Last year, I made a number of predictions about what would happen in 2012 in publishing. Call me Cassandra, because they (partly) came true. Here's how I did with my prognostications:
Full-service e-books: I predicted that full-service shops would open up to assist writers who want to publish their own e-books, offering editing, cover design, formatting, special features
such as links, matchmaking with illustrators, uploading to the major
e-readers, and marketing. So far, there have been no takers on this model. Instead, publishing professionals have opened their own e-publishing companies rather than companies to assist writers. The big e-publishers like Lulu and Amazon also offer what they say are turnkey services. I think there's still room for some smart publishing professionals to pick up the slack in this huge market.
Consumer protection suits: I predicted we'd see more lawsuits claiming
readers were misled. Sure enough, we've seen new consumer protection suits against authors and publishers, still mostly nonfiction, with consumers claiming they didn't get what they paid for. Lance Armstrong and Greg Mortenson have had the most highly publicized cases. I'm still waiting for suits saying a book advertised as fantasy was really sci fi, or a book advertised as good was really terrible.
Trademark suits: I predicted more trademark suits by authors, and I was right. Suits by comic book authors, dead authors and bestselling authors have claimed trademark infringement. It's one of those issues that will keep lawyers busy for decades to come as the publishing industry becomes more tight for money. The Fifty Shades people alone will create a boon for intellectual property lawyers.
Licensing: I predicted more publishers would make grabs for author rights in overbroad licensing language. Sure enough, publishers are making unprecedented moves to grab author rights. Beware contract language that may take away your rights. I've seen really broad licensing language proposed to me in contracts where I was writing free content. I find that most publishers, especially the ones who don't pay, are willing to negotiate when you call them on it.
Noncompete:
As publishers insert more noncompete clauses into contracts, I predicted we'd
start to see authors sued the same way employees are sued now – to keep
them from going elsewhere. I haven't seen this yet, but I hear of more and more of these clauses. Since it takes a couple of years to get most books into print, it might be awhile before the suits come rolling in. What we are seeing, though, are suits where employers claim they own the copyright on books written by former employees based on contract language. Watch what you sign with your employers, as well as your publishers.
Alternate revenue sources: I predicted that publishers will insert links in ebooks to purchase items mentioned,
like music, other books, and products. So far, while some e-books do have links, it looks like they are mostly for scam purposes, such as inserting malware. As publishers look for alternate revenue sources, advertisements are inevitable.
2012 certainly had its share of the usual libel and copyright litigation, along with a plethora of other legal issues that kept us busy on The Debriefer. Keep listening to us this year to hear the latest legal news in writing and publishing.
Showing posts with label consumer protection. Show all posts
Showing posts with label consumer protection. Show all posts
Wednesday, February 13, 2013
Thursday, December 29, 2011
Donna’s Predictions For Publishing in 2012
It’s time to dig out the magic 8-ball app on my iPad and predict what will be coming in the writing and publishing industry in 2012. We’re in the midst of giant changes in the industry. Here’s what I think will happen this year:
Full-service e-books: With all the laid-off folks from the publishing industry floating around, we’ll see full-service shops opening up to assist writers who want to publish their own e-books. I predict the development of consortiums of displaced professionals. These shops will offer editing, cover design, formatting, special features such as links, matchmaking with illustrators, uploading to the major e-readers, and marketing. Without a doubt.
Consumer protection suits: Now that lawyers have discovered that consumer protection laws can be used against writers and publishers, we’ll see more lawsuits claiming readers were misled into purchasing fiction and nonfiction with advertising. Nonfiction writers have borne the brunt of these cases so far, but consumers will complain that books were advertised as fantasy when they were sci-fi; as nonfiction when they were fiction; as riveting when they fell asleep reading; and as good when the book was a turkey. The winners? Class action lawyers. It is decidedly so.
Trademark suits: With parodies and mashups galore, ticked off writers and publishers are losing copyright lawsuits against writers making big bucks from mocking their work. They’ll turn to trademark for help. You can’t copyright titles and characters, but they might just be trademarks. Watch for more of these cases trying to erode the right to parody. Outlook not so good.
Licensing: Most writers don’t pay attention to the licensing clauses in their contracts. Watch for publishers licensing their entire catalogues, or only some of their books. Unwary authors will wonder where their royalties went as publishers invoke no-pay-for-mass-licensing clauses to avoid paying anything. Will they get paid? Very doubtful.
Noncompete: As publishers insert more noncompete clauses into contracts, we’ll start to see authors sued the same way employees are sued now – to keep them from going elsewhere. Will the courts uphold indentured servitude like they’ve been inclined to do with employees? Signs point to yes.
