Friday, January 25, 2013

Legal Tidbits

Posted by Victoria Strauss for Writer Beware

Author Solutions Inc. and Free Speech

In 2008, following a bitter divorce, Iowan Scott Weier paid one of the Author Solutions Inc. imprints to publish his memoir, Mind, Body, and Soul. Subsequently, Weier's ex-wife filed suit against Weier and ASI for libel, citing allegations in the memoir that she was a bad mother, had been the victim of molestation, and had a personality disorder.

An Iowa district court ruled in 2010 that, since ASI was not a media entity but rather a business paid by authors to print and distribute books, ASI was not subject to the protections of the First Amendment and should be treated like any other private defendant. This freed the lawsuit to proceed against both Weier and ASI.

Weier and ASI appealed the ruling to the Iowa Supreme Court. Last week, the Court handed down a majority ruling denying Weier's appeal but granting ASI's and dismissing it from the suit. The court held that ASI is in fact a media entity, and thus entitled to free speech protections. According to the Associated Press,
Friday’s ruling extends free-speech protections long enjoyed by newspapers and broadcasters to companies that distribute Internet content, such as book publishers...The definition of media goes beyond businesses that report news, the justices found, extending protections now to any person or company that receives writings and makes them “more suitable and accessible for the public to read.”
The full ruling, which experts deem "significant," can be read here.

There's more to the case than just this--Weier and ASI had wanted the court to strike down Iowa's doctrine of libel per se, eliminating the distinction between media and non-media defendants that makes it easier to bring a defamation suit against individuals--which the court refused to do. Also, the ruling is significant for the precedent it sets in giving protection to Internet content providers, rather than for any benefit it affords to ASI in particular.

Still, it's interesting to contrast this outcome with a similar defamation lawsuit brought against ASI imprint AuthorHouse in 2006. In that lawsuit, the plaintiff won--AuthorHouse was ordered to pay nearly $500,000 in damages--and the court's treatment of AuthorHouse as a non-media entity wasn't challenged.

Lance Armstrong and Digruntled Readers

You knew it was coming. Two California book buyers are suing Lance Armstrong and his publishers, Penguin Group and Random House, for various allegations, including false advertising, over his two autobiographical books, It's Not About the Bike and Every Second Counts.
The two plaintiffs seek to represent other California buyers of Armstrong’s books to recover unspecified damages against Armstrong and Penguin Group (USA) Inc., the publisher of “It’s Not About the Bike,” and against Random House Inc., the publisher of “Every Second Counts.”

They accuse Armstrong and the publishers of marketing the books as “true and honest” works of nonfiction and allege they violated California laws against unfair competition and false advertising, among other allegations.
This isn't the first lawsuit of this kind, and the results have been mixed. Last April, a class action by readers against Greg Mortenson, who allegedly fabricated portions of his bestselling book Three Cups of Tea, and his publisher, Penguin, was dismissed.

In 2011, James Frey and Random House were sued by readers over alleged fabrications in Frey's memoir, A Million Little Pieces. Frey and his publisher settled without admitting wrongdoing.

In 1998, Disney Hyperion was sued by readers over book jacket claims on the five bestselling Beardstown Ladies' Common-Sense Investment Guides, after the ladies' claimed return rate was proven to be false. In 2002 Disney settled, allowing book owners to select a free book from a list of other Hyperion titles.

Do you know of others? Post them in the comments.

Wednesday, January 16, 2013

Venerable Vanity Publisher Vantage Press Closes Its Doors

Posted by Victoria Strauss for Writer Beware

You may have heard that Vantage Press, one of the USA's oldest vanity publishers, closed its doors at the end of 2012. PW reported on this in December:
In a letter to creditors received by PW, law firm Hendel & Collins of Springfield, Mass. writes, “Vantage does not have sufficient revenue to sustain itself as a going concern. It has, therefore, ceased all business operations.” The Web site and phone for Vantage are down and all inquiries are being directed to Hendel & Collins partner Joseph B. Collins in Springfield. The letter cites “substantial” liabilities to general and unsecured creditors against which Vantage has few assets.
Vantage was found in 1949 as a classic vanity press operation, with authors paying a premium to the company to print and bind their books. Like so many vanity publishers, however, Vantage engaged in deceptive advertising. In 1958, the FTC issued an order prohibiting the company from claiming that it was selective and that it aggressively promoted its books. In 1977, a class action lawsuit was brought against Vantage for similar misleading claims. The courts eventually awarded 2,200 authors more than $3.5 million in punitive damages.

