I you are owed money for 2+ years, talk to a lawyer asap. Not next month. Go to their office today. There are statute of limitation deadlines that are likely approaching.
Disney can delay any relief until the end of time.
Edit : They did this with the Winnie the Pooh right holders.
Would be nice if they just paid him what he's owed.
Leaning towards cancelling my Disney + , aside from the Simpsons( first 10 seasons) , Original SW trilogy and The Last Jedi there's not much good content. Might stay until Soul comes out next month.
Only need to watch those 4 Star Wars movies once a year
Hypothetically you can just throw the full Disney torrent, plus the full Star Wars torrent on Plex and you've got almost everything of value from Disney right there. All you need to do it download the newest Mandalorian weekly.
I'd never condone piracy, but hypothetically that's what I'd do.
And if someone were hypothetically worried about getting copyright infringement notices on their home IP, a put.io subscription could be valuable.
I don’t know if it’s copyright infringement or not, but I ended up doing this after my legal copies of some shows and movies wouldn’t work on my tv (connected to computer by a cable) due to DRM. I acquired the shows and movies another way, and threw out the copies on DVD as they didn’t work.
No, the more accurate headline would be the one that is currently in place (that the author is claiming that he is owed royalties).
As it stands, the irrefutable evidence from the US Copyright Office is that these novelizations were works-for-hire, so ADF would never have been owed any royalties, let alone for the past 4 years, unless he had a non-standard WFH agreement which he has thus far failed to produce.
Generally something like this wouldn't require an NDA, so it's likely that the WFH agreement includes special terms that Disney doesn't want other authors to be aware of, or older terms that are no longer present in their current-day contracts.
Given that ADF was a big name back in the day, he was probably getting some generous sales-based bonuses. He claims he was getting paid through at least 2014 for the Star Wars novels, which would mean Disney was still paying him for 2 years after the Lucasfilm acquisition. That would have been about right for Disney to have had time to review all of the Lucasfilm contracts and stop payments on the ones where they weren't actually required to pay. (This isn't all that rare; at my former job we were paying $20k a year to a former employee and it wasn't until one of the new general counsels asked why that we actually looked at the contract to see why were were still paying it. It wasn't questioned until them because the company been making those payments for years, and in the scheme of things, was fairly immaterial. Ultimately, the former employee had been entitled to those payments for several years, but the contract term had long since run out. However, anyone with knowledge of the expiration date had since left the company, and their replacements just kept paying.)
Yes. WFH contracts can have royalties, and it's my understanding that Marvel and DC's WFH contracts all have royalty-like provisions, because their authors and artists are generally providing significant new/creative IP, but the royalties in those contracts are simply royalty-like payments that they call "participation" because they're not legally royalties. They're similar, but similar is not same. Royalty-like payments do not have the same legal force that royalties; they're enforced through the normal means of resolving contract disputes rather than through the application of copyright law.
It's extremely rare for WFH novelizations of movies to provide for royalties, because authors of novelizations are generally not creating significant (if any) new creative IP; in most cases, they're simply converting a script to prose format.
ADF might have such terms in his contract, since movie studios were more generous about these things back then, but he's had the power to show us this part of his contract for almost a week now and he's chosen not to. Nor, for that matter, has the SFWA, which has similarly had access to at least one of those contracts.
"Royalty-like payments do not have the same legal force that royalties; they're enforced through the normal means of resolving contract disputes rather than through the application of copyright law."
DC did use the term royalties in their work-for-hire contract as of 2008:
At any rate it's not clear to me what you mean by "normal means of resolving contract disputes rather than through the application of copyright law". Once you have a contract between the parties it's going to be resolved primarily as a contract dispute. It's not going to be resolved the way someone posting something on the pirate bay will be resolved.
I'm not saying what you wrote is incorrect so much as I don't think it's going to make much of a practical difference whether you call it a royalty or not.
Yes, you can call something X all you like. That does not mean the law (or specifically, the courts) will actually treat it as X.
DC specifically changed the terminology of its "royalty" payments because they were not actually royalties, but calling them royalties was causing headaches for its legal dept with respect to licensing, because the existence of "royalty" payments implied that DC was not the owner of the IP, and thus that they had to seek additional licenses from the actual owners of the IP.)
And that is why Marvel switched away from calling them royalties a long time ago.
