The Publishers Are as Bad as Amazon
From The Huffington Post:
In recent months, America’s publishing giants have been up in arms about the predatory practices of Amazon.com. Their outrage would be less hypocritical if they weren’t guilty of conduct that’s just as bad.
I’m an author. One of my books (Muhammad Ali: His Life and Times
) was on theNew York Times best seller list. Another (Missing) served as the basis for an Academy-Award-winning film. I’ve learned over the years that big-name writers might be treated fairly by the media conglomerates that dominate publishing today. But the average author isn’t.
Publishing is a business. It’s about squeezing every last dollar out of every available source, and the most vulnerable source is the author. No clearer proof of that exists than the “standard” book contract.
Many clauses that are imposed on authors throughout the industry today bear no relationship to any economic reality other than the best interests of the publisher. Yet these clauses flourish because virtually every major publisher insists on them and the average author has no recourse.
. . . .
As for traditional options, publishing contracts now often contain the following provisions:
1) The author must submit his next book in completed manuscript form to the publisher before it is considered by any other publisher;
2) The first publisher need not consider the manuscript before publication of the work currently under contract; and
3) Even if the first publisher declines to bid on the manuscript, the author must subsequently offer the publisher the chance to match any offer received at a later date from any other publisher. Thus, an author who has a book under contract to a publisher can find his career put on hold indefinitely.
In sum, just getting published is an adventure in contract law for most authors. And when authors are published, they find that their royalties have been cut precipitously by today’s standard publishing contract.
For example, most publishers now require a clause to the effect that, if the publisher increases its discount to a particular book-seller beyond a certain percentage, the author’s royalty is cut in half. The logic underlying this provision is that, if a publisher has to give a giant like Amazon.com a break in order to sell books, then the author should shoulder part of that burden. However, the way the formula works in practice, a publisher can sometimes increase its discount to the bookseller on a twenty dollar book by, say, forty cents (two percent of list price) and cut the author’s royalty in half (from $3.00 to $1.50). In other words, the publisher takes $1.50 out of the author’s pocket, gives forty cents to the bookseller, and keeps the remaining $1.10 for itself.
. . . .
But one ray of hope does exist. The antitrust laws of the United States are sometimes enforced. And in addition to outlawing predatory monopolistic practices, those laws provide that “every contract, combination, or conspiracy in restraint of trade is illegal.”
Quite possibly, what now passes for “standard” in the publishing industry is an illegal restraint of trade.
Publishing today is characterized by powerful corporate entities acting in concert to the detriment of essentially powerless authors. Something must be done to remedy the situation because it’s driving a lot of good writers out of publishing. They simply can’t make a living writing books anymore.
Link to the rest at The Huffington Post and thanks to Elizabeth for the tip.
, Amazon will pay Passive Guy a small affiliate commission on any of your purchases. 
Wow. This is a good one. I was surprised by the even tone and the simple stating of facts. It’s nice to see truth being shown in the light of day, by big media.
I guess “much worse than” is technically “as bad as”.
This is why, in all good faith and conscience, I refuse to side with Big Publishing. Any other industry would have had workers on strike, union uprisings, government intervention, and a public lashing PR nightmare on their hands. Imagine your boss or manager treating you in this manner during payday. Would you stand for it?
Excellent article. Thanks for the link. Sounds like a fun paper topic for my kid who is still in law school.
1) I am SO EXCITED that this issue is starting to get wide-spread press. I wonder how the folks over at AW, who love to cling to the dogma of the Big Five, are taking all these Big Five-published authors speaking up about issues like these.
2) AWESOME article.
3) If HuffPo keeps publishing stuff like this, I might have to stop hating them just a tiny bit.
“I wonder how the folks over at AW, who love to cling to the dogma of the Big Five, are taking all these Big Five-published authors speaking up about issues like these.”
Duck and cover–their heads are probably exploding.
