Oct 24 2012
Wednesday News: Harlequin lawsuit updates; Facebook men try to shame 12 year old girls by calling them sluts; Richard Curtis thinks trad publishers should rethink digital first.
In the answer, Harlequin essentially says “so what.” It agrees that the contract dispute is over the All Other Rights clause under which author’s royalties were based not on a percentage of the “Cover Price” of the e-books but, rather, were specified as 50% of “net amount received by Publisher for the license or sale of said rights.” “Publisher” was defined as either HEBV or HBSA, and “Related Licenses” was defined to include Harlequin Enterprises. It also seem to agree, at least for the purposes of the motion, that HEBV and HBSA were set up for tax purposes.
One other note I thought was interesting was that Harlequin argued that the agreements said that the Net Amount Received for the license of the rights by Harlequin Enterprises “shall be equivalent to the amount reasonably obtained by Publisher from an Unrelated Licensee.” This, I think, goes to the crux of the matter. What was an amount reasonably obtained by Publisher from an Unrelated Licensee for the exercise of digital rights?
But in sum, it appears Harlequin is saying that assuming everything that the plaintiffs say is true (which is the standard in a motion to dismiss – that all facts are construed a light most favorable to the non moving party which would be the authors in this case), the authors entered into these contracts which had clearly defined terms, agreed to such terms, and therefore the contracts should be upheld.
Harlequin argues that as to the piercing claim, the authors haven’t pled sufficient facts to state a claim. In general federal courts are fairly lenient on this. I once had a fraud cause that I was defending and was so sure I would get it dismissed on a 12(b)(6) motion because the complaint was so poorly drawn (in my opinion) but it didn’t get dismissed and ever since then I’ve bitterly complained about the slack-adaisical attitude toward this pleading requirement. Fraud and alter ego claims are required to be pled with “specificity” but generally I feel like if you make even a half hearted attempt it will be sufficient overcome a motion to dismiss.
My best guess is that Harlequin’s motion is denied. However, this piercing claim is going to be tough for the authors to win based on what we’ve seen alleged. Maybe there are better facts that will be developed through the trial. The issue of fairness as to the reasonable amount that could be obtained by an unrelated licensee could be a winning issue but again, I’ll have to see more.
“In order to become a purely e-book operation, a conventional publisher would have to release most of its staff and move to far smaller quarters, for many tasks performed by ten in the old business, such as sales, distribution, art direction and royalty processing can be performed by one or two in the new one.”
I’m not sure why conventional publishers can’t offer both a digital first arm in addition to print books but Curtis’ argument is mainly aimed at paperback first originals. What he doesn’t take into account is reader preference. I’m not sure the reader is part of Curtis’ author, publisher equation. Readers, empowered by Amazon and other retailers, are moving toward digital books. This move doesn’t leave behind paperback originals but it does suggest a shift in the market.
The reach of 50 Shades and how one book propped up book sales at brick and mortar stores around the world show that the reach of print is strong and that digital first can be an important part of an overall publishing plan. Digital Book World
Facebook refuses to take down the page. Emily Heist Moss wrote a post about how difficult it is to be a teenage girl in this digital age.
The crux of the problem for this girl, let’s call her Susie, is that she’s stuck between a rock and a hard place. On one side, there is the crushing pressure to be sexually desirable… On the other side, Susie knows that she loses the desirability game if she caves to the desires she has inspired.
But yes, let’s target the girls here who are posing pictures of themselves because at age 12, they should really know better, right? And who is better equipped to label them sluts than 19 year old men on the internet. Huzzah. I read Uses for Boys by Erica Lorraine Scheidt. It’s a very moving story about a young girl who longs for love and a family and tries to find it in the arms and beds of boys. Maybe it should be required reading for males. But it probably wouldn’t make an impact.