Publishers, We Need to Talk
From Book Machine:
There are very few things in life that make my blood boil more than someone tearing down the industry I work in with false accusations of collusion, underhandedness, and evil doing. So when I see a headline like ‘Why Book Publishers Hate Authors‘ in the Huffington Post, it’s all I can do to stop myself from going into a blind rage and throwing my computer into the ocean, finding the nearest rocket, and blasting myself into the face of the sun. Because what the hell, guys.
I’m not going to go into why the article is wrong, because that really doesn’t matter. It is wrong, as all of us in publishing know. There’s no conspiracy to drive down advances, there’s just a changing market. But what this highlights to me is something way worse than simply a couple of incorrect facts and conclusions that don’t reflect reality. This is a prime example of what publishers suck at, which is talking to people outside the industry about the industry. And when other people go out of their way to do it for us, it becomes really, really necessary to start talking about what we do.
. . . .
Our public image consists of not much. Our authors may try to disassociate themselves from us in public, like we’re the embarrassing parents wearing lyrca at the school gates, which we really sort of are. We can’t pretend to be cool in the same way they are, because we’re organisations not individuals, and our job is to sell them and not ourselves. But there’s a problem here and it can’t be remedied by simply being good at our jobs.
If we stay silent, people will assume we have something to hide.
Link to the rest at Book Machine and thanks to Keith for the tip.
, Amazon will pay Passive Guy a small affiliate commission on any of your purchases.
Oh, puhleaze!
So, it’s just “industry changes” when big publishers are raking in the moollah from ebooks while they make sure the authors of those ebooks receive little or nothing in compensation via miniscule “net” royalties and Hollywood accounting or dodgy form letters asking for digital rights on old out-of-print books.
It’s just “industry changes” that, with their bottom lines firmer than ever, the big publishers are cutting advances or offering no-advance-plus-royalty (and more Hollywood accounting) deals and asking for more rights than ever (digital, foreign, audio, etc.).
I don’t think so!
Hi J.M. I said there’s not a conspiracy to drive down advances, which there is not. I fully stand by that. I was referring to the claims made by the author of the Publishers Hating Authors article.
Obviously this doesn’t cover every contractual detail – as I said in the comments section of the post, I don’t work in editorial. I just think the position that publishers want authors to fail is absurd when we live and die by authors’ hands, and it worries me that authors think differently/are getting treated as though we can survive without them.
If you notice the title text on my link there, I say it is probably publishers’ fault that authors feel this way at all, and I think publishers need to address the issue.
Felice,
Thank you for your civil reply.
I agree there is no conspiracy, but complex systems powerfully affect all participants. And big publishers, like most large corporations, are not set up to measure or concern themselves with external costs. They may live or die by authors’ hands, but they don’t live or die by one author’s hands.
How many lost opportunities (authors) does it take to become too many? Currently, no publisher is measuring that variable. Or cares. One author’s book published dead, one author dropped when her sales grow too slowly, one author who stops writing because the $5000 advances are too little and her day job requires more hours – one of any thing – what does it matter to a large corporate entity? Especially when this quarter’s profits dictate corporate actions more than the mission of connecting good books with eager readers.
There’s an old question: do you walk the walk or just talk the talk? Telling authors why publishers need to include non-compete clauses in contracts and why publishers grant only 17% royalties on ebooks, and so on, isn’t the way to fix a broken system. Action is required.
Authors don’t WANT touchy-feely publishers. They want fair f***ing contracts: ones that don’t have draconian clauses that are non-negotiable. The ridiculous royalty split (not justified by advances) are just the tip of the iceberg on the problems with contracts.
This was the response given to a commenter about no-compete clauses: Most things in publishing contracts are just about common sense and guarding against unlikely problems – most of the clauses are never enacted even in situations where a legalistic pedant could argue they could be. So maybe the best plan is to not take competition clauses too seriously?
Really?? Talk about a patronizing pat on the head. Yes, it’s in the contract but you can trust us not to enforce it.
Yeah. Right.
No.
Take everything legally binding seriously. The judge does.
+1
The fact that anyone would advocate signing something with the assurance that ‘most of the clauses are never enacted’ is ridiculous. If they’re not going to be enacted, then they have no business being in the contract in the first place.
If I had a dollar for every client who got caught by a contract clause he/she was told would never be exercised . . . .
Oh, Lordy, yes. I’d retire.
Well, mine would be “If I had a dollar for every time somebody told one of my clients that they’d never exercise a contractual right/that never mind what it says, this is how we would actually do it.” You’ve had way more clients than I have, volumewise.
Yeah, this twisted my gut, too. Penguin had no problem trying enforce the non-compete clause on author Kiana Davenport even though she contracted with them for a novel and self-published a short story collection Penguin had rejected years before.
