Today, by unanimous decision, the US Supreme Court overturned a lower court ruling that tossed out a settlement reached in a landmark case involving electronic rights and copyright.

In 1999, the National Writers' Union filed suit against the New York Times and LexisNexis, among others, alleging copyright infringement due to the companies' re-use of printed articles and photographs in electronic databases (New York Times Co. v Tasini et al). The Times and other publishers argued that the right of reproduction and distribution included in collective copyrights gave them the right to digitize content without permission or payment to the authors. The NWU argued that electronic rights were separate and distinct, and that, since their contracts had not included a grant of e-rights, the Times and other publishers had violated their copyrights.

In a 2001 decision, the Supreme Court sided with the NWU. In 2005, the parties (which now included nearly 40 publishers and consolidated several similar suits) reached an $18 million settlement that provided for compensation to the plaintiffs, in exchange for which the plaintiffs agreed to waive any future claims of infringement for works already in the databases. For the purposes of payment, plaintiffs were separated into three groups: Groups A and B, where individual copyrights had been registered (either timely or post-infringement), and Group C--by far the largest--where copyrights had not been registered.

A District Court upheld the settlement. However, ten freelancers appealed the decision to the Second Circuit, on the grounds that compensation for Group C (which was potentially much less than for Groups A and B) was unfair. Ultimately, the settlement was overturned--though not on the basis of the objectors' arguments. Instead, the Second Circuit ruled that, since US copyright law makes copyright registration a pre-requisite to filing infringement actions, federal courts don't have jurisdictional authority over claims involving unregistered copyrights. So the settlement should never have been approved in the first place.

Not wanting to return to the drawing board, the publishers took the case back to the Supreme Court. Today, the Supremes overturned the Second Circuit's decision, ruling that courts do indeed have authority in cases involving unregistered copyrights. According to Justice Clarence Thomas, writing for the majority, "[The] registration requirement is a precondition to filing a claim [of infringement] that does not restrict a federal court's subject-matter jurisdiction."

This is a significant ruling, it seems to me, not only because it allows a gigantic settlement (one of the first ever to address e-rights questions, pre-figuring some of the issues involved in the Google Book Settlement) to go forward, but because of the possible implications for authors and publishers. Although Justice Thomas declined "to address whether [the] registration requirement is a mandatory precondition...that...district courts may or should enforce...by dismissing copyright infringement claims involving unregistered works," it seems possible that there will be implications for the registration provision of copyright law.

US writers are more or less conditioned to believe that copyright registration is universal--but in fact most countries have no official registration process. The Berne Convention, the international source for copyright law, ensures full copyright protection without without requiring any formalities (such as registration) as a prerequisite for bringing an infringement suit. Countries may impose formalities if they wish, but most choose not to.

There's a detailed account of the legal historyof the case at the SCOTUS blog.

Posted by Victoria Strauss for Writer Beware

The 2010 Creative Spirit Awards™ Celebrating the Creative Spirit in Books, Film, and Music!

The March 1st Early Bird Deadline is approaching fast! If you haven’t already submitted, we invite you to submit today!

It's every Author, Musician and Filmmaker’s desire to generate notoriety, credibility and buzz about their work, and winning this significant award is the vehicle in which to make your creation stand out as the exemplary work it is. To further help winners achieve this recognition, following the close of the competition, press releases with information on the Creative Spirit Award™ Winners will be sent to key book sellers, film and music distributors, and other sales and marketing entities. Being a Creative Spirit Award™ winner will inspire confidence in buyers, distributors, readers and prospective clients that Creative Spirit Award™ winning productions are of high quality and worthy of their attention. The Creative Spirit Awards™ celebrate the individual artist as well as their work through a panel of judges who have excelled in their respective fields. As such, awards are only presented to those filmmakers, musicians and authors who create fresh, standout, and exemplary creations in their field. Each work is judged solely on its own merits and not in competition with other submissions. The Creative Spirit Awards™ honors its winners with Platinum, Gold, or Silver Awards.

Available only to Platinum and Gold winners, each artist will be able to advertise their award-winning project in specially designed full page, full color Creative Spirit Awards™ advertisements in some of the top industry magazines. For a nominal fee per month, the image of your book, CD, or DVD cover will be featured as a Platinum or Gold Winner along with four lines of text below your image which will be comprised of 1) the title of your work, 2) author, musician or band name, or producer and/or director name, 3) the publishing company, production company or studio name, and 4) the work’s website address. There is no minimum or maximum monthly enrolment meaning you can advertise your award-winning work for one or twelve months.

