15th August 2006

I’m Back

Today I received a glimmer of hope that all is not lost. The publisher has expressed a genuine interest in participating in the difficult legal matters that lie before me. I have to look out for myself, of course, but I was relieved to detect sincerity in my editor’s voice as she expressed a desire to make this project happen. Not wanting to waste another moment, I rushed home from work and set forth editing the manuscript.

I subscribe to Yahoo! LaunchCast, an Internet radio service that streams music based upon my taste. While writing and listening, I came across an issue in the manuscript, which required reference to my research. At this very moment, it occurred to me that Launch was streaming Rossini’s Finale From the ‘William Tell’ Overture (that lovely, triumphant track made famous by the Lone Ranger).

I couldn’t help but smile.

I’m back, baby. I’m back.

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11th August 2006

I have been offered a publishing contract.

I need to change my deodorant.
I don’t need to reapply my deodorant; I need to change the brand of deodorant.

Let me explain.

A couple of months ago, I decided to “switch things up,” and bought a stick of that Axe deodorant. I’m not looking to get laid, but it’s hard to argue with an ad campaign that implies using the product will have chicks literally throwing their bodies at you.

I’ve been using the same deodorant for years. As a matter of fact, I use Secret, which as you know is “strong enough for a man…” and all that. I have been using this stuff ever since I lived with my girlfriend, Sarah. I never had any allegiance toward any one brand over another, and Sarah always kept Secret in the bathroom. I used it, and I thought it worked perfectly well.

Even after we broke up, I continued using it. The issue only ever crossed my mind once, many years ago, as I stood in the aisle at the grocery store, dutifully popping the tops on the myriad scents available.

Powder Fresh.
Nice.

Shower Fresh.
Yeah, that’s good.

My Spider-Sense (probably a registered trademark of Marvel comics) kicked in, and I realized a young lady was standing awfully close to me, somewhat dazzled by my shopping. “Good stuff,” I smiled, and she gave me the arched eyebrow “Yeah, whatever…” look.

At any rate, I have been a “Shower Fresh” kind of guy for a very long time. A single, “Shower Fresh” kind of guy, mind you, but one who is very secure in his masculinity.

So it came time to break in this new stick (”Axe Touch,” for those keeping score), and I had a strange thought. I wondered if good things were to happen, whether I would become instantly devoted to this deodorant. I would like to say I’m not superstitious, but I was acutely aware of all the good fortune I was counting on. At that time, I was desperately hoping to receive a publishing deal for Mego 8 inch Super-Heroes: World’s Greatest Toys!

I hadn’t been using the Axe deodorant for very long, when I received an Email from a publisher:

“I have been in receipt of your Mego proposal and am currently doing some research into the viability of (us) publishing this book. I will be in touch with you soon with more feedback. Thanks for considering us, and I look forward to being in contact again.”

That was on June 9, 2006. Over the next few weeks, I received several more Emails from the publisher, asking pointed questions about the project, the toys and the potential market for the book.

Exactly one month later, I received an exciting Email, which detailed the format and length the book could be, if the publisher were to do the book. The publisher asked if I were amenable to the stipulations. As always, I addressed each of the points to the best of my ability.

Then, on July 11, 2006, I received the Email I have been waiting for:

“Good news! We would love to publish your book. I have attached a contract for you to review. Look all of this over and feel free to call me with any questions you have. I know the legal jargon can be a bit overwhelming. We’re really excited here to start work on this.”

The Email went on to elaborate the publisher’s excitement over doing this book, even saying they hope to do additional, similar titles.

Over the next month, I struggled to find an appropriate lawyer. With little success, I finally reached out to a friend who is a well-known and very successful author and comic book scribe. My friend introduced me to a phenomenal attorney with vast literary experience (who specializes in copyright and trademark issues, no less).

I had a brief consultation with the attorney, and it was clear that I needed to retain his services. The $1,000 retainer was more than I was comfortable paying, so I opted to sell some toys as subsidy. That did not go well, but that’s another story.

During the consultation, I explained that I was particularly pleased with the publisher, because they had previously published books that involved Marvel and DC comics, two of the copyright holders of Mego Super-Heroes characters. On that note, we discussed the issue of copyrights. I explained that I considered myself a journalist, merely stating the facts about an amazing toy company that has long-since dissipated. “I have been working under the pretense that I am protected by the First Amendment,” I told the attorney. His concise, informative response included the fact that the First Amendment is not the end-all of publishing rights, especially when it comes to copyright law. Explaining “fair use” (a tricky and nebulous concept), he implored me to seek additional information from the publisher.

