Negotiating Author Payments in the Digital Age

Negotiating in a New Media Environment
Lying behind these changes are the challenges inherent in adjusting to the new media environment.

“Publishers could, in the old days, predict with uncanny accuracy how many copies would be sold under the old [print] business model; it was so well-tested,” notes Kirsch. “We’re now in the unsettled frontier.”

Comparisons to the issues behind the recent Writers Guild strike are appropriate, according to Kirsch. Entertainment writers are concerned about getting a fair deal on potentially lucrative residuals for new content-delivery platforms, while producers worry about rapid change in consumer habits and the risks inherent in trying to successfully adapt to those changes.

It is the recognition of these risks, Kirsch says, that have led to a tightening up of contract provisions for electronic and other rights in recent years. His standard contract used to have an electronic rights clause that could be used two ways—a default clause that gave broad, sweeping electronic rights to the publisher, and a “fallback clause” in case the author balked at these terms, limiting the publisher’s rights to a “static display of text” that excluded repurposing of content for multimedia presentations.

Today, publishers cannot afford to sign away options such as bookmarking, hyperlinks and searchable content. “I think that, for a practical matter, that [fallback] clause is worthless now,” Kirsch says. “The publisher has to be able to slice and dice [content], to jazz it up” for promotional and other purposes.

The emergence of Google Book Search and Amazon’s “Search Inside the Book” feature has helped to bring such issues to the foreground. These are non-revenue-generating uses of content that publishers and retailers consider promotional.

“Publishers want to be able to participate in these programs without having to pay royalties,” says Kirsch. “I have been in negotiations with authors who are not so comfortable with having a book online [that is searchable] for free. They want to specifically not give away that right.”