Little People

Lots of miscellany over the weekend... and I won't even be touching on the biggest piece here, because I'm representing another set of parties with a grievance.

• A Chicago parking-enforcement cop ran down a perp. On a Segway. Perhaps he was trying out for a spot in a music video.
• The Daily Telegraph wonders why we're so obsessed with starting times for the arts. It's a good question, but it betrays a slight class bias. Remember, it's not just a question of the "little people" who actually do all of those things like clean up after the theater crowd leaves (and might, just might, have to worry about child care). There's the implicit question of who actually attends arts events in person... and how easy it is for those attendees to themselves get away from their own "business hours." Or, perhaps, is the Telegraph assuming that the "little people" will just have to adjust to the preferred hours of the leisure class?
• Hollywood's concept of the "little people" is, essentially, "anybody who isn't a studio executive." One would think that, given the constant revolving door between "studio executives" and actual workers (or representatives of workers) in the visual entertainment industry, there might be a little bit more sensitivity to workers' needs. One would be wrong, as shown by the very "newsworthiness" of an article about two unions that don't get along very well sharing a building.
• The less said about the misguided conceptions of publisher branding, the better... especially when coming from another part of the "leisure class." My political sympathies may be closer to the Huffington Post's general viewpoint than to most other politically oriented blogs, but there's still a faint stench of entitlement wafting off my screen when I'm reading it. It's a slightly different (and less pervasive) odor than one finds at most of the right-wing nutjob blogs, but it's still there.
• Of course, it's not just in-person attendance at arts events that is bound by time. Consider the problem facing any relatively young enthusiast for classical music today: Many of the best performances either are not available on CD (Ozawa's Boston Symphony treatment of Beethoven's Ninth Symphony is still, to my taste, vastly superior to any of the bombastic Karajan versions available) or have dropped "out of print". Conversely, there's the question of exactly how a novel should be published (but then, choosing Dickens as a paradigm of how to do it today is consistent — again — with the Daily Telegraph's class prejudices).
• In copyright news, the Eleventh Circuit has agreed to rehear the Greenberg case en banc. This is good news for two reasons. First, it's procedurally necessary; the most-recent Greenberg decision is incorrect in overruling another panel decision (the purported justification stated in the opinion is pretty obviously a results-oriented self-justification that is inconsistent with the Eleventh Circuit's own case law... penned by a judge visiting from another circuit that just happens to hold a contrary view on the merits). Second, the earlier opinion was substantively correct, and the more-recent opinion (and the Second Circuit's take) is incorrect.

  Greenberg, at its core, is Tasini applied to photography. The ultimate question is whether the National Geographic Society's CD-ROM collection of its back issues is more like the database conversions rejected in Tasini or a true "reprinting" of the magazines. The key is to understand the contract issue behind this, because in reality this goes more to contract than to copyright. Could there possibly have been a meeting of minds between the photographer(s) and the Society on this issue? On these facts, no, for a very simple reason: The contract was not an all-rights/all-formats contract. That indicates that there was a clear intent to not transfer all ownership of reproduction rights — or, even in a more limited sense, an unlimited license in reproduction rights — from the photographer to the Society. And that's all that is necessary, once one actually reads Tasini (instead of Nimmer's shallow, but verbose, analysis).

• Last, and far from least, a publishing-industry figure is proposing that all book contracts go to a publisher's-receipts basis for calculating royalties, claiming

  In educational and academic publishing houses the system has been radically simplified by the almost universal application of royalties based on publishers' gross income rather than retail price.

  However, literary agents and many authors' organisations have set themselves against this because they fear that somehow a change would work against authors' interests. I don't think there is anything to fear and there is an enormous amount to be gained from the simplification, transparency, auditability, and shared motivation to reduce average discounts to retailers. How about agreeing new equitable royalty rates based on real money not a notional recommended retail price?

  Richard Charkin, "Royalties," Chark Blog (30 Aug 2007). Well, that might work... if:

  • Publishers, including Macmillan, set the royalty rates based on equalizing actual income sharing.
  • Publishers, including Macmillan (where Charkin works, and which has an extensive academic division itself, and whose recent contracts I've seen), stop trying to reduce that royalty rate further for "deep discount" sales and remainders. That's an artifact from a list-price basis that is completely unnecessary on a receipts basis, because the lower receipts already reduce the author's take. Given the constantly changing definition of "deep discount," it seems to me that this practice is just asking for trouble, such as collusion between publishers and distributors/bookstores to raise the "long discount" from 40% to 51%... which, if one does the math, will actually result in increased publisher profits if the trigger-point is 50%.
  • Publishers stop imposing a return against returns. This one is a little harder to see, but it's certainly a significant issue. On an "actual receipts" basis, using the language that is typical in publishing contracts, the publisher doesn't recognize receipts until they are actual currency in the publisher's pocket — that is, after the bookstore/distributor has actually paid. That ranges from 60 to 120 days after shipment, depending upon subniches and other factors. However, the vast majority of returns occur within 90 days of shipment — again, depending upon publishing niche, ranging from 65% to well over 90%. Thus, most returns will probably fall within the recognition window; that is, the copy will have been shipped, and returned, but no income will have been recognized on that copy. If no income has been recognized on that copy, why do we need a reserve against returns? <SARCASM> So the publisher can continue to have the author give it an interest-free loan? </SARCASM>

    Then, too, there's the indirect effect that — due to the semiannual accounting periods that dominate royalty payments — a substantial portion of royalty payments will be pushed back six months because the publisher has no royalty obligation until it recognizes the receipts. There's another interest-free loan from the authors to the publishers. And do you really think that the publishers would allow authors to impose a "receipts recognized upon shipment" definition in publishing contracts? That might actually enhance auditability...