I formally retained my attorney on August 3, 2006. The morning prior, I had realized I was on the final few twists of my Axe deodorant. “Gotta get some new deodorant,” I thought. After work that night, I stopped by Target and bought some crap I really don’t need, along with the deodorant I really did need. The Axe deodorant shelf was decimated, reduced to the spray variety (which I don’t care for). With no small amount of hesitation, I bought a wholly different variety (Gillette Cool Wave ClearGel for those keeping score). No kidding, I made this purchase intent on dispelling the myth of my bizarre deodorant superstition.

On August 7, I emailed my editor, seeking additional information on their prior experiences with Marvel and DC. The response I received included:

“Yes we have had to deal with Marvel and DC for our (title removed by author) book. This was at a time when I didn’t work here, but having talked to our operations manager, she said both experiences were ok. They are just huge companies so it can be tedious to get permissions from them.”

On August 9th, I had my first formal legal consultation. The plan was to go over the contract, point by point. One of the scarier points in the contract, which is standard for such contracts, is the Warranties clause, in which the author indemnifies the publisher from any legal issues that may arise. In other words, if the book is cause for litigation, I (the author) will bear the brunt of such action.

In discussing this clause, the attorney expressed continued concern over copyright issues. He urged me to seek additional information from the publisher, regarding their previous dealings with the copyright holders.

Upon completing this $500 phone call (I’m not sore, really. It was a great phone call), I promptly emailed my editor, requesting a conference call with both the Editor and Operations Manager of the company.

The response was chilling.

“Let me try to shed some more light on the dealings with Marvel and DC. (It) really came down to the author dealing with Marvel. Basically, we were in the process of printing (title removed by author) when Marvel contacted us with a cease and desist order on the basis that we were using trademarked images without their permission. All the artwork was thought to be fair use, but Marvel didn’t see it that way. As with all our contracts, the author had indemnified us against any claims that should arise so it was his burden to take care of this. However, we didn’t want to leave him high and dry and force him to go to court with Marvel, so we agreed to give the author more in royalties so that he could settle with Marvel without breaking the bank.”

WHAT?!

Let me get this straight. What you formerly classified as “tedious,” the otherwise “OK experiences” actually included being sued by Marvel?

Am I missing something here? Apparently, yes. What I missed was the issue of indemnity. What does the publisher care if the author gets sued? Enough to increase the royalty percentage, I guess, but nothing more.

Oh, and it gets better.

I decided to Email the author of the original book in question, to determine exactly what occurred. I specifically asked for insight about the author’s experience with both my publisher and Marvel. The response came from the author’s wife, who explained that her husband was not well. She summarized her answer to my question with a single sentence:

“The experience was a poor one.”

The next day (yesterday), I received an insightful Email from my attorney, which included the fact that my retainer fee had been used, and that I would be henceforth billed for time. To be clear, I don’t have any issue with that, as my attorney has already proved invaluable.

But I don’t have the money to keep playing “the game” at this level. His note was another nail in the coffin of this book.

It is clear that I have neither the constitution, the experience nor the finances to see this book through to completion. I can neither afford the legal representation necessary to protect my livelihood, nor step up to engage in this battle.

Things may change. Things always change. And they may change for the better. Certainly a little space away from this drama will do me some good. Right now, I find it impossible to reconcile the past three years of my life, and it is heartbreaking.

I am not ready to admit defeat. But for now, it seems clear that Mego 8 inch Super-Heroes: World’s Greatest Toys! will never see the light of day.
On my way home from work tonight, I stopped by the grocery store. I bought a stick of Axe “Touch” deodorant. And I plan to use it from now on.

Benjamin

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9th August 2006

Bad Day

Well I had just an awful day.

I had a great conversation with my lawyer. I say “great” because it was helpful and informative. Not because it cost me $500.00. I have never spent $500 on the phone without receiving a heckuva nice package in the mail a few days later.

But there will be no package forthcoming.

Then I received some positively terrible news. I am disconsolate. Everyone around me is happy and healthy, yet I feel like someone has died. A little piece of me died today, that’s for sure.

I can’t even talk about it, which really sucks.

It feels good to express my frustration, even if I can’t elaborate. I’ll put this lamentable blog in the “Book Status” category, and leave it at that.

For now.

Sigh.

Benjamin

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