A Digital Picket Line: The Authors Guild Would Like Your Attention

‘Authors Are More Vulnerable To Exploitation Than Ever’

London-based publisher Michael Bhaskar has called digitally empowered readers “the power brokers who matter most” in publishing today.

While that kind of commentary refers to the industry’s efforts to strike a more direct-to-consumer stance with a curatorial audience, there are other ways in which readers soon may begin to broker power.

A readership drawing closer to its authors might start to care more about those people than they have in the past. It’s not that readers didn’t like their authors, it’s just that in previous decades, there was comparatively little contact. Readers knew little if anything about the relationships between their favorite writers and the great publishing houses that proudly produced their books.

The digital dynamic has changed that. And the Authors Guild is ready to take its case for contract reform directly to those readers.

This week, deep in publishing’s digital transformation, the author-advocacy efforts of the Guild are being coordinated behind a new campaign that asks whether publishing’s contract traditions may not be more hidebound than their oldest books. On Friday (12th June), the Guild plans to post a new article on its revamped Web site explaining more about its plans to address, one issue after the next, the typical contract points with which its leadership maintains that publishers do authors many disservices.

We want to do just that. We want to raise these issues in a very public way so there’s an open dialogue on them.

Mary Rasenberger is six months into her tenure as the Authors Guild’s executive director. A former partner at Cowan, DeBaets, Abrahams & Sheppard, she has counseled companies in the publishing, media, entertainment, and Internet sectors, and makes a specialization of copyright and related rights. More than 25 years into her career in law, she has taken her seat at the Guild as a potentially formidable sparring partner with publishers whose contracts are coming under heavier criticism, seemingly by the day.

The outcry is growing louder on both sides of the Atlantic.

In an opinion piece last month at The Bookseller in London, the literary agent who uses the pen name “Agent Orange” (because he or she fears that being known could cause repercussions for author-clients) wrote:

The publishing industry exists to connect the creative talents of authors to a market. The Internet was supposed to streamline the business, get rid of the middle man, and put more money into authors’ pockets. That was always a dangerously simplistic point of view. What we couldn’t have predicted is that it would create a world in which authors are more vulnerable to exploitation than ever. There’s a really strong case for authors to come out on strike and remind everyone in this business exactly where the value in it resides.

It won’t happen, of course. But it should.

In Agent Orange’s UK market, the typical income for a professional author in 2013 has been reported to be only some £11,000 in 2013, roughly $17,000, a plunge of 40 percent since 2005. That news is tremendously controversial in London, the Society of Authors having issued a damning statement to remind publishers that “authors are the one person 100-percent necessary” to the world of books.

And now, a new Guild survey in preliminary results indicates that many American authors’ median incomes are running even lower than that:

• Full-time and part-time authors, taken together, are reporting that their median income from their writing is only $8,000 per year — a 24-percent drop in five years.
• For full-time authors, the median is now at $17,500, down 30 percent in those same five years.
• Writers who have been in the field for between 25 and 40 years are seeing the biggest drop: from $28,750 to only $9,500.

The author whose mystery series you like so much? Or whose new romance books you look forward to? Or whose literary landmarks may be pulling in the most revered awards of all and topping your beach reads this summer? — That author could be living hand-to-mouth, Rasenberger says.

And she says it’s time that readers know these things.

Rasenberger:

Writers traditionally negotiate their contracts in privacy. Their terms are particularly private. They don’t share them. It’s not like they’ve got a labor union. We don’t have the ability to have a union because these are rights-of-license that an author grants to a publisher. Authors are not employees [of the publishers]. This is not like the Screen Writers Guild, where everything is done as work made for hire — they can negotiate terms on behalf of the members of their union or guild. We don’t have that ability.

So how do we move the bar for contracts?

Let Her Count The Ways

During BookExpo America (BEA) two weeks ago, the Guild announced its new “Fair Contract Initiative,” releasing a “launch statement” that lays out contract features the organization sees as requiring reform.

This list is from that document, I’m quoting the Guild here in these bullets:

• In exchange for some money, you give the publisher all rights to your book for 35 years—or your lifetime plus 70 years (let’s just call it “forever”) if you or your heirs forget to terminate after those first 35.
• The publisher gets to reject your manuscript for any reason or no reason, and if that happens, you have to give back all the money you’ve received before you can publish the book with somebody else.
• The publisher can publish your book when the company gets around to it, which may take as long as two years from the time it accepts your manuscript—or even longer. You have no control, and you may have to wait for the last part of your “advance” until the book finally appears in print.
• If you are even one day late delivering the work (time is of the essence, it seems, only when it comes to the author), the publisher can opt to terminate the agreement and ask for the advance back.
• You can’t publish another book under your name or even a pseudonym anywhere in
  the world until this one is published—even if the publisher has put it off.
• You have to offer the publisher the rights to your next book, but the publisher can wait to decide whether to offer you a deal on it until two months after this one comes out.
• You have no say in what the cover, jacket flap, and ad copy will look like.
• If the publisher does anything you don’t happen to like, such as assign you an
  incompetent editor, fail to exploit subsidiary and foreign rights, print too few copies to satisfy customer demand, forget to register your copyright, consistently forget to pay you on time, or go bankrupt, you have no real recourse.