Posted by Victoria Strauss for Writer Beware

The number of news media that published the Outskirts press release is ONE. Oops! I'm sorry, folks, but the number should probably be ZERO. That alleged news medium that published the press release, called Self Publishing News, is actually a blog produced by (drum roll please) Outskirts Press. So, we have a vanity publisher, using its own vanity blog to publish a vanity press release bragging about a vanity trophy. I couldn't make this up.

Each year, the SBCA identifies businesses that we believe have achieved exceptional success in their local community...Nominees are typically local businesses that enhance the positive image of small business through service to their customers and community.

Each year, the USCA identifies companies that they believe have achieved exceptional marketing success in their local community and business category. These are local companies that enhance the positive image of small business through service to their customers and community.

by Victoria Strauss

Will 2010 be YOUR year to embrace your wisdom, step forward and claim your dream of being a published author? If you answered YES then YOU may be one of the over 40 co-authors that I, along with my team of experts, will be working with this spring to bring your collective wisdom to the world!... Now, in a personal project of mine I will bring the same passion and commitment that I've brought to Aspire, to bring YOUR story, wisdom and insights as a co-author in my upcoming anthology: A Juicy, Joyful Life: Inspiration from Women who have Found the Sweetness in Every Day

"Imagine the words...Published Author *...printed underneath YOUR name on YOUR business card. *...being spoken as YOU are introduced as the key-note speaker in front of a full audience *...as you introduce yourself to a potential client. You’ve thought about it, envisioned it and NOW it’s time to ACT on it… It’s no coincidence that you’ve attracted this opportunity! You have been waiting for the divine opportunity to become a published author – one that is in alignment with your vision and that is with a well-respected brand in women’s inspirational publishing.

Dear Authors, We want your e-books -- and we'll pay you for them!! * e-Books * Newsletters * Excerpts from books * Self-Published Articles Now, there's a new idea... actually get paid for writing your e-books and articles! We're launching a brand new website, where visitors can download free e-books on everything from running a business to fixing a car... and WE PAY OUR AUTHORS US $0.20 every time an e-book is successfully downloaded!

That's confidential. Why should it matter?

Hey, Published Authors: Feeling artistically discouraged? Critically devalued? Culturally marginalized? Alternatively, are you just so full of self-admiration and self-confidence that you could absolutely pop?

A Customized Author Plaque from ZLS Publishing (“The Authorpreneurial Publisher”) might be just the thing.

That’s right, writers. You can get your book cover laminated onto a wooden plaque, along with “engraving options” such as “Bestselling Author – 5,000+ Books Sold + your name,” or “Author Extrordinnaire [sic] -100+ Books Sold + your name.” (Talk about faint praise!) The plaques come in a range of colors (white, black, blue, etc.) and a variety of sizes, from dainty to hefty.

Just imagine the many uses to which you could put your plaque! If you can’t, ZLS suggests:

1) To be used and shown during your book signings.
2) Picture of your plaque to be placed on your website.
3) To give as Holiday gifts to authors or family members you know.
4) To be used and shown during your speaking engagements.
5) Use as part of your overall book marketing package.

And the cost? A mere $125 for the dainty size, and a somewhat heftier $325 for the hefty size, plus a few dollars extra for engraving.

(ZLS also sells Customized Author Shopping Tote Bags, Customized Author Pencils, and Customized Book Signing Author Balloons. And if the demise of Poetry.com has you missing those offers to put your poem on a plaque, ZLS can help.)

So if the vanity shelf in your office with all your titles ranged upon it isn’t quite enough to sustain your self-confidence, or if your self-promotional arsenal is lacking that certain je ne sais quoi, or if you just want to say it loud, you’re a Published Author and you’re proud…you can now go plaque yourself.

by Victoria Strauss

For some time, publishers and others have been concerned about Amazon’s policy of pricing ebooks at $9.99, regardless of the price tag publishers put on them. Many feel that Amazon’s discounted ebook pricing is an attempt to control and monopolize the ebook market by forcing a pricing standard. Some in the publishing industry have even called the practice predatory. (Readers, of course, are more likely to applaud cheaper ebooks, but many publishers, which have fixed costs to earn back whether a book is ink on paper or pixels on a screen, regard the $9.99 price point as a major threat to revenue.)

