The Catchpole Agency which represents authors and illustrators of children’s books from picture books up to YA. James is the agent. Lucy prefers to keep her role mysterious.
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| New Agency Website |
This is a story about a side of publishing authors probably prefer not to think about. It may have a moral, but if it does we don't know what it is. It may be a cautionary tale of sorts, we don’t know - we haven’t got to the end yet.
Sometimes an author has a really great idea, one that seems to spring almost fully formed, that makes you wonder "how hasn't this been done before?" Sometimes, that’s because it has. So as an agent, I check. This particular idea - we'll call it 'This is NOT a Happy Agent' for now, because using the real title would scupper any chance of a happy ending - had not been done before. It was 2012 and this was an original idea for a picture book text, with an original title - a title that ran through the thread of the story, a title that summed up the text and was repeated like a fabulous, memorable refrain. One you could imagine children chanting along with their parents.
Agents may be characterised as soulless money people, but don’t believe it - it is exciting when you see a text like this. And especially so when, as in this case, it was by an unpublished author (let’s call him, er… Dave) who I’d only just pulled from the submissions pile.
I thought this story could (nothing is sure in this business) break this young author. I read it to my wife. She was impressed. She is not easily impressed.
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| This is a Happy Agent |
So I did what an agent does - I took this shiny new text around to all my best contacts. I took it to Bologna and read it out to all the major publishers. Sure enough, it was pretty damn popular. Some editors passed on it regretfully, others held on to it gleefully and passed it around the office - to their team, to Sales, to I don’t know who else. That’s the way this business works.
Reading this back in the context we’re now in, it seems strange to me that the industry does work this way. A new author, an original idea, and what do I do with it? I go and shout this original idea around the assorted editors of New York and London. But until this month, this way of working hasn’t ever seemed strange to me. This is just the way it is. The industry works on trust. It has to.
'This is NOT a Happy Agent' (ahem) was indeed bought - back in 2012 - by a big US publisher (hooray!). I was excited, the author was excited.
And then, for various reasons unrelated to the quality of the text, things kinda stalled. The editor who’d bought it moved elsewhere, the illustrators the new editor wanted weren’t available... Now, in 2016, they’re still looking for an illustrator. Frustrating, but not hugely surprising - it’s the way it goes sometimes - picture books can be a long game.
Skip forward to two weeks ago, when something odd happened. “Isn’t ‘This is NOT a Happy Agent’ one of Dave’s books?” my wife shouted through to me. Yes, so? “Then why is there a photo of a book on Twitter called 'This is NOT a Happy Agent', by someone else entirely?’ Oh.
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| A pile of books... |
I had absolutely no idea. I knew this couldn’t be our author’s book. But sure enough there it was - a photo of an advance copy of a book with exactly the same title, but with another author’s name, sitting on Twitter. I know the editor who’d posted the picture well (she’s lovely btw). She works for a big London publisher - er..Goliath Kids UK? that'll do - which is actually the sister company of Dave’s publisher in the US.
So here it gets murky. Because as I said, I showed 'This is NOT a Happy Agent' to everyone. In fact, I’d read it out to Goliath Kids UK back in 2012, and discussed it with their editors a few times since.
So what had happened? A quick search told me that yes, Goliath were bringing out 'This is Not a Happy Agent' - by their own author (let’s call him John Smith) - in March. 6 weeks’ time as of writing.
I emailed the editor and her boss. They were clear: the title was not their author’s idea, it had come from within their own team. I suppose they didn’t want me to think their author might have plagiarised it somehow, from mine. This hadn’t crossed my mind – they’d never met, I’d checked. And anyway, much more logical to suppose it was Editorial’s idea, given they’d actually heard the title before.
I reminded them. They seemed to take it in their stride. So would they change their title? No.
To say this is frustrating is an understatement. Whether consciously or unconsciously, it’s more than likely that my author’s title was plagiarised by Goliath Kids UK. What’s worse 'This is Not a Happy Agent' seems in no way organic to their story. Their story is totally different to ours. Applied to theirs, it’s just a catchy title, whereas it runs through ours like words through a stick of rock.
But if Goliath go ahead and publish, Dave’s title will most likely have to change - can you really have two picture books with identical titles coming out within a year or two of each other? And in losing the title his story will lose a prime part of its cachet.
