Tuesday, November 10, 2015

Sorting out credit after the work is done



I'm working on a short collection of interviews that is going to be published as an e-book for my company. I've done all the work, from finding the interviews, to collecting them, to formatting and eventually publishing the book. I get paid hourly, so I've been paid for the work as I've done it, but originally it was just going to be placed on our blog for free, only later did we decide to sell it as an e-book for $1.00. 
We're a small start-up so pretty much anything we do is up for negotiation, and we're all just learning as we go along. I'm curious if I should ask for a percentage of the proceeds from the book, and if so how much? I also had a sketch artist do some work for the book, but again they were paid a flat fee per-post. I realize this question is a bit out of the usual for you blog, especially because it's not fiction, but I've struggled to find the answer I'm looking for anywhere else. Thanks for your help!

What you'll ask for is a royalty rate.
If the book sells as an ebook, you ask for a percentage of the money received.
Generally when I negotiate this, I ask for half of net proceeds.

That means if the retail price is $1.00, your company will receive some amount that is
$1.00 less $X.

X is the amount the places like Amazon or BN.com charge you for selling and delivering the book.

You ask for 50% of [$1.00 - $X]

[Remember when you were sure you didn't need math after high school?
Welcome to the 21st century.]

Start by asking for 50%, but you'll probably have to settle for somewhere closer to 30%.

One thing you did NOT mention in your question is who is registering the copyright, and in whose name the copyright will be filed.  You'll want to get that taken care of pretty quickly.

 

38 comments:

Lisa Bodenheim said...

Opie, how wonderful to have an 3-book completed and ready to go. Regarding your comment about the sketch artist...My non-fiction book was published by a small company and my sister created the graphic design for the cover. She was paid a flat fee for her work while I receive royalties.


And, off-topic, I'm just noticing the subheader (where was my brain when this new one was posted?). Congrats, Adib. I agree. So much encouragement here and such a steep learning curve.

Lisa Bodenheim said...

aack. Sorry. e-book, not 3-book. More caffeine.

Susan said...

This situation would have me concerned, too... Opie, you say this is an e-book you completed for your company--is it a company you own or are you an employee for someone else? If it's the latter, I think that could open up another can of worms wherein negotiations need to go beyond the royalty rate. If you leave the company, if the company is bought out, if any set of scenarios happen, are they prepared to continue paying you your royalties for the work you've created for them? Or would you sign everything over to them?

I don't know the details of the situation, but I feel like this can become pretty dicey quickly. I'm wondering if there's a way to resolve it so that you're paid what you've earned as well as protected against future complications.

Susan said...

Using up my second comment to say:

Math. Ugh. I majored in English in college and cheered once my gen-eds were out of the way so I could concentrate on writing and reading all day long. Wouldn't you know it, after I graduated I spent six months in communications and six YEARS working in international finance/foreign exchange. English majors working at banks: your money isn't safe, kids.

To be fair, though, I have a new appreciation for math after reading "The Housekeeper and the Profesor" by Yoko Ogawa, thanks to my boss's shared love of reading. Devastatingly beautiful book.

Julie.M.Weathers said...

Former editor and forever friend wrote some horse related books that have sold very well for a well-known magazine. She was paid for the work as well as a royalty on some of them. Later ones, they just paid a flat fee and that was that.

So, I guess the answer is negotiate for a royalty if you can get one, but there are no guarantees. You've already been paid.

E.M. Goldsmith said...

I have, over the years, done a great deal of this kind of thing. My clients find out I can write as well as design software so they pay me a flat fee to add chapters to their technical publications. I charge extra for doing this kind of technical writing, but It never occurred to me to ask for royalties. Good on you, OP, for just asking. I do not have great business sense which is reason 1,432 for seeking an agent for my fiction.

Jamie Kress said...

I'm curious about one detail. The OP says she 'found and collected' the interviews. I am taking this to mean that she/he actually found people, interviewed them, and collated the resulting product. However, another interpretation is that these were extent interviews that were researched, rounded up, and put into a collection. If that's the case, aren't there potential copyright permissions needed to (re)publish them?

Dena Pawling said...


OP wrote “I've done all the work” and lists things like finding and collecting, but specifically absent in the list of things done is the actual interviewing of the people and writing of the book.

Who did the writing? If OP also did that, I agree it would be a nice bonus to get royalties also, but I wouldn't hold my breath. Even the sketch artist was “fee per post.” To me this does sound like work for hire, and OP has already been paid.

