Friday, April 27, 2012

The Importance of Reversion Clauses in Book Contracts

Posted by Victoria Strauss for Writer Beware

Most book publishing contracts can be divided into two types: fixed-term, where the grant of rights extends for a defined period of time, such as five years; and life-of-copyright, where the grant of rights extends for the full duration of copyright. (If you're unclear on the difference between rights and copyright, I've explained this in an earlier blog post.)

According to the Berne Convention, the international source for copyright law, the term of copyright is the author's lifetime plus 50 years. Many countries have lengthened that, however, and in the USA, UK, and much of Europe, copyright now extends for the author's lifetime plus 70 years. (For more info, see this handy chart of copyright duration in various countries.)

Life-of-copyright sounds scary, but it doesn't have to be. It's a rare book that's so successful that it remains on the market for more than a few years--and traditionally, authors can reclaim their rights once their publishers have taken their books out of production. This process is called reversion. It's governed in a publishing contract by a reversion or termination clause, which describes when and how the publisher will take the book out of print--i.e., out of production and off the market--and also, since simply taking a book out of print doesn't necessarily guarantee the return of rights, the steps the author must take to get the publisher to relinquish those rights back to him or her.

In a fixed-term contract, a reversion clause may not be needed, unless the fixed term is unusually long (for me, "unusually" would start at about eight years)--though publishers often do cover themselves by allowing for discontinuation of publication for various reasons, such as slumping sales. In a life-of-copyright contract, however, the reversion clause is vital. Unless you're Harper Lee or some other perpetually-in-print luminary (and maybe not even then), there's no reason in the universe for a publisher to hold your rights for so long.

Even so, in the days before the digital revolution turned everything upside down, there wasn't much incentive for authors to revert their rights once their books went out of print. Rights to an already-published book were extremely difficult to re-sell; and with none of the easy self-publishing options that exist today, there wasn't much an author could do with them on their own.

As a result, many writers--me included--simply allowed rights to their OOP books to sit with their publishers. This suited the publishers fine, since it could be very handy to still be holding rights to the OOP books of a suddenly-famous author. Dan Brown is one example of this--after The Da Vinci Code became a mega-success, his publisher rushed his OOP books back into print.

In the past few years, however, once-sold rights have become extremely valuable--to authors, who can tap into the rising enthusiasm for ebooks by self-publishing their backlists; and also to publishers, which are eager to digitally exploit the long tail of their rights catalogs. The reversion clause in a life-of-copyright contract is more vital than ever--and it is equally vital that it be precise.

In the pre-digital era, it was standard for reversion clauses to leave the decision to take a book out of print entirely to the publisher's discretion. Here's an example, from my 1997 Avon contract:
If all editions of the Work in the USA and Canada which have been published or licensed by the Publisher are out of print, and if, within six (6) months after written demand by the Author or the Author's representative, the Publisher does not agree to provide within an additional six (6) months adequate stock to meet the normal demand for the Work, or to arrange for a reprint or book-club edition...this Agreement will forthwith terminate and all rights in the Work will revert to the Author...The Work shall be considered in print if it is for sale by the Publisher in any edition, or if it is under option or license granted by the Publisher.
This used to be all that was needed. Books were physical objects only; they took up room in warehouses, and when they stopped selling in significant numbers it was in the publisher's interest to clear warehouse space by removing them from sale and pulping them or selling them to remainder dealers (especially after the Supreme Court's 1979 decision in the Thor Power Tools case made warehousing more expensive).

These days, a reversion clause like this is not enough. Books are no longer just physical objects, and electronic files don't live in warehouses. An ebook can be kept "in print" indefinitely at minimal cost. Under a clause like the one above, a publisher could easily argue that the existence of an ebook, or a digital file used to produce a POD edition, constituted "in print" and "for sale," even if the book wasn't actually selling a single copy. The author would have no ability to demand reversion--in fact, the circumstances under which he or she could demand reversion wouldn't even arise.

"Out of print," therefore, needs to be much more narrowly defined--ideally, tied to specific, objective circumstances, such as minimum sales or income figures that the publisher can't argue its way around (theoretically, at least.) Here's the reversion language from my 2000 HarperCollins contract (my bolding):
If either Work is out of print and the Publisher receives from the Author a written request for a reversion of rights to such Work, the Publisher shall within four months of the Publisher's receipt of such request do one of the following: (i) announce that it will reissue an edition of such Work...(ii) enter a license providing for the publication in the United States of an edition of such Work...or (iii) revert in writing to the Author the rights to such Work granted to the Publisher in this Agreement...