Dave has had other ideas since then, and after a couple of years of trying, late last year I suddenly sold four of his texts in as many months to two top London publishers. I’m sure it’s going to happen for him. But now I'm starting to wonder...the four texts I've just sold were seen by other publishers besides the ones who bought them. What's to stop their titles or their ideas being stolen before they come to be illustrated and published? How should I advise my author? What should we advise our many other authors, all of who rely on this same trust?
Perhaps this trust doesn't really exist. These are all good people we’re dealing with here, and we all know how easy it is to come up with someone else's idea while believing it's your own...But that's why you check. Perhaps there just aren’t any systems in place within publishers to stop things like this happening? And once they have - as in this case - it’s just handed over to Legal (watch this space…).
But can it really just be a question of whoever publishes first? That all feels rather Elizabethan. Or does it happen, and we just don’t hear about it? Am I breaking some unspoken rule of the industry in discussing this? (Maybe!) Do I need to guard my clients’ ideas more heavily in the future?
In that case, maybe all that will prevent a publisher from plagiarising is the threat of reputational damage? In which case, perhaps the best thing I can advise a new author to do is the most counter-intuitive. Should they actually go public? Should they blog and tweet about the titles they’ve sold, put it all out there on public record online? (Not unprecedented, these days...) Should they not rely on privacy and trust, but lay down a challenge: here are my ideas, here I am laying claim to them.
That could present a whole lot of new problems for the industry. But I suppose at least it would take a brave publisher to claim so publically an idea that wasn’t theirs in the first place.
Feedback appreciated! Comments can always be anonymous...
James and Lucy Catchpole
P.S If a picture book actually called 'This is NOT a Happy Agent' appears in the bookshops, you heard it here first - we will be cross.
Click here for aother guest blog post by James Catchpole.
36 comments:
Yikes! Certainly makes you think what a gossamer-thin foundation trust is on which to build such a gargantuan industry. I hope the saga ends amicably.
I echo all of Michelle's comments - and feel bad for John Smith too. I've always gone for the trust and share approach, but this does make you wonder... Best wishes to all innocent parties involved.
I'd echo everything Michelle says, too. It's the advice I've always given writers when I've been teaching. And how else would the industry work? Maybe as you said, once you've signed a contract with an editor, you should refer to the title (though that can often change later on...). Good luck to all the innocent parties involved (like Jane).
Thanks everyone - yes, horrible situation all round, for our author and actually for 'John Smith' too, and the illustrator of his story - all of them innocent parties. We take no joy in complicating the publication of their book. But equally I don't feel we can afford to just let this pass unquestioned or uncontested. Tricky.
This is really worrying - and I will pass this on to my agent to read. I don't know - would there be some way of registering a contract and title with some publishers database (I say vaguely) so it couldn't be replicated? But what I don't understand is how Goliath US, who presumably are contracted to pay for the book using that title, have allowed their sister publisher Goliath UK to take it without a fight, especially as the title is so integral to your book, not theirs.
It's interesting - the first response from a good few industry people I've consulted has been 'there's no copyright in titles'. That seems a very narrow legal angle to me. A good picturebook text is just one simple idea, perfectly spun out to a couple of pages, with a title that encapsulates it all to a T. In that case, the title is the idea, and the idea is everything. And should Legal be the only recourse here? On the US/UK thing Anne, yes - it would be better not to have to contest this on our own... On the Michelle being lovely thing, aw shucks. I haven't even sent you flowers since your op...
Book/ song album titles (and similar) cannot be copyrighted. That's why Star Wars™ is a TM. The problem of making it a TM is that you have to stick TM everywhere and pursue any TM breaches like a rabid shark.
The one simple small thing you can do is buy the domain name of the title you want so that as far as the internet is concerned YOUR version is the original/ legit version.
@Blunty_Poet
There are a number of issues with this. Firstly there's the legal question of whether it's arguable that, in the case of picture books, the title is so integral to the book that it is in effect part and parcel of the literary work. But there's also the issue of trust between authors, agents and publishers as well as the slightly icky issue of unfairness surrounding the whole episode. As Michelle eloquently puts it 'Eesh what a pickle'.