The copyright issue is definitely important, both for the writer AND for the sketch artist. And come to think of it, will the people who agreed to be interviewed want a cut too? Is that common?

Good for you OP for thinking to ask the question!

BJ Muntain said...

"We're a small start-up so pretty much anything we do is up for negotiation, and we're all just learning as we go along."

It does sound like it. The work OP did really does sound like work-for-hire, so the ability to negotiate for royalties is rather surprising.

Normally, in the contract you sign when you agree to work there, there would be a clause that says, basically, "Anything you write in the course of your job belongs to the company."

OP, go for what you can get. It can't hurt, right? But if your contract does cover this, and you're denied, don't let it hurt your relationship with the company. It sounds like an exciting place to work.

Matt Adams said...

Opie, I'm pretty sure that since the company was paying you to do the work, the material belongs to them, or at least that is what they would argue should it ever turn into a fight.

For example, if I wrote a sales training manual for my old company (which I did), and I don't get to go to them to and demand payment for every time they use it. Writing was not a part of my job description but I entered into it willingly as part of my job and did it during hours they were paying me. The work belongs to them, no matter what the original intent was. They could give me permission to take it for myself, but if they didn't, then I'd imagine a legal fight on mynahs.

If you had scripted out earlier in the relationship then it might be different. But if they paid you to produce something, so I'm pretty sure it belongs to them.

Marc P said...

My take. You didn't write or create anything original. You were paid to collect and transcribe and present this information in a document fit for purpose as per instructions. Your company owns all this as you were following the terms of their commission in house. If you can get them to sign over part rights to you now. Take their arms off.. especially at the third of royalties that JR posits. :)

Angie Brooksby-Arcangioli said...

Would it make a difference if OP's boss/colleagues had planned to publish but might not have mentioned this beforehand?

I'm wondering if OP's work developed into something worth publishing or if the colleagues knew they would publish. Who's idea was the work? Also, could OP use this work as a future publishing credit? Assuming they could negotiate some claim, but OP says everything is negotiable. I don't know if work for hire can be claimed by the artists/ writers.

I know scientific publications have first, second... last author. The placement of the names has a hierarchy. Anyone collaborating should be considered author.

Julie.M.Weathers said...

In re-reading this, it does sound very much like the original questioner rounded up some existing interviews and put together a book for this company. If so, I can predict some major problems and don't assume people won't find out.

Former editor was at the post office one day and happened to notice an advertisement for a stud farm. She asked to look at it as it seemed very well done, and was. The printers did a great job. The only problem was the owner had collected a bunch of Diane's articles and lifted excerpts to highlight their various horses.

She contacted them and told them they didn't have permission to use her work.

"It's on the internet. It's free."

"No, it isn't. That's copyrighted material and you have to remove it. I'll be happy to write copy for a fee, here are my prices."

"I'm not paying for stuff that's already been written."

"Speak to my attorney then and he'll explain copyright."

Several thousands of dollars in a very pretty, very slick, very illegal brochure down the drain.

Colin Smith said...

I have nothing to add. All the wisdom on this issue is with those that have been there-done-that, which is not me. Probably just as well since I've migrated from the slush pile to LAX. Does this mean I'm back on Earth, or is my exile TERMINAL? :D Actually, I doubt Janet wants to release me from LAX, because then I'd be Ex-LAX, and she really doesn't want me running loose...

Julie: "It's on the internet. It's free." *slaps head*

Craig said...

I think it is a great learning experience. Learn from it and have you eyes open the next time. If you push it polishing your resume might be in order. You agreed to be paid by the hour for it so it is water under the bridge.

Most of the legal precedents have sided with the company you were working for. Make sure you spell it out in advance the next time.

Elissa M said...

Julie quoted something my sister (a middle-school librarian) runs into daily: "It's on the internet. It's free."

One thing my sister strives to teach her students is the basics of copyright. What makes her job more difficult is she gets the "internet=free" comment regularly--from fellow faculty members. And yes, while there are exceptions for educational purposes, those exceptions don't mean teachers can use anything and everything they find in its entirety with no regard to copyright.

As far as the OP's question goes, it does sound like work for hire to me as well. But I don't see how it can hurt to ask for a royalty.

The point others have brought up about what exactly did the OP do, is a concern. "Finding" and "collecting" the interviews sounds like the OP dug up other authors' work, but it could mean OP "found" the interviewees and conducted ("collected") the interviews. If it's the former situation, that's a whole 'nother can of worms.