Over the weekend, a publisher finally went head-to-head with Amazon on this issue.

Earlier last week, John Sargent, CEO of “big six” publisher Macmillan, presented new terms of sale to Amazon for Macmillan ebooks. Under the so-called “agency” distribution model (which means that Amazon could not discount the books–see below for an explanation), digital editions of Macmillan trade titles would be priced from $5.99 to $14.99, and digital editions of first-release hardcovers would be priced from 12.99 to $14.99. Amazon found this unacceptable, and on Friday, it yanked the buy buttons from all of Macmillan’s titles, both digital and print–a move that forced Sargent to issue an emergency explanation to Macmillan authors/illustrators via industry newsletter Publishers Lunch.

You may remember that Amazon employed this very same power play back in 2008, when it decided that it would sell no print-on-demand titles that weren’t produced by its own POD subsidiary, BookSurge (now CreateSpace), and disabled the buy buttons of some POD-based publishers that refused to deal. That decision spawned a lawsuit (recently settled), but ultimately, Amazon prevailed.

This time was different. On Sunday, in a message posted to its Kindle forum, Amazon gave in, if not entirely graciously. Despite “strong disagreement” with Macmillan, Amazon “will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.” (An interesting use of the word “monopoly,” given that Amazon’s own pricing policies have been subject to the same accusations.) Amazon goes on to say that “customers will decide for themselves,” and that “we know for sure that many independent presses and self-published authors will see this as an opportunity to provide attractively priced e-books as an alternative.” (Take that, bad big publishers.)

So what’s behind the dispute? Basically, competing distribution models for ebooks. Under the familiar wholesale model that is the norm for print books, and till now has been the norm for ebook sales from major publishers, publishers sell to intermediaries–such as bookstores or distributors–at a fixed discount, and the intermediaries then re-sell to the consumer at whatever price they choose. What Macmillan proposed is known as the agency model: Publishers sell directly to consumers via “agents”–such as Amazon or Apple’s iBooks store–which get a commission on those sales. In the wholesale model, consumer prices are controlled by the intermediary, whereas in the agency model, they are controlled by the publisher. You can see why Amazon, with its aggressively competitive discounting policies, would not be enthusiastic about the agency model (even though, as agent Nathan Bransford points out, $9.99 ebooks are a loss leader for Amazon).

While this might seem to be a two-way tug of war–Amazon vs. publishers–there’s actually a third player involved: Apple, whose brand-new iPad is perceived by many as a possible Kindle-killer, and which has adopted the agency model for ebooks sold through its iBooks store. There may have been an Apple in Amazon’s eye when it blinked on Sunday. Other hints that Amazon is concerned about Apple competition emerged in the weeks leading up to the iPad’s launch: Amazon increased royalties to 70% for authors and publishers using Kindle’s self-publishing system (developers of apps for Apple products receive 70% of revenues), and opened up the Kindle to outside developers to stimulate the creation of Kindle apps.

As of this writing, the buy buttons for Macmillan books are still MIA at Amazon.

For a fuller analysis of the wholesale/agency issue, see this post from Mike Shatzkin’s Idea Logical blog.

There’s good analysis also from Macmillan author Charles Stross.

More analysis from agents Ashley Grayson and Rachelle Gardner.

A roundup of stories on the dispute.

Most people seem to think that Amazon is the loser here, but James McQuivey of Forrester Research offers an interesting opposing view.

Posted by Victoria Strauss for Writer Beware

Once upon a time, there was a self-styled literary agent named Cris Robins who ran a purported literary agency called The Robins Agency. For more than ten years, Robins charged editing fees, levied various upfront fees, and, as far as Writer Beware can determine, never made a single verifiable commercial book sale. Complaints about her were among the first Writer Beware collected when we began operation in 1998. Due to the volume of these complaints and the length of time over which they were received, we placed her on our Thumbs Down Agency List in 2006.

