Sometimes institutions need to recoup costs of events they organise, but can they make a profit from your appearances without your consent? Today, Anne looks at what the guidelines are around this and what all book creators should know.
Can a third party make a profit from your appearances without your consent?
During Book Week last year, I was extremely happy to be booked for 19 preschool author incursions. For my second book, around the Christmas period, I was disappointed to only have secured 5 paid author visits. When the sales during these visits were much lower than the Book Week period I was relieved that at least I was being paid for the events.
As a new author, and self-published at that, I keep my fees low. Almost half of recommended ASA rates. I do this to get myself out there and in a hope that I will sell books to parents using a pre-order system.
Recently, after completing one of the Christmas incursions, I noticed something on my way out of the preschool. My ‘note to parents’ was stuck on the door. This is a note I supply to inform parents of my visit. On it was handwritten; $5 per child and $8 per family. It dawned on me that the proprietor of the centre had charged every child for attending. There were at least 40 children there, so if every child paid, the owner would have made a small profit.
The owner did not purchase any books from me. Usually the centre buys at least one book and has me sign it. Nor did the owner send out the pre-order envelopes to the parents as she had agreed to, despite me making an extra trip to the centre to get the envelopes and sample books to her. I made no sales at that visit.
I felt ‘off’ after I left that centre. I felt like I’d been pimped out. I had no idea she was charging for my visit. I felt I should apologise to the parents but had no way of doing so. I was wondering whether this was a case of profiting from my intellectual property (IP) without my consent. Can we make a profit from say, selling a plumber’s labour onto another client without his knowledge? And, is it different for authors?
I put this question out there to see what I could discover and to assess whether anyone else had had the same experience. I posted it to a writer illustrator Facebook group. Many respondents were annoyed or shocked, adding a Wow or an Angry emoji. I also had some feedback that suggested this was not the first time a preschool charged a fee for an event. These comments were about preschools being on tight budgets and the practice of cost recovery for events.
Firstly, these businesses must be making a favourable bottom line, otherwise they would be shutting down. Whether they decide to take a small portion of that profit to use for incursions is up to the business owner. I think covering costs is less of a problem, but I would still ask, do the parents get a choice whether they want to pay these extra costs? If they do not, will the child have supervision during the incursion? Will the child feel left out if the parents cannot afford it? Or, if the proprietor charges a little extra to make up for the children who don’t pay but attend anyway, is this fair on the parents who are subsidising children whose parents have not paid?
Secondly, if the proprietor charges “a little extra” to cover costs, including those children whose parents did not pay, and they incidentally make a profit – should that profit be split with the author? Or at least, should the owner advice the author they have charged a fee for the incursion and/or incidentally made a profit?
Let’s look at the plumber example again. I tell a plumber I need him to do a job. He provides me with a quote $xx. I pass on the quote, plus my commission, to the owners of the property $xx + y. Usually if this happens it is a pre-existing agreement whereby owners hire project managers and all parties are aware of the arrangement. But if I did not tell the plumber that I was selling his services at a profit, I’m not sure how that would go down. I wouldn’t fancy my chances though. If you’ve seen my large and sturdy plumber you’d understand why.
Australian Society of Authors
I then reached out to the ASA. Apparently, they can only provide contract reviews in partnerships with the Arts Law Centre. But they did kindly put forward their thoughts. They advised that “it is the fee payable to you which you must be satisfied with” and they “cannot think of a reason why the privately-owned preschool centre is prohibited from…making a profit at an event organised by it.” When I enquired how I should proceed in the future and suggested I use wording such as “No profits should be made from this event booking by the proprietor” they responded with “I’m not sure that you will be successful…because it is not your business to run. You are there as an independent contractor, paid for your time.” Their email also said; “Even if all the children in attendance paid…the childcare centre is making almost no money at all…maybe…$40”
I am still not sure about this. If I were to make a profit off my plumber’s back without his consent – is this legal? Consent is really the issue here. Also, am I just being paid for my time? Or are my skills valuable? I wouldn’t pay the plumber such a high rate to sweep up my leaves. I am paying him for his specialised skill set. Are author’s/illustrator’s skills specialised? Do we relate, motivate and even inspire children (I’m referring specially to children’s book creators)? Are our story ideas intellectual property?Isn’t this what the PLR (Public Lending Right) programme is for? To compensate authors for the potential loss of sales from their works being available in public libraries. And as government support for the arts. By making works such as books, music and art available to the public (thank you Wikipedia). So, isn’t the PLR programme aiming to recognise a book creator’s work as their Intellectual Property (IP) that they own and use to earn a living? And aims to correct or compensate for a loss of profits? Is it not comparable to this situation whereby my IP was used to make a profit that I was not privy to?
