Monday, February 28, 2011

So Let’s Talk Derivative Works

Status: These dang computers. I want to bang my head on my desk.

What’s Playing on the XM or iPod right now? MARRY ME by Train

About two weeks ago I mentioned that the most problematic issue in the new Macmillan boilerplate was the new clause 6. b. that granted the publisher the right to the copyright in any derivative work created by the publisher.

Just for the record, I’m not a copyright attorney and I don’t pretend to be one on TV or if I stay at a Holiday Inn Express. In other words, I’m not dispensing legal advice here; I’m simply sharing with you my general musings regarding the clause.

Since I don’t have the expertise, I sent it to my IP attorney. Now he’s not a copyright attorney either but his law firm certainly has an expert in-house so we looped him on the conversation as well.

A virtual copyright party at NLA!

His biggest concern was the broadness of the clause and how derivative works is not clearly defined. If you’d like some light reading before you go to bed tonight, feel free to click here. This will link you to the copyright act in all its glory. You’ll want to click on Chapter 1 and peruse sections 102 and 103 that particularly discuss derivative works.

He also let me know that there are currently lawsuits in process that examine the scope of derivative works and what can or can’t be defined as such. Fun.

So two thoughts:
1. It’s obviously better to remove the clause and any reference to derivative works from the contract. And, if you have leverage, it can be done. But if you don’t…

2. How best to restrict this clause in such a way to make pursuit of derivative works impossible without expressed approval of the author?

Now we’re talking. My lawyer gave me some good insights and if you want to pay my lawyer fees, then I could share them on the blog. *grin*

This is why you have agents by the way.

My other big question was this: I get how a derivative work could be done fairly easily with a nonfiction project, but I wasn’t certain how it would apply to fiction. Now I am.

More on that tomorrow. Stay tuned.

More Train music on iLike

Friday, February 25, 2011

Friday Funnies

STATUS: Time to dive into the day.

What’s playing on the XM or iPod right now? WHATAYA WANT FROM ME by Adam Lambert

I’m so unhip, I’m just now discovering the totally hip video book reviewer Ron Charles for the Washington Post. Absolutely hilarious!

Enjoy! And be sure to check out his other video reviews.

Thursday, February 24, 2011

A Manuscript That Stays With You

STATUS: Spent a little time this evening working through some leftover computer conversion kinks. We are almost there.


What’s playing on the iPod right now? Nothing At the Moment


Because I’m not on twitter, I only found out today that YA author LK Madigan had passed away from cancer.


I have to say that the news made Sara and I rather sad.


Several years ago, I had the pleasure of reading her YA novel FLASH BURNOUT while it was on submission. I remember this vividly because Sara wasn’t taking on clients at the time but she really advocated for this author.


And Lisa was lovely and so professional.


I didn’t take her on as a client and she went on to find a wonderful and enthusiastic agent. And this may sound odd, but over the last two years, whenever we heard news about her debut novel, I’d say, “remember that manuscript? And Sara would say, “I told you so” (not really as Sara isn’t the kind of person to say such a thing) but you get the picture.


It was one of those novels that we remembered vividly, even years later, and could now poke fun at ourselves on being wrong about.


Which leads me to a point I made at the San Miguel Writers Conference last week.


When you get a rejection, you just have to remember that ALL writers received them at least at once in their careers and where you are today as a writer is not necessarily where you’ll be a year from now. That you will always be learning, growing, and maturing as a writer.


Being a writer is about the journey. Embrace it.

Wednesday, February 23, 2011

Ebooks Gone Wild

STATUS: I don’t know what to do with myself! I’m literally caught up on all queries, all sample pages, and I’ve responded to every full we’ve requested. Maybe I should just revel in the moment….


What’s playing on the iPod right now? SEX ON FIRE by Kings Of Leon


We are getting our latest round of royalty statements. Our biggest months are Feb/Aug and April/Oct.


All I can say is whoa. Who turned on the ebook sales? In five years, I’ve never seen numbers like I’m seeing from the past 3 or 4 months. Ereaders were THE gift this holiday season is what I’m thinking. About 6 months ago I said the tipping point was near. I think it’s here.


Tuesday, February 22, 2011

5000+ Queries In One Day

STATUS: Things are getting back to normal.

What’s playing on the iPod right now? WHAT A LITTLE MOONLIGHT CAN DO by Billie Holiday

A week and one day. Felt like an eternity! In this short span of time, we completely upgraded our entire office computer system with a brand spankin’ new server.

With any major overhaul, there are always a few kinks.

For example: with the migration, something went wonky with our query email. For some reason, the server wasn’t recognizing when emails had been downloaded into the program. One morning, Anita opened the query program to find 5000+ queries in the inbox. That was a shock. The server had downloaded each query 5 to 10 times and then kept repeating it.

I’m happy to report that the problem is finally solved. I don’t think we lost any queries in the process but if you don’t hear from us in the next 2 to 3 weeks, you might want to resend. But you only need to send it once… I don’t think Anita ever wants to open that program and find an eye-popping 5000 queries in the inbox again.

