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 Kid_Kyoto wrote:
Side question, what the heck do NDA threaten people with?

I'm constantly hearing how NDAs stop folks from speaking about illegal activity, are they really that scary and iron clad?

a few reasons. first of all a NDA may have explicit penalties listed in your contract, or the company could simply sue you. Lastly, and this is just as important, if you break a NDA, your name is, professionally, mud. At the very least you'll likely never work in your INDUSTRY again, and it could also lead to other companies with secrets not wishing to employ you eaither. If you're working for disney and leak say... the script for Avengers end game, you could very well never work in the movie industry again, but you ALSO might not be able to get employment with KFC because they might be concerned you'd be willing to leak the recpie for their secret spice mix.

BrianDavion wrote:

 Kid_Kyoto wrote:
Side question, what the heck do NDA threaten people with?

I'm constantly hearing how NDAs stop folks from speaking about illegal activity, are they really that scary and iron clad?

a few reasons. first of all a NDA may have explicit penalties listed in your contract, or the company could simply sue you. Lastly, and this is just as important, if you break a NDA, your name is, professionally, mud. At the very least you'll likely never work in your INDUSTRY again, and it could also lead to other companies with secrets not wishing to employ you eaither. If you're working for disney and leak say... the script for Avengers end game, you could very well never work in the movie industry again, but you ALSO might not be able to get employment with KFC because they might be concerned you'd be willing to leak the recpie for their secret spice mix.

So in addition to being financially bankrupt you also become all but completely unemployable. And in America, you're in this position in a country with a rather ineffective social safety net to boot.

Breaking an NDA can possibly become a life-or-death decision here. You have to consider 'is reporting this crime worth potentially dying homeless on the street over?"

 Vulcan wrote:

BrianDavion wrote:

 Kid_Kyoto wrote:
Side question, what the heck do NDA threaten people with?

I'm constantly hearing how NDAs stop folks from speaking about illegal activity, are they really that scary and iron clad?

a few reasons. first of all a NDA may have explicit penalties listed in your contract, or the company could simply sue you. Lastly, and this is just as important, if you break a NDA, your name is, professionally, mud. At the very least you'll likely never work in your INDUSTRY again, and it could also lead to other companies with secrets not wishing to employ you eaither. If you're working for disney and leak say... the script for Avengers end game, you could very well never work in the movie industry again, but you ALSO might not be able to get employment with KFC because they might be concerned you'd be willing to leak the recpie for their secret spice mix.

So in addition to being financially bankrupt you also become all but completely unemployable. And in America, you're in this position in a country with a rather ineffective social safety net to boot.

Breaking an NDA can possibly become a life-or-death decision here. You have to consider 'is reporting this crime worth potentially dying homeless on the street over?"

That isn't even a fear. In this situation, if the court ruled in favor of the whistleblower, the company would likely have to pay all court fees, including those of the Whistleblowers lawyer.

NDAs are just about using fear to prevent employees from using legal recourse against them. There are other things NDAs are for(Like keeping company secrets that are NOT illegal) and you can get hammered hard for breaking them. But in no way is illegal activity protected in an NDA and reporting it will not cause you to end up homeless in the street. That is just what the companies wish you to believe..

 Dreadwinter wrote:

 Vulcan wrote:

BrianDavion wrote:

 Kid_Kyoto wrote:
Side question, what the heck do NDA threaten people with?

I'm constantly hearing how NDAs stop folks from speaking about illegal activity, are they really that scary and iron clad?

a few reasons. first of all a NDA may have explicit penalties listed in your contract, or the company could simply sue you. Lastly, and this is just as important, if you break a NDA, your name is, professionally, mud. At the very least you'll likely never work in your INDUSTRY again, and it could also lead to other companies with secrets not wishing to employ you eaither. If you're working for disney and leak say... the script for Avengers end game, you could very well never work in the movie industry again, but you ALSO might not be able to get employment with KFC because they might be concerned you'd be willing to leak the recpie for their secret spice mix.

So in addition to being financially bankrupt you also become all but completely unemployable. And in America, you're in this position in a country with a rather ineffective social safety net to boot.

Breaking an NDA can possibly become a life-or-death decision here. You have to consider 'is reporting this crime worth potentially dying homeless on the street over?"

That isn't even a fear. In this situation, if the court ruled in favor of the whistleblower, the company would likely have to pay all court fees, including those of the Whistleblowers lawyer.

IF.

