Thursday, October 29, 2009

Rights and Copyright

Posted by Victoria Strauss for Writer Beware

Copyright, literally, is "the right to copy." It guarantees the authors of creative works--including books, artworks, films, recordings, photographs--the exclusive right for a set period of time to allow other people to copy and distribute the work, by whatever means and in whatever media currently exist. It also prohibits copying and distributing without the author's permission. You own copyright by law, automatically, as soon your work is fixed in tangible form--i.e., the minute you write down the words.

Contained within copyright is the entire bundle of rights that an author can grant to others or utilize him/herself. For book authors, this includes the right to publish in book or other form, to make translations and audio recordings and films, to create serializations or abridgements or derivative works...the list goes on, and continues to expand as technology makes different forms of publication and distribution possible.

When you sign a publishing contract, you are granting the publisher permission to exploit (i.e., to publish and distribute for profit) some or all of your rights for a defined period of time. Because you own the copyright, granting rights doesn't mean you lose or abandon those rights--merely that you authorize someone else to use them for a while, either exclusively (no one else can use them at the same time) or nonexclusively (you can also grant them to others).

Eventually, once the contract term has expired or the book has ceased to sell in significant numbers, the publisher should cease publication and relinquish its claim on your rights. This is known as rights reversion. Sometimes reversion is automatic (as in a fixed-term contract); sometimes you must request reversion after the book has been declared "out of print" or off the market (as in a life-of-copyright contract). Once your rights have reverted, you are free to re-sell them or use them yourself, as you choose.

For many readers of this blog, the above will seem pretty elementary. But confusion between rights and copyright is not unusual--not just among authors (one common misplaced fear is that granting rights to a publisher means you lose them forever), but among inexperienced publishers. If I had a dollar for every small press contract I've seen that hopelessly conflates rights and copyright (for instance, requiring writers to transfer copyright, but then reserving a variety of subrights to the author), I could take my husband out to a very fancy dinner.

Some suggestions to untangle the confusion and protect yourself:

- First and foremost, understand copyright and the rights it gives you. The US Copyright Office, the UK Intellectual Property Office, and the Australian Copyright Council all offer information. The more you know, the more likely it is that you'll recognize bad contract clauses when you run across them.

- Except in specific circumstances, such as doing work-for-hire, don't give away your copyright, not even temporarily. Inexperienced publishers sometimes ask for this, believing they need it to properly exploit authors' rights. They don't--and if things go wrong, it can work out very badly for you.

- You don't necessarily need to be afraid of life-of-copyright contracts. In a fixed-term contract, you grant rights for a defined amount of time--say, three years. In a life-of-copyright contract, you grant rights for the duration of copyright (currently, in the USA and most of Europe, your lifetime plus 70 years). New authors often find life-of-copyright contracts very scary--but they're standard for the big trade houses and for larger independents, and many small presses use them also. They are not intended to allow the publisher to hold your rights until 70 years after your death, but rather to create an open-ended situation in which the publisher can keep your book in print for as long as it continues to sell in good numbers.

Of course, you need to evaluate the situation. For digitally-based publishers, a fixed term is preferable; the digital marketplace is changing rapidly, and it's best not to tie up your rights for too long. Ditto for a new small publisher. The failure rate for new publishers is very high, and a fixed-term contract will at least ensure that you get your rights back eventually, even if the publisher doesn't bother to return them before disappearing.

Also, and this is very important: a life-of-copyright grant term must be balanced by a precise rights reversion clause (see below).

- Speaking of grant terms, make sure there is one. Whether it's three years or life-of-copyright, your contract should state the term for which rights are being granted. I've seen small publishers' contracts that lack this important detail.

- Make sure your contract includes provision for rights reversion. While you want to grant rights to a publisher that will properly exploit them, you also want eventually to get your rights back. When and how this happens should be clearly spelled out in your contract.

A time-limited contract is one way to ensure reversion--but beware of automatic renewal clauses that make it difficult for you to terminate, or that rely on you remembering to send the publisher notice before the renewal date and thus can easily be forgotten. Beware also of excessive grant terms--for instance, the contract of one well-known author mill extends for seven years, which is longer than many commercially-published books remain in print. For a smaller publisher, three to five years, with the possibility of renewal if both parties agree, is probably the most you want to consider.