I thought the response to that comment was excellent legal advice. If a publisher demands I sign a non-compete clause, I’ll demand they sign a clause saying they won’t release any other books that compete with mine. Since it will never be enforced, there’s no problem, right?
The same argument was employed when the Obama administration removed habeus corpus and added indefinite detention to the National Defense Authorization Act. Hey, we’re the good guys. You can trust us!
In a former job I used to work with a relatively small number of licensees who in many cases had reputations in the industry which had begun before I was born, and who had relationships with my client which far predated my own.
When such a person – who honestly believed what they were saying, mind you – would tell me, “You know I’d never do that, Marc,” I would respond, “Of course I believe you. But you could win the lottery and retire tomorrow. Your replacement might be jealous and cranky and unreasonable. And this license might outlive us both. I have to think about the future.”
If they don’t plan on ever using the clause, then why is it there? The author is supposed to trust the publisher to not enact the clause when she tries to publish a thriller to another publisher or self-pub, and they published her YA dystopian? Why don’t they trust her to not publish a virtual clone of her YA dystopian instead? I don’t think a clause is needed as I think any author who does that would be committing career suicide as far as trade publishing goes. Nobody would touch her, so with that in mind, the author has a lot more to lose than the publisher.
I hope that comes across clearly. It sounds convoluted no matter how many times I re-word it.
For what it’s worth the responses on that thread (together with hearing about Penguin’s idiocy in the Davenport case) persuaded me I was wrong on that. The fact that most sensible publishers wouldn’t use the non-compete clause that stupidly is irrelevant and I accept that now. Similarly, the fact that non-compete clauses are hardly ever invoked isn’t a reason not to take them seriously, just in case.
So my more measured advice is first try to get that clause taken out. Secondly if they won’t do that then either don’t sign with them OR make sure you get it spelled out in the contract what it can possibly apply to (eg get it time-restricted or subject-restricted).
My response on site, which then disappeared, though it’s not particularly contentious: “There’s no conspiracy to drive down advances, there’s just a changing market.”
So in a market where ebook sales are growing while paperback and hardcover sales are falling, nearly industry-wide contract amendments to cut authors’ e-royalties from 50% to 25% is good for authors…how? This sort of move, along with unconsionable contracts are only a few among so many authors believe the publishing industry holds them in contempt.
“This (Absolute Write) is the sort of channel we should be covering – helping instill trust and understanding in authors,”
Hint for the clueless: treat writers with professional courtesy.
For some reason I am reminded of this:
http://dilbert.com/strips/comic/1997-08-09/
I think it’s more beneficial to both parties that publishers talk to authors through shared/author channels rather than make statements for their own benefit on industry-facing channels. That’s what I meant by that one.
This is not an image problem, this is not a communication problem, this not an attitude problem. There is a real problem. Neither the article on HuffPost or the one quoted above gets at what that real problem is:
Book publishers suck at their core mission.
It’s not the fault of the people who work in publishing, but it is their problem. To be exceedingly crass about it, the job of a publisher is to turn manuscripts into money. Legacy publishers are horribly inefficient at this. They are stuck with an outdated business model that centers around the most inefficient way possible of achieving that goal: the hardback book.
Here’s what people in publishing need to understand:
1. There are no economies of scale in publishing. None. Zero. Nada. Big publishing companies are just inefficient, self-perpetuating bureaucracies. Eventually, the corporate parents of the big publishers will figure this out. If you work for a publishing company, you better prepare yourself for that day.
2. When most of your suppliers and partners hate you AND your customers hate you, you are doing it wrong. No excuses. Fix the real problem and stop whining about being misunderstood. You really are overcharging for ebooks and you really are treating writers like dirt. Seriously. Fix the problems.
3. The price-fixing conspiracy happened, what those five publisher did was illegal, and it was stupid. Until you come to grips with that, you have no credibility. The part of antitrust law that they broke is very simple. Any English major (like me) can read the law, look at the facts agreed to by all parties in the case, and conclude that the heads of those companies knew or should have known that they would be sued by the DoJ for that action. It’s not that hard. Really, it isn’t.
1. “There are no economies of scale in publishing.” Sorry. Rubbish. Utter rubbish.
As an indie or even a small press, try to get paper cheaper than we do. You can’t. You don’t buy enough. Try to get repro, or ebook conversion cheaper. You can’t. Try to get a freelance editor and copyeditor to polish a book up for less, on a per-book basis, than it costs us to hire them on permanent contracts and give them thirty authors a year to look after. You can’t.
