ATTN Piazo: Dungeon mag and Dragon mag CD-roms & the Tasini v NY Times decision

[Henry]

First of all, I'd say that Sean's rather lengthy "point 1 - point 2" post best summed up my opinion on the matter, too, in a better fashion.

Lets say I had been one of those freelancers and had authored up an amazingly good article on DMing political intrigues in a freeform manner...I know my best work is sitting there in an old Dragon, and I want to take it, update it to RPG-X, and republush it.

If I still have second rights I can do this, but if I sold the thing off fully I'm at a loss. Not only that but if I write something original but a little too similar for Publisher-X, I and they might get sued by Hasbro (witness how Gygax got sued over Dangerous Journeys - and all he did was write in the same genre as he had for TSR)...

As you say, the author still with second rights is at no loss - he's updated the article, and the old article is still for a low-popularity old RPG system; the new article has lost no value by reprinting the old one.

I don't dispute an author with a first-print only contract; if a CD compliation is truly just a reprint, as I think, then the publisher would be well within its rights, the author got paid exactly by contract with no need for additional recompense, and the serious fans (the only ones buying the thing, anyway) win by getting access to old difficult-to-get material.

My point that you quoted was that most writers of RPG material are serious fans of the hobby (since it pays comparatively poorly, that's likely the MAIN reason they are writing in the first place IMO). As such, faced with contending a contract that is POSSIBLY violated, for small recompense, versus letting it stand as a reprint run as the publisher believes, the majority of them will likely get something that has intrinsic value to them as fans. I'm not saying they should "shut up so as not to be spoilers" or any such thing, but I'm stating a not-so-obvious benefit to reprinting said material to writers of the old product.

Now, if they had started picking and choosing what to print out of the old magazines, instead of printing in total, they would DEFINITELY be violating any "First-print" clauses.

 

[JollyBGood]

<<3- For the very small percentage of writers that cannot be located, I suggested to just not include them. >>

<<And just in case you didn't read the posts, let me state that my point was that publishers should try to honor their contracts. >>

That pretty much sums up my thoughts on the matter.

 

[woodelf]

Only thing that gets to me was that i never even heard about this back in 99 and 2k.

Really? That's why i didn't buy the CD-ROM. Now, my recollection of the details at the moment is fuzzy, but i do recall for certain that the Tasini case was part of the issue. Anyway, there was a group of authors trying to either prevent the CD-ROM compilation, or get recompense for it. The authors complaint was that they had not authorized further publication of the works (at least some of the articles in Dragon were sold for first publication rights only, and almost all of the fiction), and this constituted a distinct publication. WotC's (or was it still TSR?) argument was that this was an "archival reproduction" (i think i've got the term right), and thus didn't require explicity permission, or additional payments. Problem is, that clause was at least originally intended for *library* backups, not commercial sales, and a lot of people think it's abusing the loophole to sell such works, except to libraries. It's further complicated by the fact that, at least prior to Tasini v. NY Times, the law was behind the technological times, and didn't explicitly address this sort of thing--it had previously only really had to deal with microfiche and microform, media that didn't really have a commercial market anyway.

If i would of heard an official "we can't make any more cdroms due to the tasini decision" from an offical source, it would of been easy for me to understand what was up with the CD roms i was hoping for.

I don't think they would want to make such an announchement, because (1) it might make them look bad to the public ("we did this bad thing, and we can't do it again") and (2) acknowledging the relevance of Tasini might make them more vulnerable to having to pay reparations/royalties to the suing authors ("yeah, we know this is illegal, but why should we pay them?")--legal repurcussions can easily get you long after the publication is sold out.

Anyway, and this is only rumor, rumor has it that if they'd paid what the authors thought was reasonable recompense, and sold the CD-Rom at the price they did, they would've lost money even if they sold every last one. Which, if true, would mean that if the court case went forward and th authors won, i'd say that would have a pretty powerful squelching effect on further CD-Roms (not mayn companies actively pursue products that'll lose them money).

Oh, as for sales and availability: i think two things hurt sales about equally: scuttlebutt about the court case (at least online) [i remember hearing from others who refused to buy it until there was a compelling claim that the authors had been fairly recompensed], and D&D3E--the changes in the new system were sufficiently radical that i suspect the appeal of a huge archive of older articles decreased significantly.