(For a fascinating and detailed discussion of the arguments and counter-arguments in the case, see this article by Jonathan L. Kirsch. The dispute about what a publisher is and isn't, and what should be defined as publishing--as opposed to printing--will seem very familiar to observers of newer vanities like PublishAmerica.)

In recent years, Vantage had attempted to adapt to the changing publishing landscape by re-branding itself as a self-publishing service, while still charging the same enormous fees. The company was purchased in late 2009 by investment banker David Lamb, who set out to upgrade Vantage's systems. Among other initiatives, he added trade publishing imprints Vantage Point Books and Andover Press, and arranged for Vantage books to be distributed by Ingram Publisher Services. (As of this writing the Vantage Point website is still live, though I've seen a report from one Vantage Point author who was told by Ingram that, per instructions from Vantage's lawyers, books from the imprint are no longer being shipped.)

Signs of trouble began to appear in 2012. Sometime in the summer, Vantage quietly re-located from Manhattan to Great Barrington, Mass., presumably in an effort to save money. According to self-publishing watchdog Mick Rooney of The Independent Publishing Magazine, a number of staffers left the company at around the same time. And in October, Mick started to receive complaints about communications problems, publishing delays, and payment delays.

Even so, the company's sudden collapse caught just about everyone by surprise--including its authors, many of whom hadn't even known about the move to Massachusetts. Some authors apparently were notified of the closure, but many, if not most, were not. As Rooney reported in December,
The authors I've heard from are clearly, deeply upset, angry and confused as to what is going on at Vantage Press, and understandably, following continued non-communication from the company by phone and email, have begun to record complaints with their legal authorities, online watchdogs and organisations like BBB, Ripoff Report and Work From Home Watchdog.
For Rooney, Vantage's demise is "a further sign that the heyday of self-publishing providers with a paper-centric model is dead and buried." I tend to agree. (Are you listening, Author Solutions?)

In the past couple of weeks, lawyers for David Lamb (representing Lamb personally--not the corporation) have begun sending out an update on the company's status, confirming that Vantage has ceased business operations, has no funds, and will not be making royalty or other payments (or, presumably, refunding authors who've paid for books that were in production at the time of closure). (Click here for a .pdf of the update.) Attached to the update is an Assignment and Release Agreement by which, in return for a release of rights, the author
irrevocably releases and discharges Vantage from all debts, claims, actions, demands, causes of action, suits, accounts, covenants, contracts, agreements, damages, and any and all claims, demands and liabilities whatsoever of every name and nature, both in law and in equity, that Author holds against Vantage, its affiliates, agents, attorneys, officers, directors, and employees, expressly including claims for royalties now owed, earned, or as may be earned in future sales, up to and including the date of this Agreement.
Vantage also promises to provide a full accounting of sales, and to return source and production materials for books that were in process at the time of the closure but haven't yet been published--but only if authors sign and return the Release. Clearly this is an effort to head off not just payment demands, but lawsuits (one possible reason that authors have a very small window for return of the Release: just until January 31).

Vantage's contract required an exclusive grant of rights, so getting a release is crucial for writers who want to re-publish their books--even if they plan to self-publish. However, although I am not a lawyer, it seems to me that a class action lawsuit is a real possibility in this case, and if you sign the release, you won't be able to participate. Nor will you be able to sue individually.

On the other hand, even if there is a suit, the chances of getting your money back are slim--so you may feel that getting a quick rights reversion is the best outcome for you. If Vantage goes into bankruptcy, it's likely that your rights will be tied up until the court decides to release them, as Vantage's contracts will be considered potential assets that could be sold to satisfy creditors (US courts don't typically honor bankruptcy and liquidation clauses in publishing contracts). For more information on publisher bankruptcies, see here and here.

Another question, to which I don't know the answer (any attorneys who are reading, please chime in in the comments): if Vantage does go into bankruptcy, will the Release be honored by the courts, given that it was (presumably) sent out in order to reduce the company's liabilities after it closed its doors?

Whatever their situation, I urge Vantage authors to get legal advice from an attorney who has experience in publishing law, before deciding what to do. On the Legal Recourse page of Writer Beware, there are some suggestions about how to go about this, including links to lawyer referral services.

Rooney has established Vantage Press Authors Together, a Facebook group for Vantage authors to share their experiences. I'll be updating this story as information comes in.

