on and will engender a great deal of ill will within the publishing community. What do you all think?

Random House's e-book rights grab

by Jim

The Wall Street Journal has an article on a letter that Random House CEO Markus Dohle sent out to agents on Friday. In the letter, Dohle casually mentioned his belief that Random House owns the digital rights to their entire backlist. Slow down, Smokey!

There’s a reason that almost all good publishing contracts include language that rights which are not specifically being acquired are reserved to the author. That language was placed there for the author’s protection specifically in the event of developments like electronic publishing technology—forms that couldn’t be foreseen at the time of the contract’s initial signing.

To say that electronic rights are suddenly included in the phrase “book form” is disingenuous. If that’s the case, why did later contracts go on to specifically list electronic publishing rights as negotiable terms in addition to the printed book rights? It’s also impossible to argue that ebooks were considered part of traditional book rights well before they were even a twinkle in Amazon’s eye.

We’re seeing a lot of publishers engaging in these sorts of rights grabs now and a lot of them are using semantics to pretend they’ve always had rights that were not, in fact, included in the purview of the original contract. And it isn’t just limited to ebooks. It makes sense that in times of economic troubles, publishers will be trying to hold onto absolutely every potential source of income that they can. But that doesn’t make it right or acceptable.

There’s a whole lot more conversation that’s a’comin’ on this one. Stay tuned.

Why I Am an Agent (Lauren)

by Lauren

Since Jane, Chasya, and Rachel have already weighed in on why they are agents, I thought I’d take my turn.

I came to agenting as many people do in publishing, somewhat by accident. When I finished grad school I moved home: jobless, apartment-less, and broke. I'd worked in bookstores in college and grad school and at a non-profit between, so I was pretty confident that I'd be happy in either field. As with many of the uninitiated, the only real jobs in publishing I could think of were editorial, marketing, and publicity, and I didn't think the latter two were for me. Neither the editorial job I wanted nor a position at a non-profit were especially easy to find. Out for dinner with friends one evening, having borrowed money from my mother to come into the city from the suburbs, I whined as usual that I wasn't finding a job and was going a little stir crazy. My friend Beth, fortunately, threw me a lifeline: two of her college friends, Michael and Jim, worked at an agency, and she knew they sometimes hired freelance readers. It'd be a foot in the door, an excuse to come into the city, and a bit of money to make it happen. The next day she put me in touch with Michael, and I luckily applied for a reader position just as Jane's assistant Leslie was moving off to Peru. Michael asked me if I was looking for a full-time position and wanted him to pass on my resume, and the rest is history!

So that's how I got to DGLM, but 4 1/2 years later, why am I still here when my plan had been to work in editorial? Because it turned out to be a perfect fit. Not only did Jane encourage me to take on my first client as soon as she felt I was ready while still assisting her, but working for her that first year gave me invaluable experience in just how agenting works. Most of us at DGLM started in our first job in publishing as an intern or as Jane's assistant, and it has made a tremendous difference. Jane knows the business inside and out having worked on both sides of the desk, and while the office is run on a complex set of systems (and anyone who has seen me work knows I love systems more than almost anything in the world), once you have a hang of them you have a real leg up on managing your time and serving your clients' best interests. And even though Jane’s constantly busy, her door is literally always open--we don’t even have to knock.  Jane makes a point of explaining how things work and why.  Just before my anniversary with the company, I was offered the chance to move up--take on more clients and work junior to Michael in our rights department. I was able to continue learning, not just from Michael, who taught me the ins and outs of subrights and patiently gave me advice and answers probably more often than he had time to do. I also got to move desks to sit just below the loft Miriam works from, and just from hearing her do her thing I've learned a great deal in the last few years about how to put out fires, give editorial feedback, and make sure clients are on the right track and feel supported. When another year or so later the time came for Michael to give up rights selling to focus on his ever expanding client list, Jane and Miriam once again trusted me to climb another rung of the ladder.  Jim might've regretted being so easily accessible at the next desk when I couldn't wrap my mind around a contract clause or royalty statement—or when my job, regrettably, called for me to use numbers. As an agent, my list overlaps slightly with just about every other agent’s, so there’s always someone to give me an informed second opinion, to suggest an editor who’d be perfect for my submission list, and to give me feedback on my pitches.

As the agency’s Subsidiary Rights Director and an agent, I still learn new things all the time, but I’ve also had the pleasure of being the one who sometimes knows the answers. It means a lot to me that others ask my advice now, even if it’s perhaps just rightful payback for the time spent at their desks with a confused look on my face. And I’ve gotten to see Chasya, who started as an intern back when I was Jane’s assistant and then took over the front desk from me, make a similar journey within the agency, even joining me in the back room at Jim’s old desk now that he’s got his own office.

So I’m an agent because I found myself in a supportive environment where I could grow, learn, and thrive, and where my obsession for detail and order would come in handy.  And yes, like everyone else really, I’m an agent because I love to read!