My second picture book, "The Shark in the Dark", was published in 2009. A few months later, Nick Sharratt published his "Shark in the Dark", a companion to his earlier "Shark in the Park". Clearly both books were being produced at the same time, and neither of us seems to have had wind of the other's title. My agent looked into it and came back with, you've guessed it, there's no copyright in book titles. Which is probably a good idea in part, otherwise only one living person at a time would be able to write a book called "A History of Fashion" or "Birds of Britain". (So for "in part" read "for non-fiction").
Mind you, I'm not sure what I would have done if forewarned that Nick had such a similar title in the pipeline, moreover one which echoed his existing highly popular title. Probably nothing. On the one hand, despite coming up with the title independently and publishing first, as a newbie writer I was probably more likely to be accused of filching from a more established writer than vice versa. On the other, as in the example given by James and Lucy, my title is definitely integral to the story, and is repeated in the text.
So I'd probably have kept it as it was in any case. They're both different books, and to my knowledge no one has ever said they accidentally bought my book thinking it was Nick's. (If they have – tee-hee!) PS Nick and I are good friends!
I hope they know just how angry you are - Come out roaring! Go into ball-breaking mode! Agents can be scary - Now's the time!
Right, I'm raising my commission to 40% just for you, Robinson.
Anyway, didn't think you had the stomach for this sort of thing.
(Too soon?)
Thanks - really interesting points. The domain name idea echoes (extends?) what I was suggesting: claim your titles on the internet, so they can't be taken off you... With a series, certainly.
Thanks Moira! Yes, not everything in public - some things best kept behind the scenes!
Thanks Abie, yes that's exactly it. Aside from the legal question it's an industry that relies on trust in terms of agents & editors. And as was said above we feel bad for 'John Smith' and his agent too - it's not a situation of their making either!
Hi Peter - Lucy here while James is grappling with the baby (I wrote this piece with James but asked for lower billing at it's James's story really!)... This is a really interesting example and not one we'd have known about - if you look up both Shark in the Dark titles on Amazon, they don't give original publication dates so it appears that one was published in 2009 and one in 2014. Things can definitely be in the zeitgeist, so I suppose it's not surprising that sometimes two authors come up with the same title spontaneously - if that were the case here it'd be a lot simpler! (If 'John Smith' had had the same idea and the same title it'd be fair enough.) But the fact that in your case both were published - with the same title - is something to think about.
On a general note for any would-be authors reading, there is a grey area where it's possible for trust to break down between publishers and contributors. The only possible protection for a contributor is to keep a paper trail (which these days means saving and printing out emails). There is no copyright in titles (though it sounds as if the case in the blog might be more complicated than that). There is no copyright in ideas but there is copyright in how you present an idea - the words you write, the specific words you use in a specific order, any illustrations you provide and the close plotting of your story. I think that's right...
Oh, dear. I'm about to publish a book, which like Dave's 'Not a happy agent' relies on the title as a refrain, or as a subtext to the entire book. The text took 14 years to write - I'm not normally that slow, but sometimes you have to wait for the rest of the story to follow the first few pages. I waited and I think the result was well worth it. It publishes this year, but alas, so also does a picture book with the same name by the hugely successful and beloved Chris Haughton. The book we've both contracted to publish this year is called 'Goodnight World'. As my agent said when I phoned her in a close to hysterical state, there's no copyright in titles. But...and but and but. I can't change mine; we're beyond proof stage - it's probably rolling off the presses in Guandong as I write, but mindful of the horrible stramash caused by an earlier book of mine ( q.v The Tobermory Cat, the Trolls and Me) I can't say I'm a happy writer/illustrator. These things do happen, but when they do, they cause paranoid mutterings, bad feelings and general unpleasantness. Even if the whole affair is an innocent mistake. Innocence is no defence.
What a coincidence seeing this interesting comment from Debi Gliori. I utterly panicked when Debi’s ‘No Matter What’ was first published (approx 15 years ago?). My first picture book was due out a few months later and the first half of the story and wording were uncannily similar to ‘No Matter What’, even though my story had been submitted for publication eons before I saw Debi’s book. I imagined everyone saying I was a copycat – yikes!
That wasn’t my only panic. This book was given the title ‘I’ll Always Love You’ which was the same as a well-known American book that was already in publication (though I’d never heard of it until then). The publisher suggested the title and when I queried the fact there was another book, they said it didn’t matter and books were often published with the same title. However, although there’s no copyright on titles, some titles are more original than others and I don’t feel ‘I’ll Always Love You’ is highly original, though in retrospect it’s better than my original title of ‘The Broken Bowl’! Plus the phrase ‘I’ll Always Love You’ is repeated many times in my text and is integral to the story. Anyway, all three books did very well - hurrah!
