A Goodreads user
asked
Michael J. Sullivan:
Are you following the Alan Dean Foster legal situation with regards to the (opinion incoming) super shady way in which Disney is refusing to pay him for all the books he wrote?
Michael J. Sullivan
A little...but it's really difficult to get the whole story on this because a great deal depends on the contract--which I haven't seen. But...in general...
(a) Publishers have a long-standing tradition of "screwing authors." This occurs for several reasons but boils down to who holds the power - which generally is the publisher.
(b) Authors are so desperate to be published, that they sign crappy contracts (meaning they are highly weighted toward the publisher), and the author is powerless to get certain aspects changed. An example is the term of the contract (how long it is enforced). Publishing contracts are written for the "life of copyright" - meaning the contract is in force for 70 years after the author's death - which is a VERY long time. Too long for an industry where things change. A "good" contract should be for a "reasonable" amount of time (7 - 10 years) after which, the author gets the rights back or the publisher has to offer up a revised contract.
(c) Authors have no power to change the "crappy contracts' into good ones becuase they hold no power. The author's only recourse is to "not sign" - and since there are thousands of other authors waiting in the wings that WILL sign, this situation isn't going to change anytime soon.
(d) There is no excuse for publishers not paying authors what they are legally owed. Period. I remember seeing a case where Neil Gaiman won a suit to get royalties from SPAWN (which he created) and even though he has won the lawsuit, he still hasn't been paid any of the money owed him. This is wrong on so many levels.
(e) There are a lot of really exploitive contracts out there. And many authors sign them without knowing what they are getting into. For instance, the woman who created the "Vampire Diaries" did so under a "work for hire" contract which meant the intellectual property for the characters and world belonged to the publisher, not the author. So, at some point, they "fired her" from the series she created and had someone else write the books. This is 100% legal. Is it fair? No. But I wouldn't have signed such a contract and this author should have become better educated before putting the pen to paper. If you sign a bad contract, then you have to accept the reality you signed on to, even if you didn't' understand what you were doing. In this case, the publisher is abiding by the contract...it's the author's fault for agreeing to the contract in the first place.
(f) Alan Dean Foster wrote books in "intellectual property spaces" that were not of his own creation (Star Wars, Star Trek, Aliens, etc). Now, I don't believe they were done under "work for hire" like the Vampire Diaries, but I have no idea WHAT the contracts DO say, and ultimately it's going to be what's in the contract that dictates this. I wouldn't be surprised if there isn't language in the contract that essentially says "As long as we own the rights you will earn xx per book." And that they have the right to sell the intellectual property to others "unencumbered." This would mean that by the terms of the contract he isn't owed money once the rights transferred from Lucas to Disney. Is this fair? No. Is it legal? Yes, IF that is what the contract says.
There are many things about contracts that can change over time, which may result in an author earning less. For instance, lets look at royalty rates a bit more. In my contracts (and probably 99% of all contracts), there are two royalty rates: one for when the physical books are sold to distributors below a certain margin and another when sold above a certain level (the so-called high-discount sales). In my case, this means I earn $4.20 for each Age of Myth book sold at the standard royalty rate, and when sold at "high discount" I earn $0.63). Which price is paid is 100% dictated by the publisher as they negotiate the margin that books are sold at. So, let's say the margin is 55% for example, and the royalty rate at that margin is 15% meaning the publisher earns $12.60 on each $28 book sold. But...if they change the margin to 56% they'll receive $12.32 from the distributor ($0.28 less) -- but they actually end up keeping $3.57 more from MY SHARE. So they go from earning $12.60 - $4.20 = $8.40 to $12.32 - $0.63 = $11.69. Is this fair? No. Is it legal? Yes. It's what's in the contract that I signed said, and the publisher is doing something that is within their legal right to do...which is essentially seal from Peter (me) to pay Paul (them).
Why didn't I get this clause changed before signing? Because I couldn't. The publishers have a hard-and-fast rule on the subject and while they may adjust the margin where the "high discount" triggers. They won't remove it completely. In fact, I walked away from a deal over exactly this issue.
So, there are all kinds of pitalls like this in contracts and as many times we sign contracts and cross our fingers that "the worst won't happen." In the case of high discounts - for many, many years there were very few books sold under this "high discount" royalty rate, now my royalty statements show thousands of books sold where I'm losing tens of thousands of dollars. I think Mark Lawrence mentioned that almost all of his sales are now at these lower "high discount" rates. And, yes, it sucks. But at the end of the day, I (a) knew what I was getting into, (b) got paid "good money" for a number of years, and (c) now that things have changed (more books bought at a high discount), I can't do anything about it. I'm taking a financial kick in the teeth, but the publisher is operating within the terms of the contract that we both signed. Am I happy about it? No. Can I do anything about it? No.
