By Ronald Goldfarb
Washington, D.C., is widely viewed as a one–industry town: Everything revolves around the federal government. Historically, that might have been true, but over the past half-century that reality has taken on serious qualifications. The federal government may be the wellspring of Washington’s work culture, but writers and lawyers have also become major participants in the professional life of the nation’s capital.
Politicians come and go, but writers and lawyers come and stay. Jimmy Carter came to Washington and left in four years; his wordsmith, Jody Powell, stayed on as a player in the media and public relations industries. Richard Nixon came and served in several high offices, then left in disgrace; his writers, Pat Buchanan and Bill Safire, stayed for the rest of their writing careers. Many lawyers have come to Washington anticipating a brief stint in government, never to leave.
Every administration brings temporary government officials who come and go, as well as writers (of daily journalism, books, and public relations) who come and stay. In the past half–century, Washington has become the home of a growing community of journalists—print, Internet, and television—many of whom write books in addition to their contributions to newspapers, magazines, Web sites, and the airwaves. While many celebrated politicians have published their memoirs, most have written them with the aid of practicing journalists.
Washington’s Writing Scene
In addition to writers employed by the established media, there has been a growing community of freelance writers in Washington. The Washington writers’ community is expansive, growing, and permanent, and local lawyers form an integral part of it. Lawyers write technical and nonfiction books, as well as case histories, memoirs, and novels. There is now a new book review Web site, the Washington Independent Review of Books, started by retired lawyer and successful author David O. Stewart.
Lawyers outside Washington write, too, of course, but the nation’s capital has so many more lawyers who are practicing in unusual capacities and specialties that lend themselves to literary adaptation. Washington has more lawyers than all the states of the union (over 10 times as many lawyers as second place New York, and 70 times as many as 50th place North Dakota). Many lawyer–writers are very good. Others are amateurs who find themselves frustrated by the battles all writers fight: rejection and a tricky marketplace.
In my experience as a lawyer for writers and as a writer about the law, I have witnessed firsthand the breadth of writing by Washington attorneys. The most frequent example is the expert in a field—endangered species, affirmative action, or public interest law, for instance—who writes informative books and journal articles for other lawyers and educators. Washington has an abundance of legal experts because it is the seat of government (and the special interest groups that follow government), and it is not unusual for lawyers to enter private practice in an area of law after serving in the agency that regulates it, eventually writing a book that they are uniquely qualified to author.
Fred Rodell, the late Yale Law School professor, famously commented that the legal writing typically found in our professional journals had two flaws: content and style. But when the attorney–author joins his or her professional expertise with competent if not remarkable writing skills, the product is frequently impressive. Many lawyers have other lives—writing novels early in the morning and late at night, for example—while they labor in law firms or at government jobs during the day. I’ve reviewed some of these books in Washington Lawyer, and some have been very good. George Mason University School of Law professor Ross E. Davies collects the best examples of legal writing (articles, opinions, books, etc.) each year in a volume called the Green Bag.
A Changing Landscape
To handle this growing area of business, some of us Washington lawyers have added literary transactions to the repertoire of work we do. When I arrived in 1961 with the Kennedy administration, there was one literary agent in Washington, columnist Art Buchwald’s wife Ann. Now there are several, most are lawyers, and they are competing with agents in New York City where the literary agency business started and remains the center. Given the proliferation of writers in Washington, it is no surprise that this specialty has migrated south and evolved to serve local authors.
The publishing world I knew half a century ago was more congenial, welcoming, and charming, if clubby and insular. As a result of its business models, and conglomeration, the publishing business has become less personal and more marketing–conscious (ignominious celebrities and scandal subjects sell well, while intelligent analyses of important subjects by serious–minded experts have a hard going.) The new “gatekeepers” of taste, from my experience, include a young woman specializing in books–to–television adaptations who wanted to know who Betty Friedan was when I submitted her work for adaptation, and a book editor who, when I asked if he’d like to acquire the rights to the authorized biography of Peter Rodino Jr. (by a well–known Washington journalist), confessed that he had never heard of the late House Judiciary Committee chair who presided over the Nixon impeachment hearings—a process that resulted in the adoption of the Articles of Impeachment leading to Nixon’s resignation. And publishers pursue celebrities, even scandalous ones; several of the Watergate crooks did sell their books, rather than disappearing into ignominy.
