Leaving aside whose fault the whole fiction or memoir? controversy was — it was at least partly the publisher's own damned fault — Frey has branched out into being a book packager at Full Fathom Five llc. There's a story on it in New York Magazine, but it doesn't even begin to get to the real perfidy: An author acting even worse as a publisher than commercial publishers. I couldn't even get more than halfway down the first page without wanting to strangle someone:
This agreement, dated as of June 17, 2010 (the "Agreement"), by and between Full Fathom Five, LLC ("Company") and Suzanne Mozes ("Writer"), is in connection with Company's engagement of Writer on the writing of the initial book in a possible series of books based upon a story idea owned by Company currently entitled the "Untitled Magic Painting Project" (the "Book"). (The Book and any subsequent book in the series are collectively referred to as the "Series".) In consideration of the compensation set forth in Paragraph 4, Company's contribution of original creative material to the Book, Company's efforts to secure a publisher for the Book, the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of Company and Writer agree as follows:
1. Engagement / Services. Company hereby engages Writer on a work-for-hire basis, under the supervision of and in collaboration with Company, to write an outline of the Book (the "Outline") and an initial manuscript of the Book (the "Initial Draft") and any revisions to the Book as requested by Company.
[Proposed] Agreement of 27 Jun 2010 (PDF) ("Mozes Proposal"). Let's start with the most-obvious problem: This contract violates the Copyright Act.
The work-for-hire doctrine is almost unique to American copyright law, at least for non-employees. Its limits are defined in 17 U.S.C. § 101. The particular definition is divided into two parts: Works by statutory employees, and works by freelancers. Work-for-hire by freelancers is restricted to:
a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Let's see where Frey's effort fails:
- The contract probably constitutes a special order or commission, although I'm skeptical as to whether the specific description actually constitutes a "commission" — without appending the other specifics, it's too vague
- The contract certainly would be a written instrument designating the output as WFH, but
- The work does not fall into any of the categories of works eligible for freelance WFH treatment. It is (at least based upon the description in the contract and accompanying article) clearly not part of a motion picture or other audiovisual work; or a translation; or a compilation; or a supplementary work; or an instructional text; or a test; or answer material for a test; or an atlas. That leaves only — possibly — a contribution to a collective work... and this particular example comes nowhere close. Book-length works of prose, or a series of book-length works of prose, are not within this scope.
But it gets better...
... because there's another highly dubious claim buried in that opening paragraph: The assertion that "a story idea owned by Company" is the basis for the contract. No, no, and yet again no. "Story ideas" are not subject to ownership under the Copyright Act. The only possible bases for such a claim of "ownership" are:
- A trademark or trademark-like claim — which requires a preexisting commercial exploitation to be valid;
- A trade-secret claim — which will be forfeited upon submission of the manuscript to a publisher (particularly since the confidentiality clause, ¶ 11, does not designate the "story idea" as confidential);
- Some variety of unfair competition claim — and no such claim will survive under New York or California law. A Desny claim (under California law) would exist only for screenplays and teleplays, not for prose works.
Mr Frey needs an Atomic Wedgie; so does his lawyer. And authors should run away from Full Fathom Five until it, and its principal, grow up.