Erggo

Karen@KarenCommins.com

470.737.NAR8 (6278)

Karen Commins

Award Winning

Atlanta Audiobook Share-rator™

Business

When the Author is 6 Feet Under

I’ve recently helped a number of narrators research the audio rights holder in cases where the author has passed away. I decided to share my process as it might be helpful to other people.

 

Focus on the Copyright Date

I start by examining the book’s copyright date. Books published in the US before 1925 are already in the public domain. If it falls between 1925 and 1963, I first check to see if the title is in the public domain using the links in this article. (Note: While some of the info below is summarized in the last bullet point on that page, I want to offer more explanation and show the successive steps in this post.)

If I find that the book is in the public domain, I stop my research. The narrator can perform and publish the book on their own without contacting anyone or paying any licensing fees or royalties.

A large percentage of texts from those years appear to be copyrighted but are actually in the public domain due to a key technical requirement of the copyright law at that time. Copyright owners — usually the author, but it could be the publisher — had to renew the copyright by the end of the 28th year following publication in order to maintain their copyrighted status.

These books can be categorized into one of these ways:

  • Between 1925 and 1977, if the book wasn’t published with a copyright notice — in other words, if it didn’t include the C in the circle © or say the word copyright with a date — it’s in the public domain.
  • If the book was published between 1925 and 1963 and was published properly with the copyright notice, but the copyright owner didn’t actually renew the copyright, it’s in the public domain.
  • If they published it with all the correct formalities and renewed it by the end of the 28th year following publication, the copyright was extended for an additional 67 years, or a total of 95 years under copyright. Its copyright runs through the end of the 95th year after the publication date. You would need to continue your research as indicated in the next section.

As an aside, be aware that everything that was published in 1925 is going to be in the public domain on 1 January 2021. Enterprising narrators may want to pay attention to that point because you could start looking for an upcoming public domain book that you want to do! If this topic interests you, I’m creating a course for members of NarratorsRoadmap.com that includes a discussion about how to find some of these public domain gems.

Each January 1st, another year’s books enter the public domain. On 1 January 2022, books published in 1926 enter the public domain, and so on.

 

Find The Person

For works still under copyright that were traditionally published, you can contact the subsidiary rights department of the publisher. An inestimable number of books were published before commercial audiobooks became a mainstream form of entertainment. Depending on the contract, the publisher may have acquired all or only limited rights to the text, and those rights may revert to the author after a certain period of time.

I prefer to find someone representing the author since publishers can take a long time to respond, if they respond at all. You would also need to do this research for books independently published.

I perform a number of Google searches that will seem like word association.

This first search is best for prolific authors or those who wrote 1 or more books that are considered to be classic literature. If you’re lucky, the results will lead you directly to the door of the person who manages the rights.

[author name] literary estate or [author name] literary rights

As an example, doing this search for reclusive author J. D. Salinger will readily show in the results that his work is zealously controlled by his son Matthew. The estate waited until 2019 to allow ebook productions of Salinger’s works and still hasn’t permitted audiobooks to be made.

I usually then search for the author’s obituary.

[author name] obituary

Once I find the obituary, I look for the names of the author’s agent, the publisher, and survivors. If the survivors live in a different city from the author, their city is usually listed in the obituary.

[survivor’s name] [city name]

Sometimes I need to search for a survivor’s name with the author’s name.

[survivor’s name] [author name]

I’ll usually get some hits, possibly including the survivor’s obituary if the book was published decades ago. I once wound up creating a family tree for one famous, early 20th century author!

Sometimes the survivor’s name will pop up on a site with some contact info, or I might see other tidbits that I can add to my search terms, like a business name or organization they are associated with.

If I don’t find those names in the obituary, I will do satellite searches with the author’s name, like

[author name] agent

[author name] manager

The author may have left their papers with a museum or university. If the archivist has created a finding aid for the papers, you may see contact info for the estate, especially if the material is restricted. I’ve also paid an on-site researcher to look through the contracts. I search for finding aids with this format:

[author name] papers finding aid

 

Find Their Contact Info

Once you’ve determined a promising contact name, you’ll need to find their contact information. If you’re living a charmed life, you might see an email address, web site, and/or phone number listed on one of the pages you’ve already reviewed.

Without that serendipity, you can do some more searches to look for those pieces to the puzzle.

My favorite Google search uses the site: modifier. Adding site: tells Google to only look at the pages of the specified site.

site:[sitename.domain] [search term]

As an example, LinkedIn.com becomes my personal rolodex with a search like

site:LinkedIn.com Macmillan subsidiary rights.