Another change is that book editors then were considered the “jewels in the crown” of the great publishing houses for their curating and editing assistance. Some such crafty professionals remain within the industry. But more often, the economics of book publishing has resulted in a proliferation of so–called acquisitions editors who have little to contribute to the excellence (or lack thereof) of the books they publish.
Lawyer–author Jeffrey Toobin reported in a recent column in The New Yorker that there is now “Less competition, lower advances, fewer books.” He was referring to the trend in traditional publishing toward consolidation of once independent publishing companies, with foreign (Australian, British, German) companies taking the lead. Most recently, plans were announced for the mergers of Random House and Penguin and of HarperCollins and Simon & Schuster, four of the largest and most successful American publishers. The fewer publishers there are, the fewer options for authors. In publishing, less is less, not more, insofar as opportunities for writers to get their work published.
The trend toward conglomeration was compounded by the U.S. Department of Justice’s recent antitrust charges against five major publishers and Apple over allegations of price fixing of e–books to compete with Amazon. Most publishing contracts use the same or similar terms, so condemning comparability in this one feature is naïve. Using antitrust laws to protect Amazon, which is the growing leader in electronic publishing, is a misguided use of the antimonopoly laws. Amazon’s preferential deal is good for authors, but bad both for traditional publishers and bookstores. Amazon can lose money on e-book sales in the interest of selling more Kindles, but it didn’t need the Justice Department to augment its growing influence. Amazon is the top of the heap. In January, Amazon chief executive officer Jeff Bezos said of e-book sales that “After 5 years, eBooks is a multi–billion dollar category for us and growing fast—up approximately 70% last year. In contrast, our physical book sales experienced the lowest December growth rate in our 17 years as a bookseller, up just 5%.”
Age of E–Books
Amidst all these transformations, electronic publishing is a fast-growing, game–changing part of the publishing world. One literary critic blogged that the digital revolution has “marginalized traditional publishers.” Another author, Robert Levine, concludes in his book, Free Ride, that our literary culture has been damaged because the Internet has made publishers “the arms suppliers in the cold war between technology customers.”
It is important to define what the term electronic publishing includes. Traditional publishers of the old–fashioned, “dead–tree books” (as one sarcastic commentator labeled traditional books) now add to their subsidiary rights features electronic versions of the books they print. Some have recently created their own self–publishing services to authors for fees, outside their conventional publishing programs. In addition, in recent years companies have been created to publish e–books exclusively (they also provide books on demand, if desired, but that is not their raison). And third, there are companies that assist authors in self-publishing e-books. The latter are companies comparable, I would argue, to vanity presses that publish anyone’s book for a price, and with few exceptions such books rarely sell widely. The process has an aura of exploited amateurism. At a panel discussion at last year’s Miami Book Fair International, however, one electronic publisher contested my conclusion, arguing that my claim is elitist and that the public marketplace of readers alone should decide which books are successful. Mark Coker, the creator of Smashwords, noted that his free online company, which distributes indie e–books, publishes about 9,000 books a month or roughly 100,000 books a year.
The viral e–book that makes an author rich and famous—Fifty Shades of Grey is the classic example—is rare. And when that does happen, the traditional publishing houses jump in and sign those authors, as St. Martin’s Press did, reportedly offering a multimillion–dollar contract to Amanda Hocking, whose self–published vampire novels sold more than a million electronic copies. Writers are relieved then to drop the marketing, artwork, editing, and distribution required to make any book successful. Still, self-published e-books grow by the hundreds of thousands annually, The New York Times lists the best e–book sellers, and the economics remain favorable to energetic authors. E–books can be published fast; traditional books usually take a year, from manuscript to book.