Copyright law has a special regime for enforcement. I.e., statutory damages, etc. It applies in addition to relief available under contract law. However, for "royalty" payments that aren't actually royalties, only contract law remedies are available.
SFWA seems to be saying that Disney's argument is that when they bought the rights from George Lucas, the royalties didn't come along with that. It seems Disney is not asserting there are no royalties in the contract, just rather that they don't have to pay them.
I assume SFWA and ADF have discussed this beyond what they are posting to twitter. Him not posting the contract to everyone on the internet seems like a weird detail to call out as a point against him.
As noted in the prior thread, movie novelizations are almost always work-for-hire jobs, meaning that the authors are not entitled to royalties but get paid a fixed amount and may receive sales-based bonuses. (In a work-for-hire arrangement, the author is commissioned to write something, and the employer owns the copyright and thus also the royalties for licensing, republication, etc.)
While 70s/early 80s era Fox was known for its artist-friendly legal deals (see, e.g., letting Lucas keep Star Wars), it would have been extremely unusual for Lucasfilm to have hired ADF on anything but a WFH basis. And indeed, the copyright record for the novel Splinter of the Mind's Eye shows that the "Star Wars Corporation" owns the copyright, not ADF, and was an "employer for hire." (https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&...) On that note, the copyright registration for Aliens (the novelization) also shows that it was a work-for-hire. https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=65&ti=51,... (Contrast to an original work, where the author is the copyright claimant: John Scalzi's Old Man's War https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=2&ti=1,2&...)
In other words, ADF is not being denied royalties. He wasn't owed any in the first place, unless he somehow negotiated a non-standard WFH agreement that almost nobody in the industry gets. (ADF was a big name for sci-fi novelizations back in the day, so it's possible that he did have such an arrangement, but if that's the case he needs to show that he has that type of contract.)
EDIT: grammatical fixes and added links
EDIT 2: Note that the SFWA has unilaterally made claims about what they think Disney is trying to do (acquire assets without the corresponding liabilities). This claim would be correct if, as ADF claims, he owned the copyrights to the novelizations or his WFH agreement somehow obligated Fox/Lucasfilm to pay him royalties. But otherwise it's simply wrong, and Disney itself has never actually made statements to that effect. Moreover, such a claim would not comport with how M&A works in the U.S.
Yes, I've read that and as a member of the SFWA I'm glad they're standing up for more clarity on this. The SFWA's job is to advocate for their members. ADF is claiming that he is owed royalties (and it's possible he has a contract saying that he is), so they're going to advocate for him. It's what they do.
EDIT: Deleted my original second paragraph. Disney is not claiming that they acquired the rights to the novelizations without the corresponding liabilities. The SFWA claimed that on their own. Disney hasn't actually made a formal response yet on this other than to say that they want to work this out with ADF. Presumably, that is because they are still trying to find a copy of the now 30+ year old WFH agreement in the Fox warehouses in Century City.
The SFWA president is clearly not a lawyer and doesn't understand how M&A works in the U.S. What they are suggesting about what Disney was trying to do isn't legally possible.
Why would Disney even be asserting that if they could just say "it's a work for hire, go away"? If they're taking the time to come up with this theory then they are admitting that 20th Century Fox owed him royalties.
I haven't actually been able to find an actual release from Disney where they claim they acquired the rights to the novelization IP but not the liabilities. That seems to have come from the SFWA. (https://www.theverge.com/2020/11/19/21578621/disney-alan-dea... confirming this.)
My conclusion is based on the standard legal framework for work-for-hire agreements in the U.S. The default for a WFH is that royalties do not apply; and it would be the extremely rare exception for royalties to attach to a WFH agreement, especially with regards to a novelization of a Hollywood movie.
Disney hasn't said that they're negotiating anything. They're still trying to figure out what ADF is talking about. The NDA part is standard (for Disney).
I stand by my conclusion, unless ADF can cough his WFH agreements showing that he was entitled to royalties.
He's been getting paid them for decades, so either Lucasfilm's lawyers are a bunch of dummies who know less about IP law than a random HN poster or his contract is one of the rare exceptions.
Or, third possibility: considering that he apparently still has a copy of that contract (per the SFWA president) but neither ADF nor the SFWA has shown that any part of the contract entitles him to royalties for a WFH work, he's misunderstanding what he was getting paid for.