If for two consecutive accounting periods neither the Publisher nor a licensee of the Publisher has printed copies of the Work...but the Work is available for sale from the Publisher or a licensee of the Publisher by some means of on-demand printing, or electronic transmission or reproduction and within those two accounting periods, the Publisher and its licensees, collectively, have sold less than 250 copies of the Work, the Work shall be deemed out of print.
Back in 2000, not everyone recognized the importance of this kind of language--I'm very fortunate to be with an agency that keeps on top of the changes in publishing and really knows its stuff.

Here's a more recent example, from my 2011 contract with Marshall Cavendish (again, my bolding):
The Work shall be considered in print if it is on sale by Publisher in any English-language edition available through normal trade channels in the United States or if it is subject to an option or an outstanding license for any English-language edition available through normal trade channels in the United States under this Agreement. If the Work is not in print, Author may request in writing that Publisher keep the Work in print. Publisher will have six (6) months to comply. If Publisher fails to comply...then at the end of such six (6) month period this Agreement shall terminate and all of the rights granted to Publisher shall revert to Author...The existence of an individual print on demand edition or an electronic edition shall not constitute the Work being in print unless there are total combined sales of $500 or more a year for these editions.
The clauses above come from large and medium-sized publishers. For those of you with small presses, you're probably more likely to encounter a fixed-term contract than a life-of-copyright contract. However, many small presses do have life-of-copyright contracts, and if you're offered one with reversion/termination language that's more like the first clause I quoted than the second two, you should seriously consider whether it's a publisher you want to work with.

And of course, if your life-of-copyright contract has NO reversion or termination clause--and these are out there, believe me; I've seen them--run away. Fast.

Here's an ugly example of what can happen when reversion language is not precise enough--an author who can't regain her rights because her publisher is insisting that a book with almost no sales or distribution is still "in print" within the literal, and much too broad, meaning of her reversion clause.

And here's one major publisher's attempt to turn back the reversion clock: Simon and Schuster's 2007 effort to alter its standard contract language to ensure that it could consider a book in print as long as the book was available in any form, even just the publisher's electronic database, and even if the book had zero sales.

Monday, April 23, 2012

New/Updated Alerts at Writer Beware: Literary Agent Uwe Luserke, SBPRA

Posted by Victoria Strauss for Writer Beware

Writer Beware's Alerts page has been updated.

NEW ALERT: Literary Agent Uwe Luserke

In 1997, complaints began to surface about German literary agent Uwe Luserke, who was selling foreign rights to English-language short stories and novels and neglecting to pay the advances and royalties due to authors. In some cases, the sales were made without the authors’ knowledge.

Luserke specialized in speculative fiction, so SFWA investigated. Luserke’s fraud turned out to involve hundreds of novels and stories, publishers all over Europe, and scores of authors, including  some of the biggest names in the business–Terry Pratchett, Robert Jordan, Andre Norton.

SFWA made efforts to get the German government to take action against Luserke, but due to various factors, including the distances involved (the Internet was then in its infancy, and overseas contact was expensive and inconvenient), he was never sued or prosecuted. (See our earlier blog post for more detail.)

Luserke dropped out of sight around the turn of the century, but recently he has become active again. Writer Beware received contacts in 2010 and 2011 from writers who were considering doing business with him, and in 2012 we’ve begun seeing complaints about non-payment very similar to those from 1997.

In April 2012, we saw Luserke’s rights catalog, which lists over 25 authors and authors' estates. Writer Beware recommends that authors and authors' estates use extreme caution in dealing with Uwe Luserke.

We're looking to hear from writers who've had contact with Uwe Luserke or difficulty with unauthorized rights sales, payment, or other issues. Contact us.

UPDATED ALERT: Strategic Book Publishing and Rights Agency, a.k.a. SBPRA

Our long-standing Alert about this company has been updated to include the latest names under which it's doing business. In addition to Strategic Book Publishing and Rights Agency (SBPRA), these include:
  • Best Selling Book Rights Agency
  • Professional Publishing Press
  • ePubCo
  • Rapid Illustrations
  • Best Quality Editing Services
  • Publish On Demand Global
  • Publish On Demand Australia
  • Publish on Demand India
  • Publish on Demand Korea
  • Publish On Demand Taiwan
  • Publish on Demand UAE
  • Publish on Demand UK and Europe
  • Authors and Libraries Program
  • AuthorMarketingIdeas.com
  • AuthorSuccessStories.com
See our Alert for a full history of SBPRA's name changes since 2001. Many of the earlier names have been discontinued, but some still appear to be in use.

