A Lawyer's Perspective on Publishing, and on Fair Use

I confess that I take a somewhat geeky interest in matters of publishing law. But even if the law holds little allure for you, as a publisher you can't avoid legal questions. Every editor has to negotiate contracts, secure permissions, and make sure that manuscripts don't run afoul of libel or privacy laws. And writers need to pay attention to the same questions. So I was happy to learn that Mark Fowler, an experienced publishing lawyer who has also been an author, is now blogging about publishing-law issues at RightsofWriters.com. I have myself benefited from Mark's astute counsel (and unflappable demeanor) in the past, although he does not currently represent me or Bloomsbury Press. I recommend his site to editors, writers, agents, and anyone else who wants to understand some of the peculiar nuances of our business.

Last week Mark posted about the always confusing and often contested topic of "fair use"--the doctrine that permits one author to quote another's copyrighted material for purposes of comment, criticism, or scholarship. As he observes, it has been an unfortunate development in recent history that lawsuits or other aggressive moves by rights holders have discouraged some authors from using certain quotations, and in some cases has forced them to paraphrase or omit the texts that they're writing about. I agree with Mark that while authors need to be careful, they shouldn't be too diffident about relying on the principle of fair use. Many times I have quoted to authors some lines I have virtually memorized from the Chicago Manual of Style that I thumbed through constantly when I first started in publishing.

"Fair use is use that is fair--simply that....The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly."

I was happy to see that these lines still appear (though slightly modified), in the new 16th Edition of the Manual. They still hold true.

 (Illustration: Lawyers by Honore Daumier, via Wikimedia Commons)

Why We Should Get Ready for a Plunge in Print-Book Sales

I wrote earlier this week that publishers need to prepare for a decline in print-book sales that's much steeper than what we have seen thus far, and that is likely to accelerate the reshaping of the industry. The reasons why this seems inevitable derive not from any intrinsic superiority of e-books, nor any growing technophilia or screen-tropism of readers, but rather from the structure of the market. 


For one thing, e-book sales don't replace p-book sales on a one to one basis, as my colleague Evan Schnittman points out in his post "E-Books Don't Cannibalize Print, People Do." Evan argues that once you have adopted an e-reader--whether it's Kindle, Nook, or your iPhone--you soon give up buying print books. You become so happy with the convenience of instant purchase and the bookshelf-in-your-briefcase that you virtually give up purchasing hardcovers--in fact, he argues, you'll simply forgo a title that's not available in e-format. 


I don't think this holds true 100% for all readers--I read e-books aplenty but still buy p-books. But my hunch is that Evan is pretty much on the money: the graph of p-books purchased by an e-reader owner is a step-function. It doesn't slope down gradually, it drops almost straight down once someone becomes an e-book convert. (The good news for publishers is that (a) those e-book sales can be more profitable than print and (b) the graph of e-books purchased by the new e-thusiast is of course also an upward step function, from zero to lots. Lots of evidence suggests these e-thusiasts buy more books than ever, partly because it's so easy to do. But right now I'm focusing on print, which is a less happy story. Keep in mind that those e-reader owners are usually avid readers, i.e. they are our best customers for print books.) 

So at the level of individual consumers we're losing not just one print-book purchase at a time, but potentially scores, or hundreds, as that person adopts e-reading. Now look at this at the level of bookstores. Right now e-book sales constitute, at a rough guess, 10 percent of the market and their share is growing rapidly. For many small businesses, especially in a low-margin industry like ours, losing 10 percent of your sales volume is the difference between profit and loss. Even a 5 percent dip is a challenge; imagine looking at a 10 percent dip and thinking, next year it'll be 15, and the year after, who knows? Yesterday I linked to an NPR story about a couple of independent booksellers who have prospered despite the difficult market, and hats off to them. But over the past several months, stories of bookstore closings have, alas, been more common. This week, two beloved indies in Minnesota announced closures, explicitly pointing out that they have lost customers and sales to the e-book revolution. One store owner made the complaint, common among booksellers, that customers browse her shelves to decide which books to download at home. " We're really now a showroom for books." You can see why these folks may decide it's time to call it quits.

This, too, is a step function. When a bookstore closes, the sales at that location don't slope down, they drop to zero. Multiply this across many bookstore closings--including locations now being closed by the chains. Furthermore, many surviving stores, in self-defense, are devoting more shelf space to nonbook items, which means fewer print books stocked, and fewer sold. With all this, it seems clear to me that print sales are going to fall, if not off a cliff, down a teeth-rattling escarpment. Just to tighten the spiral, we're also going to see smaller print runs, thus higher per-copy costs, thus higher prices for printed books--which is only going to push more consumers toward e-books! 

What all this means is: up to now, e-book sales have been growing faster than hardcover sales have been declining, so overall big publishers have been seeing growth. But we may soon reach a tipping point where because of the loss of sales outlets, print sales drop off much faster than e-books replace them. I remember the wailing and gnashing of teeth--and the austerity programs and downsizing-- among publishers back in the 90s, when the chains' great expansion of superstores leveled off (that is, when sales merely stopped growing, never mind declining).

