Author Kristine Kathryn Rusch hammers home the importance of intellectual property rights and observes how decades of tradpub conditioning has left most authors woefully inept at controlling their IPs.
I wrote the following sentence to someone who wanted to take my entire IP in a series for a pittance:
I’ve spent decades developing my IP.
I then proceeded to explain to that person that I controlled my IP and they would not get their grubby paws on it, especially for a few thousand dollars and promises of future money. (Anyone who could read contracts would know that the company didn’t have to pay me the full up front money in a timely fashion if at all, and there would be no future money…to me…because I would have signed it away.)
I’ve spent decades developing my IP.
I have never said that before, nor have I said it so blatantly. It provided me with an incredible and unexpected perspective.
I was trained in traditional publishing, where writers go begging for opportunity. Writers are taught to beg, from professors (let me into your class!) to critique groups (is my writing good enough?) to agents (will you take me on?) to publishers (will you buy my book?).
We’re not trained to value what we’ve built.
I’ve spent decades developing my IP.
That statement is a statement of power. It’s a statement of value. It says I have worked hard. Respect my work and deal with me like a professional.
Imagine if all writers took that attitude into their negotiations for their work. Or into anything they do for their writing.
Writers would become stronger, just by owning what they have done. By valuing what they have achieved.
A fact of life that would greatly benefit authors to get through their heads is that publishers–all publishers–survive by exploiting authors’ work. That doesn’t mean the exploitation isn’t sometimes mutually beneficial, but before you go seeking some acquisitions editor’s approval, keep in mind that:
- You create IPs every time you put pen to paper.
- By international copyright law, you own every IP you create the second you set it down in writing.
- A whole bundle of rights comes into being when an IP is created, e.g. print, foreign, movie, TV, merchandising, and a slew of other rights. As the author, you own all of them–at first.
As a writer, you create IP every time you commit your ideas to paper. (Into a form.) If you don’t understand copyright, you’re going to be a huge disadvantage, which is why I wrote a simple blog post on copyright last year and then begged you all to buy and read a copy of The Copyright Handbook.
I did that so you could defend your copyrights, so that you know what you’re actually licensing, and so that you’re in tune with how your business actually works. Dean’s doing a great series of posts called The Magic Bakery, in which he discusses why writers should protect copyright as well as how to monetize your copyrights properly.
Dean’s blog is fascinating to me. Because whenever he talks about the value of intellectual property, he gets a huge pushback from writers. Or a somewhat clueless series of questions that mean the writers have no idea what they’re actually working on.
Writers are so used to begging to get attention, that they have no idea how to think of their work as something not just important to them, but as something with lasting value.
You might remember our good friend Dean from other popular posts on this blog. Dean knows what he’s doing. Listen to him.
Rusch concludes with an IP-related parable.
The IP I was dealing with in that negotiation came from a novella I first published more than a decade ago. I’ve written dozens of stories and even more work set in that world since. I am constantly developing, licensing, and honing that IP.
It is an active IP, which means that it continues to grow.
I know, still sounds theoretical, right?
So instead of using Dean’s Magic Bakery analogy, let me give you one of my own.
Imagine this:
You have spent fifteen years owning a brick-and-mortar collectibles store. (I’m basing this analogy on one of our stores.) The store has more than 2,000 square feet of retail space, packed to the brim with collectibles as small as a marble or as large as a Homer Simpson life-size doll. In the back is a warehouse with even more items.
There are hundreds of thousands of collectibles in the front and back of that store, each with its own unique value.
One day, a Hollywood location scout walks in the front door, looks around, and decides that this store is a perfect setting for one scene in an upcoming movie. The scout talks to you, and you agree that they can rent the entire store for two days to shoot that scene.
Then the scout brings you the contract to sign that allows them to shoot in your store.
For a few thousand dollars and permission to shoot for two days, you sign away all ownership and control of that store. Sure, you might continue to work in the store, but any profits you make will go to the movie people. And they can take anything they want out of that store for the lifetime of the store, and use those items as they see fit. In fact, they can move the store to Los Angeles if they want, and bar you from entering the store forever.
As a store owner, you would never do that.
Writers do it all the time.