As ADF is claiming extremely special treatment, the obligation is on him to prove that he's owed special treatment. It's not our obligation to take him at his word.
No, Disney has not made a statement one way or the other about whether ADF is owed money for anything or by anyone. They haven't actually responded to anyone on this except ADF to ask him to privately discuss things with them.
The statement about them not acquiring the liabilities of author contracts when they acquired the contractual rights was made by the SFWA in describing what they thought Disney was doing.
This is actually the same terms we developers work under. When working for an employer, our code is not our code, but the employers. The copyright (& hence why licensing) is theirs. Your employment contract generally says as much somewhere. (It's also often taken too far and tries to detail that any code you write outside of business hours, in your spare time, is also theirs). Sometimes developers (myself) were able to negotiate royalties for games (after costs are covered, of course)... (but never amounted to anything) as an incentive.
Because "royalty" is a legally-defined term for IP and tax law purposes. You can't just call something a royalty, it specifically means a payment in consideration for an IP license (meaning the right to use another's IP). For a work-for-hire agreement, the author never owns the IP license; as a commissioned work the copyright always belongs to the employer, so there is never a royalty. (On a more technical note, legally the consideration received from the sale of an entire IP right is not a royalty either, since it's not for a license but for the outright sale of the IP right.)
Thus, a sales-bonus for a WFH product isn't a royalty. Moreover, the original WFH payments would not be royalties either.
My understanding is a work for hire contract entitles the writer to royalties if the contract says it does.
Unless you can show a court case where the contract said a work-for-hire author is entitled to royalties and the court threw out that contract provision as "illegal" or "not royalties" then I'm skeptical what you wrote here is correct.
My understanding is a work for hire contract entitles the writer to royalties if the contract says it does.
Yes, we agree on that point. However my point is that a WFH contract that entitles the author to royalties is extremely rare. ADF apparently has copies of these contracts (per the SFWA president) and they haven't yet shown any portion of the contract actually provides for royalties, which would be extremely rare for a WFH contract.
Unless you can show a court case where the contract said a work-for-hire author is entitled to royalties and the court threw out that contract provision as "illegal" or "not royalties" then I'm skeptical what you wrote here is correct.
There are plenty of court cases analyzing what a "royalty" is for both copyright and tax purposes, but the remedy isn't to throw out the contract provision if something isn't a "royalty." It simply informs how the contract between the two parties is enforced or the non-contract effects of the transaction. (For example, on the tax side, a royalty is generally subject to different tax rules.) In the IP realm, if a payment isn't a royalty, than that would simply mean that it's not paid for the right to use IP (but was paid for some other reason).
I'm not saying that ADF isn't entitled to get paid something by someone. I'm simply saying that the facts as provided, given the nature of WFH agreements in Hollywood, suggests very strongly that he isn't entitled to royalties.
It sounds like Foster was getting royalties on these books up until Disney bought them, so presumably his WFH contract did indeed specify some kind of continuing compensation despite assigning the rights.
This comment (https://www.sfwa.org/2020/11/18/disney-must-pay/#comment-214...) from the SFWA president says that Alan’s contract says that it is binding on “the successors and assigns” which is Disney. I presume that "the successors and assigns" is a direct quote from his copy of the contract.
Disney acquired Lucasfilms in 2012, not 2014, so ADF continued getting payments for something for almost 2 years after the acquisition. (Disney didn't acquire Fox until 2019, so the Aliens books would be an entirely separate issue.)
The SFWA president has made some earlier misstatements of the law, and it appears she doesn't have a clear grasp of the timeline, so I'm not putting much weight into anything she says. She's correct that the WFH agreement is binding on Disney, but Disney isn't disputing that (though the SFWA claims otherwise). The issue, from Disney's standpoint, is that clearly they don't think there is anything in the contract requiring them to pay.
It is very possible Disney reviewed all of its payments and ended the ones for which it could not find a contractual basis for continuing payments, such as for example, paying royalties on a WFH contract where they owned the rights to the work. But as neither side has actually coughed up a WFH agreement entitling the author to royalties, it's just speculation.
Apparently, ADF actually has a copy of his contract, per the SFWA president (but again, she's made incorrect statements about the parties before). If that's the case, ADF could resolve this very quickly by showing the part of the WFH contract where it says he will be getting paid royalties.