Every day we keep finding a few more things that need to be tweaked. Like this morning. I found one whole folder to be missing. Poof. Just gone. Have no idea where or how. Luckily, we back everything up to the cloud so it was a matter of 15 minutes for me to locate it and repopulate it on the server. But it makes me wonder what other little discoveries are going to occur.

Our tech person was even here this afternoon for a few hours. And I do think we’ll see him a few more times before the week is out.

And if this stress of a computer conversion wasn’t enough, our new employee started last week.

Call me a glutton for punishment.

Friday, February 11, 2011

Almost Famous?

STATUS: TGIF! I have to say that today's news is a totally new experience for me.

What’s playing on the XM or iPod right now? FAITHFULLY by Journey

OMG! I’m speechless.

And to quote Marie, “Is that my head in Times Square?????”

Uh…yep.

Wednesday, February 09, 2011

Ah Hollywood

STATUS: Because it’s like zero degrees in Denver, we are listening to Escape to Margaritaville on XM radio. Does anyone have some sunscreen?

What’s playing on the XM or iPod right now: VOLCANO by Jimmy Buffett

I guess yesterday’s post rubbed some of the glittery shine off the idea of a big Hollywood film deal. The reality of how much of a share an author can expect is often a bit eye-opening. Sorry to be the one to deliver the bad news.

In order for a Studio to have the right to base a film on a book, they have to option the rights to the book. Sometimes these options can be good money—like high five figures or six figures. Most tend to be more modest though.

In fact, sometimes the best scenario is to have the producers or Studio continually renew the option but never produce the actual movie. It’s like free money every 18 months….

As I’ve never had stars in my eyes regarding Hollywood, I always advise authors to carefully consider whether they really want to sell the dramatic rights for their books.

1. Can they live with a bad script and/or a bad movie?
2. Do they understand that they may have very little say in the screenplay or the plot elements of the movie?
3. Do they understand that sometimes a movie made does not translate into a ton of book sales?
4. Do they realize that Hollywood can often be condescending to the authors whose books they’ve bought to translate to the screen?
5. Do they understand that the film co-agent could put together the absolutely best package of producer, screenwriter, studio, and acting talent and there is still the possibility that a bad movie will be made?

If an author is okay with all of the above, then we can shop the film rights. If not, better to wait until the author is in a more powerful position and has leverage to be able to dictate better terms.

And, I also tell them that a movie could be the best 2 hour commercial your books will have and that can translate into lots of book sales.

Which is also why I’m hyper vigilante about “publishing rights clauses” in any film contract and why I will have the author walk away from any contract that might encumber or infringe on their publication rights. In fact, I’ve threatened to walk away any number of times because Hollywood tried to grab some of those rights.

After all, publication is an author’s main venue for earning money. That must be protected at all costs.

Tuesday, February 08, 2011

Quick & Easy Answers

Status: Doing Client reading.

What’s Playing on the XM or iPod right now? IS THIS LOVE by Bob Marley

1) What happens if you can’t sell a book to a publisher?
If we have exhausted all possibilities, I’ll put aside and concentrate on the author’s next work. If the next sells, that always allows us to revisit the prior novel. Sometimes the decision is made to let the past be the past and simply move forward.

2) How do you know if a writer’s idea is a good one?
Not a clue really. All I know is what I like and what really resonates with me. I’ve had the good fortune of having what I like generally match up with what editors like and are willing to buy. Just like every other agent in the world, I’m not 100% right all the time. Sometimes I love a book and can’t sell it.

3) If Hollywood has bought the film rights, does the author get a share in the profit?
The sad news is that in general, the author does not get a share in the profit. Although all film deals will have the standard “5% of 100% of net,” most Hollywood films will never show a profit because of how studios manipulate the accounting. It’s worse than the mafia. So agents often build in a lot of ways for the author to make money on the film deal that aren’t tied to “profit” so loosely defined. The option price, the purchase price, bestseller bonuses, box office bonuses etc. These are payments that are not contingent on the film making money.

However, some authors do get a share in the profit. That is not a percentage based on net but a percentage based on a cashbreak point on gross.

A very different thing. Also, it is possible to put merchandizing in a separate pool with a separate percentage. Good money to potentially be made there as well.

4) Can you publish your book yourself or do you have to have a publisher?
Of course you can publish a book yourself! That’s not the right question though. Anyone can self publish; the question is distribution and how to get folks to read what you self publish.

5) How do you decide if the cover art is good?
I have to say that cover art is not my strength as an agent. I have no background in art and not much of a creative vision. However, I do know what I like and what I don’t like. If I don’t like it and neither does the author, I fight like crazy to get it changed.

6) Do publishers show animation for cover concepts?
No. But wouldn’t that be cool?

7) What happens if more than one publisher wants the book?
Then you have an auction my friend! As an author, it’s always the best place to be. However, I do think that writers have a misconception that all auctions equal big money. That is not necessarily true. You can have modest auctions that are in low five figures.

Monday, February 07, 2011

Out Of The Mouth Of Babes

STATUS: Supposed to snow tomorrow. I’ll make it in but I think it will be a lonely day for Chutney and I.