For life-of-copyright contracts, there should be a rights reversion clause detailing when the work will go "out of print" or off the market (this should be tied to minimum sales or royalty levels--for instance, fewer than 100 books sold within the previous 12 monts--rather than to mere availability for sale, so that the publisher can't hang on to your rights if your book is selling just a couple of copies a year) and what steps you must take to request that the publisher return your rights (usually, a letter asking the publisher either to republish or return rights, with a timeframe for the publisher to respond). Best of all is a reversion clause that makes rights reversion automatic on request once sales or royalties fall below the stated minimum.


Never sign a life-of-copyright contract that does not include such a clause. Yes, they exist; I've seen them.

Also look for a clause requiring the publisher to publish within a specific period of time (say, 12-24 months), or else return rights. This will prevent the publisher from sitting on your book without ever publishing it, or from pushing the publishing date back indefinitely due to incompetence or malice.

- Last but very definitely not least, never rely on a publisher's verbal assurances. A confused or devious publisher may assure you that, even though its contract requires you to give up copyright, "you aren't really losing your copyright, because we'll give it back later on." Or, even though its life-of-copyright contract doesn't include a reversion clause, "you don't need to worry, because we never hold on to rights forever."

Maybe the publisher means it, maybe it doesn't--but do you really want to risk signing with a publisher whose contract doesn't match its promises? Along with Yog's Law, a principle by which authors should always abide is this: If it's not in writing, it doesn't exist.

For more on copyright, including the reasons why you don't need to register copyright for unpublished work and a discussion of several common copyright myths, see the Copyright page of the Writer Beware website.

Wednesday, October 21, 2009

Author Mills and a Request for Contact

Unlike commercial or trade publishers, whose business model is based on book volume (selling as many books as possible from a limited number of authors), author mills' business model is based on author volume (selling a limited number of books from as many authors as possible). The most famous example of an author mill is PublishAmerica, but there are others, such as VDM Verlag Dr. Mueller, an academic author mill.

Unlike vanity publishers or self-publishing services, author mills don't charge upfront fees--which is why they can convincingly present themselves as "real" publishers--but they often do their best to turn their authors into customers, heavily encouraging them to buy their own books, or incentivizing self-purchases with special offers and discounts. Because of the need for author volume, editorial gatekeeping is lax (though many author mills, knowing how much authors crave validation, claim to be selective). Author mills protect their profits by doing everything on the cheap, with minimal or nonexistent editing, interior and cover design that's straight-from-template, and no meaningful marketing or distribution, resulting in tiny sales for the average author mill book. They also often have exploitive, nonstandard contracts.

Because author mills are typically deceptive in the way they present themselves, many writers believe they are signing up with real publishers, and are bitterly disappointed by their publishing experience. Author mills may also be ineffectual, haphazard, or grudging about fulfilling their contractual obligations--so even writers who go into the relationship with their eyes open may not receive what they expect.

I'm currently writing an article on author mills, and as part of my research I'd like to hear from writers who have published with an author mill. I'm interested not just in writers who had problems, or whose expectations weren't fulfilled, but in writers who chose an author mill specifically for what it could do for them, and were satisfied with the result.

Please email me at beware@sfwa.org. In accordance with Writer Beware's policies, I'll keep all information completely confidential (it will NOT be shared) unless you specifically give me permission to quote you (which I can do without using your name, if you prefer). Don't worry if you get my autoresponder--I'm away from home at the moment, but will be back early next week and will reply then.

Thanks so much!

Thursday, October 15, 2009

Why Referral Fees Present Ethical Problems

Posted by Victoria Strauss for Writer Beware

This is a followup to my post on Thomas Nelson's new self-publishing division, West Bow Press--specifically, on Nelson's plans to pay referral fees to agents and others who refer writers to West Bow.

Agent Rachelle Gardner has written a thoughtful blog post on West Bow (I agree with much of her analysis), which has generated a lively comments thread. The issue of referral fees is discussed by a number of commenters, including Nelson's Michael Hyatt, who says:

With regard to agents getting a referral fee, I don't see how that is much different than the way it is now. (I was an agent myself for eight years, so I am speaking from my experience.) While the agent represents the author in a traditional relationship, his or her money comes from the publisher. In this case, the same is true. Obviously, as an agent of integrity, you wouldn't make this recommendation to your client unless you (a) disclosed your compensation and (b) felt it was good for your client—just like traditional publishing.