NDAs are just about using fear to prevent employees from using legal recourse against them. There are other things NDAs are for(Like keeping company secrets that are NOT illegal) and you can get hammered hard for breaking them. But in no way is illegal activity protected in an NDA and reporting it will not cause you to end up homeless in the street. That is just what the companies wish you to believe..

The US sucks ass at protecting individuals from companies. Companies can drown individuals in legal action. It's not even about whether they win or not. Trapping people in a court system probably doesn't even cost the companies/rich anything because their lawyers are on permanent retainer. They get paid the same either way.

Thanks. So it seems likely that Foster is established enough (and old enough) he can take the risk, but there are probably hundreds of other authors who can't afford to speak out and risk their careers.

While failing to pay royalties might not be criminal, it is almost certainly illegal (almost since it's a commercial contract and there's always a chance there is some clause that ends the royalties).

 Kid_Kyoto wrote:
Thanks. So it seems likely that Foster is established enough (and old enough) he can take the risk, but there are probably hundreds of other authors who can't afford to speak out and risk their careers.

While failing to pay royalties might not be criminal, it is almost certainly illegal (almost since it's a commercial contract and there's always a chance there is some clause that ends the royalties).

*sigh*

Royalties are becoming a thing of the past and Disney's actions in this may not be criminal at all.

One of my in-laws works for a major media company, he has the best job in the world. He does licensing for merchandise and gets to know what all the toys, cups, posters, books, t-shirts and other things are long before they get into the hands of distributors.

Part of his job (the more interesting part) is research. He looks at creative properties that may have potential to become something bigger and works out deals to see how they grow. This sometimes involves buying a smaller publisher to bring a creative work to a wider audience. Long time ago, he used to quiz me about Games Workshop at Thanksgiving.

His job has become very complex over the last 10 years. On the one hand, technology moves fast, it's impossible to accurately predict what's coming. He's told me about movies (plural) that were canned in post-production because a 50-year old agreement with a publisher did not include rights for streaming and the estate of the original author was making unreasonable demands. A deal that might have been air tight a year ago might suddenly be spoiled because of changing technology platforms.

On the other hand, every small publisher comes with baggage. Creators can be stubborn, smaller publishers sometimes take risks that lead to blowback, a single Tweet can create a PR nightmare, etc. More importantly, buying a publisher means you are buying all their assets and everything that comes with them. There's good reasons for picking up pieces of a company instead of buying the whole thing.

So acquiring small publishers has become less common. Asset purchase agreements have become more common.

To understand the impact, start with the idea that a contract is an asset. His company may buy the original contract signed with a first-time creator in order to get access to a creative work, but not the later contract that creator signed entitling him to royalties after his books become popular. The responsibility for paying royalties continues to exist with the smaller publisher, which may or may not still be open after cashing out with a big media conglomerate and almost certainly is no longer receiving royalties themselves. There might be a clause in that second contract compelling the smaller publisher to convey the royalty obligations as part of any deal, but good luck enforcing it.

That's just one way an asset purchase agreement can be structured. The reason for their existence is to shield the big media conglomerate from lawsuits. If a creator wants to sue the conglomerate, they have to establish facts in court in a case against the small publisher first just to get standing. That's a very expensive and uncertain prospect, particularly because licensing agreements cut both ways. Just like there are agreements from 50 years ago that didn't anticipate streaming, there are agreements that did not anticipate changes in laws around ownership of intellectual property or envision anything but a complete acquisition of the publisher. The language used in the 1980s matters very much today.

The Alan Dean Foster situation sounds a lot like this. I'd be willing to bet Disney did not actually buy the original publisher, they bought the rights to creative works along with the original publishing contract with Foster. Then the owner cashed out and shut the doors. Foster's contracts with his original publisher were probably structured in such a way to guarantee royalties after he became popular, and Disney chose not to purchase the contracts that would convey this obligation. Disney is asking for an NDA so their lawyers explain how fully screwed he is in detail without it being broadcast to the world.

It's not a fun situation, but I've thought about it a lot and have a grain of sympathy for both parties. When you think about streaming, torrents, and all the changes digital media has brought - royalty contracts reflect a time where there was high trust between publishers and creators. I don't think we live in that time anymore, a movie that costs millions to produce can be utterly destroyed on social media before it's released which poisons that relationship. Media companies have good reasons for shielding themselves using corporate structures and lawyers have an obligation to put the best possible deal in place for their clients. Add to that the fact there are many, many more quality authors and sources for material these days, and creators have fewer privileges then they would have when talent was less available. Breakdowns in the relationship between creators and publishers is a consequence of the complexity of publishing anything in today's world.