 

[Janx]

well not being a lawyer, I didn't pay attention to the case, and I was happy when the CD was published and I bought it.

Now I was certainly aware that TSR/WotC had been concerned about making a CD in the years before when Sean was an online rep back in the rec.games.frp.dnd days. Back then, they had stated concerns about the storage media (an old server in the basement) and authors permission. But then years later, they announced the CD, so I assumed they found a solution.

Ironically enough, those of you advocating a "publish only what you get permission for by asking the authors" would actually set precedent for the archive NOT being a simple reprint. If its not the same as it was published, then it is not a reprint. The only likely legal way for it to count as a simple reprint is for it to be intact, with no changes. That's probably why the Lawyers gave the OK for the project, because TSR/WotC was thinking about it for years.

From WoTC's standpoint, they honored their contract as they probably feel a reprint is within their rights.

As sean and I both stated, the authors and artists are NOT technically hurt (though the best argument I've seen is the one about Gary's Dangerous Journey's lawsuit).

If the best article you've got is 15 years old, and you can't write better now, you probably shouldn't be trying to make money in writing.

The odds of being sued for a rewrite of an old article in a magazine is pretty low. Especially if you actually rewrite the thing. Remeber, they may own the particular arrangement of words, but not the idea.

Call me unsympathetic to authors' rights. Or perhaps its the fact that my employer owns all my good ideas (but strangely won't own up to my bad ones).

Janx

 

[woodelf]

It does set an interesting precedent, though: no magazine will EVER henceforth have electronic compilations for sale, because producers are too unsure of a fledgling magazine to pay more for perpetual or reprint rights to an article. Even should a mag gain popularity, it still means all early issues are lost for all publications.

Why? Why not a clause like "if there is an electronic compilation, the author will get X"? No extra cost for the magazine up front, and the authors get further compensated IFF there is further publication. I've never understood why all this speculation--why pay for ab unch of rights you may or may not use, and why sell a bunch of rights they may or may not want? Just sell the appropriate rights, as needed, and pay from them, as they're used. And you can still set up the parameters for all of this right up front--no need for renegotiation every time something new comes up.

 

[woodelf]

From WoTC's standpoint, they honored their contract as they probably feel a reprint is within their rights.

Or, at the very worst, likely enough within their rights that (1) they aren't likely to get challenged and (2) if they are, they believe they are likely to win in court.

Call me unsympathetic to authors' rights. Or perhaps its the fact that my employer owns all my good ideas (but strangely won't own up to my bad ones).

Well, that's another problem with the whole system, IMHO: companies shouldn't be allowed to own IP, only people should be. And IP should only be licenseable for the life of the creator (or some other reasonable, finite, time). The way it *should* work is that you are still the copyright holder of all your creations, and your company has, at best, an exclusive license of all rights for the duration of your life (and quite possibly only for the duration of your employment). Not only would things eventually pass into the public domain, as they should, but a company would have a vested interest in keeping their employees happy and employed, instead of a vested interest in canning the experienced, high-salaried workers in favor of the newest ones. [Of course, these licensed rights could be negotiated, perhaps as part of severance packages or terms of employment, so that everyone is mostly-happy.]

ok, enough of the soapbox.

 

[woodelf]

Lawsuit - n. a case in a court of law involving a claim, complaint, etc.
- Random House Webster's College Dictionary

Of course words can imply meanings not stated in the dictionary, but but it's the only place to go really to sort out what a word means.

But isn't it conventionally referred to as "filing suit" when you first lodge your complaint? It seems to me a bit disingenuous to refer to a lawsuit that was settled out of court as "not a lawsuit", no matter when or where in the process the settlement occurred. What if it was settlede after the bulk of the trial had occurred, but before a verdict was rendered? Is it not a lawsuit then? And, as used in the vernacular, i'm not even sure "we're going to sue" and "we're suing" are definitely distinctly different--if the intention is there, and it's simply headed off by a settlement before the paperwork is filed, rather than after, i'm not sure that really deserves to be a separate case [no pun intended].

All of which is, btw, not to address JollyBGood, seankreynolds, Kenzer, WotC, TSR, or any other parties involved or potentially involved in a particular lawsuit (or its lack) or a discussion thereof, since i know nothing of the matter, and had never even heard rumors about it until this thread. I'm purely addressing the claim, in the abstract, that it is forthright to say "there was no lawsuit" when one party threatened to sue but a settlement was reached before the suit was formally filed.

