A Lawyer's Thoughts on Authors, Self-Publishing and Traditional Publishing

Last updated Dec. 10, 2018, 4:54 p.m.

Books and Writing

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Everything Old is New Again

As regular visitors to TPV will have noticed, there was a great disturbance in the TPV Force over the weekend.

As with a zillion other blogs, The Passive Voice uses WordPress, an online, open-source website creation and content management program. In Blog World, WordPress is what Microsoft Word is for a lot of writers.

Previously, when WordPress issued a major release (for example, 4.0, rather than a dot release, 4.4), that meant major changes for the program, including security upgrades.

Generally, PG waits for several days after a major release before upgrading TVP to allow time for release bugs to appear and be remedied by the software publisher.

In the case of WordPress 5.0, PG was unwisely impulsive and updated TPV right away. He freely admits, this action comprised a frolic of his own. 

Under English common law, an employer is vicariously liable for the torts of its employees where these occur “in the course of employment”. This principle is enshrined in the common law doctrine known as “let the master answer”.  
In court cases dating back more than 200 years, judges have used the expression a “frolic of his own” to describe acts which are considered to be outside the course of employment and, accordingly, not covered by the vicarious liability of the employer.  

WordPress 5.0 feature in action!!!

WordPress 5.0 is a big change from the 4.x versions. Big changes to popular and complex software don’t always coexist harmoniously with all the different things people do with that software and the almost infinite number of combinations of software settings the program enables.

Additionally, PG is using an ancient WordPress theme (a theme provides the appearance overlay for the WordPress software so not all WordPress blogs look like all other WordPress blogs even though the underlying program is identical).

Additionally (version 2.0), PG runs a lot of WordPress plugins, smaller add-in programs that simplify tasks PG often performs on the blog, provide additional security, etc. Depending upon the the author of the plugin (perhaps a real software company, perhaps someone with a day job as an astrophysicist or truck driver who plays around with WordPress at night), when WordPress changes, the plugin may or may not be changed to work in the new software environment.

To speed this wandering story up a bit, when PG attempted to install the WP 5.0 upgrade, the install process spat out a strange error message. (If you ever see a pop-up message that includes the term, “xmlrpc.php”, run for your life!)

Had PG been a person with his wits about him instead of partaking in a frolic of his own, he would have stopped there, realizing that the electrons of the web universe were sending a warning that he was about to commit an error. (Abandon hope all ye who enter here! Love&Kisses, Xmlrpc.php)

Of course, he didn’t do this. After several other upgrade attempts that generated the same error message, PG contacted the excellent tech support crew at Hosting Matters.

 Of course, tech support is in the business of promptly solving the problems their customers ask them to solve, not engaging in extended counseling sessions asking their customers if they have really thought through what they wanted to do and, perhaps, treat the error message as a cosmic warning not to enter the Delta Quadrant.

Hosting Matters quickly responded that the problem PG thought he had was fixed and that PG was free to continue his journey.

PG noted his problems with 5.0 in a post yesterday and received several helpful/sympathetic responses, including from Nate Hoffelder, the proprietor of The Digital Reader and tech guru who had previously advised PG that the theme he has always used for TPV is obsolescent and rocketing along in the fast lane to obsolete.

So, it’s time for PG to engage in some theme hunting (again).

During his last theme hunt, PG received several communications from regular visitors to TPV who said they really liked the look of the current theme and were concerned about a change.

Therefore, PG’s quest is not so much for an updated and properly-operating theme as it is for an updated and properly-operating theme that looks a lot like the current TPV theme. Given his experiences over the past couple of days, this time, failure is not an option.

Quite some time ago, the creator of the current TPV theme announced that he would not be updating his theme. Since he had released it as a free theme and nobody had paid him for his work, to PG’s way of thinking, the creator had no obligation to spend additional time working on the theme to solve PG’s problems.

PG would like to crowd-source the search for a makeover theme for the TPV.

He’s looking for:

  • A commercial-quality WordPress theme (which he expects to pay for without breaking the bank) that is likely to be supported through future WordPress updates on an ongoing basis; and
  • Has at least a bit of an old-time, dusty library feel to it

If any of the brilliant people who visit TPV on a constant basis have theme suggestions, PG would appreciate it if they would either include information in a comment or send PG a private message via the Contact Page.