‘Why Does It Have To Be This Way?’

How could such conditions have come about?

An industry-wide inertia has, Rasenberger says, worked to the detriment of authors.

“A number of industry positions have become standard,” she says, “standard for a hundred years. The question is, ‘Why are we still doing things this way?'”

The Guild’s intent, she says, is to issue new articles “every two or three weeks,” taking on such points of concern as these and working to stimulate debate around them. From time to time, she says, industry observers and experts might be called on to offer input. The Guild, she says, will likely seek public comment on its postings, to help generate awareness and discussion.

If anything, however, it’s hard to hold the author corps, as a whole, completely blameless in historical terms. To many of us today, it’s baffling that some of our greatest minds and thinkers — cultural giants in many cases — would ever have accepted such absurdities as the industry’s infamously unreadable royalty statements. No one you ask in the industry tries to defend this: much noisy effort has gone into making royalty statements more understandable, even now without complete success in some quarters.

A bit of a scramble has occurred in publishing houses to give authors online dashboards in recent years so that they can monitor and track their books’ sales. In the past, authors had no such information about their own books. Floating now on a sea of data, we may find this unimaginable. But publishers were happy not to share such details with the writers whose stories they sold. And the writers? — accepted it.

When I ask Rasenberger how such sharp minds as our most celebrated authors could have tolerated whole careers of what the Guild says are unfair and sometimes illogical contract traditions, she says that much of the holdover standards come from a time when authors were better cared for and more aggressively supported by their publishers.

“There are some very famous authors who have signed contracts you wouldn’t believe,” she says. “There was a real sense of partnering between authors and their publishers, authors and their editors, who worked closely with those authors. Authors felt they were being taken care of, they trusted them. As long as those people stayed in place, yeah, their editors looked out for them and could take care of them.”

Nowadays, she says, corporate imperatives have changed many relationships in the business. “New people have come in, publishers have become much more bottom-line oriented.”

And while the industry has changed, the take-it-or-leave-it tone of many negotiations has been what governed typical outcomes, Rasenberger says:

There’ve been standard terms for too long. Authors have been given agreements and told, “That’s the way it is.” That’s part of the conversation we want to start. We want to say, ‘Why does it have to be this way? Why does this agreement have to have these specific terms?”

‘A Shame-On-You Comment On Publishing’

Rasenberger calls the Fair Contracts Initiative, “a shame-on-you comment on publishing” because, she says, the contract points that the Guild sees as most egregious are the ones that harm the most vulnerable writers: un-agented authors. While she doesn’t have figures at hand as we speak, she tells me that she was surprised when she began her executive direction of the Guild to learn how many of its members don’t have agents.

The agenting community, she says, has worked hard and has had impressive success in addressing contract clauses they see as unacceptable for their authors. She sees many cases, she says, in which agents are able to achieve fairer arrangements for their clients than a lone author can do for him- or herself. The author without an agent, Rasenberger says, doesn’t know to ask for one change or another. And so a publisher who leverages what the Guild considers an onerous clause on an un-agented author is taking advantage of that author’s unprotected status.

“Shame on you” is her phrase for this and she says it to mean what kind of industry feeds on the ignorance of its essential talent?

Authors get no benefits. Not only no health benefits but also no retirement benefits. Because they’re not making much money and and many authors are living hand-to-mouth, when a crisis happens and they get sick, or even simply in old age, a lot of respected and well-known authors reach the end of life sometimes in very dire circumstances. That is something we’d really like to protect against.

‘Squeezing The Author’

Everything identified by the Guild as a problem is not old, Rasenberger says.

“In some cases, new provisions have crept into contracts in, say, the last five years. Things like the non-compete clauses have gotten more strict to a point that it’s ridiculous.”

These are clauses that can stop an author from producing self-published work, for example, even if that work is produced at the author’s own expense and is intended to help to bolster visibility and potential sales for a book that a publisher has on contract.

“In other cases,” Rasenberger says, “the clauses on ‘next books’ give publishers the right to exercise options for a next book up until after they publish the first book. That’s way too late for most authors.

“This is the kind of thing we want to tackle, head-on. Basically, we want to get people re-thinking what contracts should look like.”

As has happened with so much change in the publishing industry’s recent years, this conversation is likely to be uncomfortable at times, even acrimonious.

“Publishing,” as Faber’s Henry Volans said to me last summer, “has taken the digital disruption rather hard.”

But the Guild’s language on this new initiative suggests that the buck is finally stopping:

Like authors, publishers have had to adapt to the new realities of the digital age; one unfortunate way they have adapted is by squeezing the author. We hope that publishers begin to consider the welfare of authors generally—and the future of authorship—as part of their business plans. Otherwise authors will become a dying breed. If authors can’t make a living producing works of quality, there will be very, very few people who can afford to write books.

The Authors Guild is going to the reader, the customer, with its Fair Contracts Campaign.

What will you, as a reader of these authors, say about their contracts? We’re going to find out. As Michael Bhaskar tells us, your voice, the reader’s voice, now could become the most powerful in a digitally revamped marketplace.