BJ Muntain said...

Angie asked if you can use something written for hire as a publishing credit:

Yes and no, really.

On a resume or CV, or in a portfolio of your work, yes. You can use it. It's a good idea to get permission from your employer if you're going to be showing it to others. If it's an internal document, you may need to redact all internal information.

In a query letter? Iffy. I would say, if it has a direct relationship to what you're querying (such as a brochure on a local historical event, when your book is specifically about that event), then mentioning it wouldn't hurt; for instance, "I researched and wrote the Specific Local History Society's brochure on The War over the Dung Pile" might fit in your publishing history, if the novel is centred on that event.

If you've written a brochure on a medical condition, though, and you write science fiction that has nothing to do with that condition, then it's 'right out', as Monty Python might say.

BJ Muntain said...

Elissa: I'm not a copyright expert, by any means, but I've done a lot of reading on it.

It really bothers me when people say, "Well, it's fair use," for anything from one cartoon out of a collection to an entire article 'for educational purposes'.

You can claim 'fair use', but that doesn't mean that you'll necessarily win a court case. And the only one who can actually decide if something is legally 'fair use' is a court. And honestly, that is not where you want your use of someone else's work to be decided.

/end rant. And that's my three comments for the day. I look forward to reading everyone else's thoughts.

Janice L. Grinyer said...

Up to a certain point it sounded like you, OPIE, was specifically tasked to gather this information as paid for hire, since the e-book was going to be free to the public.

Once it was announced that the e-book was going to be sold, would you, OPIE, still have done the work involved without extra compensation if you knew this upfront? Were you included in the discussion to change it from free to $$? If not, you may have less bargaining power in the company's mind.

And yes, the copyright issue is important.




Dave Rudden said...

OP if you were paid for the work, then you will be hard pressed to negotiate a royalty percentage for the work you have already been paid for. This will depend on your company intellectual properties policies. Most companies will argue that since they paid you for the work, they hold the intellectual properties rights.

Next time, negotiate a royalty percentage up front.

Dave Rudden said...

Comment 2

As for the math. This something everyone should understand, especial if they plan of publishing a book with an literary agent.

This is just an example:
A book sells on Amazon for $1.00.
Amazon takes a fee of 35% or $0.35 of every dollar
The publisher pays the author 30% of the $0.65 remaining. This means $0.20 for the author.
Out of that $0.20 the agent takes 15% or $0.03
Leaving $0.17 for the author of each book sold at $1.00

Now the fun part. If the author was paid an advance of $1,000, which the agent takes 15% or $150, that must be paid back to the publisher. The book would have to sell 5,128 copies before the author receives a penny beyond their advance.

You can wake up now.

Colin Smith said...

[OT: PSA]

I suppose it's in the woodland creature instinct that when an agent gives guidelines to good practice, we want to take them as rules, laws to be obeyed lest we incur the wrath of the Publishing Industry and find ourselves exiled to Carkoon, or LAX.

So may I offer a gentle reminder of QOTKU's words from Sunday?:

"I don't mind some minor straying but it needs to be within hailing distance of the actual topic. Y'all are smart people. You know when you're going too far. I trust you to manage yourselves."

Note those last three sentences. I don't think Janet intends us to be pedantic over only three comments, and heaven forbid you stray over 100 words. These are guidelines for those who have trouble determining if they've "gone too far" or can't "manage" themselves.

I'm trying to be better about not overloading the comments, but that's as much for my benefit as yours. That extra commenting energy gets used on my WiP. :)

[End of PSA]

Julie.M.Weathers said...

Angie,

"I don't know if work for hire can be claimed by the artists/ writers."

It depends on their agreement, but look at VAMPIRE DIARIES. They were work-for-hire, but Smith still has her name on the novels as creator even though they are written by ghostwriters. She still gets royalties on books even though she hasn't written them.

You probably won't see a writer's name on clever ad copy, though.

When I worked for the magazine, my name was on most of my stories, but we had some smaller stories we grouped together into a "recap" and no credit was given.

I could use the tear sheets of these stories as samples of my work certainly.

Regarding queries. Forgive me for being long-winded today. This is my bio on my queries.

I was a lead writer for ABC, a weekly horse racing magazine, for twenty-three years where I wrote race and human interest stories. I now write for Raincrow Studios, LLC., an indie game developer.