Why do you think publishing has existed as a viable, profitable business model all these years? I have a horrible inkling you think it’s because we’ve been abusing and exploiting authors. It isn’t. It’s because we buy services more efficiently than single actors can, and because we contract to transfer the risk away from authors, which is attractive to many people.
I see people reinventing our business from first principles all the time these days. I see indie published authors who paid thousands in service fees to various freelancers to publish their first books saying to their peers, hey! Why don’t we get together to pool costs? Let’s hire a copyeditor to do twelve books a year and get a discount! And they call it an author collective, but I’d call it a small press. Our business model makes sense. Even Amazon are replicating it.
Look, we probably can’t compete in the market for the 99p novel. It takes a village of skilled and salaried people to publish the average book to trade standards. I think the indies will profitably colonise a niche at around that price point, and some will do really well, and some will produce great work. But if you want loads of people to lavish loving care on your book, you’ll need to charge at least four or five quid for it, because the people applying the TLC have to eat, too.
2. We’re really not overcharging for ebooks, you know. First off, not printing or distributing the book saves about 10% of cover price. Most of our costs go into advances – paying someone a nonreturnable fee to write the book. At that point, it barely makes any difference to the profit margin whether we distribute it via print or via ebook – especially as, in the UK, where Felice and I work, we’ll have to deduct 20% sales tax from our revenue. And pay higher royalties. So really there’s not a huge pot of ebook money washing about being hoarded by us greedy bastards.
Publishing companies make modest profits. Many of us are publicly traded: check our accounts. We aren’t growing fat off the back of downtrodden authors or exploited consumers.
3. When I’m thinking about the merits of the DoJ’s case I can’t quite get beyond the irony that we’re talking about a competition authority lawsuit which attempts to further tilt the market in favour of the company which, in the UK, has a massive majority of the ebook market and about 40% of the print market. A company which appears to be happy to sell some books way below cost. That doesn’t feel like it’s in the best interest of anyone except the people in charge of the monopoly.
“But if you want loads of people to lavish loving care on your book, you’ll need to charge at least four or five quid for it, because the people applying the TLC have to eat, too.”
Perhaps the success of the independents demonstrates consumers really don’t care about all that loving care. The marginal cost of love may be wasted.
There is certainly an argument that at lower price points consumers will tolerate, say, sloppy editing, but if you publish a book full of typos at a trade price point, the Amazon reviews will severely ding you for it.
To me, the success of indie publishers is about colonising a new and complementary niche at a different level of the market. It’s the return of the pulps, where loving care is not at a premium.
Same old hogwash from the publishing industry insiders. Let’s take these points one by one.
Paper? Really, you think the future of publishing is in paper costs? Spoiler alert, I could get paper as cheap as you do, but why would I bother? The future is digital.
Ebook conversion? That is the whole problem with publishing. You all think that the ebook is a format you convert to. That is dead stupid. Do you have authors who use quill pens? You are converting to print.
Nobody (sane) is replicating your business model. Having editors is not a business model. That is a business capability. Get your head out of how the publishing world does things and take a look at how successful companies operate. I know exactly how publishing has operated all these years. Look up the word oligopoly.
All the efficiencies you could gain are burned up in the bureaucracy of the modern publisher. All of the publishing insiders who respond to my comments show the same basic misunderstanding of economics. Getting a good deal on one element of production doesn’t mean you are efficient. But even more important is the fact, as far as I can tell, no one in publishing has ever heard of the concept of the marginal cost of production.
Your bookkeeping view of the costs of producing books is utterly irrelevant. Seriously. You can pretend that ebooks are just as expensive as print books, but it is not true. It is a lie you tell yourself to avoid the reality of the modern marketplace. I am not accusing publishers of making too much in profits. I am accusing you of being stupid, not making enough money, for yourselves or authors. Publishers deliberately sell fewer books than they could to protect their oligopoly.
And I am sick of publishing folks bringing up Amazon when I bring up the DoJ lawsuit. Five publishers broke U.S. law. All of them have admitted to engaging in behavior that is obviously illegal. That is a fact. Deal with that. Stop changing the subject and admit that the people at the top of your industry (Random House excepted) are corrupt. If you folks can’t admit that, you have zero credibility. Stop lying about Amazon and start telling the truth about your industry.
“Really, you think the future of publishing is in paper costs?” I think the *present* of publishing is that about 75% of all books sold are on paper, so yes, it’s still important, and no, it isn’t going away any time soon.
The only reason I bring up things like paper to begin with is that you made the patently false blanket assertion that there are no economies of scale in publishing. You utterly failed to refute that, and then retreated into a new argument that print was irrelevant.
Protip: Ockham’s Razor is about not needlessly multiplying entities, not about ignoring facts which don’t fit your preconceptions.