Friday, April 20, 2012

Link Roundup

Posted by Victoria Strauss for Writer Beware

Links to articles, blog posts, etc., that I found especially interesting this week:

- The Department of Justice's lawsuit against Apple and five of the Big Six publishers for alleged ebook price-fixing--in which three publishers settled, and Apple and the remaining two vowed to stand and fight--was the big news last week. This week, industry expert Mike Shatzkin provided a concise summary of where we stand now. His conclusion:
Amazon (which includes any other player largely dependent on Amazon) and the most price-conscious ebook consumers have won. Everybody else in the ecosystem: authors, publishers, and other vendors, have lost. The reaction from all quarters seems to confirm that analysis.

- More fallout from the DOJ lawsuit: Laura Hazard Owen of PaidContent takes a look at how the lawsuit will affect ebook buyers: lower prices (though not right away), new promotions, the possible death of DRM, and some stuff that won't change.

- Speaking of DRM, author Charlie Stross makes a passionate argument that killing DRM is the way for publishers to compete with Amazon, enabling readers to "to buy books from a variety of outlets and move away from the walled garden of the Kindle store." This is a MUST READ post for anyone who's concerned about the future of publishing.

- For a lot of people, it seems axiomatic that because they don't involve paper and ink, ebooks are very cheap to produce. Author and former agent Nathan Bransford explains that it ain't necessarily so. Why? Because paper doesn't actually cost very much.

- As if the scandals over plagiarism in the KDP program weren't enough, now it appears that there's a major knockoff problem: cobbled-up books titled to resemble bestsellers in hopes of tricking consumers into buying them. I Am The Girl With The Dragon Tattoo, anyone?

- Attention, authors: This interesting chart of what Twitter users do and don't like demonstrates why Twitter is such an excellent resource for self-promotion. You've got to be savvy about it, though--on Twitter, as elsewhere, spam does not work.

- Like most authors, I've had good experiences with editors (my current editor is a genius and a gem, and I adore working with her) and bad experiences (such as the editor who inherited my book after the original editor departed, and made it very clear she wouldn't have signed me if things had been up to her). But even the worst experiences haven't shaken my certainty of the vital importance of the editor's role. At Salon, writer and former editor Gary Kamiya explores the awesomeness of working with a great editor.

- Is the self-publishing gold rush starting to wane? Self-pubbed author Rik Davnall thinks it may be. There's some interesting food for thought here; I've long agreed with Rik's observation that device enthusiasm, as much as readers' desire for new material, has been a major driving force in the electronic self-publishing boom, and that as device enthusiasm levels out, so will the boom. 

- Just for fun: Why waste time waiting for rejection letters, or worrying that your dream agent's lack of response means she has a "no response means no" policy? Now you can beat them all to the punch and reject yourself. Behold: the Rejection Generator!

- And here's the ultimate Mary Sue: a custom book company that will make you the protagonist of your favorite classic novel. Elizabeth Bennett, anyone? (They'll personalize original genre novels, too!)

Tuesday, April 17, 2012

Book Giveaway

Posted by Victoria Strauss

The Arm of the StoneThe Garden of the StoneToday and tomorrow, my fantasy novel The Arm of the Stone is a Kindle freebie. That's right--you can download it at Amazon.com for absolutely zero dollars! (And if you like it, you can buy the sequel, The Garden of the Stone, for just $4.99.)

For those of you who prefer print books, I'm running a giveaway from today through April 22. I'll be picking two winners in a random drawing to receive handsome trade paperback copies of BOTH The Arm of the Stone and The Garden of the Stone.

Just drop me an email, and I'll enter you in the giveaway. Be sure to provide your mailing address (the information won't be shared, and you won't be added to any mailing lists).

Thanks, and happy reading!

Friday, April 13, 2012

The DOJ's Ebook Price Fixing Lawsuit Against Apple and the "Agency Five": An Overview

Posted by Victoria Strauss for Writer Beware

Unquestionably, the big publishing news of the week was the US Department of Justice's lawsuit filing against Apple and five major book publishers--Penguin, Macmillan, Hachette, HarperCollins, and Simon and Schuster--for alleged ebook price fixing.

At the root of the dispute: the agency pricing model for ebooks, which the publishers adopted in 2010. Under the wholesale pricing model that until then had been the norm for both ebooks and print books, publishers sell to intermediaries--such as bookstores or distributors--at a fixed discount off the list price, and the intermediaries are then free to re-sell to consumers at whatever price they choose. Under the agency pricing model, publishers sell directly to consumers via retailer "agents"--such as Amazon or Apple--which get a commission on sales but cannot lower the publisher-set price. The wholesale model allows the retailer to control book prices; the agency model gives that control to the publisher.