With LinkedIn, you can learn a person’s city and company name.

In this Tuesday Tip, I offer 3 ways to find the person’s email address.

 

Formulate Your Query

Now that you’ve located a person who could respond about the audio rights for your book, your query to them starts a conversation about the audiobook. You could present yourself as the sub-contractor to whom they can hand off the audiobook production process, but don’t overwhelm them with a proposal, audio sample, or contract in the initial query.

We have to think of our queries from the point of view of the people who receive them. What would make you want to stop what you’re doing and get you excited about working with a random person who sent you an email? This Tuesday Tip gives you pointers for creating short and concise emails.

If you’re contacting a family member, I’d ask if that person manages the author’s literary rights or could direct you to the correct person. You might have a better chance of convincing them to let you produce it.

Be mindful that lawyers, agents, and publishers are less apt to hire a narrator they’ve never heard of to make an audiobook of unknown quality from a (probably backlist) book they weren’t even thinking about. Hiring a narrator means they have to make time in their already overloaded schedule to manage the audiobook production process, where they usually have no expertise and lack the time and/or inclination to learn.

Especially in the case of a well-known author, these folks are much more interested in licensing the rights — note that it’s not a purchase, but a license for a specified period of time.

If you want to learn about licensing rights, head to my Shop page, where you can purchase the fantastic webinar I did with Grammy-winning director, long-time audiobook distributor, and IP attorney Jessica Kaye on this very topic.

Some publishers and agents don’t want to license rights to an independent narrator. If they do indicate interest in getting an audiobook done, they might ask your license terms. You need to show everything you can to give them confidence in your ability to produce a quality product and promote it to increase sales. I’d be ready to offer the distributor name I’d plan to use and any other facts they’d need to trust me.

All of the research you’ve done may make you feel more emotionally attached to the book. You have to be prepared to let it go. Once someone expresses interest in creating an audiobook, the RH may shop the rights around to maximize their deal.

The good news is that millions of other books still need audio editions, so you can easily get interested in a different book!

 

 

Cure For The ACX 7-Year Itch

If you own the audio rights to your book, you are referred to as the rights holder (RH). The RH has many choices when starting an audiobook project. Two of the most important decisions you’ll make are the narrator’s payment and the audiobook’s distribution.

Make these decisions very carefully and INDEPENDENTLY because their long-term repercussions could be harmful to you in ways you don’t expect!

Payment Options

You basically have 3 ways to pay your narrator:

  1. Per Finished Hour (PFH) — You pay $X times each finished hour of audio up-front to the narrator. For instance, a $300 PFH rate on an 8-hour audiobook would cost $2400 at the time the audiobook is completed.
  2. Royalty Share (RS) — Rather than you paying anything up-front to the narrator, you agree to share your royalties with the narrator. The narrator gambles that her narrator fee and production expenses for team members (director, editor, proofer) will earn out over time through the royalties. This contract can be structured so that the narrator receives ALL royalties until her fee is paid or, more typically, the royalties are split equally between the RH and narrator for the course of the contract.
  3. Hybrid — You pay the narrator some up-front fee to cover their hard expenses and also have a royalty share contract.

Recommendation:  By using a PFH payment, you could contract with a narrator completely outside of ACX or any other distribution platform and upload your completed audiobook to the distributors of your choice as a DIY project.

You may want to download and modify one of the contracts on this page if you go this route.

 

street sign that says 7 year itch

ACX as Distributor

This article focuses on using ACX as your distributor since it is the most widely known and utilized site.

Many RHs find a Royalty Share (RS) contract with the narrator on ACX.com to be very attractive because they can get an audiobook made without incurring up-front costs. They often don’t consider that this kind of contract marries the narrator’s payment to the distribution agreement.

Narrators are reluctant to accept an RS contract because the narrator shoulders ALL of the risk for low or no sales. Narrators look for several conditions to mitigate their risk.

A narrator is much more willing to accept the ACX hybrid contract known as Royalty Share Plus (RS+). In addition to the equal royalty split, the RH pays the narrator an amount up-front to help offset the narrator’s immediate expenses. The amount is negotiated between the RH and narrator and can be a set fee but is usually priced per finished hour (PFH).

With either an RS or RS+ contract, you are forced to accept exclusive distribution, meaning your audiobook will only be sold on Audible, Amazon, and Apple Books for the initial distribution term of 7 years. You have no option to upload your audiobook to other sites for wide distribution or sell it on CD or from your web site.