Equally, ebook conversion costs are important because we have massive backlists, often held in analogue formats, which we would like to make available to the public. And even with books that were originated in the last few years, there are conversion costs associated with making them available in various different competing formats. They’re not huge costs, but yes, they exist, and yes, they’re smaller for us because we do an awful lot of conversion.
Your next bit – in which you claim that nobody sane is replicating our business model – is somewhat undercut by the fact that Amazon are setting up advance-paying trade publishing divisions along exactly the same lines as us. They are replicating our business capabilities by hiring us away and sticking us all in big ‘bureaucratic’ orgs and asking us to do basically the same jobs. They’re even – gasp! – publishing in print! The dinosaurs!!11!
The stuff you think of as bureaucracy – what do you actually think that is? You clearly think a whole bunch of people sit around doing useless wasteful busywork all day, right? What kinds of things do you think we’re doing? Because I look round the office and I see editors editing texts and designers designing covers and sales teams putting together sales material. Actually the only person taking time out to do something useless appears to be me, writing this.
You can burble about the marginal cost of production all you like. Fine: that’s one way ebooks are not like print books. The marginal cost is much lower (though still nonzero). But seriously, screw production. It’s nickel and dime stuff. Almost all the big money gets spent earlier in the process. Have you ever read a P&L for a trade-published book?
Finally, I’m extremely cheesed off that you choose to call me a liar. Please point out the specific lie about Amazon which gives you the right to do that? Please also explain why it’s wrong to bring up Amazon in the context of the DoJ case, given that the ENTIRE CASE was about Amazon’s objection to agency pricing?
While I quite liked your response, I have to differ with you that the entire DoJ case was about Amazon’s objection to agency pricing. The entire case was about the Department of Justice’s objection to agency pricing.
This is like hearing somebody say that they want to “prosecute” someone who’s committed a criminal act against them. In most cases, it doesn’t work like that. (This is a legal shorthand for making a complaint, not for bringing a criminal charge.) Once a complaint is made, whether it be for a shoving match in a bar or a conspiracy to fix prices, the prosecutor is the one who decides whether and how hard to pursue the case. Yes, Amazon complained, but the DoJ was free to determine that either a) there was no violation of the law or b) that it was not so serious as to justify the use of limited prosecutorial resources to pursue. They did neither of those things.
And, no offense, but he’s right. Pointing to the mud on someone else’s fins does not improve your own swimming. I am pretty sure people make unfair competition complaints against Amazon all the time. The DoJ apparently does not find them credible or serious enough to pursue. The fact that the publishers think Amazon has too much power is neither an answer to, nor relevant at all regarding, the fact that they were charged with unlawful activity and don’t seem to think they did anything wrong. They are entitled to think that: the rest of us are entitled to form opinions of their actions.
Here’s the lie:
“A company which appears to be happy to sell some books way below cost.”
Underneath all your weasel words is the same old canard that everyone in the publishing industry tells. Bad old Amazon is engaging in predatory pricing. Cite some specifics. Define “way below costs”. And the DoJ case wasn’t about agency pricing. That’s just another lie you are telling. The case was about price-fixing. Full stop.
Now, on the substantive issues you raise. Let’s start by defining “business model”. Here’s what Wikipedia says:
If you think Amazon creating, delivering, and capturing value in the same way a traditional publisher does, you are sadly mistaken.
The reason I think that printing costs are irrelevant is that you shouldn’t be buying paper. Printing on paper is an inherently inefficient way to turn manuscripts into money. It really doesn’t matter what percentage of the “book market” is still in print today. That’s just the typical publisher mindset. The real question is what percentage of the market can you reach with digital books. The answer is somewhere between 95% and 100% of the book market in the U.S. Every person who owns a PC, smart phone, or tablet can read digital books.
Frankly, you completely misunderstood my point about bureaucracy. I’m sure everyone is very busy where you work. The question I have is how many layers of management do you have to go through to get approval to publish a book. How many decisions require more than one person’s agreement? How quickly can you get a book to market? Take a hard look at how much of your co-workers’ time is spent on activities that directly add value to the “manuscript to money” process. That’s how you measure bureaucracy.
Step back from your cost accounting mindset for a second. Forget P&L and upfront costs. If it costs your company just as much to produce ebooks as it does print books, you are doing it wrong. You are producing ebooks with a system designed to produce paper books. That’s just stupid. Ebooks have different attributes. A well-designed system for producing ebooks would look nothing like the system you use.
The reason I say that there are no economies of scale in publishing is because it is very clear that the larger a publisher is, the more inefficient they are at their core business. The reason your industry spends so much money on advances is because it is dominated by a few megacorporations. I don’t understand why this is so hard for people to grasp. There is a very limited pool of writers who can churn out a sure-fire blockbuster. The big publishers have to have enough of those to justify their existence. The inevitable result is overbidding on advances to writers who can support a big print run. Paying Pippa Middleton a £400,000 advance is not transferring risk.