Alternate revenue sources: Publishers will insert links in ebooks to purchase items mentioned, like music, other books, and products. Authors will need to start negotiating with publishers for a share of these revenues, or they’ll be left out. How will authors keep from being left out of the revenue stream? Cannot predict now.
That’s all for 2011. May you have a happy, healthy and prosperous writing year in 2012!
Full-service e-books: With all the laid-off folks from the publishing industry floating around, we’ll see full-service shops opening up to assist writers who want to publish their own e-books. I predict the development of consortiums of displaced professionals. These shops will offer editing, cover design, formatting, special features such as links, matchmaking with illustrators, uploading to the major e-readers, and marketing. Without a doubt.
Consumer protection suits: Now that lawyers have discovered that consumer protection laws can be used against writers and publishers, we’ll see more lawsuits claiming readers were misled into purchasing fiction and nonfiction with advertising. Nonfiction writers have borne the brunt of these cases so far, but consumers will complain that books were advertised as fantasy when they were sci-fi; as nonfiction when they were fiction; as riveting when they fell asleep reading; and as good when the book was a turkey. The winners? Class action lawyers. It is decidedly so.
Trademark suits: With parodies and mashups galore, ticked off writers and publishers are losing copyright lawsuits against writers making big bucks from mocking their work. They’ll turn to trademark for help. You can’t copyright titles and characters, but they might just be trademarks. Watch for more of these cases trying to erode the right to parody. Outlook not so good.
Licensing: Most writers don’t pay attention to the licensing clauses in their contracts. Watch for publishers licensing their entire catalogues, or only some of their books. Unwary authors will wonder where their royalties went as publishers invoke no-pay-for-mass-licensing clauses to avoid paying anything. Will they get paid? Very doubtful.
Noncompete: As publishers insert more noncompete clauses into contracts, we’ll start to see authors sued the same way employees are sued now – to keep them from going elsewhere. Will the courts uphold indentured servitude like they’ve been inclined to do with employees? Signs point to yes.
Alternate revenue sources: Publishers will insert links in ebooks to purchase items mentioned, like music, other books, and products. Authors will need to start negotiating with publishers for a share of these revenues, or they’ll be left out. How will authors keep from being left out of the revenue stream? Cannot predict now.
That’s all for 2011. May you have a happy, healthy and prosperous writing year in 2012!
Sunday, May 15, 2011
Jimmy Carter Suit Over – For Now
I wrote about the suit against Jimmy Carter a few weeks ago. A group sued Simon & Schuster and the former president regarding Carter’s 2006 book Palestine: Peace Not Apartheid. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations, saying the book was falsely advertised as nonfiction. They claimed they were misled into buying the book and wanted their money back.
While this wasn’t the first consumer protection case against an author (thanks, James Frey), it was the first time the argument was made that the laws could be utilized on behalf of readers who disagreed with a book’s contents and the way it was advertised.
I warned that disaster would fall if Simon & Schuster paid these folks to go away. I said the floodgates would open. For nonfiction, the danger was that one poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk. I was also concerned that fiction authors would be at risk. What would happen if they advertised a book as “exciting” but a reader finds it boring?
Well, you’ll be glad to hear that, at least this time, the danger has passed. The plaintiffs withdrew their suit and got no money. While Simon & Schuster proclaimed victory, the plaintiffs said they plan to refile in NY state court.
This is still a suit to watch closely if it’s refilled. I hope Simon & Schuster continues to stick to its guns and fight this lawsuit. Stay tuned.
Saturday, March 5, 2011
The Suit Against Jimmy Carter: Why Writers And Publishers Should Be Up In Arms
I covered the suit filed against former President Jimmy Carter and Simon & Schuster regarding Carter’s 2006 book Palestine: Peace Not Apartheid a couple weeks ago on The Debriefer. Literary agent Peter Cox and I spoke about the dangers to writers and the publishing industry if the case succeeds. The more I think about this case, the more it bothers me, so it bears more analysis.
The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.
The New York Consumer Protection Act provides:
The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.
Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?
The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”
The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.
The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.
Morons.
If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.
Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.
How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.
When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.
Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.
Danger Will Robinson. Here there be dragons.
The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.
The New York Consumer Protection Act provides:
The term "false advertising" means advertising, including labeling, of a commodity, ... if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.
The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.
Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?
The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”
The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.
The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.
Morons.
If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.
Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.
How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.
When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.
Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.
Danger Will Robinson. Here there be dragons.
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