The agency model, in other words, completely changes the selling relationship between publishers and retailers in regard to ebooks. This change is invisible to the consumer, but it is felt in the uniformity of ebook prices from retailer to retailer--since they can't discount--and in the unintended consequences of competing pricing models, such as heavily discounted print books selling for less than their non-discounted electronic versions.

The DOJ doesn't have a problem with the agency model as such. What concerned them was the possibility that the publishers--at first among themselves and later with Apple--had colluded on establishing it, as a way not just to gain control of ebook pricing, but of limiting Amazon's perceived dominance of the ebook market, which Amazon had achieved in part by aggressive discounting.

According to the lawsuit, the collusion occurred through a series of meetings, email exchanges, and telephone calls in 2008 and 2009 (GalleyCat has the details of these allegations) and culminated in the introduction of the agency model in early 2010, just ahead of the April debut of the iPad. (You may remember the February 2010 standoff between Amazon and Macmillan, in which Amazon turned off Macmillan's buy buttons in protest of the agency model, but later capitulated and turned them back on.) As a result, the lawsuit alleges, consumers have paid tens of millions of dollars more for ebooks than they otherwise would have.

The full complaint can be seen here.

Three of the five publishers named in the lawsuit--HarperCollins, Hachette, and Simon and Schuster--have agreed to settle. Among other things, the settlement prohibits them from setting consumer prices for the next two years, prevents them from entering into retailer agreements that include Most Favored Nation clauses (i.e., no one can undersell the retailer) for the next five years, and requires them to terminate their contracts with Apple within seven days of signing the settlement. They must also engage in a variety of compliance activities, including appointing an Anti-Trust Compliance Officer. (Helpful overviews of the settlement terms can be found at ShelfAwareness, Wired, and Publishers Weekly.)

The settlement can be seen here.

The settling publishers have issued statements; they deny liability, and cite their desire to avoid a costly and protracted legal battle as their reason for agreeing to the settlement. Macmillan and Penguin, by contrast, have vowed to fight on. Penguin's John Makinson has issued a statement denying wrongdoing and affirming the agency model as "the one that offers consumers the prospect of an open and competitive market for e-books." Macmillan's John Sargent expressed similar views in an open letter to authors, illustrators, and agents:
When Macmillan changed to the agency model we did so knowing we would make less money on our e book business. We made the change to support an open and competitive market for the future, and it worked. We still believe in that future and we still believe the agency model is the only way to get there.

It is also hard to settle a lawsuit when you know you have done no wrong. The government’s charge is that Macmillan’s CEO colluded with other CEO’s in changing to the agency model. I am Macmillan’s CEO and I made the decision to move Macmillan to the agency model. After days of thought and worry, I made the decision on January 22nd, 2010 a little after 4:00 AM, on an exercise bike in my basement. It remains the loneliest decision I have ever made, and I see no reason to go back on it now.

Apple, which has also refused to settle, has also denied the charges. Some experts feel that the DOJ has a weaker case against Apple than against the publishers, and is unlikely to prevail.

Will the settlement actually benefit consumers, as the DOJ claims? It's far too early to predict, but that isn't stopping people from trying. Many of the expressions of dismay that greeted the settlement cite fears of less choice and competition, as the level playing field created by uniform pricing is dismantled, and Amazon continues to consolidate its already commanding dominance of the ebook market. Other commenters disagree, with familiar criticism of the publishing industry.

Amazon has already announced plans to lower ebook prices. It's important to note, though, that the agency model itself has not been invalidated. While the three settling publishers have agreed to give it up, the two non-settling publishers--plus Random House, which adopted the agency model much later than the other five and wasn't named in the lawsuit--will continue using it, at least for the moment. So in the short term, only some prices will drop. (Ebook aggregator Smashwords, which distributes 40,000 small presses and self-published authors, will also retain the agency model; Smashwords' Mark Coker explains why in a long and interesting article that posits that ebook prices have actually fallen--not risen--under the agency model.)

In the long term...who knows? Mike Shatzkin has proposed some possibilities. One of his more interesting conclusions:
Over time, the biggest losers here will be the authors. The independent authors will feel the pain first. Agency pricing creates a zone of pricing they can occupy without much competition from branded merchandise. When the known authors are only available at $9.99 and up, the fledgling at $0.99-$2.99 looks very attractive and worth a try. Ending agency will have the “desired” effect of bringing all ebook prices down. As the big book prices are reduced, the ability of the unknowns to use price as a discovery tool will diminish as well. In the short run, it will be the independent authors who will pay the biggest price of all.