Friday, January 11, 2013

Alert: UK Speaker Scam Targets Writers (and Others)

Posted by Victoria Strauss for Writer Beware

John Scalzi reported on this scam earlier this week, and his post was widely disseminated on Twitter--but since not everyone reads the same blogs, and the scam is a recurring one that isn't limited to science fiction and fantasy writers, I thought it was worth covering here.

Writers should watch out for this spam that's currently actively doing the rounds:
From: Arthur peterson [bexleycollegeoflondon@gmail.com]
To: [email address redacted]
Date: January 5, 2013 at 7:23 PM
Subject: BEXLEY COLLEGE HALF TERM BREAK SEMINAR.

Greetings [name redacted],

I am Prof. Arthur Peterson from Bexley College (Holly Hill Campus) here in London UK. We are officially writing to invite you and confirm your booking as our guest Speaker at this Year Bexley college Seminar which will take place here at the campus ground.

Bexley College (Holly Hill Campus).

The Venue as follows:
VENUE: Upper Holly Hill Road Belvedere, Kent
London, United Kingdom
POST CODE: DA17 6HF
Expected audience: 450 people(mainly students & invited guest). Duration of speech per speaker: 1 Hour
Name of Organization: Bexley College Campus.
Topic: ”Mystery of Life and Death”
Date: 18th February 2013

We reached your profile at http:// www.aboutsf.com// and we say it’s up to standard. The College will be so glad to have such an outstanding personality as you in our midst for these overwhelming gathering. Arrangements to welcome you here will be discussed as soon as you honor our invitation. If you have any more publicity material you wish to share with us, please do not hesitate to contact me.

An Official Formal Letter of invitation and Contract agreement would be sent to you from the College as soon as you honor our Invitation. The College have also promised to be taking care of all your travel and Hotel Accommodation expenses including your Speaking Fee.

If you are available for this date, include your speaking fees in your reply for it to be included in the DOCUMENTATIONS.

Stay Blessed
Prof. Arthur Peterson
Bexley College (Holly Hill Campus).

Tel: + 44 702 407 0611
This is a long-running scam (I got reports of it last year, with a different university, "professor", and address harvesting) that has been around at least since 2009 (Googling "British speaker scam" brings up a number of articles and posts, several with extensive comments from others who've been solicited). The institution isn't always a university; sometimes it's a church, sometimes it's a conference, sometimes it's a fake organization of some kind, as in this recent solicitation aimed at female business speakers. Otherwise, the details are the same.

How exactly do the scammers rip you off? Various theories have been floated: a phone scam that overcharges you for an overseas call, getting hold of your banking information, overpaying your speaker's fee (with a fake check) and asking you to send back the balance right away. My own guess was travel fees.

In reality, it's fake work permit fees.

This article by Patrick Schwerdtfeger, from May 2012, details how the process works. The mark is told s/he must pay a "Government (United Kingdom) Main Application Fee for a UK work permit" of several hundred pounds. Once that money is sent, the scammers ask for more:
Non-Briton Immigrants coming into the United Kingdom and taking up a legally paid job will need to secure their stay with a bond otherwise referred to as a repatriation fee...The Home office has required that such applicants pay a refundable sum of 2,500GBP as a ‘Bond’ to enact their stay. As soon as they get back to their respective countries, the fee will be paid back to them in full.
There you have it.

Looking closely at the solicitation I've reproduced above, there are plenty of scam "tells." Still, for someone who does regular speaking engagements, and for whom an out-of-the-blue invitation is not unusual, there's least some degree of surface plausibility. Mr. Schwerdtfeger confesses that he was taken in by the first phase of the scam, and one of the writers I've heard from was very nearly taken in as well.

Good reason to treat any unsolicited invitation with caution.

Monday, January 07, 2013

Global Talk Radio: How to Waste Money and Fail to Influence People

Posted by Victoria Strauss for Writer Beware

You'd think that dodgy publishers, publicists, and others would know better than to spam Writer Beware. But no. Disproving the frequent spammer claim that their email lists are carefully targeted, I get quite a substantial number of advertisements, press releases, and solicitations.

Today's solicitation (which I've reproduced below) comes from Global Talk Radio, an Internet radio network. It encourages me to sign up for a "promotional interview" that "might open doors to new opportunities."

The catch? GTR is vanity radio. Hosts pay to have shows; guests pay to be interviewed. The carrot? A supposedly large, fast-growing, "highly targeted" audience. GTR's actual audience metrics, however, say something a bit different.