Several commenters agree. However, I have some problems with this reasoning.

Referral fees are not analogous to commissions. An agent who sells an author's work to a commercial publisher gets a percentage of what is paid to the author. An agent who gets a fee for successfully referring an author to a self-publishing service gets a percentage of what the author pays. In the first case, the author (not the publisher) is rewarding the agent for services rendered. In the second case, the publisher is rewarding the agent for services purchased. Big difference.

As to integrity, I'm sure there will be agents who will make responsible referrals, providing full disclosure and recommending West Bow only for authors they really believe will benefit. I'm also sure there will be agents who won't. Some agents may even make referrals a standard part of their rejection letters (as successful agency Objective Entertainment has done with AuthorHouse), whether West Bow is appropriate for the author or not--and many authors will take such referrals more seriously than they otherwise might, since they'll perceive that they are backed by the agent's reputation and authority. Relying on integrity to ensure that an abuseable system isn't abused is naive at best.

Another consideration: who will be most motivated by the prospect of a referral fee? Not, I would guess, agents who are making good money on rights sales, and thus have no need to nickel and dime their rejections (or, if they wanted to recommend West Bow for altruistic reasons, would likely do so whether there were a fee or not). For mid-level agents, however, and especially for amateur and disreputable agents, referral fees could be extremely attractive. When fraudulent editing service Edit Ink was paying fees to agents who sent it business, there were disreputable agencies that survived entirely on the income they got from those referrals. It's true that Edit Ink dates back to the 1990's, which is like a century ago in Internet time--but the basic motivator, easy money, is the same.

Of course, if the referral fees Nelson plans to pay are on the order of those offered by AuthorHouse's Affiliate Program, even questionable agents may not be all that interested. If they're more like Edit Ink's, however (EI paid referrers 15% of what the author paid, and EI's charges were typically in the thousands) the temptation will be more substantial.

In 2001, self-publishing service Xlibris (then independent, now part of the Author Solutions empire) attempted to launch a similar referral program, with agents who referred authors to Xlibris receiving a percentage of the fees authors paid the company for its services. At the time, memory of Edit Ink and other writers' scams, several of which received considerable media coverage, was still current, and public criticism forced Xlibris to abandon the program. Public memory is short, though. This time around, I fear that many people will simply file Nelson's referral fee plans in the "publishing is changing" drawer, which is a handy place to store issues you don't much want to think about.

Tuesday, October 13, 2009

Thomas Nelson Adds Self-Publishing Imprint

Posted by Victoria Strauss for Writer Beware

As reported today in the Wall Street Journal, Thomas Nelson, a major independent Christian publisher, is adding a self-publishing line to its business.

Books from the new imprint, West Bow Press, will be designed, printed, and distributed by Author Solutions, the self-publishing mega-company whose brands include AuthorHouse, iUniverse, Trafford, Xlibris, and WordClay.

Per the WSJ article, "Thomas Nelson editors won't edit the self-published manuscripts, but they will monitor sales to identify potential big sellers. Specific terms of the arrangement weren't disclosed."

Certainly this is an indication of the ambition and clout of Author Solutions, which over the past couple of years has acquired several rival companies, and attempted--in my opinion extremely misleadingly--to reinvent itself as an "indie publisher".

But might it also be a sign of things to come in the commercial publishing world? According to the WSJ article, Nelson is "searching for new revenue as the book industry continues to struggle." And that potential for new revenue is large indeed; in 2008, according to PW, the number of on-demand and short-run titles (the bulk of which represent offerings by self-publishing companies) jumped by 132% (total growth since 2002: 774%), outstripping books produced by "traditional production methods". Not only does adding a self-publishing line allow a publisher to cash in this trend, it presents the possibility of monetizing rejections. By the same token, the self-publishing service's connection with a major publisher will be a major attraction for authors--especially if the publisher suggests that it may take the better-performing books commercial.