In the meantime, 15 states have filed suit against Apple and the five publishers, demanding restitution for overpriced ebooks, and a class action lawsuit is working its way through the courts. An anti-trust probe into agency pricing by the European Uniong is also ongoing, though it appears that Apple and four of the five publishers may be nearing a settlement.

Wednesday, April 11, 2012

Poetry.com Returns

Posted by Victoria Strauss for Writer Beware

Once upon a time, there was an infamous vanity anthology company called the International Library of Poetry, also known by the name of its website, Poetry.com.

The ILP advertised free poetry contests in newspapers and magazines, with cash prizes for the finalists and publication in a hardbound anthology for finalists and semi-finalists. The contest wasn't a real contest, however. Just about everyone who submitted a poem was declared a semi-finalist, and offered the "opportunity" to buy the anthology in which their work was to appear (with, of course, a discount for multiple purchases). If they stumped up for the anthology, they were bombarded by offers of other ways to spend money: yet more contests, their poems embossed on coffee mugs or enshrined on plaques, memberships in poets’ societies (which demanded $100 or more in annual dues), attendance at poetry conferences (which cost as much as $600, travel and hotel not included).

In 2009, the ILP finally went bust, and the Poetry.com domain was acquired by self-publishing service Lulu.com (I blogged about this when it happened). Lulu kept the functionality of the Poetry.com website--including the thousands of poems published by Poetry.com participants over the years--but discontinued the vanity anthologies and the merchandising aspects of the business.

Good news for poets--though of course there was no shortage of similar schemes to take the ILP's place.

Now it appears that the Poetry.com domain has changed hands again. The new owner is a company called Newton Rhymes, LLC, which filed a trademark application for the Poetry.com name in January of this year. Virtually no information on Newton Rhymes turns up in a web search, other than the fact that it is a brand-new business based in Massachusetts and licensed in New York, which also owns a rather neglected-looking website called TRCornelius.com that advertises writing contests.

Former Poetry.com participants found out about the change via an email solicitation at the end of March, inviting them to "claim" their poems on the re-launched Poetry.com website and "share your message with the world!"

The new Poetry.com--which is already drawing participants--features a points and badges system, allowing poets to earn points for activities such as providing critiques and promoting Poetry.com on social media. Poets who amass 25,000 points earn an ugly pin. The poets who earn the most points for doing various things that boil down to promoting the site are promised an appearance on national TV (no details on when or where).

Though the junk mail-style tone of the solicitation email and the tacky look of the re-vamped website don't bode well, membership in the new Poetry.com is free, and there's no sign of the contests, anthologies, coffee mugs, or other cheesy methods by which the ILP extracted cash from poet-participants.

There also doesn't appear to be any advertising--which raises the question of how the new Poetry.com pays for itself, and what's in it for Newton Rhymes. A hint, possibly, can be found in the Privacy Policy (my bolding): "We will receive and store any information you enter on the Web Site or give us in any other way that personally identifies you...By submitting this personally identifiable information to us you agree to receive email and postal mail communication from us and our marketing partners." In other words, anyone who signs up for the new Poetry.com website should expect to be solicited.

I'll be keeping an eye on the new Poetry.com, and will update this post if anything changes.

Wednesday, April 04, 2012

Guest Blog Post: Why Small Publishers Fail

Posted by Victoria Strauss for Writer Beware

I've used up a lot of column space on this blog warning about the risks of submitting to small presses, especially brand new small presses. In my opinion, this is currently the most dangerous area for writers--not so much because there are a lot of scams (though there are quite a few) but because so many small presses are undercapitalized, run by inexperienced people, have deluded goals and aspirations, or all three.

Today's guest post by multi-published author and Absolute Write Water Cooler moderator Cathy Clamp takes an illuminating look at some of the things that can go wrong at a small press--not just for authors, but for staff--based on several real-life examples (the names of the publishers have been withheld, but Cathy has provided them to me and I'll provide them to you if you email me). Cathy also explains why it's so important to ask tough questions of new publishers, and why grilling them isn't "mean" (an accusation often made at Absolute Write) but essential.

This is a really long post, but it's well worth reading in its entirety.

For more information on small press dangers, as well as advice and resources to help you protect yourself, see Writer Beware's Small Press page.

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

by Cathy Clamp

Absolute Write and its Bewares, Recommendations, and Background Check Forum host a lot of threads asking about new independent publishers, as well as announcements from new independent publishers seeking authors, editors and cover artists. Not in all, but in many cases, they’re start-up pubs founded by individuals who are either former authors or former editors.

