(This is, in miniature, a classic example of how British English and American English differ at a more fundamental level than merely how to spell "colour" (or "color").)
]]>An editor, for instance? I wasn't aware of a difference in tone between usage of 'clerical staff' across the Atlantic. Current Australasian usage IME may include office supervisor-level positions, but no 'higher'. 'Office staff' would be seen as less pejorative, and differentiates from operational workers (e.g. truck drivers, production line workers).
]]>This is not a hypothetical. While not universal, such contracts are standard in erotic romance epublishing, and were in use at Triskelion when that publisher went down in flames and Chapter 7 back in 2007. This resulted in a serious fight between the trustee, who was of the opinion that he was entitled to sell all lifetime rights as assets of the publisher, and the authors, who were of the opinion that they had sold specifically short-term ebook rights and in some cases short-term print rights or options, and that they would be invoking non-renewal come termination date. I believe the trustee eventually conceded that he could not sell rights that had never been the property of the publisher in the first place, but the two-year rights were still held in limbo during the bankruptcy proceedings. All of which was an absolute bloody mess, and left me wondering exactly what rights the authors in that situation actually had.
(My description above is based on what the authors were saying in public, which may or may not be completely congruent with the trustee's view of the matter.)
]]>A good example of the more distinguished use of the title "clerk" in the US might be the lawyers who work for judges.
]]>What you've described is an excellent example of how IP and bankruptcy lawyers don't know squat about each other's specialty area of practice. (Believe it or not, it's actually an ethics violation for a US-based attorney to call himself a "specialist" for anything except patent law.) Had a bankruptcy attorney been involved in drafting the publishing contracts, the contracts could at least have had a chance at being clear what rights the publisher had in the kind of language that bankruptcy trustees can understand. Had an IP attorney been involved in the bankruptcy, the trustee might have had the chance of not making an ass of him/herself. (And I say "her" advisedly, as the trustee in the iBooks/Byron Preiss bankruptcy is — note the present tense! — female.)
I suspect that the real issue may have been that the trustee had a mental model of publishing contracts that assumed that manuscripts become the property of the publisher, i.e. work for hire or something akin to it. Unfortunately some of the authors had assumed that the ipso facto clause meant that they could take back all rights, thus leading to much angst all round.
And just to add to the fun and games, some of the authors had walked away from the publisher in the six months previously, because of the publisher's bad behaviour towards them. They were deeply unhappy about being told that their letters of release were an attempt to move assets out of the bankruptcy and thus null and void...
]]>(Clue: I'm not a gung-ho red-stater. I am, in fact, not in favour of American imperialism, other than to the extent that the American imperial hegemony is less nasty than its predecessors and rivals; let us not forget that a lesser evil is still evil. As Iron Man is basically a Mary Sue figure for Donald Rumsfeld, I think we can safely say that he's not my cup of tea, and the amount of irony I'd have to bring to the dish to make it palatable would probably stick in the throats of Marvel's editors.)
]]>So, it turns out that in Marvel's 2006-7 Civil War crossover storyline, Tony Stark was cast as a leader of the authoritarian forces. There's a Gitmo for renegade superheroes, further atrocities, and much nastiness. Stark becomes the head of SHIELD and cracks down a lot. Captain America leads the pro-civil-rights revolutionaries against him.
In other words, Marvel agrees with your assessment.
]]>If the reversions were six months prior to the petition for bankruptcy, that means that (under US law) the debtor was not just bankrupt, but insolvent — a technical definition that basically means "not just broke, but really, really broke. In an ordinary bankruptcy, the preference period is only ninety days prior to the petition; in insolvency, it's a year; and in the event of a fraudulent preference (as opposed to a fraudulent conveyance, which actually has little to do with a lay understanding of "fraud"), it's as much as three years.
So, what's a preference? It's shorthand for "transfer of assets, not in the ordinary course of business, that favors one creditor over another creditor with the same or higher priority." The trustee has the power — but not obligation — to "avoid" a preference and force return of the asset to the bankruptcy estate, whether the asset is money or, as in this instance, a publishing license.
The key issue here is whether the return of rights to an author is, or is not, in the ordinary course of business. To a trustee who doesn't understand publishing, it sure looks like it's not in the ordinary course, as it represents (to the traditional bankruptcy way of thinking) abandonment of a valuable asset. Instead, though, the authors and their agents would have been better off if they had either
Sorry to be so pedantic on this one, but it's a huge, ongoing issue (I've already mentioned the Preiss fiasco, and Preiss's records were unusually complete and well-organized for a publisher... which should really scare anyone who knew anything about recordkeeping at BPVP), and it's just going to get worse. And it's far, far worse in Hollywood; but for confidentiality, I could tell you who really should have been credited with the screenplay for the first Spider-Man movie, and that monster went through three bankruptcies before it got to the egotist who claimed credit for the screenplay. But if you really want to speculate, just imagine J_ P__ goes bankrupt and the terms of all of those WFH contracts with the eager slaves coauthors get into the bankruptcy files...
OK, so I'm a nerd, and I look for my jollies wherever I can.
]]>In any event, I want to point out one critical distinction that often gets buried in discussions of territorial rights: The right to sell in Territory X is not congruent with the right to sell in the native/official language of Territory X.
Consider, for example, Belgium. (Which, not coincidentally, is the general headquarters of the EU.) It's rather silly to refer to "Belgian rights" as somehow territory-unique, as there's a critical prior question: French, English, or Walloon? And now we can throw in a Canadian French-language edition just to make things even more interesting.
And, as discussed in the guide-document-thingy Sean and I wrote for our presentation, it gets even better when looking entirely within the EU, because — thanks to a decision regarding construction equipment — the EU is a single territory, so if you license French-language rights in France you've also, perforce, licensed French-language rights throughout the EU... regardless of any restrictions stated in the contract.
]]>I do know there were quite a few people, including at least one lawyer, suggesting that it would be an excellent idea to get the ipso facto clause in your contract as it would be a protection against such messes. This was the point at which I started thinking that I should send out an SOS to such people as yourself and Miss Teresa. :-/
]]>You know that, and I know that. Funny how not everyone who uses CC licensed material knows that, however; like the charming folks I stumbled over in December who'd taken the free promotional edition of "Accelerando" -- released under the most restrictive Creative Commons license (no derivative works allowed, no commercial reuse permitted) -- and were selling it through the iTunes store for 99 cents a pop. Of which neither I nor my publishers saw a bent penny.
Problem dealt with via DMCA takedown notice, in this instance. (I generally ignore warez sites -- especially for material I want to see circulating, but in general life's too short to play whack-a-mole with the internet. For-profit pirate republication is another matter entirely, though, and I'm somewhat disturbed that there are a lot of people out there who read "Creative Commons" and parse it as "Public Domain".)
]]>