Home » Contracts, Legal Stuff » SWFA whacks a publisher

SWFA whacks a publisher

2 February 2012

From the SWFA:

As many of you are aware, on December 10, 2010, the board of SFWA voted unanimously to place Dorchester Publishing Co, inc, on probation following an inquiry after we became aware of several instances in which Dorchester acted against the contractual and legal interest of authors, specifically by not paying royalties when contractually specified, or distributing books in a medium for which it had not legally secured rights.

Dorchester did not dispute these events. With cooperation from Dorchester, SFWA placed the publisher on a period of probation for one year.

. . . .

After SFWA performing a formal review of Dorchester’s progress on tasks above, based on the information currently available the board believes that while Dorchester made efforts on each of those points, they have not fulfilled their contractual obligations to our members.

Thus Dorchester Publishing has been removed from the list of qualifying Science Fiction and Fantasy Writers of America markets, effective from the start of the probation period December 10, 2010. No fiction contracted and paid for (by initial advance payment) before the term of probation began, December 10, 2010, will be affected by Dorchester’s status.

Link to the rest at SWFA

Yesterday, the last editor left Dorchester.

Dorchester author Brian Keene tells about what happens when a publisher starts to circle the drain:

Starting in late 2009, Dorchester – Leisure began making late payments to some of their authors. Indeed, some authors report never having received payments at all, nor royalty statements verifying what, if any, monies were owed. This continued throughout much of 2010. In mid-2010, with these payment issues still unresolved, Dorchester announced that they were switching to an all-digital format.

. . . .

During a late-August conference call with their creditors . . . they revealed that: The company saw a 60% decrease in book orders in mid-2009; payroll was down from 1 million to $600,000; the company had no cash flow, but also had no bank debt; the company owed six million dollars to various creditors, including $700,000 to active authors and $400,000 to inactive authors; ebooks accounted for 10% of their profit; their trade paperback plan was currently on hold; they didn’t think the sale of the company was possible; and that as of August 9th (2010), they considered themselves “in bankruptcy but are not actually filing for bankruptcy”.

. . . .

I was one of those authors. I had not been paid since late-2009. As a result, my marriage had fallen apart, my bills were piling up, and more than half of my annual income was perpetually “coming soon”. I decided to take a gamble. I negotiated a deal with Dorchester that allowed for: 1. The immediate reversion of all of my print rights, and 2. The reversion of all of my digital rights as of 11:59pm 12/31/10. In exchange for this, I absolved Dorchester of any further financial debts they owed me. In other words, I said, “Forget about the rest of the money you owe me. Just give me my rights back.” It was a risky gamble, and I sought the council of some of the biggest veteran authors in the genre, but it was a gamble that ultimately paid off, because it allowed me to place my back list with a more solvent publisher. We signed the deal. Dorchester went their way. I went mine. And that should have been the end of the story.

Except that it wasn’t, because since then, Dorchester has repeatedly violated that agreement. Since January of this year, unauthorized digital editions of my work have been sold via Kindle, Nook, iBooks, and Sony. These digital editions were not made available for sale until well after the rights had reverted back to me. Dorchester’s response, in each case, has been to blame someone else and assure me that “they are looking into it” and that I would be “financially compensated” and that “it wouldn’t happen again”. Except that I haven’t been financially compensated and it keeps happening again.

. . . .

A few minutes ago, someone asked me why we (the authors) didn’t just seek legal means. Well, I can’t speak for any of the other authors involved, but I’ll tell you why I haven’t — because I’m broke. I’m broke because Dorchester didn’t pay me what was owed, and then I gambled to get my rights back, and then they continued to f*** me. And yes, I’ve got a nice new deal with Deadite and Ghoul starts filming next month, but I won’t see checks from either of those until a few months from now, and until then, I can barely pay the rent and eat anything more than Ramen noodles, let alone hire an attorney.

Link to the rest at Official Website of Author Brian Keene and thanks to Anthea for the tip.

Contracts, Legal Stuff

20 Comments to “SWFA whacks a publisher”

  1. Hey PG, does the “I’m broke” rationale for not taking action hold water? Won’t a lot of attorneys take a case for a percentage of the final take if they win, vice upfront fees? I guess it would depend on the perceived value and slam-dunkedness (just made that word up) of the case, but this one (using only the data given in his post) looks pretty open and shut. The punitive damages for copyright infringement alone would probably make the case fairly lucrative. It’s something like $100k a pop right (assuming the copyright ever got registered with the copyright office)? If they ever got the money, that is. If the press is bankrupt that’s by no means certain. So maybe attorneys would say no just for that reason.

    Hmm. Maybe I just answered my own question. Dunno. What do you think?

    • The defendant has to be solvent to be worthwhile for a contingency fee arrangement.

      • Exsctly. Dorchester has no money to go after, so even if the author wins, they can’t get anything…

        I mean, clearly *someone* is getting the author’s money, but doesn’t sound like the company is, as Josh pointed out, solvent.

        • It would probably be best for him to let his current publisher handle to copyright infringement lawsuit. Or, considering they are not responsive to him, he could complain directly to Amazon/Sony/Kobo/B&N–e.g. Serve them with DMCA takedown notices. Cheap and he can do it himself.

  2. Um, shouldn’t it be “SFWA whacks a publisher”?

    ;)

  3. These are just more of the horror stories (not horror genre) that make me very fond of kdp, smashwords and the like.

  4. Does this mean that Dorchester is the first to go down in the Death Watch?

    PS – I think the author could have self-published his backlist – he wouldn’t be broke if he had.

  5. This stuff is what freaks me out. I have a friend who is seeking a traditional publisher, and between this and the increasingly-common shenanigans with contracts, I really worry for him. Now just seems like such a dangerous time to go mucking about this particular swamp.

  6. PG, does someone with a contract saying, “Yo, as of Date X, rights revert to author” need a lawyer to send, say, Amazon a DMCA takedown notification? If lawyers aren’t needed, then that may be something the authors would want to pursue…

    • Kevin O. McLaughlin

      That was my first thought, too. SFWA has a DMCA takedown notice generator right on their website. Amazon and B&N are by all reports very responsive to takedown notices from copyright holders. My understanding is that they have to be, or they end up sharing some of the infringement liability.

      The best course seems to be to just send a takedown notice to each retailer whenever a book shows up there illegally. Then self or trad pub the books. He got the rights reverted; this really shouldn’t be that hard.

  7. This isn’t the first Dorchester has cheated authors. In the 90’s, a few romance authors filed a class action suit vs. Dorchester and won. Dorchester had to pay over a million in unpaid royalties owed. Seems to me the Dorchester authors need to get Author’s Guild involved and do this again!

  8. P.S. The authors can also communicate directly with Amazon, show proof of reversion and Amazon has taken down illegally posted books by publishers.

  9. “in bankruptcy but are not actually filing for bankruptcy”

    …the mind just BOGGLES. So they’re what, declaring moral bankruptcy instead of legal bankruptcy?

    Yeah. they’re morally bankrupt alright.

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