On GTR's front page, there's a screenshot of its traffic ranking from Ranking.com, under the headline "Global Talk Radio's traffic surges!" The screenshot appears to show a big jump--from the 180,000 range into the 100,000 range over the course of a few months. However, if you look closely, you'll see that these figures are from 2009 and early 2010. 2012 figures from Ranking.com peg GTR right down around 180,000 again. Three years later, its audience hasn't actually grown at all.

The info from Quantcast, which measures actual visitors, isn't any more encouraging. Even if, as GTR claims, "traffic monitoring sites tend to only track about 10% of a website's true traffic," 15,000 visitors a month is not exactly a mass audience. Last but not least, GTR's Alexa ranking is far from impressive (compare, for instance, with the ranking for this blog).

Audiences for individual shows will vary, obviously. But overall, buying an interview on GTR is not likely to get you a lot of exposure. As I say so often here and elsewhere--there are better uses for your promotional dollar.

You do get to download a FREE MP3 of your interview, which you can post on your website. To those who don't know how GTR works, it will look satisfyingly official--right alongside your faux award from Reader's Favorite and your claim of Amazon bestsellerdom based on your #2 position on the Spiritual Fantasy Novels for Teenage Misfits list.
Here's a new and FUN way to promote your book!

Talk about it "on the air" in your own words... reach a highly-targeted audience and you might open doors to new opportunities!  By some estimates, there are over 1,000,000 million books and e-books published every year (that's 2700 per day) -- A RADIO INTERVIEW CAN SET YOU APART FROM EVERYONE ELSE!

Global Talk Radio produces 5-minute and 10-minute professional interviews with authors and entrepreneurs for our top-rated "In The News" program.  Interviews are pre-recorded by telephone, and you supply "talking points" to help focus the conversation on what is most important.  Recent guests included Emmy-nominated writer/producer Dr. Kenneth Atchity, authors Melvin Abercrombie and Kimball Carr, health expert Dr. Herb Ross, executive success coach Susan Freeman, and business owner Cristine Berensohn. You could be next!

Your promotional interview includes:
  • A professional interview, recorded by phone
  • Your interview is posted on our station's site indefinitely
  • Your archive is fed into Google and other search engines via keywords
  • You will also receive "honorable mention" on our home page
  • GTR will hyperlink your archive to a website or web page of your choice
  • You can download a FREE MP3 copy of the interview
  • THIS WEEK ONLY!!  Send us your picture or graphic, and we'll post it with a link back to your website!
Hurry!  Only 5 guest spots are available!  (Promotion ends Friday, January 11th and is first-come, first-served.)

5-minute interviews... ONLY $97 (regularly $200)
10-minute interviews... ONLY $147 (regularly $300)

Sign-up is easy.  Please visit us at http://www.globaltalkradio.com/publicityworks.htm for details and to book a guest spot.  (Limited spots are available, first-come first-served.  Not all applications will be approved.)

All the best,

Jen Harris
Global Talk Radio
406 Amapola Avenue #210
Torrance, CA 90501

Wednesday, January 02, 2013

2012: Year in Review

Posted by Victoria Strauss for Writer Beware

As we begin the new year (Writer Beware's fifteenth--good heavens!), here's a look back at some of Writer Beware's most notable posts and warnings from 2012. 

JANUARY

The Delmont-Ross Writing Contest: The Saga of a Fake Literary Competition: The amazing tale of serial conman Mitchell Gross, a.k.a. Mitchell Graham, who created a fake literary competition to promote his debut fantasy trilogy. Gross was later arrested and indicted for bilking several women out of millions of dollars. (See Ann's followup post, on Gross's attempt to bribe her into silence.)

FEBRUARY

Why Poets Should Not Seek Literary Agents: What many poets don't realize: reputable literary agents rarely represent poets (it's just not a lucrative enough field) and those who claim to do so are usually either inexpert or fraudulent.("Literary agents for poets", or something similar, is one of the most frequent search phrases that brings writers to this blog.)

MARCH

When a Writing Contest Has a Hidden Agenda:  Some writing contests aren't really contests at all, but ways for their sponsors to make money on entrants. This post discusses some of these sneaky techniques, from charging high entry fees, to selling merchandise to winners, to using entrants as a database for paid publishing solicitations.

