Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news and commentary, and a focus on the weird and wacky things that happen at the fringes of the publishing world.

March 2, 2015

Author Solutions Inc. Losing Market Share As Production Numbers Fall

Posted by Victoria Strauss for Writer Beware

On February 9, while doing research on something else, I noticed that Harlequin's Author Solutions, Inc.-run self-publishing imprint, Dellarte Press, had closed its doors. Dellarte's website is now a placeholder, with a "we're sorry" message.

Some of you may remember the outcry that greeted Dellarte (originally named Harlequin Horizons) when ASI and Harlequin rolled it out in November 2009. (By contrast, the earlier launch of WestBow Press for Thomas Nelson caused barely a ripple). Writers flipped out. A slew of pro writers' groups either issued statements condemning the move or de-listing Harlequin. Ultimately, the bad press forced Harlequin to change the service's name and also to distance itself from Dellarte. Of the several self-pub divisions run by ASI for traditional publishers, Dellarte was the only one that didn't prominently tout the connection with its parent publisher.

Why such an abrupt, unannounced closure for Dellarte? Harlequin hasn't talked, and neither has ASI. But maybe it was because Dellarte did almost no business.

Mick Rooney, writing about the closure in The Independent Publishing Magazine, discovered that over the past 5 years, Dellarte published just 16 titles. This is a shockingly small number, and understandably, some people were skeptical, including Nate Hoffelder of The Digital Reader*. However, it's been confirmed for me by an independent source (and also by the report I discuss below).

The question that immediately occurred to me: is Dellarte an exception? Or are other ASI imprints also doing tiny business?

The answer is "not really." A report by Bowker, Self-Publishing in the United States, 2008-2013, includes a special section on total print and ebook ISBN output at ASI**, which indicates that production at most ASI imprints is in the four-figure range. However, only Xlibris and AuthorHouse crack five figures. And the statistics show something even more interesting: production at ASI is in decline.

There's an up-and-down pattern for individual imprints, but overall, ASI production increased steadily between 2008 and 2011, when output hit a high of 52,648. (Though compare that to CreateSpace's 2011 ISBN output of 58,862.)

In 2012, things started to slip. Numbers rose at Trafford, WestBow, and Palibrio, but fell at other imprints (Xlibris and AuthorHouse by around 3,000 ISBNs each); as a result, overall output declined to 49,885. (For the same period, CreateSpace output more than doubled, to 131,460.)

The slide accelerated in 2013. With the exception of Balboa Press and Partridge India (which Bowker only started tracking that year), every single ASI imprint lost ground. Total output fell to 44,574, a decrease of 5,311. Meanwhile, CreateSpace continued its meteoric rise, leaping to 186,926.

We'll have to wait for 2014 stats to know whether this trend will continue, but my guess is that it will. In part, ASI is reaping the fruits of its poor reputation and the large amount of negative publicity and commentary it has received in the past few years (see, for instance, David Gaughran's The Case Against Author Solutions). Beyond that, though, I think that its business model--print-centric, high-priced, with outsourced operations (much of ASI is based in the Philippines) and an extreme emphasis on upselling--is simply becoming less and less relevant in this age of free-to-cheap digital self-publishing solutions.***


* Nate suggested that the number was so small because Dellarte titles have been folded in among other ASI imprints. But ASI has always been very careful to preserve the division between its own operations and the imprints it runs for others, and does everything possible to distance itself (for some of the imprints, you have to look at the Privacy Policy to know that ASI is involved). It has also kept Abbot Press running and separate, even after Writer's Digest bowed out. So I think it's unlikely that it made Dellarte titles disappear.

** Archway Press is not included because Bowker did not start tracking it until 2014. Many thanks to David Gaughran for sharing this report with me.

*** Other companies featured on this blog that lost ground in 2013: PublishAmerica, Dorrance, and, surprisingly, Smashwords (though overall, Smashwords' output is second only to CreateSpace's; the decline could also reflect fewer authors choosing to use ISBNs).

February 27, 2015

Crescent Moon Press, Musa Publishing Close Their Doors

Posted by Victoria Strauss for Writer Beware 

Crescent Moon Press has announced that it is closing. From a mass email sent out to authors late last month:

On March 31st  at 11:59 pm, Crescent Moon Press will release all author [sic] from contracts.  All rights will revert back to authors for their manuscripts. If your contract expires prior to March 31st, it will not be renewed. Final royalty payments will be issued as well as any necessary documents as soon as they become available. Please be patient as we work to close out our business affairs.

Artwork will remain property of the company. If you would like to purchase the rights to your artwork, please let us know.

This is not done lightly, nor is it done with a heavy heart. We have enjoyed our experience as publishers immensely, but the time has come to move on with alternate endeavors.
While I don't imagine that Crescent Moon authors will much appreciate the "have a nice life" tone of the last paragraph, many of them will probably not be surprised. Though the letter makes no mention of financial or other problems, reports by authors who've contacted me over the past year suggest that Crescent Moon has been troubled for some time.

The litany of complaints is familiar: poor communication, missing or non-timely payments, poor editing, finished books with lots of typographical errors. The publisher's response (made to me in email) is also familiar: The authors complaining were on a "witch hunt" because they couldn't deal with their poor sales.

Some authors have expressed concern about whether the general release in the mass email is sufficient to return their rights. In my (non-legal) opinion, it probably is--but it would be much better if authors received individual reversion letters, and if I were a Crescent Moon author, I would definitely request one. Final royalty payments (and statements) are still an open question.

Crescent Moon's website doesn't say anything about the closure; in fact, as of this writing, it is still "open to general submissions."


Musa Publishing is also going out of business. From the email received by authors last week:

On January 21, we held a quarterly budget and planning meeting to address some of the many challenges 2015 will present. We came away with some proposals and tasks which we hoped would resolve some critical budget and staffing concerns. Since February 6, we have been in daily discussions as a team. We met again on Friday February 13 to formally agree on a plan going forward for Musa Publishing.

As you all know, the publishing market changes rapidly. Most markets have suffered and eBook publishers are no exception. The rising costs of doing business and reduced sales have hit us extremely hard in spite of fantastic books and enthusiastic efforts of staff and authors alike....

Because we are absolutely determined to pay our authors and staff; to remain debt-free and empowered to live out our founding values, this week Celina, Kelly, Kerry, Jeanne, and Dominique together made the painful decision that Musa can no longer remain open.
Musa authors may be experiencing whiplash from the abruptness of the closure: as of February 28, Musa will cease to exist. (Though in retrospect, the November closing of Musa's ezine, Penumbra, seems like a warning sign.)

Musa claims in the letter that "we are not in financial trouble." However, authors have been reporting issues with Musa for a long time (see the long, long, long discussion thread at Absolute Write). Complaints include rapid editor changeover, a lack of marketing support, brusque responses to author concerns, and overextended staff. (It should be noted that, although many authors have expressed disappointment with sales, Musa does not seem to have had a problem with missed or late payments). Some authors felt that Musa, which expanded very rapidly after its September 2011 opening and quickly built up a huge catalog, ultimately became little more than an author mill.