When the threads open, we moderators allow people to ask questions about both what the publisher is seeking and about the company’s suitability as a new market. Quite often, the publisher (or an employee or an author pubbed by them) notices the discussion and drops by to interact with the members. That occasionally leads to problems, because legitimate questions by the members and moderators about the company’s business practices can feel like "attacks" on the integrity of the people running the publisher.

Nothing could be further from the truth. In fact, it’s the authors and the  publisher that we’re trying to protect. I know it doesn’t seem like it, but really—we’ve seen dozens of publishers come and go since Absolute Write has been in operation, and we tend to fret when it seems like the people involved are inexperienced about the business of publishing, because things can go wrong so very fast in this business.

Once you spend much time working with publishers, you realize that the business of publishing is counter-intuitive to the rest of the world. Normal business strategies used in other industries frequently won’t work in publishing, so experience in "running a successful business" seldom applies to becoming a successful publisher. Nor does being a published author automatically give a person experience in the behind-the-scenes business of publishing. It takes study and hands-on experience. Someone without both of those elements is going to struggle more in setting up shop.

I think it’s important to demonstrate just HOW wrong things can go by providing some real-life examples of situations that have happened to well-meaning and enthusiastic new publishers. To protect all parties, no names have been used (although in some cases, a gender may be given.)

This is a (pre)cautionary tale to those either starting a new publisher or planning to sign on or hire on with one. At the end of the scenarios, I’ll give you a list of what the companies failed to do to protect themselves and their authors.

Scenario #1 — The publisher, a self-pubbed or aspiring author, opens a company with fellow authors as "co-owners." Some of the co-owners become the editors for the publisher.

The co-owners don’t actually put up any cash to ensure that there’s capital to do things like form a legal entity, hire an attorney to prepare the contract, or design and host a website. They trust that the founder/publisher/primary co-owner has made all these arrangements. But the publisher doesn’t realize what needs to be done. So she never actually files the paperwork for the legal entity. Instead, she opens the publisher as a d/b/a (doing business as) of herself--meaning that it’s a sole proprietorship, not a partnership.

The publisher throws everything into the business. She racks up credit card debt, takes out second, third, and fourth mortgages, leases professional office equipment and . . . doesn’t sell enough books to pay the loans and cards and leases. But she doesn’t discuss this with her co-owners. She endures the worry and pain alone. Soon she doesn’t have the money to pay the editors anymore. Or the author royalties. Or the website host.

She files bankruptcy. Unfortunately, because the publishing company was a d/b/a, it’s a Chapter 7 bankruptcy--of a person, not a company. Author contracts become personal assets that the Bankruptcy Trustee seizes to pay debts. The royalties aren’t secured debts, and the editor salaries aren’t secured debts--but the mortgages are. The credit cards are. The equipment leases are. So everybody loses everything. The company closes. Authors don’t have their books back (because the bankruptcy trustee forbids the reversion of rights) and the editors never get paid.

Scenario #2 — The publisher starts the business and hires author-friends to become editors (rather than making them co-owners.) But the publisher doesn’t have written agreements with the editors telling them what their duties are. She doesn’t tell the editors that they’re not only responsible for structural editing, they’re also responsible for making sure the copy editor stays on schedule, for proofing galleys, for writing back cover copy, for assigning ISBNs, for creating website blurbs, and for working with cover artists to make sure work is done on time.

The publisher feels the editors should know that this is standard business practice with any publisher (which it is, by the way) and presumes that the editors are doing their jobs. Until everything stalls. The cover artist is never contacted, the ISBNs are double (or triple) assigned, the copy edits go to the authors without the editor’s knowledge before the structural edits are even done, the blurbs never get put up on the website. Essentially, the books never make it to the point of being sold. Ever.

The editors leave en masse, deserting the company and the authors. The publisher folds.

Scenario #3 — The Publisher assigns a book to a co-owner editor where the author is a pain to deal with. The author and editor argue constantly about editorial suggestions and the author wants to spend HOURS on the phone with the editor, so the editor can tell them what a wonderful job they did. In other words, they’re needy.

By call number 15, the editor is so fed up with the author that they contact the Publisher to say, "No more! Give this author to someone else." Except the editor is the fourth person to have the author, it’s a terrific book, and the Publisher says. . . well, "Suck it up and do your job."

The editor isn’t amused and does his best to avoid the author’s calls. The editor also avoids even looking at the manuscript because it reminds him that he’ll eventually have to talk to the author again. With no contact and no edits, the author takes to making snide comments on websites, and on the editor’s blog and MySpace page (yeah, this was a while ago.) Annoyed, the editor lets the deadline for edits pass. The deadline for publication also passes.

