THE DEBUT OF THE VOOK
With the introduction of the Amazon Kindle and the Barnes & Noble Nook, e books appear to have finally become a viable force in the marketplace. As often happens, one movement quickly spawns another. Just as e books are finally catching fire, a new format - the vook - has appeared on the scene.
A vook, or video book, combines the text of a book with video elements. A vook can be as simple as a few 15 or 30 second video clips, with or without sound, added to an e book novel, or it can be more complex, such as a detailed how-to video added to an e book cookbook, exercise book, auto repair book or hobbyist book. The arrival of the vook raises new questions for both publishers and authors.
Rights
Publishers do not have the right to publish a vook unless the publishing agreement specifically includes that right.Once again, publishers will be confronted with the question of what rights they have acquired for a work, and whether those rights include the right to publish the work as a vook. Previous court decisions have established the principle that a publisher acquires only the rights that are specifically identified in the agreement, and that general grant of rights clauses will not be read to extend to uses that were not known or contemplated at the time the contract was signed. Thus publishers arguably do not have the right to publish a vook unless the publishing agreement specifically includes that right. In cases where the publishing agreement does not specifically authorize the publisher to publish the work in combination with additional video or audio-visual materials, the publisher will most likely have to go back to the author and seek an amendment to pick up those rights. Looking forward, publishers who anticipate publishing vooks should revise their standard contracts to ensure that these rights are included.
Royalties
AnyThe royalty question may have to be addressed on a vook by vook basis.time a publisher seeks to exercise another right, there is always a question as to what royalty the publisher will be obligated to pay from its exercise of that right. Thus if a publisher acquires the right to create and publish a vook, whether by an amendment to an existing contract or by a new contract for a new work, that amendment or new contract should include a corresponding provision with the royalty to be paid for each vook sold. The royalty could be the same as the standard e book royalty under the contract, or it could be a pro-rata portion of the e book royalty, based on the ratio which the work bears to the total content of the vook. Authors may object to the latter formula unless the vook is priced higher than a regular text-only e book. Otherwise, the author's return from a vook will be less than the return from the regular e book, even though both editions will include the entire text of the work. However, if the publisher adds substantial additional content to create the vook - such as creating and inserting substantial footage to demonstrate cooking techniques or fitness exercises - the publisher may be reluctant to pay the author a full royalty on the vook, since a substantial portion of the vook will consist of material added and paid for by the publisher. The royalty question may have to be addressed on a vook by vook basis, and may depend on the amount of additional video or audio-visual content added to the work, and the price differential, if any, between the vook and a regular, text-only e book.
Author Approval
Some authors may want a right of approval over any video or audio-visual materials added to create a vook.Even if an author is willing to grant vook rights to a publisher, some authors may want a right of approval over any video or audio-visual materials added by the publisher to create the vook. This could be an issue for both fiction and nonfiction vooks. For example, the author of a novel may want to ensure that any video depictions added to the novel are consistent with the author's view of the work or the characters or scenes described in the work, and the author of a work on cooking, fitness, or auto or home repair will want to ensure that the vook's video depictions of the techniques described in the text of the work are accurate and will yield the intended results.
Non-Compete Restrictions
Some authors may choose to retain vook rights. However, if the publishing agreement contains a typical non-compete clause which prohibits the author from selling or licensing any edition of the work that will compete with the publisher's edition, the author will not be able to do anything with those retained rights. A vook, which is simply the entire text of the work, coupled with video or audio-visual elements, would compete directly with the publisher's sale of text-only editions of the work, and thus could not be published, either by the author or by any other licensee of the author. Accordingly, rather than having vook rights lie dormant, the better approach will most likely be for the publisher and the author to reach agreement as to the terms for the exercise of those rights by the publisher, provided the publisher wants to do so.