I've speculated before about the possibility that more commercial publishers may add self-publishing divisions in order to keep their core publishing business afloat, as has Jane Smith at her How Publishing Really Works blog. I don't often prognosticate about the future of publishing--but I have a hunch that this is something we'll see more of in coming years.

Edited 10/14 to add: Michael Hyatt of Thomas Nelson has written a long blog post about West Bow Press.

It appears that there will be a referral fee component to the program. Nelson is looking "to work with agents and consultants as 'WestBow Press Affiliates,' so that they can help more authors realize their dream of getting published. Rather than simply send a rejection letter, they can now offer a legitimate alternative and earn a referral fee in the process." Given the potential for abuse inherent in such referral programs, this is a dismaying development, and I hope that Nelson will reconsider.

Friday, October 09, 2009

A Question You Don't Want Your Publisher to Ask

Posted by Victoria Strauss for Writer Beware

EDITED JULY 2013 TO ADD: Black Rose Writing now says that it no longer requires its authors to buy books, and has sent me a sample contract that does not include a book purchase clause. I've also received emails from authors confirming this, as well as comments on this post. I'd love to continue to hear from contracted Black Rose authors to confirm that this is indeed ongoing standard practice for this publisher.
Here are eight words you never want to hear from a publisher that is considering your manuscript for publication:

"How many books are you planning to order?"

Many writers are aware that it's a major red flag when a publisher's contract includes a clause requiring authors to buy their own books, or to commit to some kind of sales guarantee. Since an outlay of cash is a condition of publication, this is vanity publishing--what we at Writer Beware call "back-end" vanity publishing, since you're buying into the end of the publication process (finished books) rather than the beginning (paying for the book to be produced).

Stealthier back-end vanity publishers rely on pressure and encouragement, rather than contract clauses, to get authors to purchase their own books. They may produce "author manuals" that extol self-purchases with promises of huge profits, or employ "publicists" whose sole job is convincing authors that buying their books for re-sale is essential to success, or offer frequent special deals and discounts (buy 50 books, get 10 free!) to make self-purchases as attractive as a sale on canned soup at the grocery store. Since inexperienced authors may not know a lot about how publishing is supposed to work, they can be easily ensnared by this kind of deception.

Still other publishers that focus on author self-purchases are well-intentioned amateur efforts run by people who have no professional publishing experience, little or no financing, and, often, no concrete business plan. Because of their lack of capitalization and marketing expertise, it's very tempting for such publishers to settle into a business model where they rely on their authors as their principal customer base and sales force. This creates a closed loop, in which published books are marketed mainly to the books' creators--all but eliminating the publisher’s risk, and even possibly, guaranteeing a small profit. It’s this kind of publisher that’s most likely to ask you the question with which I began this post, rather than surprising you with contractual purchase requirements or bombarding you with special offers post-publication--since its intentions are basically benign, and it's not consciously trying to deceive or screw you.

Intentions aside, the author is the loser in all three of these scenarios. A publisher that relies on its authors as a main or major source of income is considerably reducing--if not entirely removing--its incentive to market and distribute the books it publishes. Why should it bother trying to sell books to the public, when it can turn its authors into customers? Why should it expend money and effort on getting books into the hands of readers, when it can persuade writers to function as an unpaid sales force, buying their own books and then re-selling them?

In each case, the publisher is failing to do what publishers are supposed to do: get books out into the world. While it's certainly true that authors nowadays are expected to self-promote, the self-promotion an author can do and the marketing a publisher should do are two different things--and without your publisher's active marketing and distribution support (I'm not talking here about writing press releases or getting books listed on Amazon), you have very little platform on which to build your self-promotion efforts. You're likely to wind up in much the same position as if you'd self-published--except that you'll probably have a more restrictive contract, a less professional product, and, in the case of the more unscrupulous back-end vanities, a considerably smaller bank account.

So if a publisher asks you about your plans for buying your own book, be on your guard. Even if the publisher isn’t obviously a vanity, even if it assures you that it's only collecting preliminary data and declares that your answer will have no bearing on its decision, the mere fact that it's thinking about author self-purchases at this early stage of the game is reason enough to move on.

(This post, by the way, was inspired by a real example: Black Rose Writing, which recently moved from just asking about authors' purchase plans, to actually including a purchase requirement in its contract.)