By the way, I’ve built systems that digitized paper documents. I know what it takes to do that. One high-speed scanner, a small PC network, three good data entry clerks, and the saleable part of your backlist is digitized in 2013.
The reason I think that printing costs are irrelevant is that you shouldn’t be buying paper. Printing on paper is an inherently inefficient way to turn manuscripts into money. It really doesn’t matter what percentage of the “book market” is still in print today. That’s just the typical publisher mindset.
While I am all about e-readers, this is just not a valid argument. It’s not the publisher mindset: it’s the customer mindset. People who want books want, at a very high ratio, paper books. If you think publishers should try a restructuring-by-debacle “New Coke” kind of thing and MAKE them buy e-readers and e-books, you are entitled to your opinion, but that is not a reasonable risk to expect them to take.
“Most of our costs go into advances -” Huge advances for either proven bestsellers or some over-hyped bidding war MS that may or may not pan out.
Meanwhile, midlist advances are PLUMMETING (agents are publicly admitting that “10k is the new 50k”) and the publishers are doing their utmost to tie up reversion rights and lay on draconian noncompete clauses.
The blockbuster/throw-spaghetti-at-the-wall model is inherently broken. But as long as publishing companies are run by huge multi-national conglomerates, I suspect it’s not going to change. Because, hey, some editor might hit the jackpot! Why bother sustaining those pesky midlisters when the next newbie novel might be 50 Shades?
Hi Anthea. Big publishing houses don’t run on the blockbuster model like back one book and sell it through the nose. You don’t have to believe that, I expect you won’t, but do consider literary fiction. By the blockbuster model, no-one would be publishing literary fiction – it doesn’t sell the volume unless it wins awards. Yet it is still published. I’m not saying publishers are made of fuzzy love (we run on money the same way authors must) but it’s not as black and white in terms of how publishing lists work.
We publish literary fiction to maintain good image of the company in the literary circles and because literary fiction represents prestige.
Tell me, Felice, since you work in a major publishing company and since you are reaching out to authors, do you have any influence in your company? Enough to change your company’s boilerplate contracts? To for example take out the non-compete clause from the contract before your house even starts negotiation with an author?
Definitely not, no. I’m not (and haven’t been because I don’t have a) the power and b) the knowledge) trying to change contracts. The origin of this discussion is something far far simpler.
As I see it the long contracts with ambiguous content and hidden clauses that are on the long term harmful for writer’s career are the main problem and what gives dealing with a trade publisher such a negative overtone. Until the contracts become easy to understand and fair for both sides, I don’t see any significant changes. About the advances, I don’t see any point in even discussing them, since they should be determined on case to case basis.
If you don’t have any influence on the contents of boilerplate contracts then I don’t see how you could make any difference in the publisher-author relationship since until that is a mended nothing will change, not matter how much you are discussing it and telling about good things that publishers do.
Literary fiction is, and always has been, published at a loss for reasons of prestige. This prestige means nothing to the public at large, but it is useful (among other things) as a way for publishers to reward editors and other employees without having to pay them more money. The existence (and unprofitability) of literary fiction is therefore of no evidential value in determining whether publishers are working on a ‘blockbuster model’ or not.
Meanwhile, midlist genre writers are being routinely dropped in mid-career, and frequently in mid-series, because their books (having never been promoted in any meaningful way) fail to become blockbusters. Since there is no prestige in keeping such writers in print, it is they who are the victims of the blockbuster model. Fortunately, a midlist genre writer, through self-publishing, can make a good living on gross sales figures that would cause any major publisher to drop him like last month’s tomatoes. I know a good few who are doing just that.
Nonsense. Award winning literary fiction is advertising, nothing more. You need to try selling that pish to people who don’t know anything about publishing. Oh, wait. You think that authors don’t. That explains your comments.
Sorry, one more thing. When you say ‘sustaining those pesky mid list authors’ – I’m not sure what the ideal situation is here. Do you mean that once a publisher invests in someone’s novel they should publish their books until the author decides they don’t want to do it any more? Or do you mean resources should be spread equally between authors across a list rather than big authors getting more of a budget?
Are advances of midlist authors interdependent with big authors’ advances and vice versa?
The first steps to ideal situation would IMO be not to tie reversion rights, not to hide a non-compete clauses in the contracts, to pay them advances and royalties in timely manner, and to give them easy to understand royalty statements.
Perhaps what Ms. Lawson means is that if a publisher is used to getting a certain quality of work from a certain group of writers for $50,000 per book, it ought not to arbitarily cut its advances by four-fifths and expect the work or the relationship to continue as before.