As I’ve previously written, indie authors get frustrated with the RS option for a number of reasons, especially when they itch to be relieved of the 7-year distribution term.

 

Contract Language

You have 2 contracts in place: the Book Posting Agreement between you and Audible, and the Production Standard Terms between you, Audible, and the narrator.

The distribution language is contained in the ACX Book Posting Agreement.

Sections 5A and 5B on exclusive or non-exclusive distribution set the initial distribution term at 7 years and include this auto-renewal clause:

After the Initial Term [7 years], this Agreement will renew automatically for additional 1 year terms (each, a “Renewal Term”) unless either party provides written notice of termination to the other party at least 60 days prior to the end of the Initial Term or the then-current Renewal Term.

Section 13B about changing the distribution to non-exclusive states:

If you elect to pay the Producer who produces an Audiobook using the ACX royalty share option, you must grant Audible exclusive distribution rights to the Audiobook and you cannot change your grant to non-exclusive.

In Section 14, the RH agrees that Audible will pay the royalties to producers on an RS contract.

Section 5-1 of the Production Standard Terms discusses the royalty payments.

Suppose you decide to use an RS or RS+ contract. Can you cancel distribution before the end of the initial 7 years?

If you want to cancel the distribution before the end of the 7 years, you must obtain the narrator’s permission to dissolve an RS or RS+ contract. Almost certainly, the narrator rightfully will demand a termination fee at that point. While section 8B of the Book Posting Agreement specifies termination fees prior to the completion of production, the contracts are silent about the termination fee once the book is on sale.

You and the narrator therefore will need to negotiate the kill fee. Remember, the narrator is expecting to earn at least their PFH rate through the royalties. If the audiobook’s sales have surpassed the total of what the PFH rate would have been, the narrator may reasonably propose a kill fee that also includes the loss of expected royalties.

What happens after the contract finishes its initial 7-year distribution term?

As you saw above, Audible’s contract language says exclusive RS agreements can’t be changed. The only way the RH can remove the narrator from the RS agreement is for them to terminate distribution with Audible, as confirmed in this section of the Contracts and Agreements Qs and As page:

Can I change my contract from Exclusive to Non-exclusive?

Changing the distribution rights to your audiobook depends on the payment option you have chosen. If the audiobook was completed as a pay-for-production deal, the distribution rights can be changed from exclusive to non-exclusive after it has been live in the store for one year. If this audiobook is in a royalty share deal, then the agreement can never be changed. For more information, please reference section 12.a. of the Book Posting Agreement.”

I’ve had a number of RS books I narrated pulled by the RH after the 7-year initial distribution term because they wanted to terminate the RS contract. The big downside to this approach is that the RH not only loses the income and visibility of the book being on Audible, but all of the ratings and reviews the book earned during the 7 years are gone, too.

At the point the RH terminates the RS contract, he then may republish the audiobook since he owns the copyright to the recording, and the producer has assigned all interest in the book to the RH, as explicitly stated in Section 10 of the Production Standard Terms:

Ownership. Subject to the restriction on audiobook production rights above and the distribution rights granted by Rights Holder to Audible, Rights Holder will retain all right, title, and interest in and to the Book and the Audiobook, including the copyright in the Book and the sound recording copyright in the Audiobook. Producer agrees that the Audiobook is a “work made for hire” to the full extent permitted by law, with all copyrights in the Audiobook owned by Rights Holder. To the extent that the Audiobook does not qualify as a work made for hire under applicable law, Producer assigns to Rights Holder all right, title and interest Producer may have in and to the Audiobook, including, but not limited to, all copyright or rights of authorship in the Audiobook. Producer will ensure that its agreements with any third parties Producer engages to assist in the production of the Audiobook establish Rights Holder’s sole ownership in the Audiobook. Producer will use the form agreements referenced in Section 2 above. At Rights Holder’s request, Producer will provide Rights Holder with copies of the agreements.

Be aware that ACX and Audible will not send the audio files to you. You would need to download them from your ACX Dashboard. Go to Completed Projects, select the book, choose Produce Audiobook tab, and download each file by pressing Download on the right side.

 

The cure for the ACX 7-year itch is available to you at the BEGINNING of the project: decide to pay the narrator per finished hour (PFH) instead of using an RS or RS+ contract. 

When you pay a PFH rate at the outset, you can select non-exclusive distribution on ACX and then immediately distribute your audiobook to other platforms, including those that offer your audiobook to libraries. You also have the option of exclusive distribution for the first year and then changing to non-exclusive distribution as early as year two.