Apart from the abrupt notice, Musa does seem to be going about the closure responsibly. It has pledged to provide individual reversion letters and to send royalty payments and statements due, and has announced the closure on its website.

This is a very sad situation. Musa arose in the wake of a small press horror story (Aspen Mountain Press, where some of its founders worked), and began with the best of intentions. In the end, I think it simply tried to do too much too fast, and stretched itself too thin to survive.

February 24, 2015

New Life For Old Books (Mine!)

Posted by Victoria Strauss

One of the greatest things about the digital revolution is the opportunities it has created to give new life to old books. Years ago, books rarely came back into circulation once they were taken off the market--but the proliferation of digital self-publishing options, as well as the rise of digital publishers specializing in reprints, has changed all that.

I've written nine novels, but until recently, only four were "in print" and available. Today, I'm thrilled to announce that four of my backlist books are being re-released as ebooks by Open Road Media. This brings all but one of my novels back into circulation (that one, Worldstone, was badly in need of updating; I'm planning on revising and self-publishing it later this year).

The Way of Arata Duology Way of Arata duology (The Burning Land and The Awakened City) was originally published in 2004 and 2006 by HarperCollins Eos (now Harper Voyager). It's epic fantasy for adults, featuring diverse characters in an exotic non-Western setting.

Of all my novels, these are the ones of which I'm most proud, and that I feel best represent me as a writer.

From Open Road: A magnificent tale of intolerance, magic, and holy war, the duology explores deep questions of faith and humanity as it transports readers to the kingdom of Arsace, a troubled realm where the newly reborn Brethren cruelly enforce the strict dictates of their once-outlawed deity, Ârata.

The saga chronicles the Brethren’s unrelenting persecution and attempted destruction of the mystical Shapers, powerful renegade mages who escaped into the sacred Burning Land years before, when the Brethren themselves were the victims of a tyrannical atheistic government. It is the story of a traveler in both worlds, a devout Âratist priest and Shaper named Gyalo Amdo Samchen, and the remarkable journey he makes from disciple to doubter to lover of the mysterious Dreamer Axane, and ultimately, to man of peace.

"An involving novel that shines with intelligence…Combined with a solid plot and Strauss’ crisp, clean and literate prose, this is one of those novels that envelops readers, the kind of book that makes it a pleasure to linger in its imagined world." --Science Fiction Weekly on The Burning Land

" Like A Canticle for Leibowitz, Strauss’s The Awakened City explores deeply reflective themes like the true meaning of faith, the pitfalls of zealotry, and the very dangerous non-spiritual influences of organized religion…[A] highly intelligent, profoundly thought-provoking work." --Barnes & Noble Explorations on The Awakened City

For more reviews, excerpts, the original (gorgeous) covers, and a large amount of bonus material (including maps), visit The Burning Land and The Awakened City on my website.


If you buy The Burning Land, Open Road wants to give you a free ebook of The Awakened City! Just tweet with the hashtag #BoughtBurningLand by March 1(and be sure to follow @OpenRoadMedia so they can notify you if you win). Official rules are here.

To celebrate the re-release, I'm running a Goodreads giveaway! Enter by March 1 to win one of five signed copies of the beautiful original hardcover edition of The Burning Land.

Guardian of the Hills
A historical fantasy for teens, Guardian of the Hills was my third novel, published by Morrow Junior Books in 1995. I had a lot of fun with the research, which included a visit to the fascinating Moundville historical site in Alabama.

Open Road keeps its covers simple, but the new cover is a vast improvement on the original, which I absolutely loathed (even though it was done by a pretty well-known cover artist). Take a look and see what you think

From Open Road: A young girl in Depression-era Arkansas discovers her Native American heritage when a series of strange and troubling spiritual events plague an archaeological excavation on sacred lands...An ingenious blend of historical fiction and dark fantasy, this is a page-turning tale that thrills and chills in equal measure.

"Mysterious dreams, suspense-filled legends, the terror that unfolds as the dig ensues, and the fine characterizations weave together beautifully to make this adventure fantasy a winner." --Booklist (starred review)

Guardian of the Hills was chosen as a New York Public Library Book for the Teen Age.

For more reviews and an excerpt, click here.

The Lady of Rhuddesmere
Published by Frederick Warne in 1982, The Lady of Rhuddesmere is a historical novel for teens.

Lady was my debut novel. I wrote it when I was 17; it got me an agent who found me a publisher (a journey of nearly 10 years), where a wonderful editor helped me re-write it from beginning to end, and in the process taught me more about writing than I've learned before or since.

From Open Road: In this powerful young adult historical fiction classic, a young man serving a sad and secretive lady in an isolated English manor makes a shocking discovery that could destroy those he loves....Nominated for the Dorothy Canfield Fisher Award, Victoria Strauss’s acclaimed debut novel bridges the gap between historical fiction for youth and adults with a chillingly provocative Gothic tale that sheds a stark, revealing light on human cruelty, ignorance, and intolerance.

“Riveting historical fiction . . . A compelling, suspenseful read, with fine accuracy and integration of historical detail.” --School Library Journal

For more reviews, an excerpt, and the (very dramatic) original cover, click here.

February 12, 2015

Editing Clauses in Publishing Contracts: How to Protect Yourself

Posted by Victoria Strauss for Writer Beware

Editing clauses are one of those publishing contract areas where there should be a balance between the publisher's interests and the writer's.

Publishers need a certain amount of latitude to edit a manuscript to prepare it for publication. They also need to have the right of final approval--they don't want to be forced to publish a manuscript that the author can't or won't revise to their satisfaction.

Writers, on the other hand, need assurance that they will be a partner in the editing process, and that their work won't be changed in major ways without their permission.

Whether you're publishing an entire book, or a story in an anthology or magazine, the editing clause of your contract should ensure that content editing (the kind of serious editing that focuses on plot, pace, structure, style, and content) includes your cooperation (ideally, the editor will provide revision suggestions and you will carry them out yourself), and that alterations other than copy editing can't be made without your consent. If the publisher isn't happy with your revisions, or you don't want to implement the publisher's suggestions, the publisher's remedy should be to refuse to publish--not to unilaterally impose changes.

For copy editing, by contrast, the publisher usually has discretion. But you should have the opportunity to see and approve the copy edited manuscript before it goes to press.


Red Flag Editing Clauses

Here's an example of an editing clause that should be a dealbreaker (this and other clauses quoted below are taken from actual contracts in my possession):
Publisher shall have the right to edit and revise the Work for any and all uses contemplated under this Agreement.
What's missing here? Any obligation on the publisher's part to seek your approval before making the edits and revisions. A clause like this allows the publisher to edit at will without consulting or even informing you. If you sign a contract with this kind of language, you are at the mercy of the publisher and its editors (and if it's a small press, those editors may not be very qualified). You shouldn't be surprised if the publisher takes advantage of it.

