Three authors filed a complaint in U.S. district court asserting that McGraw Hill is in breach of contract for a recent change to royalty calculations for products sold on its Connect digital platform. The complaint, Flynn v. McGraw Hill LLC, 21-cv-00614, U.S. District Court, Southern District of New York (Manhattan), was filed on January 22 by Sean Flynn, Associate Professor of Economics, Scripps College; co-author of Economics: Principles, Problems, and Policies. (Now in 22nd edition.), Dean Kardan, Prof Economics and Finance, Kellogg School of Management, Northwestern U; co-author three textbooks: Economics, Microeconomics, and Macroeconomics, and Jonathan Morduch Professor of Public Policy and Economics at Wagner Graduate School of Public Service in NYU, co-author with Dean Kardan of the above three books. [Read more…]
Authors’ suit against Cengage hits snags
In October 2019, six authors, intending to form a class action together with other Cengage authors, filed a lawsuit against Cengage alleging that Cengage’s royalty accounting for proceeds from distribution of their products through the MindTap and Cengage Unlimited business models breached the publisher’s royalty arrangements with authors. In addition to the breach of contract claim, the authors alleged that Cengage acted in bad faith towards authors regarding the two products. Before a trial could get underway, Cengage responded by asking for all counts to be dismissed, and that the attempt to form a class action be denied. [Read more…]
Textbook rights reversion: How to get them back
Most publishing contracts are for the life of the copyright, so how could an author ever get their rights back? In her TAA webinar, “A Second Bite at the Apple: Getting Rights in Your Book Back”, Brenda Ulrich, a partner at Archstone Law Group, discussed the role of reversion clauses in a publishing contract, which allow rights in a book to revert to their authors under certain circumstances.
The issue of rights reversion can confound many authors, said Ulrich, especially as it relates to how broad the grant of rights is in any traditional publishing contract. “It’s a very broad, very wide, very long, license,” she said. “You are giving the publisher permission to publish the book, but you are not signing over the book to them forever.” [Read more…]
Q&A: Writing professors’ rights: Can the university claim the rights to your publication?
Q: Writing professors’ rights: Can the university claim the rights to your publication/royalties based on your employment at the time of writing the manuscript?”
A: Brenda Ulrich, Partner, Archstone Law Group PC:
“It’s an interesting issue. Under standard employment law the employer owns anything created by the employee in the scope of their employment. And certainly writing and publishing scholarly work is considered to be in the scope of a professor’s job duties. However, within academia there is what is often called the “academic tradition,” namely, that professors and academics own their own scholarship. Most universities will defer to the academic tradition and don’t try to claim ownership of the books and articles their faculty members write – and many state this policy outright in their faculty handbook or other policies. As a practical matter, it also just makes sense: if a faculty member departs for another university, everyone assumes their scholarship and publications will go with them since they will be continuing to build on that work at the new institution.
The place where I’ve seen the issue get murky or divisive is around things like course or teaching materials – both online and in class – which arguably have aspects of both scholarship and straight teaching obligations built into them. Course materials also might receive a lot more support and investment from the university itself – especially for online courses – such that the university feels it has more of a vested interested and right to use or license them later. In these circumstances I strongly recommend putting some sort of written agreement in place between the university and the instructor so everyone understands ownership and use rights going in.”
Pearson’s move to ‘digital first’: Perspective from a key Pearson executive (Part II)
On July 24th, I had the opportunity to interview Paul Corey of Pearson by phone for about an hour regarding the recent announcement that Pearson will move to a digital first strategy for its textbook business. Paul is the Senior VP of Global Content Strategy for Pearson, and thus plays a key role in developing and implementing plans like the digital first strategy. Paul also has primary responsibility for Pearson’s relationships with authors, so I was especially appreciative of the chance to hear his thoughts on how the new direction might affect authors.*
To begin the second part of our dialogue I asked Paul whether Pearson’s intention is to continue selling “one textbook to one student for a particular course, whether in digital form or print or some combination…or do you expect to see more aggregate sales where a single student gets access to a large body of content.” [Read more…]
Pearson’s move to ‘digital first’: Perspective from a key Pearson executive (Part I)
On July 24th, I had the opportunity to interview Paul Corey of Pearson by phone for about an hour regarding the recent announcement that Pearson will move to a digital first strategy for its textbook business. Paul is the Senior VP of Global Content Strategy for Pearson, and thus plays a key role in developing and implementing plans like the digital first strategy. Paul also has primary responsibility for Pearson’s relationships with authors, so I was especially appreciative of the chance to hear his thoughts on how the new direction might affect authors.*
I started the conversation by asking Paul about the principal reason for Pearson to shift its focus to a digital-first strategy. He responded with three specific rationales for the move, not necessarily in order of importance: [Read more…]
Pearson’s ‘digital first’ announcement: A legal perspective
Interpreting, Adapting, and Amending Textbook Publishing Contracts in a Changing Publishing World
Interpreting, Adapting, and Amending Textbook Publishing Contracts in a Changing Publishing WorldIn announcing its new strategic commitment to digital courseware and its dramatic break from the traditional model of successive print editions of textbooks, Pearson addressed a letter “to our author community.” In the letter, Pearson emphasized its ties to “our authors and partners” and declared that “together we can provide updates, enhancements, and digital functionality to respond more quickly to changing customer expectations, demands, curricular shifts and developments in your field.”
One thing that Pearson did not address in its letter to its authors is how it proposed to interpret or change existing publishing contracts in order to be able to go forward in a “digital first” world. It’s what the contracts say that counts, and many of these contracts are very difficult to apply in the changing publishing world. [Read more…]
Cengage authors begin to receive royalty statements under Cengage Unlimited plan
While some Cengage authors are still waiting for their first royalty statements under the company’s new Cengage Unlimited plan, which, launched in August 2018, offers students access to its database of textbooks and other online content for a flat fee, several have received their statements and shared how the new plan has affected their royalties.
TAA President and Cengage author Mike Kennamer said royalties from CU were included on the most recent statement for one of his three Cengage titles. “The royalties generated from CU, for me, were insignificant and overall sales are down significantly,” he said. “I plan to reach out to Cengage’s Author Relations team to ask for help in interpreting my statement, which is less than clear.” More than three weeks later, he said, he is still waiting for a response. [Read more…]
Reflections on negotiating a contract 4: Royalties
My previous posts have been concerned with the large number of different issues in my contract as well as the general question of what ability I had to negotiate/renegotiate with my publisher who has a ton of leverage compared to me, a relative unknown. This post follows that basic theme, but looks specifically at the question of royalties.
One of the first things I’ll mention is the variety of different royalty clauses. To start, there were the basic book formats: hardback, paperback, and e-book. Following these were another dozen or so clauses, split into “rights and royalties” and “subsidiary rights and royalties,” which included things like international rights, audio and video rights, book club uses, use of excerpts and more. [Read more…]
Reflections on negotiating a contract 3: Emotionally loaded details
This is more of my neophyte reflections on negotiating a contract. My previous post looked at the many different issues covered by a contract and the basic difficulty of handling so many issues. This post on focuses on some of the more emotionally charged clauses.
For me, part of the stress of contracts is that they force you to think about extreme cases because it’s easy to get emotionally charged while thinking about extreme issues. For example, there are clauses related to future editions and to the publisher’s rights for future editions. Future editions are an “extreme case” because they only become an issue if the book does extremely well. [Read more…]