It is rather unfortunate that the writers who find themselves offered these enormous cuts in pay are liable to be the very writers who, because they foolishly signed contracts with non-compete clauses, no longer have the liberty to take their work elsewhere. And by ‘rather unfortunate’, I mean ‘a mean and vulgar swindle, which cries to heaven for vengeance’.
Thanks, Tom. So the ideal situation would be that authors are able to take their work elsewhere if they feel the cut to their offered advance is ridiculous? Or rather that there is an industry-wide standard rate for advances that doesn’t drop?
I don’t know that this addresses the issue of midlist authors being the victim of the blockbuster model, though. Do you think it would work better if every book was given an equal cut of all the money a publishing house had in its pool, so there was a standard advance rate, a standard marketing budget, a standard production cost/print run?
Genuinely, I’m interested to know from an author’s point of view, taking into account that publishing houses will always publish many authors, what the ideal way of assigning value to different books would be in order to avoid the fate you mention where they are ‘dropped mid-career’.
Felice, this is awesome. You are asking for IDEAS! That’s terrific.
So, I’m not Tom, but here is what I think.
Agents won’t like this, but I believe an enormous amount of staff time is wasted on negotiating each and every contract. Frankly, I think it’s an incredible waste.
If I were a publisher, I would standardize my contracts, including money. I would make the terms very attractive, and make them public, so that writers would be lured in. Also making them public builds a feeling of trust.
In terms of money, this is what I would suggest:
Tiered standard offerings. Tiers would be:
Debut
Mid-list, previous success
Mid-list, no previous success
Bestseller
Within each category, I would offer at least two choices: advance + medium royalty reimbursement; or no advance with significant royalty reimbursement at the backend. I might offer more choices, for example smaller advance for additional marketing support.
For some debut and mid-list with very poor sales, I would have an e-book only option. I would not drop mid-list without at least a few failures. It can take awhile to find an audicence, and you could be missing out on a bestseller in the making. In addition, you want to foster the impression you give loyalty for loyalty.
So, basically, I’d present authors with a menu of choices, and say, we will offer you a., b., or c. What do you like?
The key here is that the terms have to be attractive enough to compete with the self-publishing options.
I would take the money I just saved by not negotiating every contract and put it toward editing support across the board.
I would also put some of that money toward focus testing and marketing research, so when I did marketing it would be focused on the right customer group.
I would also allow author input over important aspects of their book: title, cover, editing, and I would include this in the contract.
I would drop the non-compete clause. With the world of digital, it’s not only something that drive authors away, but it is very self-defeating for the Publisher. The more books an author has out, the more likely they are to draw an audience.
Thanks for asking for input!
Oh, I want to add one thing.
You might say: If we standardize our contracts, than another Publishing company could grab up the best authors by offering them more.
Well, first, I’m not sure I’d worry too much about that, since all the Big Six companies tend to work in sync, and don’t agressively compete. Which is a shame, actually.
But. The key here is once you sign an author, you treat them really well. If the working conditions are excellent, people will choose to work with you, rather than your competitor, even for slightly less money, as long as what you offer is still attractive.
I can see what you’re saying and I had the same thought. I don’t think cash is the only thing publishers offer an author, and removing that element from the equation would (and in fact does) make the author and publisher consider what else can be brought to the table. A lot of deals now aren’t done on the size of the advance, but the ‘fit’ I guess between author and publisher.
Thanks for being so engaged, Felice!
Here’s my thoughts:
Give an author more than one or two books to actually grow an audience. Like back a couple decades ago, when authors *were* given a chance. Agent Donald Maass has said it take 5 books for a non-breakout author to really start selling. But debut authors are given 1-2 books and if they are not selling the way the publisher wants, well, the next batch of eager authors may have a blockbuster in them. And if not them, then the next batch…
It seems to me that the corporate culture of quarterly profits has made the idea of building an author’s career fall more and more by the wayside each year.
If the house chooses not to continue a series, let the author retain rights to future books in that series.
Start moving away from the wasteful and archaic returns system. Whenever costs of print vs. ebooks come up, don’t forget that, in general, half of any mass market print run will be destroyed. Makes the per-cost of ebooks come up a little bit, don’t you think?
I like a lot of Mira’s suggestions, as well. The non-compete is ridiculous. Authors – do *everything* you can to specify that clause – “Full-length Scottish-set historical romance,” for example would seem reasonable, if your publisher is putting out your full-length Scottish-set historical romances. But you should still be able to self-publish novellas and short stories in that world, which will actually DRIVE MORE SALES to the full-length titles – a fact that big publishing doesn’t quite seem to grasp. There’s no question (I have absolute numerical proof) that the success of my self-pubbed short stories have positively impacted sales of my full-length trad-pubbed novels, but I only was able to publish my shorter works because I wasn’t under contract with that publisher again. Silly.