This clause is more elaborate, but has the same effect (this language is fairly common, by the way; I've seen it in many contracts):
The Publisher shall be entitled to develop, alter, edit, and proof the content, usage, format, capitalization, punctuation, and spelling of the Work to conform to the Publisher's style, the subject matter, and intended audience previously agreed upon by the parties of this Agreement.
Here's another bad one, which is explicit about the publisher's right to edit at will:
Publisher has the right of final approval of Author’s manuscript. Publisher will assign an editor to work with Author in making revisions. The Author agrees that Publisher can make editorial changes to the manuscript, including, but not limited to spelling, grammar and punctuation corrections, and abridgments of text without Author’s consent.
Less obviously a problem is something like this:
Publisher shall have the right to correct errors, and/or edit and revise the Work for any and all uses contemplated under this Agreement (collectively "Editing"), provided that the meaning of the Work is not materially altered.
Again, this is a very common formulation. Many authors skip right over it, because on a surface reading it appears to protect the work from major changes. Not so. "Provided that the meaning of the Work is not materially altered" can cover a huge amount of ground, including stylistic alterations, abridgements, additions, and all sorts of things that might not change your manuscript's meaning but could seriously change its tone and style. Plus, the publisher is not required to consult you or get your permission before making those changes--and if you don't like the changes, you may not be able to persuade the publisher to undo them.

This one throws the author a bone, in the form of notification:
Publisher has the right of final approval of Author's manuscript. Publisher will have the right to correct errors and revise the work for all purposes of this Agreement. The Author will be notified prior to any and all substantial changes.
But although this may prevent you from being blindsided by enormous changes in your finished book or story (or not--the publisher's definition of "substantial" may not be the same as yours), you have no power to dispute or refuse those changes.

Alternatively, the publisher may be willing to give you input into the editing process, but reserves the right to ignore your suggestions:
Publisher shall have the right to edit and revise the Work for any and all uses contemplated under this agreement. Author shall be consulted if substantial changes are made, provided that in any dispute over such changes, Publisher's decision shall prevail.
A related issue is a clause like this one, which may appear in addition to the editing language:
If the Publisher considers it necessary and in the best interests of the Work, the Author agrees to revise the Work on request of the Publisher. The provisions of this agreement shall apply to each revision of the Work by the Author as though that revision were the work being published for the first time under this agreement, except that the manuscript of the revised work shall be delivered in final form by the Author to the Publisher within a reasonable time after request for revision...Should the Author not provide a revision acceptable to the Publisher within a reasonable time, or should the Author be deceased, the Publisher may have the revision done and charge the cost of such revision against royalties due, or that may become due, the Author, and may display in the revised work, and in advertising, the name of the person, or persons, who revised the work.
This is a Revision clause. While it's appropriate for a work of nonfiction, which may need to be revised from time to time to keep it up to date, it does not belong in a fiction contract: novels, once published, are not typically revised. If you see a revision clause in your contract, negotiate with the publisher to remove or strike it. I've heard of at least one publisher that used a revision clause to unilaterally enforce unwanted edits--at the author's expense.


What To Look For

Are clauses like the ones above a guarantee of malfeasance? Not necessarily. It's entirely possible that the publisher will be conscientious and ethical, that you will be a full partner in the editing process, and everyone will wind up happy.

Problem is, you have no contractual assurance of this. These clauses give all the power to the publisher--and in publishing, the letter of the contract is the bottom line. You should never assume that what the contract says could happen, won't happen. If the publisher has a dictatorial attitude, or employs not-very-competent editors, or is just a deadbeat--all of which, unfortunately, are pretty common in the small press world--you could find yourself with a badly-edited manuscript and no way to protest it or fix it. I have gotten hundreds of complaints over the years from authors who've found themselves in this position because the editing clauses in their contracts gave them no rights and offered them no protection.

So what should you look for? Here are several examples of better editing clauses, taken from various book contracts I've seen, including my own:
The Publisher shall make no changes in, additions to, or eliminations from the manuscript, except for typographical, spelling, and grammatical errors, without Author's consent. Any other edits will be requested of the author and agreed upon between the author and editor prior to preparation for sale.
Publisher has the right of final approval of Author's manuscript. Publisher may assign an editor to work with Author in making revisions. The Author will be notified prior to any and all substantial changes, which will be made only with the Author's approval and participation...Publisher may make corrections of typographical errors without Author's consent.
If the complete manuscript for the Work delivered by the Author is not acceptable to the Publisher, the Publisher shall give the Author a written request for changes and revisions for such work...After the Work has been accepted by the Publisher, no material changes may be made in such Work without the Author's approval. However, the Publisher may copyedit the Work in accordance with its standards of punctuation, spelling, capitalization and usage. The Publisher shall send the copyedited manuscript to the Author, who shall make any revisions and corrections and return it within two weeks of receipt.
The Publisher shall request that the Author work cooperatively with the Publisher to make the Work satisfactory to the Publisher, in which event Author shall use best efforts to do so...Upon acceptance by the Publisher, no changes shall be made in the Work without the author's approval, except that the Author authorizes the Publisher to make the manuscript of the Work conform to its standard style in punctuation, spelling, capitalization and usage.
From an anthology contract:
The Publisher will make no major alterations to the Work's text or title without the Author's written approval. The Publisher reserves the right to make minor copy-editing changes.
And from a magazine contract:
The Publisher will make no alterations to the Work’s text or title without the Author’s written approval in e-mail or hardcopy. The Publisher reserves the right to make minor copyediting changes to conform the style of the text to its customary form and usage.
What's common in all these clauses: the author's consent is required before serious changes are made.


In Closing

What to do if the publisher that has just made you an offer has a bad editing clause in its contract?

Try to negotiate. Ask that the publisher add language ensuring that your consent is required for changes other than copy editing--a la the clauses directly above. Many publishers will be willing to be flexible. If they aren't, as hard as it seems, you may want to seriously consider moving on.

Don't be swayed if the publisher assures you that in practice, you will always be consulted, or says something like "That's just in there for the lawyers; we won't do anything without your consent." This may be true at that particular moment--but you have no guarantee that it will still be true at some future point. Again, never assume that what the contract says could happen, won't happen.

Obviously, with even the best contract language, things can go wrong. But if you sign a contract that doesn't protect your rights in the editing process, you are really making yourself vulnerable. Just another reason to be smart and careful out there.

For some tips on cultivating the right mindset when evaluating a publishing contract, see my recent blog post: Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself.

February 5, 2015

SFWA Opens to Self-Published Authors; Magazine of Fantasy and Science Fiction Makes Contract Changes

Posted by Victoria Strauss for Writer Beware

I have two pieces of SFWA-related news to share today.


Members of the Science Fiction and Fantasy Writers of America (SFWA) have voted to open membership to self-published and small press authors. From the official statement:
Specific details will be posted at by the first of March, but the basic standards are $3,000 for novel, or a total of 10,000 words of short fiction paid at 6 cents a word for Active membership. A single story of at least 1,000 words paid at 6 cents a word will be required for Associate membership. Affiliate, Estate, and Institutional membership requirements remain unchanged.

Self-published and small-press works were already eligible for the Nebula and Norton Awards, SFWA’s member-voted genre award, and will remain so.

SFWA will open to applications from small press and independent publishing qualifying members on March 1, 2015. Further information will be available at that time at SFWA's Membership Requirements page.
Voting members supported the change 6 to 1. This has been a long time coming, and I am thrilled that it's here at last.

SFWA's Contracts Committee has issued the following announcement:
Several months ago, a number of members of Science Fiction and Fantasy Writers of America (SFWA) raised questions with the SFWA Contracts Committee about the contract then in use by The Magazine of Fantasy and Science Fiction (F&SF).

The SFWA Contracts Committee and Gordon Van Gelder, Publisher of F&SF, have worked together over the past several months to resolve problems with the contract. As a result of the discussions, the contract has been revised to address issues involving the length of exclusivity requested and the registration of copyright. The Committee will continue to follow implementation of the new contract.

Mr. Van Gelder was offered an opportunity to make a statement, but declined. We would like to thank him for his professionalism and courtesy in working with the Committee.

Michael Armstrong, Chairperson
SFWA Contracts Committee
The Contracts Committee consists of Michael Armstrong, chairperson, Michael Capobianco, Victoria Strauss, Ken Liu, Jim Fiscus, and Michael Stackpole.

February 2, 2015

Who's Running Your Writers' Group? Why You Should Be Careful

Posted by Victoria Strauss for Writer Beware
Joining a writers' group can be a terrific way to get feedback and support, and to make new friends. But what if that group isn't all it seems?

An alert Writer Beware reader drew my attention to what seems like a growing phenomenon: writers' groups sponsored by pay-to-play publishers.

A few examples--all from, where there are likely many more:

Onion Custard Publishing's Author Clinic is "looking to support authors who want to develop their ideas." Onion Custard also offers a suite of services for authors--all at a cost.

The Roswell Alpharetta Book Publishing Group for Authors, which helps writers "Network with other authors during your writing and publishing journey", is run by Firebrand Publishing, which provides "book publishing services at affordable rates."

PageCurl Publishing and Promotions runs two writers' groups, one in Seattle and one in Pennsylvania. Their aim: to "take the scary out of publishing." But not necessarily the cost: PageCurl offers publishing services at $45 per hour, as well as a la carte services and publishing packages starting at $3,500.

Grey Wolfe Publishing also has multiple groups, in Michigan and Missouri. They describe themselves as "a reliable pack of literary experts who will walk with you and protect you through even the darkest paths of the publishing forest!" One of those paths: Grey Wolfe's "all inclusive" publishing package, priced at $1,250. If you want, you can pay more...much more.

At Brisbane Self-Publishing Meetup, you can "Meet like-minded people and talk about your wins and challenges in getting your book published." The group is sponsored by Complete Publishing, "the new revolution in book publishing," which charges up to $6,500 AUD for a Premium Author Package (about $5,000 US). Not all that revolutionary--except maybe in your bank account.

The writers' group offered by Zimbell House Publishing has a "missions": "to help writers become quality authors." Quality authors can also buy one of Zimbell House's publishing packages, which start at $999.

The Greater Cleveland Writers Group is a large and well-established group that "exists to provide resources for novice to published writers in order to assist in developing, editing, publishing and marketing their work." Its MeetUP is sponsored by Cleveland Writers Press, which appears to provide some form of traditional publishing, but also sells self-publishing services.  

I've received no complaints about any of these publishing services. And I have no evidence that any of them are using these groups as a way to steer writers toward their paid services.

However, it's at least a possibility--and that potential conflict of interest is one reason why you should be cautious when a writers' group is sponsored by self-publishing service or pay-to-play publisher.

The other? The misinformation that such services and publishers often provide, whether about publishing or about themselves. Cleveland Writers Press, for instance, encourages authors to believe this common and pernicious myth:
Currently, the Publishing Industry basically ignores the up-and-coming author. Becoming a ‘published’ author is nearly a Black Art. There has been little interest in developing talented writers for decades.
And Grey Wolfe Publishing devotes an entire page of its website to explaining why its "unique 'hybrid' approach to publishing" is not vanity publishing. ("Hybrid," by the way, is one of the newest euphemisms used by vanity publishers, joining older deceptive terms like "co-op" and "joint venture".) So does Zimbell House Publishing. But if a company calls itself an "independent publisher" while at the same time requiring payment from authors, it's a vanity publisher, and no amount of verbiage about selectivity, partnership, expertise, or profound respect for authors can change that.

So be careful out there. Know who's running that writers' group you're thinking of joining--and if it's a publisher or a publishing service, be aware that it may be interested in more than just supporting you in your writing journey.

January 27, 2015

Lost in Translation: In Which I Investigate a Translation Service, and They Are Not Amused

Posted by Victoria Strauss for Writer Beware

Last week, I got a question about the reputation of a service called Author Translation. I'd never heard of it before, so I paid a visit to its website.

Logically enough, given its name, AT offers "literary translations for authors, online and worldwide." The website doesn't say which languages are AT's specialty, but per its Twitter feed, that would appear to be Spanish only. Also not revealed: exactly who is doing the translations, and what qualifications they have. It's said only that they are "literary translators, proofreaders, bloggers and reviewers with English and Spanish literature studies."

The cost? $5 per translated page. This relatively low fee (good translations are expensive) was what attracted my correspondent, who would like to be able to sell her book into the Spanish-language market.

Unfortunately, I had to tell her that you tend to get what you pay for. AT raises a bunch of red flags. Not knowing who the translators are is the big one, because you have no way to investigate their qualifications and expertise--especially vital when you're hiring someone to render your work into a language you don't speak, and can't judge the finished product on your own. Also: there are unsubstantiated claims (AT says it works with publishing houses, but doesn't say which ones). Testimonials with stock images. And the website reads as if it were written by someone with an imperfect command of English--not really what you want to see in a translation service.

I decided to try and find out more about AT. So I emailed them, using my own name and my personal email address.
I'm interested in finding out more information about your company. Could you please tell me about your staff and their qualifications? Also, could you please let me know what publishing houses you've worked with, and provide me with some author references?

Thank you very much.

- Victoria
AT responded promptly (all errors are theirs):
Dear Victoria,

thanks for your interest. I think you can find some of that information on our webpage, for example which publishing houses or authors. We have a samples page for that, but at this time we only have one example because our startup is very new and under construction. We are based on Spain and We don't have staff but a group of freelance friends who are willing to lend a hand when it would be possible. As you may know the name of the translators rules are the same than the author's names: they can be published or not, depending on personal choice.

Kind regards

Author Translation Team
This seemed a tad vague to me--not to mention confusing; that last sentence is a bit of a syntax-twister. I wrote back:
Thanks for your quick response. So I gather from what you're saying that the people who do the translations are not professional translators? You can see the problem for the author, who wants their book translated into a language they can't speak or read themselves, and has no way of judging the quality of the finished product--so it's very important to know that they are working with qualified people.

I did look on your webpage, but I couldn't find the names of publishing houses or authors other than the one testimonial. Is that the only client you've worked with so far?

Thank you for answering my questions.

- Victoria
Well, it appears I went too far, because the tone of their next communication was very different.
You seem to gather what you want to gather. I told you the translators publish their names depending on personal choice (you can be published or anonymous), why do you gather from this sentence that "they are not professionals" ? Maybe you need psychological treatment if you understand so badly. In addition, why do you say that " a language they can't speak or read themselves " if I told you that we are Spanish? Are you crazy ? And why you say that "the author has no way of judging the quality of the finished product" if everybody can pass some few translated pages to any Spanish person in order to judge? Please, don't disturb us any more, I answered you and I didn't have any duty of doing that. I did it only because you seem to be part of a bigger organization, but your "watchdog" is the more stupid thing I have ever seen in my life. Go away you and your dog.
If I had a dog, I'm sure she would be crushed. Perhaps I should have let it go at that point, but I couldn't resist.
Thank you. You've now told me everything I need to know about your service.

- Victoria
Imagine my surprise to receive this:
I warn you that slander anybody on the Internet is a legal felony; and if we see any of your liars out there we will report that to the police and our lawyers.
So now, dear reader, I think that you, too, know all you need to know about Author Translation.

January 23, 2015

Two Red-Flag Sentences in Publishing Contracts

Posted by Victoria Strauss for Writer Beware

A publishing contract just came across my desk for evaluation. From a publisher that sometimes charges fees (but didn't in this case), it's a pretty poor contract--just two pages long, because it's missing a lot of important language: nothing to indicate when the contract term starts to run (on publication? on signing?), no editing clause, a claim on subsidiary rights with no breakout of the rights claimed, no copyright notice requirement, the same royalty rate for all formats including ebooks...the list goes on.

As if that weren't bad enough, it also includes two provisions that, even in contracts that are more professional and complete than this one, can be red-flag warnings.
Promotion and publicity shall be at Publisher’s election and discretion as to the character, scope and extent thereof.
With this or similar language, the publisher may be trying to convince you that it actively promotes and publicizes its books (because of course you want that from a publisher), while ensuring that it can blow off your dissatisfaction when it turns out to do little or nothing. "It says right in the contract that publicity is at our discretion," it may tell you when you ask it to explain why its sole marketing strategy is a poorly-written press release sent to a list of people you provided. "We didn't promise anything else."

Now, this kind of language isn't always a sign of a deadbeat publisher. You can also find it in contracts from quite decent publishers, which simply want to emphasize that marketing is under their control. But many deadbeat publishers do use it as a get-out-of-jail-free card--so where you encounter it, you're well-advised to find out for yourself whether the publisher really does provide marketing support for its books.
It is further understood that Publisher has not guaranteed the sale of any specific number of copies of the said Work, or receipts from any source.
This is a sentence you will not find in the contract of a reputable, professional publisher. Quite simply, it's advance justification for failure--another way for the publisher to both justify and dismiss poor performance. It's an almost certain marker for little or no promotion and tiny sales. Vanity publishers frequently include it in their contracts, as do amateur publishers that have no clue what they're doing.

For more on assessing publishing contracts, see my recent post: Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself.

January 21, 2015

New Look for Writer Beware

Posted by Victoria Strauss for Writer Beware

If you're a regular here, you'll have noticed our new look!

It's courtesy of the talented Tiana Smith of The Blog Decorator, who offered to donate a custom blog template just because she thinks Writer Beware is awesome. We're grateful for her generosity, and thrilled to finally have a design that lives up to our new logo. We hope you like it, too.

Thanks, Tiana!

January 6, 2015

2014 in Review: The Best of Writer Beware

Posted by Victoria Strauss for Writer Beware

Welcome to 2015! It's time again for our annual look back at the year just past, to remind you of our most important, helpful, or amusing posts.

Here goes.


Scribd's Ebook Subscription Service: A look at Scribd's ebook subscription service--which in January 2014 was brand-new--and the related concerns raised by the rampant piracy on the site. Says Writer Beware's Michael Capobianco: "[B]eneath all the new things, the old Scribd--offering not-necessarily-legal user uploads of copyrighted works--is still there."(Scribd later responded, stating that it's concerned about illegal uploads and working to prevent them.)


Questions to Ask Your Prospective Literary Agent: What are the right questions to ask when you receive The Call? How can you be sure if the agent is really right for you--if his plan for your manuscript matches your goals, if her style is a good fit for your needs? This post provides a big list of resources to help you formulate the right questions--and to assess the answers you receive.

PublishAmerica Is Now America Star Books: A name change does not a new company make--but it can sometimes create the appearance of one. Notorious PublishAmerica took the name change plunge in early 2014, re-christening itself America Star Books.

Alert: Jane Dowary Agency: I love the weird stories, and this is one of the weirdest--an "agent" who appeared under three different aliases, and then cluelessly outed herself while adopting a fourth.


The Short Life and Strange Death of Entranced Publishing: The cautionary tale of a small press that started too big, got into trouble, and went bust in less than a year. A good example of why it's smart to avoid new publishers for at least a year post-startup.

Rights Concerns: The Amtrak Residency Program: This new program from Amtrak promised "to allow creative professionals who are passionate about train travel" to write while experiencing round-trip train journeys along Amtrak's most scenic routes. The response from writers was huge--but so were concerns about the Grant of Rights to which authors had to agree.


Take the Money and Run: the saga of Kerry Jacobson, faux book publicist, who solicited thousands of dollars from self-published authors for publicity campaigns that never happened.


Robert Fletcher of SBPRA Required to Pay Author Resititution: At long last, the Florida Attorney General's civil lawsuit against Robert Fletcher and his companies (see Writer Beware's Alert for a full catalog of the many names under which this business has operated) drew to a close, with a settlement that did not require Fletcher to admit guilt but did require him to submit to a number of conditions and to pay $125,000 in author restitution (an amount that increased to $135,000 when Fletcher missed the payment deadline).


Bait and Switch for Self-Published Authors: In which apparently helpful feedback from readers turns into a sales pitch.


Self-Publishing and Author-Agent Agreements: The Need for Change: You don't sign with an agent unless you're planning to pursue traditional publishing--but even so, your author-agent agreement should include language addressing self-publishing. Unfortunately, most don't. This post explores why that can become a problem, and suggests questions about self-publishing that your new agent should be willing to answer.

Time to Bury the Hachette: Michael Capobianco takes a look at what was maybe last year's biggest publishing news--the standoff between Amazon and Hachette over sales terms--and suggests a role for author advocacy groups in resolving such disputes.


Haters Gonna Hate: The Smear Campaign Against Absolute Write: A look at the ugly troll campaign to discredit one of the Internet's better writers' resources. The post that got me doxxed.

Writer Beware's Self-Publishing Page Renovated and Updated: Our completely overhauled Self-Publishing page includes an overview of how technology has transformed self-publishing, pointers on making the decision to self-publish (or not), an expanded list of cautions for self-publishers (including common scams), and many new links to articles, experts, and statistics.


Author-Editor Compatibility: If you're thinking of hiring an independent editor, don't miss this excellent guest post from editor Katherine Pickett on a crucial, but often overlooked, element of the author-editor relationship.


How to Request Rights Reversion From Your Publisher: A primer on requesting your rights back from your publisher--even in difficult or adversarial circumstances.

Kindle Scout: The Pros and Cons: A detailed look at Amazon's new crowdsourced publishing venture, which I feel occupies an uneasy middle ground between publishing and self-publishing, embracing characteristics of both while offering the benefits of neither.


Scam Warnings for Freelancers: Two scams--one common, one not--against which freelance writers should be on their guard. 


Wrong Ways to Try and Escape Your Deadbeat Publisher:  If your deadbeat publisher won't let you go (and I hear almost daily from writers who are in this situation), you may be considering ways to get around your contract and re-publish on your own. This post details some common ideas on how to do this--and why they won't work.

Evaluating Publishing Contracts: Six Ways You May be Sabotaging Yourself: Should you believe your publisher if it promises that a nasty contract clause will never be enforced? Or trust it if it tells you that contract language doesn't mean what you think it means? This post explores how these and other assumptions could come back to bite you. Never forget that in the author-publisher relationship, the exact wording of the contract--not the publisher's assurances--is the bottom line.

December 23, 2014

Happy Holidays

Posted by Victoria Strauss for Writer Beware

The Writer Beware blog will be on holiday hiatus for the next two weeks. I will still be answering email, though, so if you have a question, feel free to contact me at the email address in the sidebar.

Many, many thanks to our readers, followers, and fans--and especially to all the writers who contact us to let us know about their writing and publishing experiences, good and bad. You are why we do this.

See you in 2015.

December 19, 2014

Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself

Posted by Victoria Strauss for Writer Beware

As I've followed the discussion (for instance, here, here, and here) over the past couple of days about literary ezine The Toast's demand that writers surrender copyright (the demand was first reported by me, and The Toast has since announced that it's eliminating the demand from its contracts), I've been struck by the number of comments from writers who seem to think that a bad contract clause is not so very awful if (pick one) the publication is great; the people who run it are great; the bad contract clause is not always enforced. (See especially the comments thread on The Toast's post about the controversy.)

That's all very well. But (and I'm speaking generally here, not in particular about The Toast) this is exactly how writers get screwed: by making assumptions about a publisher's intentions, by letting their emotions overrule their business sense, and by forgetting that, in the author-publisher relationship, the publishing contract is the bottom line.

Here are some suggestions for changing those damaging ways of thinking.

  • Don't assume that every single word of your contract won't apply to you at some point. You may think "Oh, that will never happen" (for instance, the publisher's right to refuse to publish your manuscript if it thinks that changes in the market may reduce your sales). Or the publisher may tell you "We never do that" (for instance, edit at will without consulting you). But if your contract says it can happen, it may well happen--and if it does happen, can you live with it? That's the question you need to ask yourself when evaluating a contract.
  • Don't mistake "nice" or "responsive" or "professional" or even "crazy about my work" for "author-friendly." Remember, the lovely, enthusiastic editors you deal with when you submit your work probably didn't create the contract (they may not even be fully aware of its provisions). It's a sad truth of the industry that wonderful publishers can have shitty contracts. Don't let your warm fuzzy feelings push aside your business sense.
  • Don't make assumptions about what contract language means. If you don't understand the meaning of a clause, or aren't sure about its implications, don't guess. Get advice from someone qualified to provide it.
  • Don't rely on your publisher's assurance that objectionable contract language won't be enforced. Your publisher may be telling the truth--at least, up to the point that they give you the assurance. But even if they aren't just trying to get you to shut up and sign, circumstances may alter (what if management changes? What if the publisher sells itself?) and internal policies may shift. Promises that contradict contract language offer you absolutely no protection or guarantees (especially if your contract contains a clause like this one). Never forget that by signing a contract, you are giving your publisher the full legal right to enforce it.
  • Don't accept your publisher's claim that contract language means something different from what you think it means. This is a response you may receive if you attempt to negotiate changes, or bring a troublesome clause to your publisher's attention. Your publisher may be correct: the misinterpretation may be yours. But your publisher may also be unscrupulous or ignorant (many small presses don't properly understand their own contract language). If your publisher's explanation doesn't sound right, don't just take their word for it. Get a second opinion.
  • Don't let your publisher convince you that asking questions is a bad thing. Dodgy or incompetent publishers don't like pro-active authors, and may try to blow them off by claiming that asking questions is unprofessional, or ungrateful, or something similarly bogus. But asking questions is your right. Walk away from a publisher that won't let you exercise it.

No contract is perfect. You should always be able to do at least some negotiation--but even under the most favorable circumstances, you'll probably be giving something up. You may even decide to swallow an objectionable clause because of a great opportunity (I don't know of any writer, including me, who hasn't made this decision on occasion). But if you do decide to sign a contract with unfavorable language, do so in full understanding of the possible consequences. Not in ignorance, or assumption, or fear of annoying the publisher by being too inquisitive.

I'll close with an excellent tweet from author and editor Jane Friedman (if you aren't following her, you should be):

Words to live by.

December 16, 2014

Rights Grab: Transferring Copyright

Posted by Victoria Strauss for Writer Beware

EDITED 12/17/14 TO ADD: The Toast has announced that it will change its contract terms. See the end of this post.

The Toast is an online literary magazine that publishes stories, articles, artwork, reviews, and more. Launched in mid-2013, it's associated with some respected names and apparently draws a sizeable audience.

It also offers, in Writer Beware's opinion, a very problematic agreement for freelancers.

Contributors to The Toast are paid a flat, one-time fee of $50 on publication. No further compensation is due, even if The Toast re-publishes the contribution. The Toast also reserves the right to edit at will.

