[Publisher] Macmillan

[Cyia]

From Pub Rants: http://pubrants.blogspot.com/2011/02/by-far-biggest-issue.html

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.

Head / desk.

 

[Bookewyrme]

Wow. That's...just wow. This is the sort of clause one might expect from a shady publisher, not a major house like Macmillan. Thank goodness for agents, especially Kristen though.

 

[Calla Lily]

 

[Bubastes]

Um, HELL no.

Wow.

 

[OneWriter]

Hold on... is this the kind of thing that cannot be negotiated? Could an author ask to have it removed? Could an agent make the request on behalf of his/her client?

 

[CaoPaux]

Any hint as to which division of Macmillan this applies?

 

[charmingbillie]

Here's what I will say about the Macmillan boiler plate.

This is not a contract I would ever want to negotiate without an agent.

ETA: As far as I know it applies to all Macmillan divisions.

 

[Cyia]

Any hint as to which division of Macmillan this applies?

I'm not sure. She's been blogging about the new contract for the last couple of days. It's extremely long and detailed.

ETA: went back and checked: long = 28 pages

 

[Soccer Mom]

And this is the answer to the question: "Why do I need an agent?"

Gads.

 

[CaoPaux]

Thanks. I'll wait a bit for how/when to port this to BR&BC.

 

[thothguard51]

As an unpublished writer, the more I read about publishing, the more I wonder why I just don't throw in the towel.

Advances down,
Royalties down,
Agents folding,
Publishers folding,
Editors being let go,
Bookstores closing,
And now this... a grab at rights not expressly given.

Shakes head...my previous agent was right, I am about 20 years too late...

 

[raelwv]

Why would this provision not be legally enforceable? Can't the copyright holder (the author) assign derivative rights to another party?

A bad deal, certainly. Just not sure that makes it unenforceable.

 

[Shady Lane]

Agents know what to look for in contracts. And they know how to negotiate something they don't like. No agent worth her salt would let a clause that would hurt the author and the author's future stay in a contract.

disclaimer: I'm a Mac author.

 

[shaldna]

It seems to me that this is in place in case you become super popular - ie: Rowling, Andrews, King etc. Then, if you die or stop writing or become ill, the publisher can continue to churn out books using your characters, like the 'new' virginia andrews.

Personally I wouldn't sign it.

 

[seun]

What the fuck?

 

[shaldna]

the sad thing is, a lot of people will be so desperate for publication that they will sign it. This is where good agents are worth their weight in gold.

I'd be interested to see how this pans out in the long run to be honest.

I can't see it being easy to enforce, as I'm certain it's going to be a complicated copyright issue.

 

[Eddyz Aquila]

As an unpublished writer, the more I read about publishing, the more I wonder why I just don't throw in the towel.

Advances down,
Royalties down,
Agents folding,
Publishers folding,
Editors being let go,
Bookstores closing,
And now this... a grab at rights not expressly given.

Shakes head...my previous agent was right, I am about 20 years too late...

Thank you for echoing my thoughts.

I guess we're too stubborn to throw in the towel.

 

[MarkEsq]

It looks like one anon commenter has questioned the agent's interpretation of the clause, saying that it is in fact narrowed by a prior clause. Anyone have a copy of the contract itself?
To be frank, I've always wondered a little at the idea that a non-lawyer is responsible for saving an author's hide from a bad contract. In no other field would a non-lawyer take on that responsibility, or be expected to.

 

[eqb]

The new Macmillan template went out early last year, iirc. And yes, it applies to all imprints. All the agents are swearing, because each agency used to have its own template for each imprint, which they had negotiated over the years. Now they have to go through the new template and figure out what they will agree to for the agency, and for the particular contract.

In the end, the agents will likely get the template back to where they had it before, but it's taking a long time. I sold two books to Tor in February 2010. My contract went into the agency queue behind a bunch of others. My agent reported in December that she is almost done with mine.

 

[Axler]

As an unpublished writer, the more I read about publishing, the more I wonder why I just don't throw in the towel.

Advances down,
Royalties down,
Agents folding,
Publishers folding,
Editors being let go,
Bookstores closing,
And now this... a grab at rights not expressly given.

Shakes head...my previous agent was right, I am about 20 years too late...

Careful...expressing those sentiments come awfully close to heresy in this place.

But what you have posted has been pretty much accepted as the state of the industry for two years.

Hence the primary reason professional writers have turned more and more toward the self-publishing option.

 

[ChaosTitan]

Just agreeing with the folks who've said "this is why you need a good agent." I would never agree to sign a contract that still contained that particular clause.

 

[Toothpaste]

Careful...expressing those sentiments come awfully close to heresy in this place.

Axler, honestly, just stop it. It isn't heresy. You know it. People at AW constantly discuss the problems with commercial publishing and would not get upset to have a discussion on the topic. The irony of course is the person who enjoys fanning the flames the most is you. And you love it, you know you do. Because in your mind, there's a war on. God forbid both commercial publishing and self publishing co-exist. No, you must see your precious self publishing take over the world, huzzah!! But just because you are fighting some kind of war, which is your right, doesn't mean we all have to join you and choose a side. Some of us are quite content to allow both sides to exist quite peacefully. So stop implying that if anyone says anything negative about the publishing industry AW will jump down their throats. That's a fabrication you made up to help make yourself feel like you're fighting "the man" here. Though it is a good story, why don't you write it down instead.

In any event. Aside from the royalties being down statement (I haven't seen a drop in the percentage an author earns), everything else in that list is true. Publishing is going through a really rough time like every other industry in this recession. It's not easy. Not at all. But to be fair, it never was.

 

[OneWriter]

Guys, I just got an agent, so I'm new to this game. When does the agent negotiate the contract? I thought negotiations started once the publisher made an offer, and only once both parties agree is the contract signed and the deal sealed, am I correct? I'm asking because I'm puzzled as to what it means "it takes months to negotiate a contract" ... so it takes months (from when the offer is made) to close a deal? Really?

 

[Axler]

. Though it is a good story, why don't you write it down instead.

It's already been written down by plenty of other folks than me.

Why don't you actually read the story you allude to instead of making snap judgements?

For the record--I made a general post in response to another post.

Your follow-up post made it personal.

For the record.

 

[Amarie]

Guys, I just got an agent, so I'm new to this game. When does the agent negotiate the contract? I thought negotiations started once the publisher made an offer, and only once both parties agree is the contract signed and the deal sealed, am I correct? I'm asking because I'm puzzled as to what it means "it takes months to negotiate a contract" ... so it takes months (from when the offer is made) to close a deal? Really?

The negotiations do start after the offer, but as egb says, each agency that has worked with a particular publisher in the past already knows what they will and will not accept, so it would be very unusual for it to fall through after the verbal offer. I'm assuming most writers are like myself, and you keep writing/working with the editor, etc., while the negotiations are continuing on the details. The advance amount is given in the verbal offer, and that's negotiated verbally before the written contract is offered. It's the pages and pages of details after that which can be negotiated.