A New Class of Publishers
The latest form of electronic publishing is composed of new companies that publish e-books exclusively, but curate the books they publish, as traditional publishers do with theirs. They provide artwork, printing, distribution, and marketing services, as well as share income with authors, usually on a 50–50 basis, sometimes more favorably. These companies pay no advances, making it a non–option for those authors who must rely on advances to write their work. Some literary agents have started such companies. Midlist authors who can afford it and who are finding it difficult to sell their books in the current tough marketplace are finding these companies a valuable alternative. And some super successful commercial authors are trying this new model because the royalties are better than what they would get from standard trade publishers (50 percent and more compared to 15 percent typically).
Mary Cummings, the editorial director of Diversion Books, a New York City–based e–book publisher, offers this insight: “As bookstores close and shelf space shrinks, there is a growing emphasis on digital content in every corner of the market. Print publishers are experiencing seismic changes, in everything from co-op fees from retailers to their overall corporate structures. Editors of the big houses have become far more picky in what they take on, and agents and authors have had to adjust to the closing door by looking at alternative models, including smaller houses and self–publishing…. The e–publishing world … that has only really emerged over the last five years or so is able to operate entirely differently than traditional houses because the risk involved in each project is lower, and there is greater room for innovation, quick turnaround, higher royalty splits than what would ever be found on the traditional side, and dynamic marketing. E–publishers, like ours, have experienced exponential growth.”
Audio books (listening to books rather than looking at them) are another aspect of the e–book phenomenon, one that has been around for many years but that has expanded with the electronic revolution. This part of the publishing family, now covering about 17,000 titles a year, evolved from cassettes to CDs to downloadable versions available on iPhones, iPads, and smartphones. Drivers, the blind, and dyslexic listeners are now joined by joggers and other e–book fans. Audio books add an intimate character to book consumption, which probably goes back to our childhood love of being told a story. If one has heard Dylan Thomas reading his A Child’s Christmas in Wales, the exceptional joy of listening to a book becomes clear. Thomas’s book is now available in new electronic formats, which lower publishing costs by employing new technology. One company, Tales2Go, “streams thousands of audio books … to desktops, laptops, and mobile devices in the classroom and beyond … school libraries are becoming ever more virtual.”
Not all established authors approve of the electronic model. The venerable novelist Philip Roth complains that as a result of electronic publishing, the novel is not dying, but readership is. Roth argues that “the screen will kill the reader and it has. The movie screen in the beginning, the television screen, and now the coup de grace, the computer screen.”
There is another problem to consider. NPR’s Lynn Neary reminds us that reading online is not a private act. “You are not alone. Data is being collected … and that information belongs to the companies that sell e–readers … And they can share—or sell—that information,” she cautions.
Will e–books contract book publishing, just as music streaming has diminished the recording industry? Will the balance between commerce and art become skewed by the flood of self–published e–books? Will electronic publishing add more “readers” who care about books as a source of entertainment and information? Audio books and e–books are used in classrooms, most of which are now stocked with computers.
The data about book publishing presents an increasingly electronic picture. New technologies such as Google Play, iPad, Kindle, Kobo, Nook, and Sony Reader have generated a changing picture of book sales. E–books now compose about 25 percent of book sales. Libraries (three–fourths of them) loan e–books, according to the American Library Association. Studies report that about 22 percent of Americans read at least one e–book a year, creating sales of about $347 million in e–book revenue. One fallout of this electronic phenomenon is its effect on bookstores. Just as the small, friendly neighborhood bookstore of the past was pushed out of business by big chain bookstores, now Barnes and Noble has been forced to close many of its stores by electronic publishers who use new technology and operate at lower costs to capture the book–buying public’s business.