Tuesday, October 06, 2009

Thoughts on Self-Promotion

Posted by Victoria Strauss

As I close in on the end of my current writing project, the issue of self-promotion is much on my mind. I don't mind admitting that it's a prospect I contemplate with dread. I'm one of those I-just-want-to-sit-in-my-room-with-my-laptop writers who really is not constitutionally suited for a world in which the definition of "author" also includes "huckster" (or, if you want to be a bit more diplomatic about it, "entrepreneur").

Nevertheless, self-promotion is a fact of life for today's book writer, an issue that's explored in an interesting article by Neely Tucker of the Washington Post. The article explores the dizzying array of self-promotional options that are made possible, in large part, by the Internet. To relatively old-school methods like readings, signings, and author websites, the Web has added blogs, blog tours, social networking, book trailers, and more.

"Being an author has become much more of an ongoing relationship with your audience through the Web, rather than just writing a book and disappearing while you write the next one," says Liate Stehlik, publisher of William Morrow and Avon Books. "You have to be out there in the online world, talking and participating."

Typically, the article starts out with a success story: Kelly Corrigan, whose cancer-survivor memoir was not tagged by her publisher for any extra promotional perks, and who took promotion into her own hands. Corrigan created a book trailer, got friends to host book parties, put together her own book tour, hand-sold her books, and posted a video of one of her readings on YouTube. The end result: 20 weeks on the New York Times bestseller list, and a second career as a paid speaker.

Does this give me hope for the success of my own self-promotional plan, whatever it may eventually be? Does it make me more motivated to roll up my sleeves and dive into the self-promotion ocean? Well, sure. But there are also some things I'm keeping in mind.

The article ties some of the trend toward self-promotion to publishers' shrinking publicity budgets. But the truth is that publishers never provided significant promotion for more than a handful of their authors, even in pre-Internet days. What's really driving the self-promotional frenzy, in my opinion, is the dilution of the market. As the article points out, 560,000 books were published in the USA last year (more than were published in the entire 10-year period between 1980 and 1989, when title output averaged around 51,000 per year). Even if you subtract the nearly 300,000 that were self- or micropress-published, that's way too many books. How do you make your book stand out from thousands of others in your subject or genre? Go forth, intrepid author, and self-promote!

But if the book market is overcrowded and fragmented, the new self-promotional frontier of the Internet is even more so. Not only is there a tremendous number of different options, every other author with a new book to flog is rushing to take advantage of them. For each new Web-based self-promotional strategy that comes along, there's a narrow window of opportunity in which it's actually possible to grab some eyeballs; thereafter, everyone piles on, and you wind up struggling not just for the visibility of your book, but for the visibility of your book trailer or blog or Twitterfeed or whatever. So as I plan my self-promotion strategy, I need to remember that, just as my book will be competing against too many others, so will my efforts to promote it.

Another thing to note: Kelly Corrigan's book was nonfiction, a memoir about cancer survival. This gave her advantage--not just over fiction authors (the market for nonfiction is much bigger than for fiction, and nonfiction audiences are often easier to identify and target) but over many nonfiction authors, since cancer is a subject of urgent interest to enormous numbers of people.

Often, however, when self-promotion is discussed, it's discussed as if all books are more or less the same, and any and all self-promotional methods are equally applicable. But books are not the same, nor are readers. Though there's always some overlap, the audience for nonfiction is different from the audience for fiction. The audience for romance is different from the audience for thrillers. The audience for YA is different from the audience for middle grade. In other words, the method that worked for one author will not necessarily work for you. In planning my self-promotional strategy, I'll look at everything, but I'll look most closely at what authors in my own market area are doing.

And that brings me to the final thing I'll be keeping in mind as I think about self-promotion: no one actually knows what works. Agent Richard Pine, quoted in the Post article, praises Kelly Corrigan's self-promotional moxie, but points out that "Her videos could have not worked just as easily as it turned out they did." The article goes on to say:

So all these shiny things that go fast are really fun to produce, and some are even fun to watch. But do they move units any better than the old-fashioned author signings in a local bookstore? Do they help a book sell more copies, or merely keep pace with others in the marketplace?