I include this because it shows I have enough whatever it takes to hit a tough weekly deadline for 23 years without waiting for the muse to move me and I should have some of the basics down. It also demonstrates I should know a bit about horses and all of my fantasies are heavily horse cultured. The game company is a good platform for a fantasy writer. Gamers are readers.

Patrick Rothfuss draws heavily on his chemical engineering background for his fantasies. You wouldn't think writings about chemical engineering would have any bearing on fantasy until you study his magic system and realize how perfectly believable it is.

Anyway, sorry for rambling.

Karen McCoy said...

Excellent advice from the shark, as always. And a good snapshot into royalty rates. This might have been asked already, but I'm curious whether the same rules apply to fiction, or whether it varies across the board.

And great contest entries from the weekend! The finalists all gave me chillz.

And yes. Math. Ugh. All the time. As a book buyer, my life is now percentages, calculators and spreadsheets.

Had a dream last night that we all sat in a sunny park on picnic blankets and discussed books and writing. It was beautiful.

E.M. Goldsmith said...

Like Karen, I am curious how the math works for fiction? While I suspect the OP's situation is indeed fee for service, regardless, my understanding of royalties is limited. Also does it vary for point of sale (Amazon vs BN) and media type (hard back, paperback, audiobook, kindle, etc)?

Now back to negotiating my way off Carkoon before I end up with Colin in LAX.

Panda in Chief said...

Great advice from the shark and previous commenters. My question is how many books are they expecting to sell, and is it really worth all this angst after the fact. The most valuable lesson to be learned is in going forward with new projects. Since OP did the writing in the course of his paid time at the office, it sounds like work for hire.
I guess it never hurts to ask, but only if you aren't putting your job in peril (if it's some place you want to continue working.) you could frame the conversation in terms of a future writing project, but. I wouldn't hold your breath over getting paid for this one.

brianrschwarz said...

Dave,

In my experience that's how this works with music contracts. In fact, in music they actually level out the advances against the life of the contract so lots of artists never make a royalty. For instance, if you get paid 10,000 in an advance to put out your first record, and 20,000 in advance for a second a year later, and your first record only earns $3,000 in sales, you won't be seeing a royalty until you earn $27,000.

But, and this is a big but, to my understanding not all advances are considered recoupable by the publisher. (Janet, correct me if I'm wrong here.) The contract dictates what is considered recoupable and what isn't. So there is a chance your 10k advance is a freebie.

Another consideration is the publishing machine. Businesses live and die off profits, and the marketing machine on a traditionally published book is far more powerful than the average Self-Pubber (who sells approximately 100 books at 2.99 a piece for a grand total of $299). Even the exceptional self-pubber would need to sell 2000 books at $5 bucks a pop just to break even with the advance. And that's with marketing coming out of their own budget, so most savvy self-pubbers will end up siphoning all that money right back into advertisements. Sure, publishers lose money on books sometimes, but in most cases the machine works at least well enough to recoup the advance, or the advance price would be lowered (or dissapear completely). This doesn't mean debut authors are taking home 50k a year... heck, they're probably not taking home 10k a year... but it does mean things aren't quite so desperate as they appear.

For the vast majority of situations, you can have 95% of a little bit of money, or you can have 17% of a significant amount of money. There are exceptions to both cases, but that's a more accurate breakdown.

In other news - I can finally see Janet's blog at work so now I can actually comment instead of lurking for the past few weeks. :) YAY! The Captain is back to his BS'ery.

brianrschwarz said...

Also, to my knowledge most publishers do not do carry-over advances unless the contract is multi-book. In which case, you could put up a stinker for a fair advance and possibly (though it would have to be quite a book for someone to take another risk) get another advance that wouldn't need to recoup the first.

Sorry, derailing the convo I know. I just love the subject because people complain about publishing contracts saying they're a bad deal -- but if they want to see a bad deal they should take a look at a few of my friends music contracts... Try more like 2% royalties if your lucky... oh and split that between 5 sweaty guys who you now have to live with 9 months out of the year in a used van.

:)

Carolynnwith2Ns said...

I got nothin’, no pseudo intellectual advice, no humorous anecdote, ( spell-check had to help me with anecdote), no all-knowing seer-like expressions to help you get what I think, you think, you deserve, except to say, you’ve been paid already.

Your compilation, writing effort and outcome, provides wonderful experience. I say take the high road. Whether you own the company or not, let it be known, you did this one for the team baby.