The author sues. The editor shrugs--to him, that’s the publisher’s problem. Unfortunately, he’s wrong. Because, being a co-owner, his pockets are just as full of gold as the other owners’. He’s found liable for breach of contract because there were no ownership documents limiting liability.

Scenario #4 — The editor is working on the third book of an author’s contract. The editor is also an author who has contracted books with the Publisher. The manuscripts have the exact same due dates, from edits to copy edits to publication.

The editor complains to the publisher that he can’t both do his book and work on the author’s. But the publisher has nobody else to assign to the author’s book to, so the editor is stuck. The editor makes the decision to finish his book first and then work on the author’s book. But then the editor gets sick/injured and cannot work for several weeks. The editor doesn’t realize that the author has a specific time that the book MUST be out to catch a particular event (I think it was a themed holiday or something). The editor wasn’t part of the negotiations of the author’s deal.

The author complains to the publisher and threatens to sue. The publisher comes down hard on the editor and makes a similar threat. The editor rushes, but the author’s book fails to meet the publication date. The author hears through the grapevine that the editor’s book did reach the shelf on the due date and sues the publisher for loss of income. The publisher countersues the editor (because the editor is a freelance contractor, not an employee or co-owner). The author wins in court--but the publisher is not the one to pay. The editor is.

Scenario #5 — The publisher opens its doors and uses authors as editors on a contract basis, paying by the word or page. The publisher hires a cover artist, also on a contract basis.

A dozen books later, and the artist hasn’t been paid for his work because the books aren’t making a big profit. The publisher pays part of the artist’s bill, but then can’t afford to pay what royalties are owed. The publisher also can’t pay the editors. The editors stop working until they get paid. The cover artist refuses to allow any of the covers to be displayed on the site until he’s paid in full (which is what his contract stipulated) and contacts the web host to demand the covers be removed.

The authors, not realizing there’s any problem between the publisher and artist, continue to use their cover art to promote their books. The artist finds out and separately contacts the authors  to advise them they cannot use the art, and goes into long detail about why the publisher is a thief and cheat. The authors, panicked, contact their editors and demand to know what’s up. The editors don’t know and direct the authors to the publisher (but privately send their own emails asking what’s going on.)

The publisher, feeling picked on by both sides, refuses to talk to anyone and ignores calls for months on end. The publisher also makes snarky statements on the front page of the company website, and deletes private messages and emails on the company forum that speculate as to the problem. The publisher begins to privately contact authors to ask for "donations" to keep the company afloat.

Tempers rise. Multiple lawsuits follow, with nobody ever getting paid and the authors never getting back the rights to their books.

Scenario #6 — The publisher opens its doors and brings in friends with no publishing or writing experience to help run the business. To make it seem like it’s a huge company, instead of a two- or three-person shop, the Publisher adopts different personalities online and, sometimes with friends in tow, wanders around the virtual universe commenting on every website, every review, every blog where any of the books published by the Publisher are mentioned.

They give dozens of five star reviews on bookseller sites, argue with reviewers in comments or forums about what a reviewer says about the book (especially if it’s panned.) They make personal attacks on third parties, frequently without the knowledge of the author. By the time the authors learn about the flame-war going on across the web, their names are frequently mud and they have to scramble to make amends if their books are to have any hope of selling.

So, what did these publishers do wrong? Here are some of the things:

1. The person(s) founding the company never created a paperwork trail that included a corporate/LLC/partnership documents, binding freelance contracts, employment agreements for W-2 employees (where you pay taxes on income) specific to their company vision. Not an "off the internet for free" or "buy it off the shelf in the office supply store"--but hiring an attorney and an accountant to work up a real company structure.

2. The person(s) founding the company didn’t put any investment dollars into the company. Often the company runs on a shoestring until money starts to flow in. But the nature of publishing is that most of the money goes out before it comes in. Websites cost money (up front), cover art costs money (up front), equipment and printing costs money (up front). Etc., etc. Ultimately the publisher winds up paying Paul with money owed to Peter. That's just not a sustainable business model.

3. There was no communication between the publisher and their staff. "We’re going to be a friendly team" doesn’t work when there’s no communication. The publisher should provide the staff, in print, with clear guidelines of what duties are required of their job. Heaping everything on one person is the path to failure.