That same year, shortly after an unhappy recipient of her editing services won an $8,000 judgment against her for breach of contract, fraudulent business practice, and consumer protection violations, Robins closed her agency’s doors. For a time, she continued to solicit her services to writers–in 2007, I got a number of reports from authors who received emails with offers of editing services and the “packaging” of manuscripts for submission to publishers. By 2008, however, Robins had gone silent. Writer Beware dared to hope that The Robins Agency was out of business for good.

But being a fee-charging agent is so easy and so lucrative that many of those who practice it find it difficult to give up. This week, I learned that Robins is once again soliciting writers with offers of fee-based representation.

Robins’ email begins:

After a three-year hiatus, The Robins Agency is now accepting new clients. Oh, sure, we still offer a full editorial staff and exceptional literary agents to present your work to publishers and movie producers here and abroad, but this year we’re kicking off a brand new service that sells your books … when buyers want to buy them – like right now.

Our agency shook up the industry when we offered our clients an editorial service, rocked it even more when we charged a retainer for our services; and now, well, now watch out because this is going to be revolutionary!!

A bit of hyperbole here–Robins was prolific in her editorial referrals and her retainer, at $3,200 was astronomical, but her agency was far from the only one that followed such practices. Still, you’ve got to admire the spin.

Who ever heard of a literary agency that also published books?? Sure, you can find the under-the-table deals; but The Robins Agency is talking about above-board, in-your-face, quality work that lists on Amazon.com and Barnes & Noble, complete with cover designs, ISBN numbers, copyrights AND royalties to the writer.

Who ever heard of a literary agency that also published books? Well, actually, anyone who has ever seen Writer Beware’s Alert on Writers’ Literary Agency, a.k.a. AEG Publishing Group, a.k.a. Strategic Book Group–currently being sued by the Florida Attorney General’s office for unfair and deceptive business practices.

Let’s talk about investment. How much are you willing to spend to get your work from where it is, to being sold? We understand that money’s tight right now; because we are looking for a few good works, we’re willing to cut our prices to find the best work out there.

Remember I told you we shook up the industry? Here’s how. Instead of sending you bills to cover expenses at the end of each month when you are under the impression that the agency works on commission, we charge a flat rate. We don’t call on Thursdays and tell you that if you want us to represent you on our trip the next day that it’s going to cost you $500. That’s not the way we work.

Um, that’s not the way reputable literary agencies work, either. But never mind, we’re spinning like a top here in our effort to make our predatory business practices look appealing.

Our base rate, a one year retainer was $3,250; for this promotion only we are dropping it to $2,500.

IF your work needs editing, our standard rate WAS $6 per 250-word page for a limited time, we’re dropping it to $4.50 per 250-word page.

If you want to take advantage of our e-book publishing offer, it will be going up to $950 on Feb. 1; but for this mailing, we’re charging only $750. Remember this includes cover art, inside layout, ISBN, copyright, and submitted to Amazon.com and Barnes & Noble, and possibly a few others to seize every available opportunity for your work.

I’ve thrown around a lot of numbers, let’s put them all together. Let’s say you have a 300 page manuscript (that’s 75,000 words); what do the numbers look like?

Editing services: $1,350 (a savings of: $450)
Agency retainer: $2,500 (a savings of $750) – it’s like getting the publishing FREE!!
E-book publishing: $ 750 (a savings of $200)

Grand total: $4,600 (a total savings of: $1,400!!)

Gosh golly, what a deal!

So why would you want to pay a track recordless “literary agent” $4,600 for representation and epublishing, when reputable agents charge no fees at all and you can epublish for free on the Kindle? BECAUSE YOU CAN MAKE SO MUCH MONEY, STUPID!

Now, I understand that you may be sitting there thinking that there’s no that you’re going to spend $4,600 to take a chance on your book. So, let me ask you, how hard would it be to sell 1,000 books?? According to the news reports over 12 MILLION e-books were sold last year. Hmm. What if your book only sold 2,000 copies?? At roughly $4.95 per book, you just DOUBLED your investment.

Doesn’t look quite so scary now does it? And that’s ONLY if all we sold were the e-book copies. What would happen if while your e-book was selling, and other publishers were considering buying it for print? Would THAT be a bad thing? We didn’t think so either.

Depends on how you define “bad.”

There you have it. And, writers, you’d better hurry–’cause Cris Robins only has room for fifteen lucky new clients, and prices go up on February 1.