Because Disney isn't paying, it makes me think there was something in the contract that said that the royalties are only due when the IP was owned by Lucas (a clause that was likely added so they COULD easily sell the property at a later date). The contract may have been written that way so Lucas could sell the IP to their world "unencumbered" (making it more attractive to any future would-be buyer). I could definitely see a clause of this nature added (especially when dealing with companies who are primarily in the film rather than book business). These companies have VERY aggressive language regarding not only what they bought but future works that be developed at a later date. If that is what the contract says, then Dean is probably like me in that times changed and his income is going down through no fault of his own...but the contract dictates those facts.
Again, I don't know if that clause is in the contract, but if it is, then Dean won't be paid now that Disney owns the property, and they are under no obligation to pay him. Does that suck for Dean? Sure. But if that is what is in the contract, it's what he "signed up for" and just because he "earned money previously" doesn't mean he will now.
Now, it's possible that there isn't such a stipulation in the contract, and Disney is just taking a position because they think they can get away with it. If that is the case, then absolutely they need to cough off Dean's money and probably pay him extra for trying to pull such crap.
The bottom line...a LOT depends on what the contract Dean signed says. It may be crystal clear that he isn't owed anything once the IP changes hands and that's just an unfortunate consequence of what occurred, but something he agreed to when he signed.
Most contracts have provisions for "successors and assign" and USUALLY that means that the new party just steps in where the old party was which would mean that Disney owns both the rights to sell the products and the OBLIGATION to pay the author. If this is the case, then see my statement above regarding them not only owing Dean his standard royalties, but they should compensate him additional fees for having to fight for what he was owed.
So, my position...whether Dean is owed money is 100% dependent on what the contract says. A contract which I (and I suspect others who are commenting on this situation) haven't seen. If I had seen the contract, I could speak more definitively. But I wouldn't be surprised if the contract did indeed indicate that the obligation to the author DID not transfer with the ownership of the IP. It's just one in a long list of ways that the "little guy" (author") gets the short end of the stick when it comes with dealing with the "big guys" (publisher).
(a) Publishers have a long-standing tradition of "screwing authors." This occurs for several reasons but boils down to who holds the power - which generally is the publisher.
(b) Authors are so desperate to be published, that they sign crappy contracts (meaning they are highly weighted toward the publisher), and the author is powerless to get certain aspects changed. An example is the term of the contract (how long it is enforced). Publishing contracts are written for the "life of copyright" - meaning the contract is in force for 70 years after the author's death - which is a VERY long time. Too long for an industry where things change. A "good" contract should be for a "reasonable" amount of time (7 - 10 years) after which, the author gets the rights back or the publisher has to offer up a revised contract.
(c) Authors have no power to change the "crappy contracts' into good ones becuase they hold no power. The author's only recourse is to "not sign" - and since there are thousands of other authors waiting in the wings that WILL sign, this situation isn't going to change anytime soon.
(d) There is no excuse for publishers not paying authors what they are legally owed. Period. I remember seeing a case where Neil Gaiman won a suit to get royalties from SPAWN (which he created) and even though he has won the lawsuit, he still hasn't been paid any of the money owed him. This is wrong on so many levels.
(e) There are a lot of really exploitive contracts out there. And many authors sign them without knowing what they are getting into. For instance, the woman who created the "Vampire Diaries" did so under a "work for hire" contract which meant the intellectual property for the characters and world belonged to the publisher, not the author. So, at some point, they "fired her" from the series she created and had someone else write the books. This is 100% legal. Is it fair? No. But I wouldn't have signed such a contract and this author should have become better educated before putting the pen to paper. If you sign a bad contract, then you have to accept the reality you signed on to, even if you didn't' understand what you were doing. In this case, the publisher is abiding by the contract...it's the author's fault for agreeing to the contract in the first place.
(f) Alan Dean Foster wrote books in "intellectual property spaces" that were not of his own creation (Star Wars, Star Trek, Aliens, etc). Now, I don't believe they were done under "work for hire" like the Vampire Diaries, but I have no idea WHAT the contracts DO say, and ultimately it's going to be what's in the contract that dictates this. I wouldn't be surprised if there isn't language in the contract that essentially says "As long as we own the rights you will earn xx per book." And that they have the right to sell the intellectual property to others "unencumbered." This would mean that by the terms of the contract he isn't owed money once the rights transferred from Lucas to Disney. Is this fair? No. Is it legal? Yes, IF that is what the contract says.