Not saying it's right, but it's probably not criminal, and creators are probably dealing with it by getting agents who write better contracts. That doesn't mean royalties will survive, they will probably continue to be available to higher-profile creators for a while. But I see work-for-hire with one-time bonuses becoming more popular for creator and publisher along with self-publishing becoming the dominant norm.

Interesting but that's what Foster's campaign is all about. He says outright that Disney thinks they can buy the publishing rights without incurring the obligation to pay royalties.

I doubt a loophole that obvious was left in the contracts, even in the dim and distant days of 1978 it would have been exploited. Maybe they were staggered, but Foster says that royalties he used to get are no longer being paid so I don't think this is a case where Disney acquired his early books but not the later ones.

Moreover IIRC (and looking at the comics on my shelf) copyright were owned my Lucasfilm not the publisher. Which is why I have Marvel books reprinted by Dark Horse and Dark Horse books reprinted by Marvel.

But as always, we shall see.

 Kid_Kyoto wrote:
Interesting but that's what Foster's campaign is all about. He says outright that Disney thinks they can buy the publishing rights without incurring the obligation to pay royalties.

I doubt a loophole that obvious was left in the contracts, even in the dim and distant days of 1978 it would have been exploited. Maybe they were staggered, but Foster says that royalties he used to get are no longer being paid so I don't think this is a case where Disney acquired his early books but not the later ones.

Moreover IIRC (and looking at the comics on my shelf) copyright were owned my Lucasfilm not the publisher. Which is why I have Marvel books reprinted by Dark Horse and Dark Horse books reprinted by Marvel.

But as always, we shall see.

So we shall.

Funny thing, this press conference got me thinking about corporate media ownership. There are a lot of science fiction writers in the world today, while most big publishers have consolidated under the control of 6 corporations (who also happen to own movie studios, news outlets, streaming services, etc.)

ADF's press conference is the kind of thing that's useful for generating moral outrage. My guess is he stands a better chance of getting a sympathy check than royalties.

Makes me wonder if royalties will continue being a thing in the future. Publishers have a lot of leverage and can draw from a global pool of talent. If a creator doesn't want to take some offer, they can always move onto the next one.

But surely if writers aren't going to be making a dime on their work then there won't be any books for these publishers to actually print? There has to be some incentive...

 creeping-deth87 wrote:
But surely if writers aren't going to be making a dime on their work then there won't be any books for these publishers to actually print? There has to be some incentive...

Honestly it sounds like what's being pushed for by the moneyed powers is lump sum contracts - we pay you X dollars now and then profit off your work forever.

I'm wondering how dystopian this will turn out.

Not surprised at all by this from Disney...


Automatically Appended Next Post:

 creeping-deth87 wrote:
But surely if writers aren't going to be making a dime on their work then there won't be any books for these publishers to actually print? There has to be some incentive...

Maybe exclusivity and putting their paws on as much IP as possible ?
Despite what some people think. Good content is hard to come by Disney and Netflix is learning this the hard way.
They have published a bunch of utter trash and unless theres a strong following already its not selling. So the content has to be top tier.

Disney is throwing serious bank.
I imagine something like this:

Ohh you have an idea for some cool books/ published something small already? Well please step into my office.
Heres 500,000 no question asked BUT we own all rights, and you write exclusively only for us.

No? You want to publish with someone else?
We will just buy the publisher and own all your crap anyway if its sucesfull and you will get no royalties anyway...

 techsoldaten wrote:
*snip*

I'm not sure much of this is applicable.

My understanding is that Disney is legally obligated to pay royalties. Their base argument doesn't even argue the contract doesn't owe Foster royalties, merely that they don't have to pay them because they didn't sign the contract, which is an argument that makes zero sense. Disney's goal doesn't seem to be any sort of legal argument to remake contract law or something that is legal or illegal. Their doing to Foster what they've done to a few others over the past few years. They want to renegotiate the terms of the contract they bought and won't do so until an NDA is signed. Foster refuses to sign an NDA until he knows what the new terms are. Disney thus refuses to pay him royalties cause they're a growing entertainment mega-monopoly and don't give a gak if refusing to pay is legal or not. They want a new contract and they'll stiff him until he agrees.

Foster can't possible fight them in a court system that stacks the deck so heavily in the favor of big business they can straight up murder hundreds of people through corporate indifference and shrug off with a six figure fine. His only way to actually win is to make a stink and wait until Disney's financial metrics no longer make sense. Disney being Disney, that'll take a long ass time.