48 comments
[ 0.20 ms ] story [ 104 ms ] threadWould be nice if they just paid him what he's owed.
Leaning towards cancelling my Disney + , aside from the Simpsons( first 10 seasons) , Original SW trilogy and The Last Jedi there's not much good content. Might stay until Soul comes out next month.
Only need to watch those 4 Star Wars movies once a year
Disney died decades ago.
Society need not pleasure his memory forever.
I'd never condone piracy, but hypothetically that's what I'd do.
And if someone were hypothetically worried about getting copyright infringement notices on their home IP, a put.io subscription could be valuable.
N N T P
Can you (or anybody) suggest a decent service provider?
https://news.ycombinator.com/item?id=25143926
As it stands, the irrefutable evidence from the US Copyright Office is that these novelizations were works-for-hire, so ADF would never have been owed any royalties, let alone for the past 4 years, unless he had a non-standard WFH agreement which he has thus far failed to produce.
Since he didn't sign the NDA yet, they haven't thought of any of his communications since then as a 'response'.
Given that ADF was a big name back in the day, he was probably getting some generous sales-based bonuses. He claims he was getting paid through at least 2014 for the Star Wars novels, which would mean Disney was still paying him for 2 years after the Lucasfilm acquisition. That would have been about right for Disney to have had time to review all of the Lucasfilm contracts and stop payments on the ones where they weren't actually required to pay. (This isn't all that rare; at my former job we were paying $20k a year to a former employee and it wasn't until one of the new general counsels asked why that we actually looked at the contract to see why were were still paying it. It wasn't questioned until them because the company been making those payments for years, and in the scheme of things, was fairly immaterial. Ultimately, the former employee had been entitled to those payments for several years, but the contract term had long since run out. However, anyone with knowledge of the expiration date had since left the company, and their replacements just kept paying.)
It's extremely rare for WFH novelizations of movies to provide for royalties, because authors of novelizations are generally not creating significant (if any) new creative IP; in most cases, they're simply converting a script to prose format.
ADF might have such terms in his contract, since movie studios were more generous about these things back then, but he's had the power to show us this part of his contract for almost a week now and he's chosen not to. Nor, for that matter, has the SFWA, which has similarly had access to at least one of those contracts.
DC did use the term royalties in their work-for-hire contract as of 2008:
http://jimshooter.com/2011/09/few-more-thoughts-regarding-ar...
At any rate it's not clear to me what you mean by "normal means of resolving contract disputes rather than through the application of copyright law". Once you have a contract between the parties it's going to be resolved primarily as a contract dispute. It's not going to be resolved the way someone posting something on the pirate bay will be resolved.
I'm not saying what you wrote is incorrect so much as I don't think it's going to make much of a practical difference whether you call it a royalty or not.
DC specifically changed the terminology of its "royalty" payments because they were not actually royalties, but calling them royalties was causing headaches for its legal dept with respect to licensing, because the existence of "royalty" payments implied that DC was not the owner of the IP, and thus that they had to seek additional licenses from the actual owners of the IP.)
And that is why Marvel switched away from calling them royalties a long time ago.
Copyright law has a special regime for enforcement. I.e., statutory damages, etc. It applies in addition to relief available under contract law. However, for "royalty" payments that aren't actually royalties, only contract law remedies are available.
I assume SFWA and ADF have discussed this beyond what they are posting to twitter. Him not posting the contract to everyone on the internet seems like a weird detail to call out as a point against him.
While 70s/early 80s era Fox was known for its artist-friendly legal deals (see, e.g., letting Lucas keep Star Wars), it would have been extremely unusual for Lucasfilm to have hired ADF on anything but a WFH basis. And indeed, the copyright record for the novel Splinter of the Mind's Eye shows that the "Star Wars Corporation" owns the copyright, not ADF, and was an "employer for hire." (https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=4&ti=1,4&...) On that note, the copyright registration for Aliens (the novelization) also shows that it was a work-for-hire. https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=65&ti=51,... (Contrast to an original work, where the author is the copyright claimant: John Scalzi's Old Man's War https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=2&ti=1,2&...)
In other words, ADF is not being denied royalties. He wasn't owed any in the first place, unless he somehow negotiated a non-standard WFH agreement that almost nobody in the industry gets. (ADF was a big name for sci-fi novelizations back in the day, so it's possible that he did have such an arrangement, but if that's the case he needs to show that he has that type of contract.)