Bricks vs. Clicks
Lawyer–novelist and Authors Guild president Scott Turow notes that “[p]ublishing shouldn’t have to choose between bricks and clicks,” making bookstores an endangered species as a result of companies such as Amazon having a “chokehold” on the e–book market. But Ken Auletta, a media analyst for The New Yorker, predicted that the clash between traditional publishers and Amazon may only be a prelude to an ultimate battle between the five digital giants—Amazon, Apple, Facebook, Google, and Microsoft—as they fight for market share.
As bookstores are disappearing as purveyors of books, the Internet has evolved into a new source for book reviews, promotion, and sales. Goodreads.com is a social media site whose 15 million members discuss and rate books, organize book clubs, and guide readers to books. The Web site hosts about 20,000 online book clubs. Shelfariand LibraryThing offer similar services. Independent book reviews online are viewed as more credible because social media members feel they are not being manipulated by advertisers or a self–selected literary elite.
One author wrote in Forbes that the electronic publishing phenomenon brings both good and bad news. “Readers are losers because the clutter of bad writing has grown exponentially, but winners because there are ultimately more interesting things to read that are a lot cheaper than before.”
When the market becomes flooded, a finite readership can manage to read only so many books, and traditional publishers claim the “tsunami of crap” devalues the good books readers deserve. But at a recent panel discussion on electronic publishing, Christopher Kenneally, the director of author relations at Copyright Clearance Center, made the wry remark that the success of wide open electronic publishing reminded him of Mae West’s professional advice that “too much of a good thing is—wonderful.”
What Lies Ahead
We live in a time of fundamental change in the provision of information. Daily it seems we add new techniques and means for transferring information electronically. Virtually everyone has the means and the various complementary skills for exchanging information by voice, touch, or sound, connected in the cloud and permitting infinite applications. The old–fashioned book, simply stated, is changing, and what is around the corner we can’t know. What we must understand is that change is here, not coming, and e–books are a fundamental part of that change. My generation prizes the touch and feel and process of holding books and newspapers in our hands, carrying them wherever we go, and we have an atavistic connection to that form. Our grandchildren will not have those habits; they will read differently from us. Lawyers as lawyers or as writers know this well. Legal research today is a quantum jump easier and faster than it was when I went to law school. My law clerks find online what I need faster than I could walk to the library when I started practice.
The director of literature at the National Endowment for the Arts recently said we don’t know where the book publishing industry will be in five or 10 years. Another commentator concluded that “the new models haven’t completely emerged from the primeval swamp of American entrepreneurship.” What is clear is that the movement from analog to digital is here—only the nature of the mix is unclear. Amazon, Google, LexisNexis, and their ilk have replaced the heirs of the Gutenberg Bible and the products in the ancient Library of Alexandria in Egypt. That is a fact.
Writers—lawyers and others—are wise then to adjust to the new forms of books. Those writers who want to do more than blog about their ideas have all the historic options to do so, and now one more. The economics of e–books are favorable: 50 percent of a $9.99 book is considerably better than 15 percent of a $25 book. As the volume of e–book sales rises, so, too, will author income. E-books are published by traditional publishers and by increasing numbers of e–book companies. Thus, authors have more options.
The phenomenon will only grow as children who grow up using electronic media become the book buyers of the future, without the ties to old–fashioned books I and my generation are wedded to. Making predictions in a fast–changing business phenomenon is risky. But I expect that the self–publishing aspect of e–books will make some electronic publishers rich, but won’t make many authors—lawyers and others—rich or famous. However, the idiosyncratic nature of traditional publishing will facilitate the growth of new and influential forms of electronic publishing, which will continue to expand and become the source of most books in the future, legal writing included. Just as my law clerks are conducting their research online, so will readers on trains and planes, on couches and in beds be reading their legal thrillers or researching their authoritative works on new electronic frontiers.
Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent.