Thursday, August 27, 2009

Victoria Strauss -- Amazon BookSurge Anti-Trust Lawsuit Can Proceed

Last year, Amazon decreed that it would direct-sell no print-on-demand books that weren't printed by its POD subsidiary, BookSurge.

The change in policy sent small publishers and POD self-publishing services, many of which used rival digital printer Lightning Source, into a frenzy of alarm. In order to sell their books on Amazon, they'd either have to enter into parallel relationships with BookSurge, or use Amazon's Advantage program. Storms of protest ensued. Amazon refused to budge.

Most publishers and publishing services eventually came to an agreement with Amazon. Not self-publishing service BookLocker, however. In May 2008, its owners, Angela and Richard Hoy, filed a class action antitrust lawsuit against Amazon, alleging violation of Section 1 of the Sherman Act.

In July 2008, Amazon filed a motion to dismiss. But yesterday (August 26, 2009) Chief U.S. District Judge John Woodcock Jr. denied that motion. This means that the BookLocker suit is free to proceed.

Richard Hoy provides details at the lawsuit website. "Among other steps," he says, "we anticipate beginning discovery (where we are able to request documents from Amazon) shortly. Although there is still a long way to go, surviving the motion to dismiss is an important first step."

Judge Woodcock's ruling can be seen here.

Publishers Weekly has coverage.

Tuesday, August 25, 2009

Victoria Strauss -- Postage Promotion

Whenever I think I've seen it all, something new comes along.

The explosive growth of self-publishing options over the past decade or so has spawned a mini-industry catering to writers trying to get notice for their books. From publicity companies (some competent, many not) to the marketing packages hawked by self-publishing providers such as AuthorHouse (typically overpriced and largely ineffective) to completely worthless pseudo-services (email blasts, online catalogs, book fair "representation"), self-published authors these days have near-unlimited opportunities to spend money on self-promotion.

Such as this one, from self-publishing service Outskirts Press: put your book cover on a postage stamp.

No, I am not making this up. From an Outskirts' press release, dated today:

Outskirts Press, the fastest growing full-service self-publishing and book marketing company, recently announced it is making available to its family of over 4500 published authors an opportunity to feature their book cover on customized first-class US postage stamps.

Every envelope they send out can then promote their own books with these new eye catching stamps. These are legitimate, custom First Class U.S. Postal stamps, and they come in quantities of 120, each with a color image of the author’s book cover.

This clever book marketing tool is just one more marketing device within an already expansive repertoire of promotional aids provided by Outskirts Press to its authors. Unlike many self-publishing firms, Outskirts Press understands the key role marketing plays in their authors’ success, and they continually develop new promotional and marketing services for their authors to use well beyond the initial publication of their work.


Of course, Outskirts' "new promotional and marketing services" are also designed to snag their authors' dollars. Prices aren't mentioned in the press release, but per this list of add-ons to Outskirts' basic publishing packages, 120 custom stamps will set an author back $149.

When was the last time you took a careful look at a postage stamp?

Friday, August 21, 2009

Victoria Strauss -- Publishers' Kill Fees, and Why They're Bad For Everyone

Traditionally, in the magazine and newspaper industry, a kill fee is "a negotiated payment on a magazine or newspaper article that is given to the freelancer if their assigned article is 'killed' or cancelled." (Read the full definition here.) The contracts for the magazine articles I and Ann Crispin wrote for Writer's Digest included kill fees--but that was a few years back, and I suspect they are less common now.

In the world of small publishers, however, "kill fee" means something quite different: a fee--usually a few hundred dollars--paid by an author to her publisher for getting out of a contract early. I've seen a lot of small press contracts that include kill fees, and it's my impression that such clauses are becoming more common.

For obvious reasons, kill fee clauses are onerous for authors, who in some circumstances might have good reason to want to end a contract early, and can't do so without opening up their wallets. Plus, many publishers employ kill fee clauses abusively, holding them over the heads of unhappy authors, or attempting to use them as an income source by offering to jettison dissatisfied writers at the slightest provocation, or terminating the contracts of writers who've pissed them off and demanding the fee even though termination wasn't the writer's decision. EPIC, an association for epublished authors, identifies kill fees as a red flag contract clause--one that authors should absolutely avoid. I agree.

From an honest small publisher's perspective, on the other hand--a publisher that isn't planning on browbeating its authors with kill fees, or using the fees to try and make an extra buck--a kill fee may seem to make good business sense. "We don't want to hold onto an unhappy author," the publisher might reason. "But we invest a lot of work in editing, designing, marketing, etc. So if we can't maximize our investment by selling the author's book for the full contract term, it's only fair that we should get some reimbursement if she decides to leave early."

Problem is, if the unhappy author can't afford the kill fee, the publisher will wind up stuck with her anyway--along with the extra resentment produced by the author's knowledge that she could have gotten free if only she'd had the cash. (I recently heard from an author and publisher in exactly this situation.) Alternatively, if the author can afford the kill fee, she may see it as an easy exit, and jump ship without giving the publisher the chance to address whatever problems she thinks she's having--thus losing the publisher a book it might have retained if it had had more time to work things out.

So kill fees are a definite writer beware--but they're a publisher beware too, because while they may sound good in theory, in reality they can backfire. For publishers willing to let their unhappy authors go, it's far simpler--and far more author-friendly--just to allow authors to terminate the contract at will, without the potential complications and and bad feelings of a kill fee. Or, if the publisher prefers to try to resolve the problems, not to include a termination provision at all, and make termination decisions on a case-by-case basis.

Monday, August 17, 2009

Victoria Strauss -- Bad Impressions for Good Impressions Audio Books

To fee-charging services looking for more customers, what could be more lucrative than a referral from a literary agency or publisher? To a literary agency or publisher, what could be more tempting than to make money not just from its clients, but from the thousands of authors it rejects?

This is the logic behind referral fee schemes, in which a fee-charging company or service offers a percentage or finder's fee to agents and/or publishers willing to send authors its way. Unscrupulous scams such as crooked editing service Edit Ink and dishonest vanity publisher Commonwealth Publications have done very well from such schemes, paying kickbacks to agents who placed writers with them. A number of "stealth" vanity publishers (publishers that charge a fee but publicly present themselves as "traditional") have also experimented with referral incentives, targeting both literary agents and non-vanity publishers. And some straightforward POD self-publishing services offer referral programs--AuthorHouse, for instance, pays $100 for successful referrals.

Occasionally, referral plans backfire. In 2001, self-pub service Xlibris contacted a large number of reputable agents, inviting them to recommend their "not quite ready for prime-time writers" to the company, for which they would be rewarded with a percentage of whatever writers who chose to publish with Xlibris wound up paying. A storm of criticism ensued, and Xlibris canceled the plan, admitting that it "goofed."

Note to referral plan offerers: Stick to questionable agents and publishers. Not only will they probably have fewer scruples about embracing such arrangements, they'll be more likely to need the easy money. And they'll be less likely to contact Writer Beware.

The latest outfit to ignore this basic bit of common sense is fee-for-service audiobook "publisher" Good Impressions Audio Books, which appears to be actively contacting reputable literary agents with the following pitch:

A new ongoing revenue stream for your agency.

FACT: The vast majority of manuscripts don’t get published.

FACT: You receive many submissions you don’t accept.

FACT: You don’t make money from those.

FACT: www.myaudiobook.org can change that.

We developed an innovative concept for writers to record professional sounding audio books with our recording equipment as we guide them every step of the way and our professional audio team then edits, improves and enhances the audio book.

You can become an “audio book agent” for your authors and for authors with manuscripts you might not normally accept. One phone call or email to us and we handle the rest.

We’ll pay you 15% of the audio book recording fee for authors you refer to us.


Per its contract, Good Impressions Audio Books charges a minimum fee of $499. If authors choose to use its voice talent, rather than their own, they can wind up paying much more.

Ashley Grayson, the literary agent who shared this solicitation with me, wasn't tempted. "I'm all for entrepreneurship in publishing and applaud authors with innovative platforms," he says, "but our agency declines all offers to be slipped a portion of the money an author pays to anyone. We earn our commissions from the deals we negotiate for authors."

On its website, Good Impressions seems to be reasonably straightforward about its services, but its Why an Audio Book fact sheet includes a number of mis-statements, such as the claim that "few authors get advances from publishers anymore" (false) and that "audio book sales are coming close to overtaking printed book sales" (the Audio Publishers' Association estimates the total US audio book market at $1 billion, but this is a fraction of the multi-billion-dollar US book market. Not to mention, sales statistics are meaningless to self- and vanity-published authors, whose main problem isn't what consumers are or are not buying, but how to let consumers know their books exist).

Friday, August 14, 2009

Victoria Strauss -- SFWA's Statement on the Proposed Google Book Settlement

Earlier this week, the Science Fiction and Fantasy Writers of America issued a statement on the proposed Google Book Settlement, to which it plans to file a formal objection. The statement is reproduced below.

The National Writers Union has also announced that it will oppose the settlement.

I've blogged previously about the settlement, here and here.

--------------------

SFWA's Statement on the Proposed Google Book Settlement

The Science Fiction & Fantasy Writers of America, Inc. (SFWA), in conjunction with outside counsel, has reviewed the terms of the proposed settlement between Google, Inc. and the Authors Guild, Inc., and other class action plantiffs. On April 19, 2009, SFWA’s Board of Directors voted to stay in the claimant group in regard to SFWA-owned copyrights so that SFWA has standing to file a formal objection to the proposed settlement with the court. This decision should in no way be seen as an approval of the proposed settlement, nor construed as advice to either our members or writers with potential claims in general. Put simply, in order to file an objection, SFWA must opt-in as a claimant; should we opt-out, we lose our ability to formally object with the court.

Though it is clear that the proposed Google Book settlement is well-intentioned, the problems are myriad and, in SFWA’s opinion, the terms should be reviewed with extreme care by authors, in particular those authors who write fiction. Some of the particular problems we have identified include:
  • The proposed Google Book Settlement potentially creates a monopoly by granting Google excessive power to control the market for out-of-print books that are offered to the general public.

  • The “opt-out” mechanism proposed for the settlement contradicts the very foundation of copyright.

  • The financial impact on authors could be significant because the settlement would effectively thwart any third-party system from competing with Google and offering alternatives to authors of out-of-print works.

  • The terminology of the Google Book settlement makes no distinction, nor does it provide a mechanism for discovering the difference, between works deemed out-of-print and works in the public domain.

  • The class does not reflect the interested parties, primarily the holders of copyrights in “orphan works” where the rightsholder(s) cannot be identified or found.

  • The Authors Guild and the Association of American Publishers are poor representatives of the class as neither represents the types of work perhaps most significantly affected by the settlement, namely scholarly works.

  • The class representatives do not include any authors of adult trade fiction, an obvious issue for SFWA.

  • The class fails to consider fully licensees of works and fails to account for their interests.

  • By settling, Google never fully addressed and litigated the issue of copyright infringement/fair use, which was at the heart of the 2005 lawsuit brought forth by the Authors Guild and the Association of American Publishers. The settlement further obfuscates the issue of how Google’s scans and publication of the snippets should be treated under U.S. copyright law.

Obviously, this is not an exhaustive list, but merely a sampling of some of the problems SFWA believes are inherent in the proposed settlement. SFWA is not advocating a particular course of action nor providing legal advice for individual authors, who should evaluate the proposed Google Book settlement based on their own situation and with the advice and input of their own legal counsel.

For the record, SFWA believes that the proposed Google Book settlement is fundamentally flawed and should be rejected by the court. With this public statement, we advise all authors and other writing organizations (in particular those who hold copyrights) to consult with legal counsel to ensure that they understand the precise meaning of the Google Book settlement, and the impact it may have on their own situation, should the settlement be approved.

For the Board of Directors,

Russell Davis
President
SFWA, Inc.

Wednesday, August 12, 2009

Victoria Strauss -- MWA Joins SFWA In Sponsoring Writer Beware

More good news for Writer Beware: the Mystery Writers of America is joining SFWA in sponsoring us.

From the official press release:

“We are pleased to be able to support the important work that Writer Beware is doing on behalf of all writers, professional and aspiring, by exposing scams aimed at defrauding authors,” said Frankie Bailey, executive vice president of the Mystery Writers of America, which is giving SFWA a financial grant of $1000 and providing other resources, such as inviting Writer Beware representatives to share their booth at BookExpo and supplying volunteers to speak at writing conferences about fraudulent publishing practices.

Needless to say, we're thrilled to add MWA's support to the incredible support and backing we've had from SFWA these past 10 years. We had a great time this year at the MWA booth at BEA, and hope to be back next year. We look forward to this wonderful new partnership--and hope that other professional writers' organizations will consider joining it as well.

Our MWA liaison, Lee Goldberg, gives the partnership a shout-out on his blog, and the news has also been picked up by PW.

Tuesday, August 11, 2009

Victoria Strauss -- Robert Fletcher's Lawsuit Against Writer Beware Ruled Frivolous

In February 2008, Robert Fletcher and his company, The Literary Agency Group (a fee-charging literary agency/editing company/vanity publishing company currently doing business as Writers' Literary Agency/AEG Publishing Group, about which Writer Beware has been receiving complaints since 2001) brought suit against me and Ann Crispin, claiming that the warnings we were providing about the company constituted defamation.

On March 18, 2009, that suit was dismissed with prejudice by the Massachusetts Superior Court, due to Fletcher's failure to respond to discovery or otherwise prosecute the lawsuit.

Subsequently, through counsel, we filed a motion in Massachusetts Superior Court seeking recovery of our legal fees and expenses. We're thrilled to announce that on July 31, 2009, our motion was granted.

The full ruling (which, despite the July date, we just received today) can be seen here, but here's the salient portion:

The plaintiffs have exhibited extreme bad faith in bringing this frivolous lawsuit for the sole purpose of causing great expense and harassment to Crispin and Strauss. Fletcher expressly states that it was his purpose in his emails. The Court concludes and finds that this case was brought in bad faith by the plaintiffs for the mere purpose of causing great inconvenience and financial costs to Crispin and Strauss (as set out in Fletcher's pre-lawsuit emails to the defendants). This case is frivolous and this Court finds so, finds that the two plaintiffs and their lawyer, Jerrold G. Neeff, knew it was frivolous before it was even commenced. This Court rules that the defendants, Ann Crispin and Victoria Strauss, are entitled to have all their legal fees and expenses incurred paid to them by the plaintiffs, Robert Fletcher and The Literary Agency Group.

This Court finds the claims asserted by the plaintiffs to be wholly insubstantial, frivolous, and not advanced in good faith.


Fletcher and his companies remain the subjects of an active investigation by the Florida Attorney General's Office.

Monday, August 03, 2009

Victoria Strauss -- Niche Age Media: Laray Carr Returns

One of the strangest schemes ever covered in this blog was a faux magazine startup called Laray Carr.

Operating out of Terrell, Texas, Laray Carr first came to my attention in August 2007 with a call for freelance writers, who could earn $50 per article for a minimum submission of 10 articles, paid on publication. The company purported to be planning to simultaneously launch 40 different lifestyle magazines focusing on food, fashion, music, home decor, and the like--yet with the launch date of September 20 only weeks away, was still scrambling to accumulate content. There was no website, and no information could be found on the company's owner, Quincy Carr. Company staff seemed to know little about Laray Carr's goals, finances, and business plans, and were unable to answer questions.

Red flags galore, in other words. Even so, many writers went ahead and submitted articles. But by September, with no payment forthcoming, writers began to get worried. Laray Carr became a hot topic on various freelancers' websites.

Over September and into October, a bizarre story unfolded. Most of the articles were ultimately rejected, on flimsy grounds, with a strange kiss-off letter. Those that weren't rejected were never paid for. Freelance editors, many of whom claimed to have done substantial work for the company, also weren’t paid. Web designers reported being asked to make multiple revisions to website templates, with the promise that payment would be forthcoming once the changes were complete--but it never was. Several websites appeared and disappeared, most incorporating grammatical and other errors. Supposedly custom-designed magazine covers proved to have (maybe) been stolen from other sources, or created using stock images. The company turned out to be doing business under several different names. The mysterious Quincy Carr was alleged to possibly have an arrest record.

Was Laray Carr investor bait? Did it plan to sell advertising and run? Or was it a genuine, if profoundly misguided and disastrously poorly planned, effort to establish a magazine empire? We'll never know. By the end of October 2007, Laray Carr had vanished without a trace.

Until now.

An anonymous tipster last week drew my attention to the possibility that Laray Carr had been resurrected as a company called Niche Age Media (over the weekend in which I wrote this post, the formerly-active website has turned into a placeholder, but here's a cached version), run by someone named Quinn Rhodes. I normally take such tips with a hefty grain of salt. On investigation, however, the similarities proved striking.

- Focus. Both Laray Carr and Niche Age Media were/are lifestyle magazine companies, planning the simultaneous or near-simultaneous launch of multiple publications: 40 for Laray Carr, 45 for Niche Age (this info appears in the press release area of the Niche Age website). Laray Carr's mission was to "connect to our readers’ most personal thoughts and ideas with an offering of magazines that speaks [sic] directly to them," while Niche Age wants to "enrich lives and strengthen communities...our magazines make life richer, fuller, & complete." Although Laray Carr's magazines were supposed to be national publications, and Niche Age claims a more regional approach, the range of subjects (home decor, food, wine, music, gardening, sports, brides, etc.) is also similar.

- Location. Both Laray Carr and Niche Age were/are based in Terrell, Texas. What are the odds that two separate magazine companies, each planning to launch multiple lifestyle magazines, would spring from this one town?

- Stiffing of staff. Laray Carr's M.O. was to hire staff on a contract basis, extract substantial amounts of work from them, and then never pay. Niche Age seems to be operating in the exact same way.

I've managed to locate and contact several Niche Age editors, all of whom tell me that they have done a lot of work for the company--but, despite the fact that their contracts stipulate monthly payment, have not yet received a penny. Their questions are met with excuses--funding problems, restructuring, the economy. Recently, they were told that the "taster" issues produced for the company's launch were no good and couldn't be used. Shades of Laray Carr's writer kiss-off.

At least one of Niche Age's web designers seems to be having the same kind of problem. See this complaint at a freelancers' website, from a designer who claims to have been hired by Niche Age, asked for multiple changes and revisions even after the website went live, and then never paid. This is very much like the experiences reported by Laray Carr's various web designers, such as this one or this one.

- Nonperformance. Laray Carr never got off the ground, despite elaborate promises and successively postponed launch dates. Niche Age also has failed to meet its launch dates. Per a May press release, its initial three magazines were supposed to go live by the end of May--but the website for these magazines (currently residing on the website of a web design service) is nonfunctional, and there's no sign that the magazines exist. Also in May, another press release claimed that other company magazines would "debut in the next two months"--but there's no sign of them, either. According to the editors I contacted, the magazines' print date was pushed back to July 31--but it's now August 3, and no magazines. Apart from several recent job postings, there's no public sign that Niche Age Media is active at all.

- Websites. Laray Carr's several websites were notable for poor writing and typos and other errors (you can get the flavor at this still-existing dummy version). Ditto for Niche Age, which among other things has an issue with the spelling of "its." The design of the websites, which each feature scrolling magazine titles and an animated masthead with rotating shots of magazine covers, is also similar. As is the propensity of both companies' websites to abruptly vanish and be replaced by page holders.

- And the clincher. Laray Carr was founded by Quincy Carr. Niche Age Media's head honcho is Quinn Rhodes (this name doesn't appear anywhere on Niche Age's website, but Niche Age's URL is registered to Rhodes. Suggestive, perhaps, but not conclusive. Ah, but guess what I have in my very own hands? One of Niche Age's PDF media kits. Just a little click on the Document Properties menu item reveals that the author is...Quincy Carr.

(The media kit is quite something, by the way. It's attractively-enough formatted, but it's poorly written and contains numerous errors (the magazines, for instance, are supposed to "premier" in June), statistics apparently pulled from the air, a really lame tag phrase ("Live Better. Where You Live."), and some truly unfortunate word and phrase choices, such as the "Eat Out the County" marketing program, or, under the heading of audience buying interests, "Wine Cellular Services.")

So it seems my tipster was correct: Niche Age Media is Laray Carr, reborn. Another play for investors? Another exercise in doomed ambition? As before, I suspect we’ll never know. One thing, though, is clear: for Quincy Carr (to paraphrase Jacqueline Susann), once was not enough.