Absolute Write’s forum has a shockingly balanced thread about the Hachette dispute: http://www.absolutewrite.com/forums/showthread.php?t=290643. I got curious when you mentioned this.
OMG! This! I quit going to AW long ago because of the blindness. KB is a much more accepting and helpful place.
I might also have to admit that I might possibly in some small way like HuffPo if they keep this up.
Sounds like someone at huffpo caught wind of how many authors have gone indie…they are nothing if not pliable to the winds if clicking.
And whatever the hell’s gotten into the water at Huffpo seems to have spread to..of all places…The Guardian! Even they’ve been running balanced and non-ADS fueled pieces that look at BPH’s, Indies and Zon with actual objectivity. It’s been pretty shocking.
Salon? I’m afraid there’s just no hope. The same, sadly, goes for DBW. I think it’s time they chagned their name to something more appropriate. Maybe…NYCBPHDBW?
Now you went and hurt Jeremy’s fee-fees.
The recent HuffPo articles don’t seem to have threads there.
It’s always nice to read a straightforward argument set out in plain english.
Amazon is life enhancing for me while tradpub is soul stealing.
I bet Hachette didn’t count on all of the PR against Amazon coming back to bite them in the butts like it has in recent articles like this one. That’s the problem with shining the light–it doesn’t just illuminate the tiny speck of a problem you want to show off, the light spreads to everything around it.
In the military this is known as “Exposing your position”.
A bit of irony I believe.
Daisy cutters incoming!
I’m still waiting for someone to sue their publisher because their contract was so unconscionable.
Why have reversion clauses when ebooks are still considered “in print”?
Non compete and next option clauses seem like they do violate restraint of trade.
Enhanced multimedia is already being exploited by Courtney Milan.
A smart lawyer should be able to make a decent argument that “term of copyright” is so unfair it’s unenforceable.
Once there is a large, focused movement to get rights reverted, perhaps a class action suit, publishing is in big trouble.
But first, many authors need to recognize they’re being victimized, rather than constantly side with their exploiters.
What would it take for the DoJ to investigate their lockstep contracts?
That’s why I always wondered. I thought the DoJ suite might have given the feds a sniff of a little blood in the water over how BPH’s work.
Maybe it’s something former print authors could put together? Maybe, like a petition, five or ten thousound former authors went in together with evidence of how their publishers acted and the terms they used.
Just a thought.
I don’t know PG, sounds like the nucleus of a ‘class action’ suit may be forming. I’d be willing to bet there might be an increasing number of traditionally published authors who might sign on to that.
This is something, I think, called “cascade preference,” in which more and more people reach the same conclusion. When the tipping point is reached, consequences follow.
This is why it’s best to keep pounding the drum and making your points. Each time, you’re drawing more and more people to your position, and if you get enough of them, you achieve your goals.
One example would be the change in the culture regarding cigarettes. Or the civil rights movement. Both took a long time, and there were setbacks along the way, but they reached their goals.
Actually, the whole article reads as a solicitation for a class action test case.
He *is* an attorney, after all.
“Publishing is a business. It’s about squeezing every last dollar out of every available source…”
Judging by the behavior of publishers, they’re not very good at it.
Ehh…
They’re great at squeezing authors, at least.
Right now, I have a dispute with HarperCollins London for reversion of rights for a book published back in 2004 and now out of print. I got the e-rights back (the reverted to me since no digital version was ever published), no problem; but HC put out a POD version of the book, sold 1 or 2 copies a year, and now claims the book is “in print”. The British Society of Authors have taken it up for me and fighting the good fight.
POD wasn’t even invented at the time the contract was signed!
I just don’t understand why the publisher would want to keep the rights when they are only selling one or two copies a year. They should have some better internal number themselves to unload titles that are not selling. Why keep them on the books and having the expense of accounting for “underperforming” titles? It seems they could save themselves some money by simply reverting these titles automatically and no longer having to track them.
Publishers have the same view of intellectual property that dogs have. If you can’t eat it or hump it, pee on it so nobody else will want it either.