There are many things about contracts that can change over time, which may result in an author earning less. For instance, lets look at royalty rates a bit more. In my contracts (and probably 99% of all contracts), there are two royalty rates: one for when the physical books are sold to distributors below a certain margin and another when sold above a certain level (the so-called high-discount sales). In my case, this means I earn $4.20 for each Age of Myth book sold at the standard royalty rate, and when sold at "high discount" I earn $0.63). Which price is paid is 100% dictated by the publisher as they negotiate the margin that books are sold at. So, let's say the margin is 55% for example, and the royalty rate at that margin is 15% meaning the publisher earns $12.60 on each $28 book sold. But...if they change the margin to 56% they'll receive $12.32 from the distributor ($0.28 less) -- but they actually end up keeping $3.57 more from MY SHARE. So they go from earning $12.60 - $4.20 = $8.40 to $12.32 - $0.63 = $11.69. Is this fair? No. Is it legal? Yes. It's what's in the contract that I signed said, and the publisher is doing something that is within their legal right to do...which is essentially seal from Peter (me) to pay Paul (them).
Why didn't I get this clause changed before signing? Because I couldn't. The publishers have a hard-and-fast rule on the subject and while they may adjust the margin where the "high discount" triggers. They won't remove it completely. In fact, I walked away from a deal over exactly this issue.
So, there are all kinds of pitalls like this in contracts and as many times we sign contracts and cross our fingers that "the worst won't happen." In the case of high discounts - for many, many years there were very few books sold under this "high discount" royalty rate, now my royalty statements show thousands of books sold where I'm losing tens of thousands of dollars. I think Mark Lawrence mentioned that almost all of his sales are now at these lower "high discount" rates. And, yes, it sucks. But at the end of the day, I (a) knew what I was getting into, (b) got paid "good money" for a number of years, and (c) now that things have changed (more books bought at a high discount), I can't do anything about it. I'm taking a financial kick in the teeth, but the publisher is operating within the terms of the contract that we both signed. Am I happy about it? No. Can I do anything about it? No.
Because Disney isn't paying, it makes me think there was something in the contract that said that the royalties are only due when the IP was owned by Lucas (a clause that was likely added so they COULD easily sell the property at a later date). The contract may have been written that way so Lucas could sell the IP to their world "unencumbered" (making it more attractive to any future would-be buyer). I could definitely see a clause of this nature added (especially when dealing with companies who are primarily in the film rather than book business). These companies have VERY aggressive language regarding not only what they bought but future works that be developed at a later date. If that is what the contract says, then Dean is probably like me in that times changed and his income is going down through no fault of his own...but the contract dictates those facts.
Again, I don't know if that clause is in the contract, but if it is, then Dean won't be paid now that Disney owns the property, and they are under no obligation to pay him. Does that suck for Dean? Sure. But if that is what is in the contract, it's what he "signed up for" and just because he "earned money previously" doesn't mean he will now.
Now, it's possible that there isn't such a stipulation in the contract, and Disney is just taking a position because they think they can get away with it. If that is the case, then absolutely they need to cough off Dean's money and probably pay him extra for trying to pull such crap.
The bottom line...a LOT depends on what the contract Dean signed says. It may be crystal clear that he isn't owed anything once the IP changes hands and that's just an unfortunate consequence of what occurred, but something he agreed to when he signed.
Most contracts have provisions for "successors and assign" and USUALLY that means that the new party just steps in where the old party was which would mean that Disney owns both the rights to sell the products and the OBLIGATION to pay the author. If this is the case, then see my statement above regarding them not only owing Dean his standard royalties, but they should compensate him additional fees for having to fight for what he was owed.
So, my position...whether Dean is owed money is 100% dependent on what the contract says. A contract which I (and I suspect others who are commenting on this situation) haven't seen. If I had seen the contract, I could speak more definitively. But I wouldn't be surprised if the contract did indeed indicate that the obligation to the author DID not transfer with the ownership of the IP. It's just one in a long list of ways that the "little guy" (author") gets the short end of the stick when it comes with dealing with the "big guys" (publisher).
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Trine Lise
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I'm exited that we’ll get another Riyria book this year, and I already know what I'm getting my dad for Christmas. There’s one thing I haven't seen you mention about the issue, though: an audio book. Would it be possible to release the audio book in 2016 since the book is already out, or does it count as an individual competing work? If so, might it be produced after Rhist comes out? It’s just not Riyria without Tim.
Erin Fitzgibbon
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Michael J. Sullivan:
Hi Michael, not really a question but I just wanted to say I just finished the Death of Dulgath. I enjoyed the book thoroughly. Thank you for writing two great characters. I truly hope you write more about them. I'm looking forward to reading The First Empire series as well?
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