Starting Monday, September 19, 2011, I will be posting my column on publishing contracts on this blog, rather than on Pitch University. I had my posts removed from PU (appropriate, eh?) after my post was altered by the owner of the site.
In addition to posting my past posts and comments from reviews I have already done on contracts from Sourcebooks, Crescent Moon Press, and Entangled Publishing, I will resume reviewing the many different publishing contracts I have already received. The contracts that are not confidential or otherwise embargoed will be open for discussion and will be available as downloads.
I have been receiving quite a few contracts (which now include contracts from most of the NY houses) and will review each of them as my time allows and in the order in which they were received.
A couple of days ago, Liz Pelletier, the publisher at Entangled, emailed me about my column, which she felt was inaccurate and unfair to Entangled. She also told me that the contract I reviewed was actually six months old and had never been used by Entangled – neither of which I knew, and neither of which is obvious from the contract. I have invited her to provide me with Entangled’s current contract and/or post a comment about my review so that she and I can have an exchange about my column and Entangled’s contract. We’ll see if she does.
And that experience brings me to this point, which I cannot emphasize enough. I have no bias for or against any publisher. In fact, I hadn’t even heard of some of these publishers before receiving their contracts. This is not a popularity contest. I am not paid to review, or not to review, any publisher’s contract. My purpose in writing these columns is to educate writers about the many pitfalls in publishing contracts and to make them aware of provisions that may be harmful to their careers. Writing is difficult enough without getting trapped stuck in a contract that will hurt, not help, your career.
I will have my columns, along with the comments and questions and my responses, posted here next week. Thank you for all your emails and for your continued interest.
There has been quite a fight going on in the Lonestar State about an author’s right to use a state’s trademarked slogan as the title of her book.
Most everyone has heard “Don’t Mess with Texas.” It’s catchy. But the Texas Department of Transportation (TxDOT) apparently takes the slogan literally, and filed a trademark infringement suit against author Christie Craig because she used it as the title of her new novel, Don’t Mess with Texas, scheduled to go on sale August 23. TxDOT also sued Craig’s publisher, Hachette Book Group USA, Grand Central Publishing, and Barnes & Noble. Here is TxDOT’s complaint filed on August 19 in the United States District Court for the Western District of Texas at Austin. Texas Department of Transportation v. Craig, 1:11-CV-00726 (W.D. Tex.).
In its complaint, TxDOT asserted that the slogan (known as the Mark):
has been in continuous use for many years in connection with various goods and services, including but not limited to anti-litter campaigns, clothing, beverage containers, magnets, jewelry, printed materials (such as postcards, note pads, posters, folders, decorative pencils, etc.).
TxDOT also asserted that the slogan “has acquired a favorable reputation to consumers as an identifier and symbol of TxDOT and its products, services, and goodwill. Thus, TxDOT would be harmed by the sale of the book, which “contains numerous graphic references to sexual acts, states of sexual arousal, etc.” (emphasis added), which TxDOT excerpted in an exhibit to its complaint.
Based on this favorable reputation, TxDOT alleged that the defendants “intended to cause, have caused, and are likely to continue to cause confusion, mistake, and deception among consumers, the public, and the trade as to whether Defendants’ book originates from, or is affiliated with, sponsored by, or endorsed by TxDOT.” As a result, the defendants would profit from “the enormous amount of goodwill” associated with “Don’t Mess with Texas.”
TxDOT asserted claims for trademark infringement, dilution due to blurring, dilution due to tarnishment, dilution under Texas state law, and unfair competition, and asked for a temporary restraining order against the sale of the book, pending the resolution of its motion for a permanent injunction.
But United States District Judge Sam Sparks didn’t see it that way and denied TxDOT’s motion for a TRO. In his order entered on August 23, he identified two reasons for his ruling, the first of which is sure to please Craig and her publisher, and the second of which is not:
First, the Court is not convinced TxDOT has a substantial likelihood of success on the merits. Apart from Defendants’ “First Amendment right to choose an appropriate title for literary works,” Westchester Media v. PRL USA Holdings, Inc., 214 F.3d 658, 644 (5th Cir. 2000), the Court finds significant counsel’s concession that none of TxDOT’s trademark registrations cover books. In light of these concerns, the Court lacks sufficient evidence to conclude TxDOT has a substantial likelihood of success on the merits.
Second, the Court finds the balance of harms does not favor TxDOT. At the hearing, Defendants’ counsel represented 35,000 copies of the book had been printed and distributed to retailers, and were scheduled to go on sale at the open of business on August 23, 2011. Therefore, enjoining the sale of the books would not only deprive Defendants of significant revenue from the sales, but would also subject them to the potentially sizeable additional costs of guaranteeing compliance with the Court’s order. Moreover, the Court doubts Defendants’ book will fly off the shelves with such speed that sales could not be enjoined in the future, should TxDOT prevail on its claims in this lawsuit. Finally, in light of the questionable popularity of Defendants’ book, any harm TxDOT might suffer is merely speculative; and to the extent TxDOT may suffer concrete financial harm, there is no evidence suggesting Defendants could not compensate TxDOT financially.
So there you have it. As the Court explains, a party seeking an injunction has to demonstrate that it has a substantial likelihood of prevailing on the merits of its lawsuit. The reasoning goes that if the party cannot show that it will prevail at trial, then it is not entitled to injunctive relief, which is typically requested at the time suit is filed (as was the case here).