New French Law Seizes Digital Rights: This legislation was ostensibly intended to address the problem of orphan works, but in fact goes much farther: under the law, any book published in France before 2001 can be scanned into a database without authors' permission, and if authors--who may or may not be notified of their inclusion--don't opt out within six months, they lose control of the digital display and sale of their work. A really shocking seizure of rights.

Publishing Industry Terms and Contracts: Some Resources, and Some Advice: Confused about publishing industry terminology? Want to learn more about publishing contracts? This post provides a host of helpful online resources, plus some general cautions about small press contracts.

Alert: Raider Publishing International/Purehaven Press: Raider Publishing is the subject of serious author complants (both made directly to Writer Beware and posted online), including publication delays, quality issues, non-payment of royalties, communications problems, and broken promises.

APRIL

The DOJ's Ebook Price Fixing Lawsuit Against Apple and the "Agency Five": An Overview: A discussion of the issues involved in the Department of Justice's lawsuit against Apple and five major publishers for alleged ebook price fixing, and the possible implications of dismantling the agency pricing system. (At the time I wrote this post, only HarperCollins, Hachette, and Simon & Schuster had agreed to settle with the DOJ; since then, Penguin has also agreed to settle. Macmillan remains the lone holdout.)

The Importance of Reversion Clauses in Book Contracts: Why reversion clauses are important (especially in life-of-copyright contracts) and why they should be precisely formulated, with examples of good contract language.

MAY

Two Surveys: Two interesting writer surveys--one of traditionally published authors, the other of self-publishers. There's some very interesting data here, some of it counter to entrenched ideas about both forms of publishing.

Editing Clauses in Publishing Contracts: How to Protect Yourself: The title of this post says it all. What you don't want to see in an editing clause, and what a good editing clause should include.

Vetting an Independent Editor: With the growth of self-publishing, more and more writers are turning to independent editors to provide the final professional polish to their work. Problem is, many of the editors who've hung out shingles on the Internet are dubiously qualified, or, in some cases, not qualified at all. This post offers advice on how to screen an independent editor for competence and quality.

JUNE

Class Action Lawsuit Filed Against PublishAmerica: Many people had high hopes that this lawsuit would result in punitive action against PublishAmerica. Sadly, it was later dismissed.

JULY

In Praise of Ripening: I occasionally host guest blog posts, and in my opinion, this is one of the year's best. Author and educator Marcia Yudkin provides a compelling discussion of the importance of taking the time to learn your craft before diving into the ever-more-accessible world of publishing.

Pearson Buys Author Solutions Inc.: For me, Pearson's purchase of troubled "self-publishing services" juggernaut Author Solutions Inc. (for a surprisingly small price, considering ASI's dominant position in the POD-based self-publishing marketplace), and its decision to fold ASI into the Penguin Group, was one of the biggest publishing news items of the year. The question now: will Pearson/Penguin make an effort to clean up ASI's tarnished reputation, or will it be business as usual (poor customer service, hard-sell marketing to authors, and deceptive advertising)?

AUGUST

Fake Jared and His Friends: A discussion of the numerous misleading advertising and marketing strategies employed by Author Solutions Inc. to promote their services.

SEPTEMBER

7 Freelance Writing Scams and How to Avoid Them:  Another excellent guest blog post: freelance writer Patrick Icasas takes aim at common scams that target freelancers.

OCTOBER

Dear Agent -- Write the Letter That Sells Your Book: Yet another terrifically helpful guest blog post. Author Nicola Morgan offers a sensible, structured approach to creating compelling query letters.

NOVEMBER

Archway Publishing: Simon & Schuster Adds a Self-Publishing Division: Following in the footsteps of Thomas Nelson, Harlequin, and others, S&S has outsourced a pay-to-play publishing division to Author Solutions Inc. While I understand why such divisions are attractive to publishers--they are moneymakers that help support publishers' bottom lines--I'm very disappointed that S&S chose not just to ally itself with the most hated name in the self-publishing services world, but to make its services eye-poppingly expensive.

Publishers Hate Authors? Really? In which I debunk one of the year's stupidest HuffPo publishing posts (and that's saying something).

DECEMBER

The Albee Agency: Book Publicity Faked:  In which I expose a PR agency that fabricated author testimonials. (Although even without the testimonial fakery, this would have been an agency to avoid.) 

AND THE ONE IMPORTANT STORY I DIDN'T COVER:

Random Penguin:  Penguin Group and Random House merge to create the world's largest publisher, reducing the "Big Six" to the "Big Four Plus Giant One."