EDIT: It's probably not even about money for Disney. The trend in IP rights holders today is centralizing control. Disney doesn't want Foster or anyone else talking about a project, past or present, outside of their control. Their interest may have nothing to do with trying to save a dime off Foster, but getting Foster to agree to a bunch of terms on what he can or can't say publicly. Disney wants to be the voice of their IPs, which is very different from how things were as little as 20 years ago when it was common for large franchises to be divided up among a bunch of speakers who had different interests and things to say about a single IP.

 techsoldaten wrote:

 Kid_Kyoto wrote:
Thanks. So it seems likely that Foster is established enough (and old enough) he can take the risk, but there are probably hundreds of other authors who can't afford to speak out and risk their careers.

While failing to pay royalties might not be criminal, it is almost certainly illegal (almost since it's a commercial contract and there's always a chance there is some clause that ends the royalties).

*sigh*

Royalties are becoming a thing of the past and Disney's actions in this may not be criminal at all.

One of my in-laws works for a major media company, he has the best job in the world. He does licensing for merchandise and gets to know what all the toys, cups, posters, books, t-shirts and other things are long before they get into the hands of distributors.

Part of his job (the more interesting part) is research. He looks at creative properties that may have potential to become something bigger and works out deals to see how they grow. This sometimes involves buying a smaller publisher to bring a creative work to a wider audience. Long time ago, he used to quiz me about Games Workshop at Thanksgiving.

His job has become very complex over the last 10 years. On the one hand, technology moves fast, it's impossible to accurately predict what's coming. He's told me about movies (plural) that were canned in post-production because a 50-year old agreement with a publisher did not include rights for streaming and the estate of the original author was making unreasonable demands. A deal that might have been air tight a year ago might suddenly be spoiled because of changing technology platforms.

On the other hand, every small publisher comes with baggage. Creators can be stubborn, smaller publishers sometimes take risks that lead to blowback, a single Tweet can create a PR nightmare, etc. More importantly, buying a publisher means you are buying all their assets and everything that comes with them. There's good reasons for picking up pieces of a company instead of buying the whole thing.

So acquiring small publishers has become less common. Asset purchase agreements have become more common.

To understand the impact, start with the idea that a contract is an asset. His company may buy the original contract signed with a first-time creator in order to get access to a creative work, but not the later contract that creator signed entitling him to royalties after his books become popular. The responsibility for paying royalties continues to exist with the smaller publisher, which may or may not still be open after cashing out with a big media conglomerate and almost certainly is no longer receiving royalties themselves. There might be a clause in that second contract compelling the smaller publisher to convey the royalty obligations as part of any deal, but good luck enforcing it.

That's just one way an asset purchase agreement can be structured. The reason for their existence is to shield the big media conglomerate from lawsuits. If a creator wants to sue the conglomerate, they have to establish facts in court in a case against the small publisher first just to get standing. That's a very expensive and uncertain prospect, particularly because licensing agreements cut both ways. Just like there are agreements from 50 years ago that didn't anticipate streaming, there are agreements that did not anticipate changes in laws around ownership of intellectual property or envision anything but a complete acquisition of the publisher. The language used in the 1980s matters very much today.

The Alan Dean Foster situation sounds a lot like this. I'd be willing to bet Disney did not actually buy the original publisher, they bought the rights to creative works along with the original publishing contract with Foster. Then the owner cashed out and shut the doors. Foster's contracts with his original publisher were probably structured in such a way to guarantee royalties after he became popular, and Disney chose not to purchase the contracts that would convey this obligation. Disney is asking for an NDA so their lawyers explain how fully screwed he is in detail without it being broadcast to the world.

It's not a fun situation, but I've thought about it a lot and have a grain of sympathy for both parties. When you think about streaming, torrents, and all the changes digital media has brought - royalty contracts reflect a time where there was high trust between publishers and creators. I don't think we live in that time anymore, a movie that costs millions to produce can be utterly destroyed on social media before it's released which poisons that relationship. Media companies have good reasons for shielding themselves using corporate structures and lawyers have an obligation to put the best possible deal in place for their clients. Add to that the fact there are many, many more quality authors and sources for material these days, and creators have fewer privileges then they would have when talent was less available. Breakdowns in the relationship between creators and publishers is a consequence of the complexity of publishing anything in today's world.