Wow, they think, I’ll get a movie made out of my book.
Wow, they think, I’ll get a game made out of my book.
Wow, they think, I’ll get a traditional publishing deal and my book will be on the stands everywhere.
And they lose the one thing they have of value. Control of their IP.
Does the writer ever think that they spent years developing that property? Nurturing it? Making it cool enough that someone else comes calling and wants a piece of it?
Nope.
Almost never.
And the agents the writers put in charge of guarding the door to their little shops only ask the movie people/game company/traditional publisher how much up front money the writer will make so the agent can get a fast 15%. Or, as in the case of at least one agent I know, the agent demands that the movie people/game company/traditional publisher give him a piece of the property if the agent lets them in the door.
In other words, the agent takes part of the business, but leaves none for the person they’re supposed to represent.
Which is why I do all this annoying negotiation myself.
I’ve had multiple offers of representation from literary agents. I don’t even respond. Instead I spent considerable time reading books and articles on contract and copyright law. After all, since the vast majority of my business is done through Amazon, it makes no sense to give an agent 15% of my KDP royalties for absolutely nothing.
On the rare occasions when I have to engage in business negotiations, I just do it myself. It’s worked out OK so far–probably because I know better than to deal with traditional publishers at all.
Your IPs are valuable. You own them. You should keep control of them.
Of course, I’m more than happy to let you enjoy some of my award-winning IPs for yourself 🙂
Brian.
Excellent advice as always. Ok so how should writer protect their property? How hard nose do they have to be? Finally,shouldcthecwriters set up a company which theybiwn to protect everything including their image?
xavier
Not dealing with legacy publishers is 99% of the battle.
Brian Thanks again.
So you're advice is to self publish or find an independent publisher.
Let me as the next question: what should the asoiring look for when researching independent publishers?
xavier
I've noticed that some writers are re-issuing their own books under indie print as old contract rights expire. Esp if the were considered mid-line writers.
https://www.amazon.com/gp/product/B01HY2A0L0/ref=series_rw_dp_sw
Apparently the 5th book is still with HarperCollins Publishers. So its price is different from the others.
Fiannawolf
Definitely. Established writers regaining the rights to their back lists and self-publishing their old work are among those making the most money on Amazon.
Brian:
Sorry to comment again. I have important question that's always pestered me:
Exactly how and when do writer get the rights of their books returned to them?
Does that now include digital and foreign rights too?
Could you walk us through the steps and perhaps invite some writers who had this experience to understand the reality of the situation?
Thanks again!
xavier
I've never been in that situation, because I've never sold away the rights to one of my original books.
What I've heard from tradpub authors is that few ever get their rights back, and those that do had to hire lawyers. Joe Konrath is one former tradpub author turned indie who successfully sued for his rights back.
As for which rights authors get back, it depends on which rights they signed away in the original contract.
Brian
Thanks again. So the moral of the story is don't sell your rights to publishers and read the contracts very carefully.
Both music and publishing attract the parasites. Those who make millions while leaving the creators destitute. I now understand Prince's animus towards the music industry.
I suspect it's the same with publishing
xavier
Brian:
Found this apropos link from Nick(Cole)'s post about the coming collapse of Barnes and Noble which lead me to several other links to this one:
https://www.digitalmusicnews.com/2017/09/20/get-copyrights-back/
It's darned cool to see a work you've built registered in the Library of Congress.
Just sayin'.
Thanks for the link!
No prob — great way to protect from encroaching Trad Pub.
Have to get smart on this again — getting back into the comics biz. It's time.
And bookmarked.
Question, how do pseudonyms affect copyright? Do you recommend avoiding it?
Disclaimer: I'm not an IP attorney, and I've never written under a pseudonym. The following is not legal advice.
You immediately own the copyright–and all other rights–to a work as soon as you create it. If you write under a pen name and end up having to make a copyright claim against someone who's infringing on your work, you'd need to prove that you created said work, which should be easy whether you use a pen name or not.
Countless writers have had long and lucrative careers under pen names. My friend David J. West recently discussed on Geek Gab how switching to a pen name really helped his sales take off. I've never heard of anyone avoiding it due to copyright concerns.
That is good to know.