PUBLISHED MAY 1996
by Ivan Hoffman, Publishing Attorney —
At the inception of any new medium, those in the already existing media cry out about the imminent downfall of their cherished territory. This happened when television came in and those in the movie industry screamed about the loss of their markets. This happened when the VCR came in and those in the television industry shrieked about the loss of their markets. None of that which provoked these protests has ever been true. Those with vested interests learned how to adapt to the new medium and use it for their advantage. They did so or they perished.
Today, the “hot button” issue is electronic media and the voices of some are heard about loss of revenue and even the downfall of copyright. Instead of expending such energies crying about false wolves, writers and publishers should be figuring out how to adapt. There are some who would hold out and not allow their creative product to be exploited “for free” as it were. It appears to me that they have missed the point entirely about the state of electronic rights at this moment in history.
The money isn’t here yet. The market is.
Failing to see that electronic rights are not about earning enough money to purchase that long-awaited villa in Spain but rather about creating an outreach far beyond one’s previously wildest expectations is, to my mind, to miss the point in its entirety. To refuse to have one’s work exploited in this new medium even if “for free” is to fail to adapt. And to risk perishing.
Before I got on the Net, I took a class about it and the teacher said that when any new medium comes along there are those who are “early adopters,” those that instantly “get it,” see its enormous potential and jump on it.
Then there are the “later adopters,” and finally there are the “laggards.” If you are reading this, then you are already potentially an “early adopter.” But those who fail to “jump on it,” those who hold out exploiting it because they are still working with yesterday’s ideas in today’s environment, run the risk of losing that “early adopter” status.
I use the words “for free” in quotes because free is an inappropriate word. The benefits are enormous. To see “free” as meaning for no fee, while grammatically correct, seems to me to miss the point again. The power to reach readers throughout the world, at no cost, is hardly without benefits. The power to publish without constraints imposed by editors and publishers is hardly without benefits. In no sense of the concept is the writer or publisher giving up anything “for free.”
The legal term used in any transaction to make it enforceable is called “consideration.” A “consideration” can be that which one party gains in the transaction and it is not limited to money. There is a maxim in the law business that says that “The law will not question the adequacy of the consideration.” This means that it is up to the parties, not the courts, to determine what the benefits are.
Having said all this, I do not suggest that one simply give away one’s creativity without benefits, including monetary benefits, when it is possible to avoid it. Certainly, when money is exchanged by any party to the transaction, the creator should share in that money (and in a subsequent article I hope to deal with how to approach this). But the power to create the financial market can only come when the market is established in the first place. To hold back creative product at this point is to run the risk of diminishing the very market we seek to create down the road, the one that produces revenue.
If the old ideas of the wolf criers in my initial paragraph had prevailed, it is possible that the markets that later came into existence, and which were in part the saving grace of those same older media, might never have materialized.
But to see the benefits in any new medium requires a bit of vision. Imagine what your childhood story-telling experiences might have been like had the little boy had vision before he cried, “Wolf!”
Ivan Hoffman is an attorney, a twice-published author, and a publisher. He practices in the Los Angeles area. You may reach him at 818/342-1762 or on the Internet at firstname.lastname@example.org.
This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.