Not saying it's right, but it's probably not criminal, and creators are probably dealing with it by getting agents who write better contracts. That doesn't mean royalties will survive, they will probably continue to be available to higher-profile creators for a while. But I see work-for-hire with one-time bonuses becoming more popular for creator and publisher along with self-publishing becoming the dominant norm.

... that's insane. I'd say there's no way that loop hole doesn't get closed, but frankly we're pretty much living in a cyberpunk dystopian future these days (you know just sans fancy cyberarms)

Certain games company that has changed their T&C in that they will own everything you create in perpetuity if you as much as show one second of their game or even a single frame out of context..

 Argive wrote:
Certain games company that has changed their T&C in that they will own everything you create in perpetuity if you as much as show one second of their game or even a single frame out of context..

yeah apparently they wanted to put an end to the free advertising people streaming "Let's plays" gave them. (or at least thats the only conclusion I can draw)

BrianDavion wrote:
... that's insane. I'd say there's no way that loop hole doesn't get closed, but frankly we're pretty much living in a cyberpunk dystopian future these days (you know just sans fancy cyberarms)

I could see how someone might be tempted to call this a loophole, but that's not really the case.

If a company has a contract with someone, it's an asset. The contract could be for publishing, a mortgage, services of some sort, whatever. The company can sell that contract at any time provided they can find a buyer.

A contract is called an asset because it has worth. Let's say I had a cleaning company with 100 clients who pay $100 a week. The value of those contracts would be $100 x the number of weeks remaining on each contract. If I wanted to close that line of business, I might sell those contracts to another cleaning company based on the total remaining value and some other variables. If I wanted to raise money to expand the business, I might take those contracts with me to the bank as collateral for a business line of credit. There's a lot of things you can do with a big stack of contracts even if you are not a party to them.

So contracts are bought and sold every day, there's nothing shady about that. The question is what ADF's contract with his original publisher had to say about royalties. I have not read any of ADF's agreements, but the odds are it was structured around the sale of the business and not selling the contract.

There are a lot of literary contracts from the 70s - 90s that specify royalty obligations transfer in the event of the sale or bankruptcy of the company. There are far fewer that specify how royalty obligations transfer in the event of the sale of the publishing contract. The reason for this is simple: it was a different world. US copyright did not extend as long as it did today, media was still regulated and most publishers (> 95%) had margins in the 1% - 2% range. Publishers put a lot of work into keeping talent happy because losing a top author meant taking a loss the next year.

At that time, if you were in Hollywood and wanted the rights to a creative work, you worked out a licensing deal or you bought the publisher. You did not buy a literary contract of the author because it would have made no sense, you were not interested in printing. You were interested in a TV show or a movie, there was no upside to publishing someone's old books. On the other hand, the average literary agent had no way to anticipate transformations that were coming in the world of media and or in filling contracts with random long shot clauses related to theoretical extreme edge cases that didn't exist at the time.

Assuming ADF's claims are about creative works written for Lucasfilms - something to understand, Disney's acquisition of Lucasfilm was not an outright purchase agreement. It was a something else that's difficult to describe. Parts of the company became business units at Disney, parts of the company were spun off to become separate companies, and assets were handed over in all sorts of ways or tax reasons. The way I think of that deal, it was like a Lamborghini, incredibly well-tuned for maximum performance.

Speculating here - but if ADF had a literary contract with Lucasfilm from before the 2000s, odds are it was like that of most authors. If he had books that were still in circulation but did not generate a lot of revenue, those contracts were probably put together with others as an asset class that was then sold to a shell company. That shell company would have existed solely for the purpose of selling Disney the rights to those creative works on terms that kept them from having to ever pay anything again to the creator and the shell itself would have been dissolved immediately at the conclusion of the transaction. People at Lucasfilm probably had no clue what was happening, just that they needed to sign a piece of paper that said Sunshine Media instead of Disney.

And this would have been completely legal. Even if a literary contract requires a buyer pay royalties, the seller can agree during the sale to continue paying royalties on behalf of the buyer and that deal would still be considered legal in every way that matters. Then the seller can close the doors, that doesn't mean the buyer suddenly has to pay royalties. That means the seller went out of business and the terms of the deal are still in full force and effect. Very few creators would have the means to challenge that in court, and that's one of many ways to pull that off.