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Literary agent Selwa Antony ordered to pay author more than half a million dollars

From ABC Australia:

High-profile literary agent Selwa Anthony’s Supreme Court bid for extra royalties from bestselling Australian author Kate Morton has backfired.

The agent was instead ordered to pay a cross claim of more than half a million dollars to her former client.

Ms Anthony sued Ms Morton after she was sacked suddenly in 2015, after a long-standing relationship which began when they were introduced by a fellow novelist who was already a client of the agent.

Ms Morton went on to earn more than $17 million in royalties for six bestsellers since she burst onto the scene in 2006 with her debut novel The Shifting Fog.

The agent argued the writer had made an agreement over the phone in 2002 that she would receive 15 per cent commission for the life of the books for which she negotiated publishing deals.

Ms Morton disputed her version of events, instead accusing Ms Anthony of denying her opportunities, amounting to potential earnings of up to $2.8 million.

Today, Justice Julie Ward found Ms Anthony breached her duty of care and skill in advising Ms Morton to grant world rights for the last four of Ms Morton’s books without advising her of the financial implications of doing so.

“It was clearly a material feature of world right arrangements that Ms Anthony’s duties as agent would be reduced to almost nil, whilst Ms Anthony continued to obtain the same rate of commission,” Justice Ward said.

She dismissed Ms Anthony’s claim and ordered her to pay Ms Morton $514,558 plus interest in refunded commissions.
. . . .

Ms Anthony was this year involved in a legal battle over the estate of Australian author and friend Colleen McCullogh.

Link to the rest at ABC Australia

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Literary Hoaxes and the Ethics of Authorship

From The New Yorker:

If a book is good, if it’s artful, entertaining, and informative, should it matter who the author is? Once upon a time, many readers would have said no. It was a long-standing protocol of book appreciation to consider things like the gender, sexuality, ethnicity, personal vices, personal virtues (if any), and prior reputation of the author irrelevant to a book’s merits. You could disapprove of a writer’s politics and prejudices if they showed up in the text; otherwise, they were customarily bracketed off.

When people had an issue with the author, it was because they felt that he or she had violated what is known in narratology as the “autobiographical pact.” This is the tacit understanding that the person whose name is on the cover is identical to the narrator, the “I,” of the text. The pact obviously governs our expectations about memoirs, but it extends in a more general way to books in which the speaker or the protagonist is presented as a fictionalized version of the author (so-called “autofiction”), and it extends even to straight-up fiction: if the name on the cover seriously misleads us about the identity of the author, we can feel we have been taken in.

There have always been writers who cheated on the pact. A case most people know is that of James Frey’s 2003 memoir of recovery from addiction to alcohol and crack cocaine, “A Million Little Pieces.” The book was hugely popular, but it turned out to be partly fabricated, something Frey was forced to admit on television under the interrogation of Oprah Winfrey, who had chosen “A Million Little Pieces” for her book club and thereby made it a best-seller.

The auto-da-fé took place in 2006, and the publicity turned Frey’s name into a synonym for memoir fraud. At the time, Frey’s exposure and humiliation struck many people as just deserts. But there have been at least three traditional lines of defense for books like “A Million Little Pieces.”

One, used for popular autobiographies whose strict veracity has been questioned, such as “The Autobiography of Malcolm X” or “I, Rigoberta Menchú,” is the surrogacy defense. This is the theory that, although a particular event recounted in the book may not have happened to the author, it happened to someone. Such a book, then, is really the life story of a group. 

. . . .
Another strategy is the higher-truth defense. This is the argument that fabrications and exaggerations in books like these are in the service of more fully conveying “what it is really like” to be Guatemalan or in recovery or whatever the theme of the life story happens to be. “A Million Little Pieces” tries to capture the experience of recovering from addiction. Readers don’t care whether these things literally happened to James Frey, because they didn’t buy the book to find out about James Frey. They bought it to learn about addiction and recovery. James Frey’s job as a writer is only to convey that experience.

