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The Interminable Agency Clause

from The SFWA Bulletin #163, Fall 2004


The Interminable Agency Clause: Don't Let It Happen to You

    Standard practice in the industry is to allow authors to take control of their books with them when they leave an agency. A clause undermining this control has started to appear in contracts from so many agencies that the Authors Guild issued a formal advisory on the subject, reprinted in its Summer 2004 Bulletin.

    The clause, generally known as the "interminable agency" clause although some agents use "agency coupled with an interest" instead, grants the agency the "exclusive, irrevocable right to represent the works subject to the agreement for the entire term of those works' copyright."

    It appears that the William Morris Agency pioneered the use of this clause, especially when signing new authors of romance novels. The clause has spread to the contracts of other equally reputable agencies and has been reported by members of several writers organizations. It is a particularly hypocritical addition to a contract, as no agent would ever allow a publisher to add to a contract an interminable right for a work that had been allowed to fall out of print.

    The Guild identified four particular problems that might befall authors or their heirs:

      1) The clause may entitle the agency to unearned income.
      2) The clause can greatly complicate the task of an author's literary executor.
      3) Your agency is unlikely to be around for the term of your copyright, which is now lifetime plus 70 years.
      4) The clause may conflict with other agreements signed with the agency.

    Although most reputable agents will drop, or suitably modify, the interminable rights clause when asked to do so, authors should not need to encounter this clause in the first place. The Guild has now added the following to its Model Contract commentary:

      Some agency clauses provide that the agent will exclusively represent the Work for the life of its copyright, or that the agency is "coupled with an interest." The Guild strongly recommends against such terms. The agent is certainly entitled to her commission for every contract she procures, but if the Work goes out of print and you later retain a new agent to remarket it, your former agent should have no further claim to commissions on new contracts for the Work.

    The complete text of the Advisory can be found online at: http://www.authorsguild.org/news/burdens_agency_outweigh.htm

SF&F Sales

    The IPSOS survey firm reported that the science fiction/fantasy category of popular fiction sold 40,181,000 books in 2003. At a half-inch average per bound copy that would be a stack of books high enough to knock the International Space Station out of its orbit.

    That's the good news. The bad news, as gleaned out of Olivia Hall's yearly summary from the October 2004 RWR, is the science fiction/fantasy category is a mere 6% of the total popular fiction market, down a full half percentage point from the previous year.

    Overall sales of hardcover, trade and mass-market paperback popular fiction rose 1.6% to 662,696,000 books in 2003. Romance had 33.8% of the pot; mystery, spy, and suspense combined for 25.6%; general fiction was 24.9%; and other, which includes religious, occult, historical, western, male adventure, adult, and movie tie-ins, fell to 9.7%. Paranormal romances were up sharply to 120 titles in 2003, by the way.

    For the first time, IPSOS came up with a number for audio/digital sales, an additional 11,124,000 units across all categories.

Kirkus Sells Reviews

    Speaking of electronic books, authors have long been upset that original e-titles along with other book types – self-published or PoD among them - don't qualify for review in the prestigious Kirkus Reviews. Stephanie Bond's Jungle Beat column in the November 2004 RWR reported that Kirkus has developed a monthly newsletter called Kirkus Discoveries "which will go to subscribers looking for the rights to undiscovered books, whether for print or film." Authors can commission a review in Kirkus Discoveries for $350. More information and submission guidelines are available on the Kirkus website at: http://www.kirkusreviews.com/kirkusreviews/discoveries/index.jsp

Can You Copyright Christmas?

    How original must an author be when writing the ten billionth story set at Christmas? That was the heart of the case of Murray Hill Publications v. Twentieth Century Fox Corporation, reported on by Carla Faraldo in the invaluable Legal Watch column of the Summer 2004 Authors Guild Bulletin.

    Brian Webster's agent shopped his Christmas-themed script to Fox in June 1994. Fox released the substantially similar movie, Jingle All the Way, in 1996, after approving a script by Randy Kornfield in July 1994. However, Kornfield had already registered a treatment with the Writers Guild in January of that year.

    The court found against infringement by Fox, on two grounds. It noted that the majority of stated similarities already existed in the treatment, which could not have been written based on Kornfield's script. The rest of the similarities, Faraldo wrote, were "derived from unprotectable ideas – such as incidents, characters or settings that are standard in the treatment of a given topic." You can't have a Christmas movie without Christmas clichés. When plaintiffs cannot prove access to the original work, ruled the court, they must demonstrate not substantial similarities but striking ones.

Amazon Power Play?