It’s still an asset on the books, and, if I’m not mistaken, can be used to inflate the value of the company overall. THey aren’t going to willingly give up anything that can be shown as an asset.
I would be very interested in how the publishers handle the accounting for book rights. There are a number of approaches. Anyone know what they do?
I agree they have value. I just don’t know how that value is reflected in the financial statements.
I’d say the book rights themselves are not under the same umbrella as say cash or physical assets. However they can calculate a ‘receivable’ income from each book and that’s classed as an asset. The receivable for books adds up to a hefty sum, especially with a healthy backlist.
That’s my guess anyway. Perhaps Steven Zacharius will drop by and shed more light on how publishers accounting works.
According to Steven Z it’s no problem to get your rights back if your books aren’t selling well so I’m not sure how much light he could shed on this.
According to Michael J Sullivan his reversion clause states the trigger was $500 for 2 periods (1 year), that’s $9.61 per week. If a publisher thinks anything above that is “selling well” then they have a few problems…
I agree with you. But publishings definition of selling well & a good sales run differ than many of ours I suspect.
I got an email from my publisher (who I haven’t published with in 3 years) that they wouldn’t consider letting me buy back my rights to my books because they were selling too well–the first two are selling about 100 books *per year.* They don’t usually consider rights returns for anything selling more than 25 books per year. Yeah, it blows my mind. It’s a very small press, but they would be willing to work something out for a promo with me (which I would make almost nothing on the books for, so sure, I should totally spend time/money to make an extra $30 next year.) No thanks. I’ll focus on my indie titles instead.
The email was mind-boggling.
That is crazy. It should be possible to buy the contract back for their estimated 3-5 year sales 3-5×100 minus your royalty. If they really need something in return for giving you the rights back.
I consult with a small press. If I ever write my Jewish vamp series they’ll be published with them as the owner is my co-author. All contracts have a # year term for reverting back, they work with you on promotions & pricing, you have some say in covers (if your idea is totally stupid they will try to explain why it’s a bad cover & do a mock better idea). If someone wants their books back so far they’ve made deals to give/sell them back quickly after being asked. Their theory is “who wants to work with an unhappy partner?”. When they were setting up the contract they thought like authors – what would be fair to both sides.
Yeah, my contract actually has NO return of rights clause. Now I look back and wonder what the heck I was thinking. At the time I was told that when your book sold 100 or fewer copies per year then you could get your rights back (if you bought out remaining stock–at the author discount, not the bookstore discount.) But that was before ebooks exploded. And this is why I’m so militant about understanding contracts and realizing what you’re signing away. This is also why I stopped submitting and went indie. In another year or two I’ll contact them about a reversion again. And keep asking them about it every year or two. Worst-case scenario is I have to wait another 30 years. That would suck, but in the meantime, I make way more money off my indie books. I’ll let my old publisher store the books in their warehouse for me.
Ah. Yep learn your business before getting into it. Find a good IP attorney. Make sure you understand each clause in your contract. Steps too many newbies don’t know or don’t understand why they need to know.
A number of indies are lax about the importance of contracts when it comes to hiring editors, proofreaders, cover artists, formatters.
These are things I talk when I’m online. I need to get back to blogging and include them in my mix.
Disclaimer: Now we only publish textbook and children book, and only few of them, and we no longer carry the title: publisher, but are in our base a retailer.
I went to check our balance sheet and I couldn’t find anything that would indicate IP. In saw that we keep track of software, so it’s interesting that we don’t have any mention of IP, except IP – royalties payouts and costs associated with that.
I don’t see why they would have done this in the pre-Amazon age. Now, I suspect they don’t want that book coming back to haunt them in the future on Amazon, creating more competition for them. Also, the thing Syrimne12 said about assets probably has something to do with it. There has to be a reason they do this.
I disagree with the title of the article. Publishers are not “as bad as Amazon.” They’re WORSE!