These aren't ideal provisions, but they're not uncommon. What is uncommon: contributors must hand over copyright and waive all moral rights (including the right of attribution). Here's the relevant language (my bolding):
The Contributor hereby acknowledges and agrees that the Work, including any drawings, images, sounds, video recordings, or other data embedded in the work and including adaptations or derivative works based on the Work is the sole and exclusive property of the Toast and the Toast has all rights under existing United States’ copyright law and all reproduction and republication rights. In the event that any portion of the Work is not copyrightable, The Contributor hereby irrevocably assigns any and all ownership of the Work’s intellectual property rights, including but not limited to: patents, trademarks, design rights, database rights, trade secrets, moral rights, and other proprietary rights and ll rights of an equivalent nature anywhere in the world to the Toast. The Contributor further acknowledges and agrees that the rights being granted to the Toast include the right to own and register all copyrights in the Work. The Contributor hereby irrevocably assigns all the above described rights herein to the Toast and agrees to execute such additional documents as may be requested by the Toast to evidence the Toast's ownership of said rights in the Work. The Contributor further hereby waives any "moral rights" claims she may have with respect to the Work.
Nowhere on The Toast's website, or in its submission guidelines, is the copyright transfer mentioned.

I'm guessing that you've probably never heard of The Toast (I hadn't), or considered submitting there, so you may be thinking that this post has no relevance to you. But it does, in a broader sense--because outside of the academic world, copyright transfer demands are not the norm for magazines and journals, online or off. If you encounter them, you should be wary.

Be sure to read every word of any contract or agreement you're offered, and make certain you understand them. If you have any doubt about the meaning of terms and clauses, don't make assumptions--seek advice. The language of copyright transfer is not always completely clear, or, as with the clause above, it may be buried in a welter of verbiage.

More on copyright transfer, from this blog:

The difference between rights and copyright

Copyright transfer in HBO's Game of Thrones Compendium 

Copyright transfer language buried in a website's Terms of Use

Copyright transfer as part of writing competition entry

An example of how vague and opaque copyright transfer language can be

Why a "temporary" copyright transfer is no better than a permanent one 

EDITED TO ADD: As I mentioned above, I'd never heard of The Toast before, so I was not aware that it is (at least, based on the attention this post has received) a Pretty Big Deal in the literary world. If I'd known this, I would have reached out to its publisher, Nick Pavich, for comment. I didn't--but others have. If there's a response, I'll amend this post to reflect it.

EDITED TO ADD: In a blog post today, The Toast has announced that it is changing its contract terms for writers (and hopefully artists as well, though that's not mentioned):
So, with that said, we’re changing our contracts to ask only for First North American Rights (so rights revert to the writer after 6 months), as well as online serial rights so that we can retain the work on our sites in perpetuity. We’re also writing into the contract the promise that we will revert rights in the case of a book deal, so that what we’ve always done in practice will be spelled out in writing.
I think it's great that, despite the rights grab in its contract, The Toast has in practice reverted rights upon request. However, in that case, why have a rights grab at all?

In any event, "in practice" is a very nebulous concept when contract language says something different. It's far better--and safer--for practice and contract language to match. Kudos to The Toast for responding to criticism and taking that step.

December 11, 2014

Alert: Questionable Terms of Use in HBO's Game of Thrones Compendium

Posted by Victoria Strauss for Writer Beware

UPDATE 12/18/14: HBO has changed its terms of use to partially address the concerns below. See the addendum at the bottom of this post.

If you're an artist and a Game of Thrones fan, you may have heard that HBO is inviting contributions to "the ultimate compendium to Game of Thrones."

What exactly is the Compendium? According to the FAQ:
The Game of Thrones Compendium will be the world’s first collaborative, crowd-sourced compendium. The end result will be a printed and bound edition. Every entry chosen for inclusion in the printed book will receive a copy with their name listed as an author.
Entry is open to anyone over 18 in the USA, UK, Canada, and Brazil. A wide variety of content is eligible: "anything from story analysis, arts and crafts, original artwork, costume or jewelry design, music – anything that extends the Game of Thrones experience." There's a rigorous selection process, conducted by "[l]uminaries from the fields of journalism, food, art, craft, fantasy and fashion". Only a small number of submissions will make it into the printed book.

Sounds pretty cool, doesn't it? So why is the Compendium being featured on Writer Beware?

Well, for a start, the lack of meaningful compensation for artists. Assembling content for free via crowdsourcing, and paying with contributor copies, is something you'd expect from small presses, tiny ezines, and one-off anthologies--not a huge corporation like HBO that, moreover, is likely to realize some serious revenue from this project. Could HBO not crack open its bank accounts to provide a few dollars for the people who are going to help it make all that money?

Of even more concern are the Terms of Use, to which anyone submitting work--not just finalists chosen for the Compendium--must agree. Here's the relevant language:

(a) HBO will consider any Submissions and/or anything you contribute to this Service as available for its use free of any obligations to you. You understand that your Submissions may be published on the Service, on other websites, on advertising and promotions, and may be selected for the compendium book. Submissions will not be treated as confidential.

You understand that the Submissions are considered non-confidential and non-proprietary communications, and therefore others may view your Submissions without your knowledge.

(b) Subject to the provisions of any additional terms, by posting or uploading a Submission to this Service and/or providing any communication or material to HBO, you automatically and irrevocably:

(i) grant and assign to HBO a royalty-free, transferable, sublicenseable, non-exclusive, unrestricted license in the Submission throughout the world in perpetuity including, without limitation, all copyright, together with all consents (if any) necessary to use, reproduce, display, perform, modify, make derivatives of, translate, reformat, distribute, or publish for advertising and promotional purposes, including to be used on the Service and associated websites, by HBO and/or by any person authorized by HBO, by any means and in all media now known or hereafter devised, in whole or in part, without payment or other reference to you or any other person.

(ii) waive all moral rights in the Submission which may be available to you in any part of the world and confirm that no such rights have been asserted;

(iii) understand and agree that by submitting concepts, ideas, slogans, trade dress, logos or other branding you hereby disclaim any trademark rights in such Submissions.

(iv) appoint HBO as your agent with full power to enter into any document and/or do any act HBO may consider appropriate to confirm the grant and assignment, consent and waiver set out above;
Boiling all this down: HBO is claiming all rights in perpetuity to use for any purpose whatsoever without any obligation to pay or otherwise compensate for that use--and, since artists are required to waive moral rights, HBO doesn't even have to identify or credit the artist.

This is not really surprising, given that GoT is a media franchise. Even if you're not doing work-for-hire, if you're officially using elements of a media franchise (as distinct from non-official use such as fanfic or fan art), you will generally be expected to hand over copyright to the franchise owner. And indeed, Clause 10.b.i. requires artists to "grant and assign to HBO...without limitation, all copyright."

But while this is understandable for actual contributors to the Compendium, there's no need to demand it of everyone else. And HBO is indeed demanding it. Instead of doing what many other contests of this sort do, and letting the grant of rights expire upon rejection for artists who aren't selected, HBO is requiring the very same perpetual rights grant from everyone who submits, regardless of whether their submission is actually used. That is the very definition of a rights grab.