As you can see on my RH info page, I ask new clients to pay a 50% deposit after approving the 15-minute sample. I invoice for the final 50% after uploading the completed audiobook. In cases where the RH and I contract independently of ACX or another platform, I withhold at least the end credits and retail sample until the invoice is paid. I encourage other narrators to adopt a similar policy.

 

 

 

Breaking a Contract on ACX

If you’re following my #TuesdayTips on Twitter (also accessible through my Evernote notebook of them), you know that #44 on 24 March 2020 contained instructions for downloading your data from Facebook. After getting my data, I excavated the following post I made on 9/28/14 in a FB narrator’s group. I’m publishing it here — with some links, of course! — because its lessons remain timely. I’ll add some comments in purple.

 

Ripping a contract in half

[I want share] a recent experience about breaking an ACX contract in the hopes it helps someone else.

The 2 lessons to the story:

1) If you hear warning bells before you audition, either request the book or forget about auditioning.
2) Life’s too short to deal with bad text and a non-responsive rights holder!

The abridged version:

  • I broke a royalty share (RS) contract on ACX before recording the first 15 minutes. The manuscript was terrible, and the rights holder became unresponsive.
  • I sent her 2 messages through the ACX message system before requesting project termination.
  • You have to send the reasons for termination to INFO@acx.com. I first wrote to support@acx.com but was told I had to send the request to INFO@acx.com.
  • ACX dissolved the project and deleted it from my dashboard the next day.
  • If you ever need to dissolve a contract, feel free to copy any of the language from my messages.

The unabridged version, complete with my messages to the RH:

I saw a book titled “Keeping A Journal”. I’ve been keeping a journal for years and know the many benefits of this practice. It was a short royalty share book of an hour or less. Even though I couldn’t find anything about the author, I auditioned because I wanted to share the message about journaling. I’d say now that if you can’t find any info about the author, don’t even bother auditioning.

The audition script seemed a bit repetitive. The word choices seemed like someone who was trying to sound more educated than she is.

I heard the warning bells and almost didn’t audition. Whenever I hear warning bells now, I listen to them! I thought about asking for the complete book before the audition. However, since it was so short, I decided to go ahead with it. Anyone who has been burned by doing a short ACX book probably thought the same thing!

The rights holder (RH) selected me and sent the manuscript right away. She said she teaches journaling classes. “Great!”, I thought, “She obviously knows what people commonly ask when they start journaling and will get right to the heart of it.”

I thought the book would get better than the audition copy. I was wrong. It got worse….much, MUCH worse.

My first message to the RH explains some of the book’s problems:

Hi, [RH]! I hope you are enjoying a relaxing holiday weekend.

I had planned to record, edit, and submit the first 15 minutes of Keeping a Journal today. However, I wonder if I have the final version of the manuscript.

Before I continue, let me assure you that I view my narrations as a collaboration with the author. We want the same end result — happy listeners who leave great reviews/ratings and who want to refer their friends to the audiobook.

I was excited to see your book on ACX because I am a firm believer in the power of journaling. I auditioned and agreed to a royalty share contract only because I want to promote the value of journaling, not because I need the work.

After reading the entire book, I feel I must tell you the version of the manuscript that I have is not ready to be made into an audiobook. Here are a few issues that might be remedied with some strong editing:

1) Much of the content is overly repetitive and makes starting a journal seem more difficult than it actually is. The prolonged and redundant discussion about preparation alone is enough to dissuade anyone from keeping a journal. The actual ideas expressed in the book could be more simply stated in about 2 pages.

2) Some of the word choices are incorrect (“once you INHERIT these various tactics…”), and the overall language is formal and highfalutin rather than conversational.

3) The book doesn’t fulfill the promise of the title about self-discovery and finding joy. The book mentions benefits of journaling, but none are listed or explored. I think most people are concerned about what to write or how the journal will help them over time. Those topics also are not addressed. A listener who hears the journaling “rules” will be inclined to give up the practice before even starting.

When I auditioned, I thought that this book would offer concrete tips similar to Jim Rohn’s excellent advice in his program How to Keep A Journal.

I’m afraid that if I record the version of the manuscript that I have, listeners will rate the content as 1-star and automatically make my performance a 1-star rating as well. I further predict that any reviews would be very negative and highlight the points I have made in this message. With many other books available on this subject, 1 bad review would cause this one to fade to obscurity.

My intent is to help you produce the best product possible. I apologize if my candor angers or hurts you. I am direct, concise, and honest in my communications because no one ever solved a problem by beating around the bush.

Do you want to send me a revised manuscript? ACX doesn’t care if we change the due dates on the contract.

If not, I must ask you to terminate the contract.

Thank you for your time and understanding. I look forward to your response.

Cordially,
Karen Commins

Today, I’d simply ask the RH if I have the final version of the manuscript and then skip to end where I ask for a revised edition. I wouldn’t list any of the various problems I found in the text as it’s not my job to tell the author how to write. I also don’t enjoy spending my time trying to educate a RH who may not value my help.

She didn’t respond. Ten days and both deadlines passed. I wrote to her a second time:

Hi, [RH]! I hope your week is off to a good start.

I wrote to you on 30 August about problems in the manuscript for Keeping a Journal but haven’t heard from you.

Are you revising the manuscript? Both deadlines for this book have already passed. I need to know if you plan to send an updated manuscript or terminate the contract.

I look forward to hearing from you.

Cordially,
Karen Commins

Six days later, I sent my third and final message to her:

Hi, [RH]. I hope you are well.

I’ve written 2 messages to you about the manuscript for Keeping a Journal (30 Aug. and 10 Sept.) but have not received a response. I’m assuming that you don’t want to go forward with creating an audiobook of Keeping a Journal at this time.

Therefore, I’m going to ask ACX to terminate the contract and remove it from my project list.

Perhaps we can work together in the future. Best wishes for your success!

Cordially,
Karen Commins

I then wrote to ACX to request project termination. I gave my reasons and outlined my dates of communication.

 

As a reminder, the ACX message system is the official documentation. While you may communicate with RHs outside of the system, all messages affecting production dates should be sent through the ACX system. Furthermore, contract dissolution is more easily accomplished when it occurs before the first 15 minute checkpoint file is recorded or uploaded.

 

Photo: Andriano.cz/Shutterstock

 

Avoid Copyright Infringement During The Pandemic (and Always)

Last updated 30 March 2020

 

I first saw someone on Facebook propose a concept. A day or so later, I read a tweet from another person writing about the same thing. Suddenly, it seemed that this idea started spreading exponentially. I began to worry about narrator friends who were unnecessarily exposing themselves to risk.

You see, due to the closures and social distancing measures prompted by the COVID-19 pandemic, many audiobook narrators, teachers, and parents have announced plans to record books on YouTube to educate and entertain children or even the public at large. They don’t realize they could be liable for copyright infringement.

Before I finished grad school with my Master of Science in computer information systems, I considered switching to law school to specialize in intellectual property law. I therefore was beyond excited to be accepted in the 2020 CopyrightX course offered by Harvard Law School.

I’ve learned so much in this course and look forward to my successful conclusion of it in early May.

While I’m not a copyright expert, I want to share some information to help these well-intentioned people better understand the laws so that they can avoid the possibility of copyright infringement during the pandemic and thereafter.

 

[Read more…] about Avoid Copyright Infringement During The Pandemic (and Always)

20 Things Learned in Last 20 Years

 

Happy 20th anniversary to me!

I launched my voiceover business 20 years ago.

Since my last post was about using my journal, it’s only appropriate that this one goes back to where it all began, my first entry in my first book.

 

Saturday 8/28/1999 9:25pm

I’m spending my evening copying the CD of my first voice-over demo with the plan to mail a few to agents on Monday. How I got to this point and where I go from here will be the subject of this journal.

Friday 9/3/99 10:15pm

On Wednesday, September 1, 1999, I mailed 3 CDs to [3 Atlanta VO agents]. It was such a huge step, and I felt a tremendous sense of accomplishment and excitement to have pushed the dream out to people who could do something about it!

The past 20 years have been a remarkable evolutionary journey, to say the least! As I was reflecting on all that I’ve seen, read, written, voiced, and otherwise done in that time, I decided a blog post of 20 things I’ve learned would be a great way to celebrate this milestone!

So here’s the list, in no particular order. By the way, you’ll find more private journal entries sprinkled throughout these articles!

[Read more…] about 20 Things Learned in Last 20 Years

ACX U – Acting With Intention

Most of this blog’s readers know about the audiobook production site ACX.com. Each year, ACX produces educational programming called ACX University. I had the great pleasure of being a guest speaker on the topic of Acting With Intention in one of the 2018 ACX University sessions.

 

 

During and after the video broadcast, I chatted with viewers. As usual for the Queen of Links, I shared a number of resources in that chat session. I also answered a number of questions.

While the chat is embedded with the video, I wanted to post all of the ancillary material and discussion here on my blog to make it easier to reference. That way, you can watch the video and not worry about missing anything.

[Read more…] about ACX U – Acting With Intention