What’s playing on the XM or iPod right now? THE MAGNIFICENT SEVEN by Clash


Throughout any given year, I probably give at least 10 talks or workshops at writer’s conferences or other organizations. Plus, with my background in corporate training, I have to say that my public speaking skills are exceptional. And I certainly don’t feel any anxiety or nervous anticipation before any given talk.

That is, until this Saturday. I was tapped to do a talk for area 4th and 5th graders at the CCIRA Authors Festival. (Side note: CCIRA stands for Colorado Counsel International Reading Association.) That morning, I found myself kind of nervous. What an interesting new sensation. After all, with adults, you can fudge a talk; with kids, no way. If you’re boring, they’ll let you know. I also had never given a talk to people this young.

Much to my relief, the talk went great (phew!). Here’s a pic of the 90+ elementary schoolers in attendance (with a sprinkling of adults).



I actually confided that I was nervous and told them I was counting on their questions to carry me through so please don’t let me down. And I have to say, I was blown away by them. They asked the best questions I think I’ve ever received at a talk.

Here’s a sampling of what was asked:
1) What happens if you can’t sell a book to a publisher?
2) How do you know if a writer’s idea is a good one?
3) If Hollywood has bought the film rights, does the author get a share in the profit?
4) Can you publish your book yourself or do you have to have a publisher?
5) How do you decide if the cover art is good?
6) Do publishers show animation for cover concepts?
7) What happens if more than one publisher wants the book?

There were more but this is what I can remember. I’d do a talk for that age group again in a heartbeat.


Friday, February 04, 2011

January Happenings

STATUS: Okay, two days without sunshine is one day too many here in Colorado. *grin*

What’s playing on the XM or iPod right now? LET’S STAY TOGETHER by Nick Driver

I finally get to talk about the excitement unfolding here at NLA. What a way to kick off the year.

Huge Congrats, Marie, as the news hits Deadline Hollywood and Variety and of course, this blog! Since we don't have cover art for the first book yet, you'll just have to look at a picture of Marie Lu instead.

Notice the articles don’t mention the literary agent or film co-agent who actually brokered the deal. LOL. Hollywood. We are so unimportant.

Thursday, February 03, 2011

By Far The Biggest Issue

STATUS: It gently snowed all day—which made Anita and I feel quite cozy here at the office.

What’s playing on the XM or iPod right now? BLUE SKIES by Tom Waits

In the new Macmillan contract is clause 6. (b) Copyright on Derivative Works. To state bluntly, this clause gives the Publisher the right to create “derivative works” based on the work they are buying from the author. And to add insult to injury, the publisher owns the copyright to any of these “new works.”

Eyebrow raise.

Yes, it is as bad as what you are thinking it means.

First, this is actually in direct contradiction to US copyright law and can’t be legally enforce but hey, what do I know.

Second, no way an author can sign a contract without amending or deleting this clause although I know some poor soul is going it alone and will end up doing just that.

For goodness sake, at the very least, get in touch with the Authors Guild before doing anything so detrimental to your intellectual property rights.

Wednesday, February 02, 2011

Resist The Temptation

STATUS: Blessed quiet day. I only spent an hour on the phone.

What’s playing on the XM or iPod right now? BIGGEST PART OF ME by Ambrosia

It’s rare these days but some editors, especially those acquiring in genre fiction (such as SF&F or romance), will accept submissions directly from authors. When that happens, as a writer, know that you can only send the project to an imprint once.

Why might you ask?

For several reasons actually. First being that editors who take submissions directly log those submissions. So if one editor has passed, it will be on record so that pretty much nixes it for any other editor at that imprint.

But you also can’t resend for a more practical reason of how acquisitions occur at publishing houses. Let’s say a senior editor reads and passes on it. Then the writer sends to a new-ish editor at the same place (thinking they are more hungry to acquire).

Well, even if that newer editor loves it, she’s going to have to get second reads and support to take it to ed. Board. Well, if that senior editor nixed it and then it pops up again, well, it’s going to get shot down again. And on top of that, the newer editor is not going to have very warm feelings toward you for putting her in an awkward position.

So, resist the temptation and if you are submitting directly, make sure you pick the best editor first time around as you really only have the one shot. And of course, good luck.

Tuesday, February 01, 2011

-12 Degrees

STATUS: We've got the heat cranking. Poor Sara in the loft needs a fan!

What’s playing on the XM or iPod right now? TALKIN’ BOUT A REVOLUTION by Tracy Chapman

Quite frankly, I think this entry’s title sums up the day.

Here I am with Chutney about to brave the 15-minute walk to the office with a wind chill of -20.

Is that a Dog in your pocket or are you just happy to see me? *grin*



New York is going to get hit tomorrow so we are anticipating two nicely quiet days where the phone doesn’t ring. I’ve been averaging about 3 hours a day on the phone for the last week.

Plenty of time to tackle the Macmillan contract again. With luck, I’ll make it to page 20 this afternoon! The words “electronic media” are making me nervous.