And I’ve remembered something else. One of my stories was orginally called ‘Snow Friends’. It was the perfect title for my story and I was delighted and smug with myself for coming up with it. However, then I discovered there were at least two different picture books with the same title, published around the same couple of years, darn it, so I changed it. Obviously we were all influenced by the zeitgeist of the time. I suspect I’m like many others and double check Amazon for proposed titles and then snarl when I discover it’s already out there and then have to debate whether it matters, or not. Sometimes I don't think it does.
However, from what James has said, the problem appears to be that a title was used after being seen on an unpublished manuscript. It’s impossible to comment as we don’t know the title or wording of the texts. If an unusual title is given to a book that perhaps doesn’t truly reflect the title, unlike the original story, then it’s a muddy situation and very tricky. I feel sorry for both authors.
I agree with you. Don't let this pass uncontested.
It seems like a pretty clear case to me, why not take them to court for plagiarism? Even the threat of court and scandal could be enough motivation to change the title.
I've seen plagiarism a LOT in the publish world, its pretty common for publishers to look at illustrator's books, take the story and hire a different illustrator. That way they can claim 'its a different book'.
The only way through is to be ready to pull the law out when it happens to you and not let them get away with it. If they make money doing it this time, they're just more likely to do it again.
I'm beginning to feel that the picture book market is a minefield, which is heartbreaking for those of us who enjoy the challenge of writing for this genre.
My own picture book nightmare wasn't a title issue, but a mysterious 'something else'. In brief, it took me four years to get a contract with Publisher X. After it was signed, delivered and I was duly
paid, the text was supposed to be going to Frankfurt, Bologna, LBF etc etc but never did because they couldn't find the right illustrator for it, and eventually they pulled out. I did get to keep the advance, but it was such a negative experience, and with so many hugely talented illustrators out there, none of their excuses made any sense.
Yeah, I'm working on one with a publisher that pretty much all hinges on the name. If someone beat me to it I'd be gutted. And if it was a big sister US company, I'd go stark staring bonkers. Fight the good fight, James and Lucy!
I really worry about people pinching my ideas. What can we do to protect ourselves? Sincere sympathy for the actual author :(
Goodness, it must be very hard having had your story in the pipeline for 14 years... We've had authors in a similar position (except the length of time). Hard as it is, we always think that if two authors have arrived at the same title / idea spontaneously (zeitgeist etc) then it is just bad luck. And this sort of thing has happened frequently to our own authors. Knowing that doesn't make it any easier, though...
Thanks Paeony, yes, the thing that makes this case different in our experience is that the publisher had seen and considered our client's work. As a precedent we find this very concerning. Texts do sometimes sit around for years prior to publication, and if they are treated as a fair game for the publishers to take bits from we'll all be in trouble!
Thanks Moira. We've been advised there may be a legal issue around Breach of Confidence - in this case apparently the onus would be on the publishers to prove that their use of the title is unconnected to their prior knowledge of it in our clients' work. We'll see...
Thanks Malachy - it's a good example - the story in question does all hinge on the name...
Really sorry, Lucy and James, about this awful experience - how distressing! When I wrote my Stonewylde series, I immediately bought the domain name as it's a made-up word and as far as I know, unique. I didn't want anyone else getting hold of it. Later, after the first three titles had been self-published and I'd sold the entire five book series to Orion, I trademarked the name. Readers were asking for T shirts, badges etc and I didn't want them getting ripped off by unscrupulous people cashing in on my creation. I wanted anything with the word Stonewylde on it to be of good quality and ethically produced. I did have one run-in with a woman in USA who started using the name for her business, but she soon backed off when threatened with litigation, and I was very glad I'd registered the name. Sadly, I think perhaps this is the only way forward when a name is unique, and integral to the story. It's not cheap to register a trademark either. And of course impossible with a general title. As you say, such a sad state of affairs in a business where trust plays such a large part.
Hmmm. No copyright on titles, huh?
I'm thinking of calling my next novel...
Harry Potter: The Lost Manuscript
;)
The name 'Harry Potter' is trademarked!
thank you for your interesting infomation. Do authors pay publishers?
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