4. The Publisher entered the fray. Yes, there is a desire to protect the authors of a fledgling publisher. It seems to be a financially sound thing to do. But, in reality, the publisher, editors and artists should never interact with reviewers or fans to argue about the reviewer’s opinion of a book. They should never demand (or strongly suggest) that their authors buy or review each other’s books. They should never make snarky statements about authors, reviewers, or watchdogs of the industry. Finally, the publisher, editors and artists should never ask for "donations" from authors in order to stay afloat.

Instead, they should be professionals. Always. They should freely discuss their plan to keep afloat and the business standards they intend to use. They should willingly open themselves to scrutiny by those who hope to profit from the publisher--because that's what professionals do.

What happens after one of these scenario melt-downs? Well, then we get a flood of people at Absolute Write, asking why we didn’t ask more questions. Why we industry professionals didn’t warn people at the beginning, when we knew that meltdown was likely to happen. We used to try to explain that everybody gets a chance to open their doors and give starting a business a shot--but over the years, we’ve gotten to the point where it’s easier to ask the tough questions up front and risk hurting the feelings of one publisher, than soothe anger and frustrations of dozens of authors after the blood and dust settle.

So, if you’re a new publisher, know that yes—we WILL ask the tough questions. We will question your plan, your goals, your experience, your qualifications, your background, and sometimes your integrity. These are questions that people looking to place their "baby", their novel or nonfiction book, need to know. Editors trying to hire on with a new publisher, and cover artists placing their work, also need to know. They deserve to know whether you, the publisher, have your plan in place and your ducks in a row.

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

Cathy Clamp is half of the USA Today bestselling author team of C.T. Adams and Cathy Clamp, who write paranormal romance and urban fantasy. Cathy's/C.T.'s current releases and sample chapters of all of their books and anthologies are available at www.catadams.net

Sunday, April 01, 2012

Writer Beware's Swag Shop for Discerning Scammers

Posted by Victoria Strauss for Writer Beware

Writer Beware's Swag Shop for Discerning Scammers
As many of you know, Writer Beware is a 100% volunteer endeavor. We do receive support from our sponsor, the Science Fiction and Fantasy Writers of America, and also from the Mystery Writers of America--but our finances are pretty tight.

Unfortunately, fundraising poses a problem for us. In order to avoid any possible conflict of interest, we can't accept remuneration for our services. We don't even take donations. And of course, we're absolutely committed to never charging a penny to the writers who contact us for information and advice.

So what's a watchdog to do? For some time we've been racking our brains to come up with fundraising ideas that don't conflict with our mission. What group of people can we bamboozle...er, persuade to give us money, and still feel good about ourselves?

And then it hit us: scammers. They bilk you--why shouldn't we bilk them? Plus, it's really an untapped market. Like any group of entrepreneurs, scammers are proud of their achievements--but the nature of their business makes open boasting problematic. Our nifty new range of products allows for private gloating, while being subtle enough to be used in public.

Introducing Writer Beware's Swag Shop for Discerning Scammers. Choose from these exciting options:

The "Really, You Thought I Submitted that??" T-shirt. We know you never send out the manuscripts your clients pay you to represent--but they don't. Commemorate this important facet of your business with our stylish, 100% cotton T-shirt in Small, Medium, or Large--or just say "Scammer-size me!" and we'll bump you up to Extra-Large. For men and women...because scamming is an equal opportunity profession. Only $15.99.

The "Your Money...My Vacation" coffee mug. Each time you use this handsome china coffee mug, you'll be reminded of your mission. At $10.99, you can't beat that.

The "We DO Fool Them All The Time" tote bag. It's the secret of your success, right? With our sturdy canvas tote bag, you can keep the secret and tell the world, all at the same time. You'll know who the fools are--but no one else will. Right-priced at $12.99.

The "Writer Is Just Another Word For Loser" mouse pad. Come on, you know you think it. You may even say it out loud sometimes to your staff (if you have staff, that is; we know that plenty of you are just manipulating a web of aliases). A bargain at $10.99, our useful mouse pad lets you affirm this uplifting truth on a daily basis, while keeping it absolutely discreet.

And coming soon...the Writer Beware calendar. You've never seen Writer Beware like this. Current and former staff members bare it all, with books and manuscripts placed in strategic locations.

Want to facilitate your agenda? Buy a month! Pick the staff member you prefer! They'll give your books the chance they deserve, with provocative displays and high-quality, full-color images. We'll be distributing our calendar from sea to shining sea, so don't miss this sterling promotional opportunity. Best of all: you can pass the expense on to your clients.

Contact us for pricing--discounts are available for 10 books or more.

Note: the Swag Shop is open only to scammers who publish in America. For obvious reasons, we'll need to verify your bona fides before filling your order, so be ready to provide us with documentation of your fees, falsehoods, or other fakery.