As to the second reason, the court is required to balance the harms, i.e., the harm the plaintiff will sustain if the court denies its motion for an injunction versus the harm the defendants will sustain if the court grants the motion. Here, the Court found that the loss of revenue to the defendants, combined with the cost of complying with an injunction, which would likely require the defendants to destroy their inventory and change the title, cover art, and marketing and promotional materials, outweighed the harm TxDOT would sustain without an injunction. Plus, the Court was not convinced that the book would sell so well or so quickly that TxDOT could not renew its request for injunctive relief if it did prevail on its claims.
For some other comments, here’s a post by Barbara Vey at Publishers Weekly’s Beyond Her Book blog, in which she discusses the case and also includes some quotes from the book, which prove beyond the shadow of a doubt that there’s no risk of confusion between this book and anything TxDOT does.
Also, Eric Crusius at InternetBiz Law discussed the case here, although I do disagree with his statement that there were no winners in the case.
Judge Sparks was correct in denying TxDOT’s motion for an injunction because its claims did not have any merit. But even though he questions just how successful Don’t Mess with Texas will be, Craig and her publisher could not afford to pay for the publicity they’ve gained through this lawsuit, which will result into increased sales. People will buy the book just to see why TxDOT was so alarmed.
So maybe those 35,000 copies will fly off the shelves after all.
I will be reviewing one or two contracts every month, so if you have a contract that you want me to discuss, email it or fax it to me. Make sure you redact any identifying information, such as the name of the author, titles, amounts of advances, etc., or I’ll do it before I post the contract.
I hope you enjoy the column, and you can always post a comment or question here, as well as at Pitch U.
Starting on Tuesday, August 23, I will be writing a monthly column for Pitch University called The Write Lawyer, which will focus on publishing contracts and identify the provisions that writers can ignore (yes, there are some), those they have to negotiate (or try to), and those that are deal-breakers. I will review actual contracts from a publisher or two, as space allows, so that you can see how the provisions are written and why they are helpful, harmful, or absolutely objectionable.
My sincere thanks to Diane Holmes, the Founder and Chief Alchemist at Pitch U, for her enthusiasm and support. I hope you enjoy the column, and I look forward to your comments and questions.
Monday’s Huffington Post had an article entitled “Why Big Authors Are Walking Away from Big Deals to Self Publish,” which is actually a post from author Joe Konrath’s blog, A Newbie’s Guide to Publishing. If you follow Konrath’s blog at all, you know that he now sells his books exclusively as e-books, and generates sales that have increased consistently.
Konrath’s latest post features his conversation (via Google Docs) with fellow author Barry Eisler, who has apparently turned down a $500,000 two-book deal from St. Martin’s Press in order to self-publish.
Here is Eisler’s view of traditional publishers:
Think candles vs. electric lights. There are still people making a living today selling candles, and that’s because there’s nothing like candlelight — but what matters is that the advent of the electric light changed the candle business into a niche. Originally, candlemakers were in the lighting business; today, they’re in the candlelight business. The latter is tiny by comparison to the former. Similarly, today publishers are in the book business; tomorrow, they’ll be in the paper book business. The difference is the difference between a mass market and a niche.
Konrath points out two differences between e-publishing and traditional publishing or, as he refers to them, virtual shelves and physical shelves:
First, a virtual shelf is infinite. In a bookstore, they have a limited amount of space. Often, my books are crammed spine out, in section — and I’m lucky if they have a copy of each that are in print. Many times they only have a few, and sometimes none at all. But a virtual shelf, like Amazon or Smashwords, carries all my titles, all the time. And I don’t have to compete with a NYT bestseller who has 400 copies of their latest hit on the shelf, while I only have one copy of mine. We each take up one virtual space per title.
Second, virtual shelf life is forever. In a bookstore, you have anywhere from a few weeks to a few months to sell your title, and then it gets returned. This is a big waste of money, and no incentive at all for the bookseller to move the book.
But ebooks are forever. Once they’re live, they will sell for decades. Someday, long after I’m gone, my grandchildren will be getting my royalties.
Currently, my novel The List is the #15 bestseller on all of Amazon. I wrote that book 12 years ago, and it was rejected by every major NY publisher. I self-published it on Amazon two years ago, and it has sold over 35,000 copies.
Konrath and Eisler’s conversation is worth reading, even if it is long — 13,000 words. But bear a couple of things in mind as you read their comments about the decline of traditional publishing and the corresponding rise of e-publishing. First, both Konrath and Eisler have written several books, which have been published by traditional publishers and provided them with a platform for their e-publishing efforts. Their name recognition and popularity guarantee — to the extent possible — that their e-publishing efforts will succeed. So neither one is trying e-publishing as an unpublished author.
Now, there’s no doubt that e-publishing appeals to a lot of unpublished authors because it avoids much of the delay, frustration, and anxiety associated with traditional publishing. But the reality is that many unpublished authors will have negligible e-sales. So what will they do then? My guess is that some of them will decide to try traditional publishing, some because they don’t have another avenue to try and others because they want the support (financial, not emotional) that traditional publishers provide to the authors whose works they publish.
Obviously, authors like Konrath and Eisler — or even those who have sold far fewer books — are in a better position to take advantage of their success through traditional publishing when they decide to e-publish. For others, though, e-publishing may not be the magic bullet they need for their careers.
Fortuitously, as I was writing this post, up-and-coming romance author E. C. Smith, who writes E. C.’s Ramblings, made me aware of an excellent interview that Robin Sullivan, who blogs at Write to Publish, conducted last week with Julianne McLean. With no disrespect to Eisler or Konrath, I think most authors will relate more to McLean, who describes the success she’s had with traditional publishing and e-publishing, and, more importantly for those considering e-publishing, explains how she created demand for her e-books.