The non-compete exemplifies that the publisher isn’t interested in the author’s career, only what THEY can get out of the author.
Thanks Mira and Anthea. Probably there’s not much I can say to do this justice just now, as it’s not the best place for a conversation about the intricacies of publishing (please don’t see this as a bowing out – it’s more the technical nature of comment threads being incredibly confusing/unreadable). Obviously, as Mira pointed out, one person seeing this won’t change it. But I think the different perspectives we each have of publishing and how it works is a powerful thing. This is going to sound fucking insincere, particularly given the amount of crap that’s rained down from what I thought was essentially a non-controversial post, but I do appreciate this. It’s easy to get caught in the fire and be hysterical about the publisher self-publisher divide (I find it particularly odd in this case, considering what I was intending to say in the post initially was publishers, get your act together with communication).
Again, I’m dodging contracts. Sorry. I don’t know what to say about those. The only thing I will say is that obviously there is a limited amount of money, as you know. I think for Mira’s suggestion to work, lists would have to shrink a lot, and I’m not sure the advances would ever be set at an acceptable level. I’ll have to think about it some more.
Incidentally that last line is why you should buy Mr. Simon’s book Lord Talon’s Revenge. It is exactly the kind of thing that people who like that sort of thing will like.
Thank you, Sir. This probably wasn’t the time or place for anyone to plug my work, but it’s nice to hear.
Just mentioning the title got my attention. Added it to my wishlist to look at purchasing after Christmas has eaten through my savings.
I work in an accounting department of a big (European) publishing firm and according to everything you wrote, you are either lying or you don’t know what’s going on in the trade publishing. Most of our cost (and of all big trade publishers’ cost) goes into day to day business, not in advances.
The publishers don’t hate authors, they actually couldn’t care less for them, which isn’t anything surprising since most of them don’t care for their employers either (editors included. Just last month we got rid of five of them), for management they are nothing more than cost that cuts into profit.
And even editors who like to gush about their love for written word care about good books, not authors. Authors are just a nuisance attached to the book. Well, except if you are some big shot.
But publishing is business, not a day care, and like with all businesses what is important is the balance sheet at the end of a year. Pretending otherwise is not only futile, but stupid. IMO
I agree with J.M. Ney-Grimm if you want to change your image, walk the walk, not talk the talk.
Some honest comments here. I don’t think publishers hate authors, they just look at them the same way a factory owner looks at the guy running the machinery and want the most profit they can get. Unfortunately for them, unlike the guy running the machine, we authors OWN our work.
First you say that you have too got economies of scale because you get paper cheaper than anyone else can. Then you say that you can’t cut ebook prices, because paper is such a trivial part of the cost of a book. Make up your mind, will you? You can’t have it both ways.
I was just responding to the specific nonsense that ‘there are no economies of scale in publishing’. Paper is a good example. The reason the cost of paper is trivial for us is because we get it so cheaply. For someone trying to print a one-off short run of a book, without a prior relationship with the printer, it’s going to be more of an issue.
The biggest line item in publishing, print or ebook, is the advance we pay to the author. Production costs are one of the smallest line items. For all of William’s obfuscatory wibbling about the marginal cost of production, per-unit costs are much less of an issue than plant costs.
You *do* know that the average advance for a debut book is running around 5k right now, yes? I’m talking fiction here, which is a whole different beast than non-fiction.
By your reasoning, then, a typical mass market paperback would cost a fraction of that advance? So, what, around $1,000 for a 20k print run?
Imagine taking those million-dollar advances and actually paying twenty authors 50k… you’d still have the same ‘expense’, but twenty times more product, with only a limited increase in production costs, since those are ‘one of the smalles line items.’ Hmmm
I like this article. In fact, my response to what she had to say was this:
Finally.
Publishers need to be very worried about their bad press. They’ve been completely ignoring it, as if it doesn’t matter what authors think of them. But it absolutely matters! The movement to indie publishing is completely unhindered because of this. There is no outreach or attempt at good press from Publishers.
In this day and age, it’s very dangerous to ignore bad press, and it’s good to see an Industry Insider acknowledging that.
The problem is, and the reason she will have an uphill battle here, is that coming onto forums and sites and arguing about how writers shouldn’t feel mistreated isn’t going to work. An Industry insider has two things they can do to start to turn around the bad press:
a. Simply listen and let the writers know that they are heard. This will help, because authors do not feel as though anyone cares what they think or feel. Giving a different impression will have long-term benefits.
b. Advocate for change in the Industry itself to offer better services, contracts and royalty rates for authors.