One might argue this case is different as there was no agreement or discussion as to the proprietor’s intent to charge a fee for the incursion. Point taken. However, along that vein, there was a verbal agreement that she was going to send out my pre-order envelopes but failed to do so. Two days prior the event she advised me that she had decided against it. This was an intentional decision. Would this then not constitute a breach of contract whereby I suffered a potential loss of sales?
The ASA pointed out that if the centre did make any profit it was minimal. Agreed. But, I don’t think the amount is the issue. At what point should an author consent to forfeiting a profit? $100? $200? $1,000? What would my plumber agree to?
This issue gnawed at me so I decided to seek legal advice from a Barrister-at-Law. He is a close personal friend and thankfully did the research for free. He found that the issue is not one of IP but one of contractual agreements.
Technically speaking, there IS IP, the IP in question is Dramatic work. (The book itself is Literary work but the IP in question in this case is my event, so it is classified as Dramatic work.) But the issue is whether there was a breach around how we used this IP as compared to how we agreed to use the IP. So, what did this preschool and I agree to?
When I am booked for events, neither party signs a contract. I do send several emails with attachments entitled Author visit pack. I do ask they distribute the Note to parents along with the pre-order envelopes. In terms of payment, I ask for an upfront deposit with the remainder owing on the day of the event. There is no, this instance included, discussion of how they intend to pay, whether they intend to charge for attendance to my event and/or how much.
And so, speaking in terms of contracts and possible breach thereof, I have no leg to stand on. The proprietor of this preschool did have a legal right to charge an attendance fee for my event and in fact, to make a profit without my consent. If, however, I discovered that she charged say $500 for each attendance ticket and the profit she’d made was substantial (discounting the probability that nobody would pay that much. I’m not, after all, Sir Paul McCartney) – the advice from the Barrister was that this might have been worth pursuing because there is a greater expectation that such high charges would be disclosed to the performer. When the sums in question are small though, taking legal action is not recommended.
In terms of her broken promise, or failure to adhere to our contractual agreement to distribute the pre-order envelopes – do I have a legal argument there? The Barrister answered yes, but again, is it worth the legal costs? In a court of law, I would have to prove the sales of an approximate number of books at such similar events, and then prove that I suffered loss of sales/revenue from her actions and failure to adhere to our contract. I would stand a chance of winning but as I do not sell hundreds of books, it is not worth the legal costs.
It seems as with most matters when they reach a crescendo of legal boundaries, it is not always black and white, right and wrong. Can a third party make a profit from your appearance without your consent? Yes. But if they make a substantial profit and you take legal action you may reach an outcome in your favour and be compensated. It’s all about weighing out the pros and cons. There is the monetary cost of legal action, the time and stress factors to consider. But also, our image and reputation. We are children’s picture book creators. We follow our passion and promote childhood literacy. But on the flip side we have to eat too and we deserve work rights. So, it is a balance. Seeing initiatives like the PLR programme does mean our work and our rights are being acknowledged so that is a step in the right direction. Even though we can’t fix your plumbing, our work is important and is starting to become validated.
As for me? What have I learnt from this experience and how will I proceed in the future? I am almost certain this is the first preschool/school I have done an event at where they have recouped the costs for my visit, and so is not likely a widespread issue. Perhaps when I receive enquiries about the cost of an event, I could quote two costs: the cost of my visit and the cost of my visit if they intend to charge an attendance fee. Or do I even go there as most will not charge for attendance? I’m not sure at this point. Book Week is the busiest week of the year when I will (I hope) get most of my event bookings, so I have a good 7 months to mull it over.
I feel like I have left something lingering in this blog post. What of the plumber? Why would it never really be considered to make a profit from a plumber’s work without his consent? Different services I suppose. He is providing a trade whereas picture book creators work in the arts and so are considered more of a luxury? One that we’re willing to pay extra for but shouldn’t be considered as standard? Akin to making a profit from ticket scalping? This has been very controversial. Swaying between being just unsavoury to becoming illegal, with implementation of restrictions in some parts to limit profits. Might this extend out to other dramatic works one day? What do you think?
See related links:
Australian Government Department of Communications and the Arts Lending Rights
Australian Government Department of Communications and the Arts Lending Rights Online. Public Lending Right (PLR) and Education Lending Rights (ELR).
I can also supply you a ‘link’ to my excellent plumber – use my contact page 😉