There's also an odd discrepancy. In Clause 10.b.i.--the same clause that demands the copyright assignment--the grant of rights is described as "non-exclusive." This would suggest that artists retain ownership of their work. But they if they've assigned copyright, they can't retain ownership--so what is "non-exclusive" doing in this clause? This makes no sense to me, and I fear it will mislead artists who skim through the Terms of Use.

As of this writing, the Compendium is six days away from opening for submissions. I would frankly not encourage anyone to submit under the terms that are being offered. HBO could easily have served its copyright interests as a franchise owner while being fairer to artists: allowing the grant of rights to expire upon rejection, paying artists chosen for inclusion. Instead, it's keeping everything for itself, as ruthless and greedy as any character in the show.

Shame on you, HBO.

UPDATE, 12/18/14: HBO has altered its Terms of Use to address some of the concerns expressed above. Here's the new language of Clause 10: 

(a) You understand that your Submissions may be published on the Service and Submissions will not be treated as confidential.

(b) Subject to the provisions of any additional terms, by posting or uploading a Submission to this Service and/or providing any communication or material to HBO, you automatically and irrevocably:

(i) grant and assign to HBO a royalty-free, transferable, sublicenseable, non-exclusive, license in the Submission throughout the world to use, reproduce, display, perform, modify, reformat, distribute, or publish on the Service and to display at live events and in social media to showcase the Service.

(ii) waive all moral rights in the Submission which may be available to you in any part of the world and confirm that no such rights have been asserted;

(iii) warrant that you are the owner of the Submission and entitled to enter into this Agreement; and

(iv) confirm that no such Submission will be subject to any obligation, of confidence or otherwise, to you or any other person and that HBO shall not be liable for any use or disclosure of such Submission.

(c) Subject to the terms and conditions of this Agreement, HBO hereby grants you a non-transferable, non-exclusive and limited license to use the names, images, characters, trademarks, logos, and other indicia of the HBO series “Game of Thrones,” (collectively, “GoT Materials”) solely in connection with the creation of a Submission for the Service. You shall not make any commercial use of this license or use the GoT Materials in conjunction with any third party trademarks, logos, names or other indicia.
What's better: This is now a true non-exclusive grant of rights--HBO no longer claims copyright on submissions. Artists now retain ownership of their work--although that's complicated by 10.c., which prohibits any commercial use of that work.

What's not better: The grant of rights still applies to all submissions--not just those that are chosen for the Compendium. Artists must still waive moral rights--and since those include the right of attribution, this means that HBO can use your submission without crediting you. And there's still no payment for artists.

December 3, 2014

Don't Do This: Wrong Ways to Try and Escape Your Deadbeat Publisher

Posted by Victoria Strauss for Writer Beware

The other day, I received this email:
Dear Writer Beware,

A couple of years ago, I published my mystery novel with [insert name of well-known deadbeat publisher here]. My contract won't expire for several more years, but I'm very unhappy with [deadbeat publisher] and would like to get out from under it. Can I change my title and publish on Amazon and hope [deadbeat publisher] won't see it?
I often receive such questions from authors who've tried and failed to get their rights back from their scammy or incompetent publishers, and are desperate to publish their books somewhere else. Can I change my title? Or the names of all the characters? Move the setting to a different country? Alter 10% of the book and legally make it a new work? Would my deadbeat publisher notice? Would it sue me?

In many cases, the answer to those last two questions is "very likely not." The odds that an author mill pumping out hundreds of books a year with minimal staff and attention would realize you'd re-published your work, or that an amateur small press struggling to stay afloat would have the resources to bring legal action against you, are probably pretty slim.

There's still a risk, though. And even if there weren't, these are still the wrong ways to escape a bad contract or a bad publisher. Here's why.

1. Traditional publishers want exclusive publishing rights, and their contracts require you to warrant that you are fully empowered to grant them. But if you're already contracted to another publisher, you cannot grant exclusive rights to someone else (regardless of any revision you may do--see #3 below). A new publisher won't want your book under those conditions--and signing a new publishing contract without disclosing that your rights are already encumbered would constitute fraud.

What if your old publisher was some super-obscure micropress that barely even managed to get your book on Amazon? Or went out of business without ever publishing? You may be able to make a convincing argument that your rights have returned to you if you can definitively show that your old publisher is out of business. Don't try and fool a new publisher, though--it's better to tell the truth and try to work things out than to lie and hope you won't be discovered. The Internet is forever: if your book was ever on sale, there's a record of it somewhere. A new publisher will not be pleased to learn that you haven't been completely candid.

(As a corollary, if your publisher has gone into bankruptcy or insolvency, do not assume that your rights have automatically reverted, regardless of what your contract says. Publishing contracts are assets that can be sold to pay creditors, and for that reason, courts don't generally honor bankruptcy and insolvency clauses.)

2. Unlike traditional publishers, self-publishing platforms only want non-exclusive rights. But they, too, require you to warrant that you are fully empowered to grant those rights--and if you're bound to an exclusive publishing contract, you can't do that.

 For instance, here's the relevant language from Kindle Direct Publishing Terms of Service (my bolding):
5.8 Representations, Warranties and Indemnities. You represent and warrant that: (a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement; (b) prior to you or your designee's delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement; (c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights.
And here's Smashwords (again, my bolding):
9a. By submitting Your Work to Smashwords for publication, You, the Author or the Author you represent (if you are an Agent or Publisher) author’s Publisher or Agent or Distributor, warrant and represent that the work is complete and the author:

• is the only author of the Work;
• is the sole owner of the rights herein granted;
has not assigned, pledged, or encumbered such rights or have not entered into any agreement which would conflict with the rights granted to Smashwords herein; and agrees not to do any of the aforementioned without first unpublishing the work at Smashwords
• has full right, power, and authority to enter into this Agreement and to grant the rights granted herein.
Just about any self-publishing platform--whether reputable or not--has similar terms. What happens if you breach them? Potentially, oblivion. All self-publishing platforms reserve the right to terminate your account and/or remove your work from sale if you breach your warranties (or any of their guidelines).

Don't assume they won't find out. Amazon, for instance, scours KDP for plagiarism; I've heard from authors whose legitimately re-published backlist works were removed from sale because anti-plagiarism algorithms tagged the original versions.

3. The "change 10% and legally make it a new work" thing is a common trope, but it is a myth. Ditto for changing all the characters'  names, or moving the book to a new setting. There's no legal standard for how much, or how little, of a book you can alter or revise to transform it sufficiently to create a new copyright.

Bottom line: there are no shortcuts or workarounds to rights reversion--and reverting rights is essential if you want to get out from under a deadbeat publisher and give your book new life somewhere else.

I've written some posts that may help:

How to request rights reversion from your publisher.

Getting out of your book contract (maybe).

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