And then there is what might be called the literature professor’s defense. This is the argument that the distinction between fact and fiction, although it may appear fundamental, is a fairly recent development in the history of writing, only two or three centuries old. Along with that distinction came the practice of putting the author’s name on a book, and along with both of those came the ideology of authenticity—the belief that literary expression must be genuine and original.
The literature professor’s point is that placing social value on concepts like authenticity is an invitation to manufacture them.  

Link to the rest at The New Yorker

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Digital or Print, That Publication Better Have a Mission!

From Publishers Weekly:

As a longtime digital news editor and now the editor-in-chief of the online science magazine Quanta, I confess: I love print. I love the look, smell, and feel of print newspapers and magazines. While I nevertheless consume most of my news digitally, I have never owned a Kindle and do not borrow my wife’s. 

. . . .

So why is there no print edition of Quanta? There are obvious advantages to publishing online. As a news delivery system, it’s faster, cheaper, and geographically unlimited. Though quality online articles take no less time to report, write, edit, fact-check, and illustrate than their print counterparts, once a digital package is final, it can be published within minutes. Anyone in the world with an internet connection or a smartphone then has immediate access to the story.
In the übercompetitive news industry, online publishing offers an agility, shareability, and velocity that can transcend a niche audience. Readers are no longer willing to wait a day, much less a week, to get their news.

. . . .

A case can be made for print as an incentive for attracting or retaining some subscribers and as a high-end ad delivery platform. But Quanta, a nonprofit, public-service news outlet wholly funded by the Simons Foundation, does not charge for its content and does not sell ads.
“Love print, not doing it” was my mind-set last year when Amy Brand, the director of MIT Press, floated the idea of publishing a print collection of Quanta articles. I was intrigued. Some readers—perhaps fellow immigrants from an analog universe—have pined for a physical Quanta magazine. Our writers and visual editors certainly deserve to see their work in print. But what greater purpose would such a collection serve?

Online, our most popular articles reach and educate hundreds of thousands of readers. Our site serves millions of unique visitors every year. We reach millions more through articles syndicated on the Atlantic, the Washington PostWired, and other partner publications’ websites. Nobel Prize–winning physicist David Gross called Quanta the greatest thing to happen to science journalism in many years. In contrast, everything I knew about book publishing in general, and article collections in particular, led me to believe that at the end of a time-consuming, byzantine process, we’d be lucky to sell 10,000 copies.

. . . .

Books also need a raison d’être. A Quanta collection had to become more than the sum of its individual articles. A meaningful narrative had to emerge filled with surprising insights, strong characters, and universal themes. It could not indulge in best hits nostalgia or devolve into a vanity project. In the end, I proposed two collections telling the stories of the biggest ideas in science and mathematics over the past five years.
As I began editing these volumes, I was encouraged by the larger themes and trends that took shape. Soon, a narrative arc appeared. There were clear conflicts if not always clear resolutions. Some stories required updating. Newer results had to be accounted for. Sadly, a few central (and irrepressibly brilliant) protagonists died. Then a talented young researcher won the highest honor in mathematics; in that went.

Link to the rest at Publishers Weekly

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100 (Fiction) Books to Read in a Lifetime

From Abe Books:

We’ve seen these lists before – from Amazon to the Telegraph to Time Magazine and beyond. Plenty of folks have lists of the 100 best books of all time, the 100 books you should read, and on. And beautifully, despite overlap, they are all different. The glorious subjectivity of art means that no two of these lists should ever be exactly alike. So this is ours, our special snowflake of a list, born out of our passion for books. We kept it to fiction this time. Some of the expected classics are there, alongside some more contemporary fare. There is some science fiction, some YA, and above all else, some unforgettable stories.

Do any of the included titles shock you? Are you outraged by any omissions? Let us know what makes the cut for your top 100 novels.

Link to the rest at Abe Books

The first three on the list are 1984, The Paying Guests and A Tale of Two Cities.

PG highlighted The Paying Guests because he’s never read it, having lead a sheltered life. Some of the expected titles are on the list, but also some that PG might not have considered.



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