You can call this immoral / a loophole / unfair / whatever, but my take is a little different. We live in a different world, publishers do not have the same incentives to keep creative professionals happy they did 20 years ago. Publishers are no longer book companies, they are large media conglomerates who look at talent as a commodity that can be replaced. They do not want to spend $100 million making a movie that can't be screened because an author's second-cousin refuses to sign a form. Because they treat creative works like real estate or a cup of coffee, companies like Disney have a massive amount of leverage in negotiations with creators. The way I think about it, these days, every creator has become Marsellus Wallace's wife until they force a better model emerge from the wreckage that is corporate media.

Instead of trying to preserve the royalty system, which will probably not last much longer, it would make more sense for creators to focus on other ways to commercialize their work. I'm a fan of self-publishing and work-for-hire. The later doesn't come with the emotional investment, it's something you can walk away from. The former is something you can be passionate about without having to worry about what horrors technology may bring tomorrow and you're the owner if anyone wants to buy the rights to your work.

But something better change. Today's media feels like a race to the bottom, I don't like thinking of creators as replaceable economic units who's existence depends on giant corporate entities deciding not to write them out of the plot just yet.

Neither of those offer the kind of job security a writer would need to pursue his or her craft. And buying out contracts in order to bypass the royalties stipulation sounds like the very definition of a loophole. If that isn’t shut down hard, we’ll see creative talent essentially forced out.

 BobtheInquisitor wrote:
Neither of those offer the kind of job security a writer would need to pursue his or her craft. And buying out contracts in order to bypass the royalties stipulation sounds like the very definition of a loophole. If that isn’t shut down hard, we’ll see creative talent essentially forced out.

Eh, maybe.

The loophole is in the contract someone signed years ago. A more modern literary contract includes rights usage that cover digital distribution, streaming, video games, audio books, virtual reality, augmented reality, and a lot of other mediums / formats. The language tries to be all inclusive, but even the best literary agent can only anticipate so much of what is to come.

Consider the fact we live in a globalist economy. Companies are free to purchase goods and services from anywhere on Earth. My daughter's favorite cartoon on Netflix is Chinese, creators and actors are not being paid royalties for their work. My understanding is they receive a one-time bonus at the company's discretion if the show does well, plus they get to stay in the industry. If Western media companies can get people to watch content from overseas that does not require royalty agreements, there's going to be a lot more of it. Contracts will adjust to a competitive norm precisely because media conglomerates - who are the buyers and the distributors - set the terms.

Another trend is AI. Computers today are able to write hard news from a set of facts and generative adversarial networks can currently create very realistic photos. Where are we going to be in 10 years? My sense is it won't be long before AI conquers the three act narrative and can generate its own plots, dialog, characters, soundtracks, digital sets and actors. And it will all be hyper-optimized to appeal to the widest audience possible, on as many continents as possible, in as many formats as possible. Maybe some human intervention will be required to smooth out the rough parts, but that's not the same as being the creator of a work.

(...and there's a good chance this media won't be produced in the West. South Korea is a GAN hotbed and there are startups focused on delivering technology for each piece of the puzzle I described.)

This is the direction consolidated corporate media is going. In the face of all this, how is a long-form science fiction writer going to find an audience large enough to sustain a career? If corporate media is moving to all digital and streaming services in place of books, how do you find a place to tell your stories?

I don't think the answer lies in relationships between creators and international media conglomerates. If anything, these relationships will eventually become adversarial because anything that takes attention away from a streaming platform is a problem. They're not going to be looking to sustain the careers of writers, they are going to be looking for creative talent that can drive people to their platforms. They're not going to be asking the hard questions about life, the universe and everything, they're going to be doing spit takes and the human equivalent of funny cat videos.

ADF is just raising the red flag. There's got to be a better path.

techsoldaten, thanks that is a good write up.

I would add however that courts are not fools, and transparent attempts to subvert a contract are often exposed. A court can literally look at a house of cards and say, yeah no.

Which does not mean it will this time, but does mean that shell games and hand waves are not a foolproof plan.

 Kid_Kyoto wrote:
techsoldaten, thanks that is a good write up.

I would add however that courts are not fools, and transparent attempts to subvert a contract are often exposed. A court can literally look at a house of cards and say, yeah no.

Which does not mean it will this time, but does mean that shell games and hand waves are not a foolproof plan.

Courts are complex. Friends of mine had to go this route and it was a horror show each time.

The first step in the legal process is establishing standing to sue the media conglomerate. Even though they are publishing your work, you do not actually have a contract with them. They bought a contract from a now-defunct publisher and are exercising their rights under the terms of sale. This does not actually create a contractual agreement between you and the company, it creates some kind of proxy arrangement where you're now a third party. Your job is to prove, as a matter of fact, that the deal represents some kind of malfeasance, that some party to the asset purchase agreement did not live up to their responsibilities and it caused you financial harm.