Nobody really knows, a range of publishers and industry watchers say. There is not a clear-cut means of connecting Web site traffic, say, to results in sales, and some experts warn new authors not to go overboard.


In this, despite the bells and whistles of the Internet, the promotional game has not changed at all. Publishers have never really been able to reliably tie sales data to promotional methods--and even if, in some cases, they can, what's effective for one book will not necessarily be effective for another.

The key, I think, is to be realistic. Have a plan. Do your research. Know the options. Keep your head--don't get carried away by the hype that surrounds every new self-promotional strategy. Keep it reasonable--for your budget, your time- and energy-level (don't let self-promotion cut too deeply into the time you allot to your real job, writing), and your personality (do conventions stress you out? Do you despise Twitter? Then focus your efforts elsewhere). Even if you can't really know what will work, be aware of what probably won't--press releases, email blasts, "marketing" services that will charge you an arm and a leg for Web-based strategies that are either not worth doing or doable on your own (here's one example).

And never forget that the basis of all self-promotion is something very simple, and infinitely complex: a good book. There really is no substitute.

Thursday, October 01, 2009

Victoria Strauss -- The Perils of Searching For Publishers on the Internet

Imagine you're a new writer. You've just completed your first manuscript, and are on fire to get it published. You don't know a lot about the publishing world, or how to identify a good publisher for your book--but that's okay. You have the Internet.

So you open a search engine--Google, let's say--and type "publishers" into the search box. Here's what you get.

The two top nonsponsored listings are for Random House and HarperCollins--big names that you may recognize. You navigate through their websites for submission information...bummer. In your genre, they won't look at any manuscript that doesn't have an agent.

The sponsored listings look a lot more encouraging. Instead of "Agented submissions only," they say things like "We Want to Read Your Book!" and "Get your book published today--the industry leader for new authors!" and "The only choice for new authors." There's just one problem. Of the eleven listings, ten are for fee-based publishers (though you may not realize that right away, since some are less than candid about the fact that you have to pay) or self-publishing services. The eleventh is for a "publisher search" website that includes no real publishers, only vanity publishers and self-publishing companies.

Suppose, instead of Googling "publishers," you'd Googled "book publishers." Here's what you'd see, and it's just as bad. Of the nonsponsored listings, Random House is first...and PublishAmerica is third. Again, there are eleven sponsored listings--ten for fee-based publishers or publishing services, and one for another faux publisher search website, this one registered to Author Solutions, parent of self-publishing services AuthorHouse, iUniverse, Xlibris, Trafford, and WordClay. Guess which publishers it suggests?

Just about any general search you may do--"novel publishers" or "find a publisher" or "getting published" or "how to get published"--is fraught with similar perils. Of course, the search pages also throw up helpful links--to Absolute Write, or Publishers Marketplace, or Publishers Weekly, or Harold Underdown's tongue-in-cheek but very helpful how-do-I-get-it-published quiz. But I've gotten enough email over the years to know that many inexperienced writers look no farther than the highly-visible sponsored links.

All of which underscores the need for caution on the Internet. (Yes, I know I've blogged about this before, but it's such a consistent issue for the writers who contact me that the point can't be made too often.) Don't get me wrong--I love the Internet, and can't imagine my professional life without it. It's an invaluable research resource, offering unprecedented access to a treasure trove of information, enabling knowledgeable writers to fine-tune their agent- and publisher-quests as never before. For new writers, however, it can pose substantial hazards, since there's at least as much bad information as good--not to mention all the people who want to sell you something that may not be good for you. Even so-called professional resources aren't always reliable--the writing and editing question forums at LinkedIn, supposedly a place for business and professional networking, are absolute pits of bad advice and misinformation--and as for writers' message boards, it's a good idea never to forget that people who know nothing are as eager to opine as people who know something.

Unless writers are able to filter the information they find online, they're at risk of making bad decisions or falling victim to predators. In other words, writers need to know something about publishing before they start searching for publishers (or agents). Rather than plunging in and attempting to learn on the fly, it's a much better idea to first take the time to build a knowledge base. There are many ways to do this, and it doesn't have to be tedious. My blog post, "Learning the Ropes," offers some suggestions.

Trust me: it's one of the best investments in your future career you'll ever make.