    Amazon.com's latest advertising contract asks publishers to provide co-op funds equivalent to 2-5% of net dollars earned on Amazon in 2003, according to a report in the July 2004 NINK. Non-compliers risk losing partnership status, meaning that their books would not be sold there at a discount; wouldn't turn up in merchandising and advertising programs; and could even be left out of the search inside the book option.

    Small and independent publishers have angrily denounced the contract, using terms like strong-armed, heavy-handed, and even blackmail. An Amazon spokesperson had no comment.

TitleSmart

    Hank Jones, when he was running the Putnam Book Center bookstore, grew frustrated when customers with no memories of the author or title came in wanting to find a book that had just been mentioned in an article or on television. He started jotting down titles in the news and put together the TitleSmart database to track them.

    In the September 2004 RWR Stephanie Bond reported that he has now expanded the service from bookstore kiosks to a behind-the-counter system. Publishers Weekly reported that the system allows "booksellers to search for books by title, author, ISBN or reviewer as well as by media—radio, newspaper or television—that have mentioned the title or the author." Another reason for all the publicity you can garner.

Electronic Ink Books Appear in Japan

    From the press release at: http://www.eink.com/news/releases/pr70.html

      Tokyo, Japan , Amsterdam, The Netherlands, Cambridge, MA, USA, March 24, 2004 - Royal Philips Electronics, Sony Corporation and E Ink Corporation announced today the world's first consumer application of an electronic paper display module in Sony's new e-Book reader, LIBRIé, scheduled to go on sale in Japan in late April. This "first ever" Philips' display utilizes E Ink's revolutionary electronic ink technology which offers a truly paper-like reading experience with contrast that is the same as newsprint.

      The Electronic Paper Display is reflective and can be easily read in bright sunlight or dimly lit environments while being able to be seen at virtually any angle - just like paper. Its black and white ink-on-paper look, combined with a resolution in excess of most portable devices at approximately 170 pixels per inch (PPI), gives an appearance similar to that of the most widely read material on the planet - newspaper. Because the display uses power only when an image is changed, a user can read more than 10,000 pages before the four AAA Alkaline batteries need to be replaced. The unique technology also results in a compact and lightweight form factor allowing it to be ideal for highly portable applications.

    No sooner than Sony announced its product than Matsushita's Sharp claimed that it will have a paper-thin (i.e., under 1mm) reader in shops by 2007. Online reports also mention a forthcoming color “LCD paper” that doesn’t need a light source, apparently by upping the amount of light the paper reflects.

    A good article on the subject by Karen Lowry Miller in Newsweek International is available at: http://msnbc.msn.com/id/4880556/

    No credit, because everybody jumped on this.

Too Good Not to Be Shared

    "Apparently the profits of booksellers and publishers should be enormous. And it is true that they are great, but only in the case of books that have a wide sale. For they are largely consumed in the publication of good and bad books – chiefly the latter – that have no sale whatsoever.

    "This is the explanation of the high prices that prevail in the literary business….

    "It is a game in which the odds today are rather on the side of the player. Twelve years ago… a book was quite as apt to show a loss as a profit, and several of the larger firms were on the edge of insolvency. The situation has changed since then; even the 'average novel' – if such a thing exists – is a mildly profitable venture, and consequently publishers have discovered that they can double their profits merely by issuing twice as many volumes. And so the number of dull books, of useless books, of books that are a drain on the business as a whole, has dangerously increased….

    "Let us remember, moreover, that chain stores have not abolished the corner grocery. Mail-order houses, although they deal directly with the manufacturer, have not destroyed the independent jobber. Booksellers and publishers are in no danger of extinction; they may ever find that their business is increasing, but probably they will be forced to revise their methods still further to meet the new competition. They may, for example, cease to gamble on the sort of books that 'really aren't so bad, and the author may do better next time.' They may prune the dead wood from their list of titles, and confine themselves to the books that are really worth publishing. And possibly, after they have done away with their useless risks – possibly they may even decide to reduce the price of prices."

    Malcolm Cowley, "The Literary Business," July 3, 1929


Organization, Publication, Address, Web Address

Authors Guild, Bulletin, 31 E. 32nd St. 7th Floor, New York, NY 10016, www.authorsguild.org/

Romance Writers of America, Romance Writers’ Report, 16000 Stuebner Airline Dr., Suite 140, Spring, TX 77379, www.rwanational.org

Novelists, Inc., NINK, P.O. Box 1166, Mission KS 66222-0166, www.ninc.com/

Copyright 2004 by Steve Carper

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