To do that, you need - at a minimum - a copy of the asset purchase agreement so you can establish what the terms or sale were. The original publisher never shared any of the details with you, might not have even mentioned it happened. Just because your work is now being published by XYZ Corp, that doesn't mean it was sold directly to XYZ Corp. There are all kinds of middlemen who make their way into the food chain, business brokers and external counsel who actually handled the transaction. They might have sold it to other parties along the way.

If the original publisher is smart, he doesn't respond to your lawsuit. Their business closed a long time ago and he's no longer associated with the entity. He ignores it because he knows this will cause a judge to issue a summary judgement. That judgement is actually a setback because you still don't have a copy of a purchase agreement and the judgement is being issued without findings of fact. Which means you need to go back to court again with more claims because the judgement is insufficient to remedy the harm (only now a judge is willing to issue subpoenas to get you the agreement.)

By this point, you have at least 3 filings with the court at around $10k a piece. When the original owner responds to the subpoena, they are going to claim they were never served properly to try and get the summary judgement thrown out. Just that claim can double the cost of filings without much effort on their side. Losing the summary judgement means you are back to square one without a single piece of evidence being heard and no closer to being able to sue the conglomerate.

The first thing your lawyer is going to demand is a copy of the asset purchase agreement, which is going to list the name of some holding company in another state that actually handled the transaction that you've never heard of. That firm will not have a website or phone number, it will have a P.O. Box. The State Treasurer's office is going to have a registered agent's listing which will give you a name and an address for service, which is likely not the name of the actual broker, just the person who forwards his mail. You can look at the articles of incorporation for the company, but even that's going to be confusing.

The language in the asset purchase agreement is going to be dense and, on the surface, appear to indicate that your rights as a creator will be preserved through any and all transactions. Your attorney will need to write a long filing that explains to a judge how that language is deceptive and making allegations for how this could not be anything but fraud. Your attorney will be asking permission to subpoena the "holding company" from another state and presenting a plan for how to enforce that subpoena.

By this point, you will be about a year into things, you will have spent between $50k and $100k, and the only thing you will have established is that someone in another state handled the asset purchase agreement. The former owner of the now-defunct publishing company will also be racking up some bills and may be looking for a way out of the lawsuit. He may offer to help your side if you can get his name out of it. Only your attorney is going to have reservations based on accusations he just made in that filing. He's going to be asking for a lot more than help, like an admission of some wrongdoing. At which point the original publisher will have a lot to think about.

From there, the fun never stops. That's more in line with the reality of court.

Oh yeah, a lot can be done to drag these out. Which is why Foster may be using the social media mob strategy which costs him nothing.

If it does come to court though and if, for example, Disney and Lucas Film created shell companies specifically to go bankrupt and eliminate the obligation of paying royalties that will definitely come out and would be no defense for them.

So why would Disney do this for an amount that's probably less than the catering on an episode of Mandalorian?

Your point about NDAs and controlling creators might be the reason. They might want Foster (and whoever else) to be sign NDAs to stop them from gossiping out of school about how their creations are used in this or future projects. (Did Foster create any new SW characters? I don't know)

To use another example, Disney does not want Timothy Zahn talking about Thrawn, except as part of an organized publicity campaign. They especially would not want him saying he's being cheated of his royalties, or that the actor is all wrong, or that Disney is misusing the character or whatever. I've never heard of Zahn saying any of this so I imagine he's a team player and will say what he has to as long as Disney is keeping up their side of the deal.

Wow, what a bunch of hackneyed, legal, mumbo-jumbo to avoid paying people. That is part of the issue with the world today, you have to be an expert creator, marketer, accountant, and lawyer all at the same time. There is simply no way for most small publishers/creators to have all of this expertise. The big boys know this.

For Disney, it is pretty simple. You do not become a Monopoly by spending assets, you become a Monopoly by taking them and NOT paying for them.

Like I said, Teddy would have kicked Mickey in the balls for this. Can someone reanimate Teddy R? We need him to do some Monopoly and Trust Busting so this Guilded Age II can finally come to an end.

Kid_Kyoto wrote:If it does come to court though and if, for example, Disney and Lucas Film created shell companies specifically to go bankrupt and eliminate the obligation of paying royalties that will definitely come out and would be no defense for them.

Listen, anyone can sue anyone for any reason. That doesn't mean a case has merit.