EDIT: grammatical fixes and added links
EDIT 2: Note that the SFWA has unilaterally made claims about what they think Disney is trying to do (acquire assets without the corresponding liabilities). This claim would be correct if, as ADF claims, he owned the copyrights to the novelizations or his WFH agreement somehow obligated Fox/Lucasfilm to pay him royalties. But otherwise it's simply wrong, and Disney itself has never actually made statements to that effect. Moreover, such a claim would not comport with how M&A works in the U.S.
https://www.sfwa.org/2020/11/18/disney-must-pay/
EDIT: Deleted my original second paragraph. Disney is not claiming that they acquired the rights to the novelizations without the corresponding liabilities. The SFWA claimed that on their own. Disney hasn't actually made a formal response yet on this other than to say that they want to work this out with ADF. Presumably, that is because they are still trying to find a copy of the now 30+ year old WFH agreement in the Fox warehouses in Century City.
The SFWA president is clearly not a lawyer and doesn't understand how M&A works in the U.S. What they are suggesting about what Disney was trying to do isn't legally possible.
They are clearly negotiating about SOMETHING.
Your conclusion is unfounded.
Disney hasn't said that they're negotiating anything. They're still trying to figure out what ADF is talking about. The NDA part is standard (for Disney).
I stand by my conclusion, unless ADF can cough his WFH agreements showing that he was entitled to royalties.
As ADF is claiming extremely special treatment, the obligation is on him to prove that he's owed special treatment. It's not our obligation to take him at his word.
The statement about them not acquiring the liabilities of author contracts when they acquired the contractual rights was made by the SFWA in describing what they thought Disney was doing.
I've processed many contracts which use the term in exactly that sense, and evidently SFWA use it that way too.
Thus, a sales-bonus for a WFH product isn't a royalty. Moreover, the original WFH payments would not be royalties either.
Unless you can show a court case where the contract said a work-for-hire author is entitled to royalties and the court threw out that contract provision as "illegal" or "not royalties" then I'm skeptical what you wrote here is correct.
Yes, we agree on that point. However my point is that a WFH contract that entitles the author to royalties is extremely rare. ADF apparently has copies of these contracts (per the SFWA president) and they haven't yet shown any portion of the contract actually provides for royalties, which would be extremely rare for a WFH contract.
Unless you can show a court case where the contract said a work-for-hire author is entitled to royalties and the court threw out that contract provision as "illegal" or "not royalties" then I'm skeptical what you wrote here is correct.
There are plenty of court cases analyzing what a "royalty" is for both copyright and tax purposes, but the remedy isn't to throw out the contract provision if something isn't a "royalty." It simply informs how the contract between the two parties is enforced or the non-contract effects of the transaction. (For example, on the tax side, a royalty is generally subject to different tax rules.) In the IP realm, if a payment isn't a royalty, than that would simply mean that it's not paid for the right to use IP (but was paid for some other reason).
I'm not saying that ADF isn't entitled to get paid something by someone. I'm simply saying that the facts as provided, given the nature of WFH agreements in Hollywood, suggests very strongly that he isn't entitled to royalties.
This comment (https://www.sfwa.org/2020/11/18/disney-must-pay/#comment-214...) from the SFWA president says that Alan’s contract says that it is binding on “the successors and assigns” which is Disney. I presume that "the successors and assigns" is a direct quote from his copy of the contract.
The SFWA president has made some earlier misstatements of the law, and it appears she doesn't have a clear grasp of the timeline, so I'm not putting much weight into anything she says. She's correct that the WFH agreement is binding on Disney, but Disney isn't disputing that (though the SFWA claims otherwise). The issue, from Disney's standpoint, is that clearly they don't think there is anything in the contract requiring them to pay.
It is very possible Disney reviewed all of its payments and ended the ones for which it could not find a contractual basis for continuing payments, such as for example, paying royalties on a WFH contract where they owned the rights to the work. But as neither side has actually coughed up a WFH agreement entitling the author to royalties, it's just speculation.
Apparently, ADF actually has a copy of his contract, per the SFWA president (but again, she's made incorrect statements about the parties before). If that's the case, ADF could resolve this very quickly by showing the part of the WFH contract where it says he will be getting paid royalties.