Respect and accolades will fill your good-karma writing portfolio to overflowing. Next time is another thing entirely. If this one is successful they will be throwing money at you for the next one.

I guess I did have something to say.
(I went over my word count, I’m a bad girl.)

Carolynnwith2Ns said...

Hey Colin, Mr. LAX-PSA announcer. Your time at the mike hit 170 words, mine stint was 113. We're both bad but I win.

I'll bet in school you collected the homework papers and got to clean the blackboards and clap the erasers.Love you man.

NOW I'm off topic and really dating myself.

InkStainedWench said...

I was hired by a book packager to write several books which were then published by major publishers. I don't own the rights, but my name is right there on the covers.

Do I use them as publishing credits? Damn skippy.

Ask a Manager said...

Y'all, this really sounds like it's work for hire. In most offices, the OP would come across as very tone-deaf if she asks for royalties. This isn't people collaborating on a book outside a workplace; it's happening at work, they've paid her to do it, and it's almost certainly falling under work for hire, which means that her pay is her salary/wages, not something on top of that just because this particular work project is a book.

Colin Smith said...

*claps erasers over 2Ns' head*

Actually, I was teacher's pet. She kept me locked up in a cage at the back of the classroom... ;)

Donnaeve said...

I'm late, but I have to say ditto to Ask a Manager's answer, (a handle which seems so appropriate considering said topic) because I did something very similar in my corporate days, for multiple pieces of "work."

For instance, I wrote a white paper on Web Conferencing which was eventually published on the company's website, but if they had decided to put it in a book along with all the other whitepapers and called it "Nortel On Nortel" (our promo line about our IT software/hardware technology running our business) I highly doubt they would have paid me any royalty. They would have looked at me like I'd grown two heads and said, "Uh, hello, salaried?"

Which is all a moot point - and my little ole whitepaper is lost to the ages because our company is no more.

The End.

(***Colin - totally cracked up over your Ex-LAX and running loose.)

BJ Muntain said...

RE: Advances

I know Janet is going to speak to this, because it's an important topic.

Still...


A) In a reasonable contract, the advance isn't based on how much the writer gets per book. It's based on how much profit the publisher makes. So 'earning out your advance' does NOT mean you make as much money in royalties as you recieve in an advance. It means that it earned the PUBLISHER the amount that was given in the advance.

B) Advances don't necessarily (ever?) have to be paid back if they don't earn out. I believe Janet recently mentioned that - in contracts she negotiates, anyway - the only time the author has to pay the advance back is if the publisher will not be publishing the book due to editorial concerns. Which I believe means that the author's work just isn't as good as the publisher expected it to be, or the author hasn't been keeping up on their edits.

C) It is often possible to negotiate a contract where the earnings are NOT contingent on how a previous book did. What I mean (and I cannot for the life of me remember the correct wording) is that, if the advance for the first book is not earned out by the first book, that negative balance will not be carried over to the earnings from the second book.

Often possible. Not always possible, but as I understand it, it's what agents strive for in their clients' contracts. That, and full accounting for how many books sold at what price.

This sort of thing is why agents are so important.

One teensy thing more: the OP said that this is a new company and "pretty much anything we do is up for negotiation". If that's the case, and if the contract the OP signed when hired does NOT include a clause saying that 'anything you write on the job belongs to the company', then hell yeah, try to negotiate. Be fair, though, knowing that you've been paid for your time already, and don't negotiate yourself out of a job.

Colin Smith said...

Donna: I'm glad I could bring some light--um--relief to your day... :)

And for what it's worth, back in my technical writing days, I co-wrote a user manual for a software product. I wasn't credited. It was part of my work. And, in fact, the company policy was that ANY intellectual property made by company employees on company time, whether it's a piece of software, or any documentation, is owned by the company. I think that's pretty standard.

Carolynnwith2Ns said...

Whew...spitting...sputtering what is that white stuff? Quaker Oats? Pillsbury? Johnson and Johnson baby-butt powder? Ah ha, chalk.

Hey Colin I'm glad you're finally out of your cage. You can lock the door on mine now.
Where the hell did I put my key? Don't look.

Megan V said...

Slightly off topic,but...
Elissa M— Back when I was a law student I was part of a legal clinic that taught workshops for students/teachers on fair use/copyright/free speech (with a focus on student speech and social media). I don't know if you(or your sister) would be interested, but I could probably put you in touch with the clinic and/or get you some of the clinic's workshop materials.