Those shell companies as a firewall whose sole purpose is to make it very hard to sue the media conglomerate.

The odds of Disney ever appearing in a courtroom over a royalty dispute related to an asset purchase are very, very close to zero.

Kid_Kyoto wrote:So why would Disney do this for an amount that's probably less than the catering on an episode of Mandalorian?

Digital property rights. No one knows what they will be like 10 years from now.

You can understand the disposition of their legal team through their acquisitions. Disney currently owns the rights to about 80% of the movies ever made in America. That's not because they want rental fees for a streaming service. It's because they are anticipating near-term future technological advancements and realize having this massive archive of American culture is very valuable.

Think about it this way: Elon Musk says Neuralink will be in people's heads within 2 years. How long before it's possible to transmit immersive auditory / visual / tactile experiences? How much would you pay to share that experience with the actress you had a crush on when you were 14? And do it on the set of your favorite movie?

Disney has a history of getting burned by creators. They are extremely conservative when it comes to controlling rights.

Easy E wrote:Wow, what a bunch of hackneyed, legal, mumbo-jumbo to avoid paying people. That is part of the issue with the world today, you have to be an expert creator, marketer, accountant, and lawyer all at the same time. There is simply no way for most small publishers/creators to have all of this expertise. The big boys know this.

For Disney, it is pretty simple. You do not become a Monopoly by spending assets, you become a Monopoly by taking them and NOT paying for them.

You make it sound like there's some malevolent mastermind at Disney pulling all the strings to persecute creators and steal all their money.

The reality is different. Media in the US is consolidated into a small number of corporations capable of extending their influence across multiple verticals. This gives each media company a massive amount of leverage in any negotiation and they should not be blamed for using it.

You would too. Imagine if you had some incredible sportscar. Would you use it for picking up members of the opposite sex, or would you leave it at home because you felt it gave you an unfair advantage?

The corporate media sucks and creators set off on their own every day, develop audiences and make a good living. You don't have to work within the collective, you choose to use your talents to further their goals for a while. With luck, you leave and build your own little empire.

Why should they not be blamed for using unprecedented leverage?

Easy E wrote:Wow, what a bunch of hackneyed, legal, mumbo-jumbo to avoid paying people. That is part of the issue with the world today, you have to be an expert creator, marketer, accountant, and lawyer all at the same time. There is simply no way for most small publishers/creators to have all of this expertise. The big boys know this.

For Disney, it is pretty simple. You do not become a Monopoly by spending assets, you become a Monopoly by taking them and NOT paying for them.

You make it sound like there's some malevolent mastermind at Disney pulling all the strings to persecute creators and steal all their money.

The reality is different. Media in the US is consolidated into a small number of corporations capable of extending their influence across multiple verticals. This gives each media company a massive amount of leverage in any negotiation and they should not be blamed for using it.

You would too. Imagine if you had some incredible sportscar. Would you use it for picking up members of the opposite sex, or would you leave it at home because you felt it gave you an unfair advantage?

The corporate media sucks and creators set off on their own every day, develop audiences and make a good living. You don't have to work within the collective, you choose to use your talents to further their goals for a while. With luck, you leave and build your own little empire.

That sports car analogy is flawed in that it’s more like being the boss and using that to make people vulnerable so that you can “pick up” whoever you want. Alan Dean Foster was not seduced and clearly did not consent to getting into this sports car.

 BobtheInquisitor wrote:
Why should they not be blamed for using unprecedented leverage?

Not to mention using it to DIScourage people from creating creative content because it will never pay THEM fair value. Especially given the way automation, robotics, and computerization is slowly replacing humans in pretty much any other capacity....

Imagine if JK Rowling had to write Harry Potter 6 for the same pay as Harry Potter 1 because otherwise Disney would just hire Diane Duane to write Harry Potter 6 for standard pay. Imagine JK Rowling still writing Harry Potter books while on the dole.

I can't belive anyone is defending this as MORALLY justified. is it legally doable? obviously, and big companies are famously amoral (if not outright imoral) but to claim this is "ok"....? jesus...

BrianDavion wrote:
I can't belive anyone is defending this as MORALLY justified. is it legally doable? obviously, and big companies are famously amoral (if not outright imoral) but to claim this is "ok"....? jesus...

So the Court of Public Opinion may have final say.

The creators of Superman were not legally entitled to a dime but in the 70s (when the film was coming) they were able to get creator credits and royalties by appealing to the public at just the right moment.