 

[woodelf]

I agree. What I don't understand is why the publishers can't afford pennies! Why can't the publisher make a simple agreement for the writers (the ones who they don't already have an agreement covering electronic rights with). Saying, for example, that they will be paid such and such a percentage of costs if sales exceed X dollars, but nothing if sales does not meet that amount? Seems like a solution that would make everyone happy.

Or, just ask for their approval to use their work for this purpose without payment.

Or if the publisher feels the administrative costs of doing that will be too high, release a CD with only the work that they already have agreements covering electronic copies with. (Meaning Jolly's work would not be included).

Well, on the only-those-bits-with-permission tack: as someone else observed, they probably can't do that. My understanding is that only by claiming it's a "reprint" or "archival compilation" can they legally be in the clear for those bits that don't have explicit contractual permission, and the former requires it be intact and virtually identical, while the latter looks pretty suspicious if it isn't.

As for "affording pennies": one, it adds up, and, two, as others have mentioned, the administrative overhead is likely more than the total profit margin of the project, let alone the portion that could/would be paid to the original creators.

Now, mind you, my response to this is "tough nuggies"--just because the only legal/responsible option is economically impossible doesn't mean you get to choose an illegal/irresponsible (and possibly immoral) option, just because it's financially viable. But i also understand that the cost of demanding the "right" thing be done is that compilations of this sort will often just never happen. Which i don't like. But that's life.

Of course, the other option is to raise the price of the product. It seems to me that the material production costs of CD-ROMs are so low that even with very short runs this might be viable. Clearly, the market for a $250 Dragon archive CD is much smaller than the one for a $50 Dragon archive CD--but since the per-copy physical production costs are probably not nearly as disproportionate as for some other media (such as books), it might actually be viable. I, for one, would gladly pay that if i knew that the creators had been fairly recompensed (and that that wsa what it took to make it profitable), but i won't pay $50 for the existing one until the question of lawsuits has been answered [right now, i have no idea if the lawsuit proceeded, was settled, won or lost, or something else.]

 

[woodelf]

Because that's what the profit for the creators becomes when they pay it. Therefore, as I was saying, if they are forced to pay royaltues for each copy to the thousands of people involved, it no longer becomes profitable to even undertake it, and therefore it doesn't happen.

And? Look, this is a consumer good you're talking about, for a niche hobby, and one that thrives on imagination and creation, to boot. Somehow, i'm not seeing the big downside to the compilation not getting published (especially when upwards of 3/4ths of the magazines in the compilation are fairly easy to buy in hardcopy, last i checked). Now, if i thought that this cause it to vanish forever from the public sphere, i might react differently. But the law already makes explicit exception for library archival purposes, so even if there were no electronic rights given, making a CD-ROM to be sold only to libraries should be fine [unless these recent court cases are changing that, of course].

Maybe I don't have the proper perspective, not being a published freelancer, but if I were faced with the prospect of buying a Dragon Anthology and not getting paid for my old work, or not having the anthology published because I and other freelancers demanded proportionate royalties - I'd take the anthology hands down, and screw the pennies, or the $1.47, or whatever it was.

If it were me, and the company said "hey, we want to publish this anthology, but you didn't sell us the rigths to do so, and we can't afford to do it if we pay you anything", i'd say "ok, you have my permission". If they didn't ask me (and i hadn't sold them the rights), i'd be pissed--but i'd probably get over it, because of the value of the anthology. But if they didn't ask others (whose opinion on the matter i don't know), i'd rather it didn't occur. See, i'm an easy-going person, and not that concerned about the ownership of IP (just very concerned about the attribution of IP). But i don't feel i can speak for others. So, if the company hasn't made a positive assertion ("we contacted those we could, and they said 'yes'"--as opposed to a negative assertion: "nobody contacted us to object"), i'm not willing to presume that the other creators are ok with this.

So, for me, the hierarchy of desirability would be:
get paid some more, and be able to buy anthology
not get paid, but give permission, and be able to buy anthology
some people don't give permission, and there is no anthology
some people don't give permission, and there is an anthology

It's not about the money, it's about the creative control/ownership. And i consider the negative of it not occurring lesser than the negative of that control being circumvented.

 

[frankthedm]

Bump, so what is going on with that dungeon compilation?