I'm not predicting apocalypse here, or even calamity. As I said in yesterday's post, I expect hardcover books, bookstores, and publishers to survive, and some even to prosper. But I am predicting major disruption. 

(Photo: Cliff diving in Cyprus, via Wikimedia Commons)

More on P- versus E-Books: Bookstores, and Printed Books, Aren't Dead. But...

Yesterday's post, in which I mused about whether we were living through a "phony war" period in publishing, generated thoughtful comments in several places around the web.  Several readers questioned my statement that we were likely to see a steep drop in print book sales in the near future. One said that e-books had been boosted by the Kindle, but "they could just as easily be just another fad like Tamagotchis, as I personally ascribe the drop in hardcopy book sales to a mix of the recession and the fact that there's just nothing out there I really want." Another said print and hardcover sales were not really "at war" and that they could continue on parallel tracks. Another said that e-book sales had enormous room to grow (inarguable) and that it was more likely print sales would grow alongside of e-books.

I'm afraid I must disagree with all these commenters. I do think the decline in print book sales is inevitable and probably irreversible, as I'll explain. But I want to emphasize a couple of points: First, I hope it's clear that I am not celebrating this trend. I personally love bookstores and all those other things that are part of the print-book experience--yes, the smell of books, the pleasure of reading a beautifully designed volume, and even the book sitting on my shelf as a souvenir of the experience of reading it. I'm too young to have known Fourth Avenue when it was New York's Booksellers' Row, but my idea of paradise is Harvard Square in the 1970s when practically every block had a bookstore on it.  I think any community without a bookstore is impoverished, and I certainly hope never to see the day when new books aren't available in print form.

Second, although I believe the number of bookstores and amount of shelf space is going to shrink drastically, I'm not in the least suggesting that wonderful stores (and beautiful printed books for that matter) aren't going to survive. In fact, it's the wonderful stores that will survive--the RJ Julia's, the Books & Books, and, I trust, my neighborhood's tiny jewel-box of an indie, Three Lives & Company. Stores like these, creatively run, deeply connected to their clientele, carefully curated, and a pleasure to visit, can thrive just as other creative retailers do even under tough conditions.  Thankfully, booksellers like this can be found all over the country. Just yesterday, NPR highlighted some first-rate booksellers who are beating the odds (read the piece or listen here.) And although I find many chain bookstores disappointing, there are some that serve their localities well. (In Encino, CA, 3250 local residents have liked a Facebook page devoted to saving their Barnes & Noble.)

Likewise, the printed-book-as-object, though it may become more of a luxury item, is always going to be one of the world's best gift items (including gifts to oneself, of course). And much as I like reading on my iPad, I'm always going to prefer a paperback in the bath or at the beach. For this and many other reasons, printed books are not going to disappear.

BUT a publisher has to accept the realities of the marketplace, and for better or worse, like it or not, the market is going to see a steep falloff in brick-and-mortar retail and a corresponding downslope in the sale of printed books. Those two facts are closely connected and I'll expand on why in my next post.

(photo of Shakespeare & Co., Paris, by Ian Britton. Creative Commons license)

The Last Country House Party? E-Books and Publishing's Phony War

From what I can gather around town, major trade publishers have been having a pretty good year--a surprisingly good year, given a lingering recession and the widespread predictions of the death of the book business.  And it seems pretty clear a primary reason, perhaps the reason, for our good results is the  explosive growth of e-book sales.

The introduction of the iPad, slashed prices on the Kindle, now the color Nook and the long-awaited arrival of the Google e-bookstore--all these have helped to drive a massive increase in e-reading. While print book sales have declined in the past year, e-books, with lower per-unit costs, have more than taken up the slack. Even for houses where gross sales have declined, profits may well have increased. And many of us in the industry expect a bonanza after Christmas, when everyone who has just opened their gift Kindles and iPads loads them up with new e-titles to read. We could see a surge in e-book sales that makes the year look triumphant for book publishers.

I can't help wondering if what we're living through right now is like the "Phony War" of 1939-40--the period when war had been declared in Europe but Germany had yet to assault the countries to its west. The country-house parties went on as before, but the storm was coming. 

Right now e-book sales are,  not exactly gravy for publishers, but a profitable layer on top of print sales that have yet to fall off drastically.  But that won't last.  As Mike Shatzkin starkly put it this week, "every book purchased online is another nail in the coffin of brick-and-mortar bookselling." As the e-book trend continues, more bookstores are going to close--both independents and chain locations. Both B&N and Borders have been closing superstores and also devoting more space to non-book items, further reducing shelf space and inevitably book sales.  

I don't know when it will happen, but we're likely to see bookstore sales go from "declining" to "plunging" in the near future. Shatzkin's take is that "what brick-and-mortar booksellers will experience in the first six months of 2011 will be the most difficult time they’ve ever seen, with challenges escalating beyond what most of them are now imagining or budgeting for." My impression is that most publishers are not budgeting for these challenges either. When they start to hit home, we may have to take our motor-cars back from the country houses and get ready for the Blitz. 

P.S. If you believe, as I do, that independent bookstores--and even well-run chain bookstores for that matter--are a vital part of our literary ecosystem, please remember to do your Christmas shopping there. 

(Still from Jean Renoir's The Rules of the Game, 1939.)