The bad press the Industry has is very well-deserved. Industry has treated alot of authors very badly. There is no way for it to turn this press around without changing its practices.
Although it may be tempting, defending the Industry is the wrong way to go here. Trying to convince authors they have not been treated badly, when they have been, is a waste of time, and will make the problem worse.
There has to be actual change, or the problem will worsen; the bad press will continue and, most likely, increase.
So, I think this Insider is on the right track, but I think it’s a difficult one, and I want to wish her luck!
Hi Mira,
Cheers for your comments. I take your point re: it being a full change, not just better press – has to be backed up with action. I guess from my point of view, I see the good things that publishers are doing and the fact that we don’t talk to the community of writers about them bothers me. I’m not saying ignore the problems, but make sure that the reasons for changes (eg. advances) is known. Part of a solution, maybe not the whole way. Anyway, cheers. We’ll see.
Hi Felice,
Well, I really think your intentions are good, and not to be discouraging, but there was a reason I didn’t suggest talking about any of that. You could try it, but I suspect you won’t get the results you’re looking for.
But I could be wrong. It could be worth a try. Opening the doors of communication is always good. I’d just be aware you are likely to get ALOT of push back from writers (especially on this site! But this site is important, because it’s representative of the stance you’ll see authors taking more and more over the next couple of years, imho.)
And be aware that telling writers there are good editors working on good projects (for example), will not make up for the fact that writers get terrible royalty rates, are asked to sign non-compete clauses, are dropped on a dime’s notice, have no control over editing, cover design, etc., and feel manipulated, used and disrespected.
I don’t think the problem here is that writers aren’t aware that good things can happen in the Industry. I think the problem is that they feel they are not being offered a share in them.
I continue to think you are right – the Industry should be really worried about its bad image, but I don’t think that damage control will work at this point. I think there needs to be real change. Once authors feel treated well, they will spread the word themselves.
What good things are those? I don’t know anyone who knows about these supposed “good things”. Like what other than illegal collusion, cutting royalty rates, cutting advances and insisting on contracts with clauses that authors are insane to sign. Oh, yes, and let’s not forget making patronizing and demeaning comments about authors.
Maybe huge National distribution of select titles?
*When* it gets behind a book, traditional publishing can do mighty things – buy swathes of tables at the front of every B&N in the country, top placement via coop for any title it wants. But not every title.
Some publishers have a good foreign rights department. Some do not, and just sit on the rights they’ve extracted from the author.
I’ve seen stellar book covers from NY publishers – and really terrible ones. Same with self-published books.
I’ve heard (secondhand) of great editorial input. I’ve experienced having my book bought and pushed straight to market with no changes whatsoever, and I’ve also seen editing that threw an author completely off-course, just because that editor was having a bad month in their personal life. All of this is true for indie publishing as well.
The thing is, nobody will CARE as much about your book as you, the author. The beauty of self-publishing is that you can tend your book and don’t have to sit by and watch it be published ‘dead’, or given a cover that completely misses the target market, or a blurb that turns buyers away in droves.
What my trad publisher did for me – decent national distribution, and a couple foreign rights sales. Also, the aforementioned cover that was all wrong for the genre, resulting in low pre-sales (plus it was released in one of the worst months publishing ever had) – therefore my contract was not renewed, despite the book being up for a major award. Because, you know, the numbers just weren’t good, and who suffers for those publisher missteps? The author.
I tried for 5 years to get a traditional contract. Since March of 2011, I have sold over 100,000 books, the majority of which are those very same stories rejected by publishing houses all across North America. Most indie authors I know are very wary of traditional publishing, whether or not they ever went that route, attempted to go that route, or might consider a traditional contract later down the road. Delayed payments, low advances, deceptive royalty statements, noncompete clauses, orphaned books, unmet promises. We all personally know authors who have experienced every one of these things.
Book publishers might not ‘hate’ authors, and it may be an institutional problem rather than specific individuals (editors, marketers etc.) at fault, but these problems within the industry are only getting worse. For many authors the salient question is no longer ‘why are you indie publishing?’ but rather ‘why aren’t you?’
Yes; a friend of mine has an agent. My comment was roughly, “That’s great! Congrats! Go read ThePassiveVoice.com and KrisWrites.com!” And she knows that if she can’t get a good deal… I’m perfectly willing to give her a hand setting things up for the Dark Side.
(But if she makes it good in tradpub, I’ll be cheering as well!)
Just heard that HarperCollins and S&S are possibly in the preliminary stages of setting up another merger. This is another excellent reason *not* to accept quiet reassurances that those clauses you are leery of won’t be exercised. Publishing House A might be the benevolent entity it assures its authors it is. But what happens if it sells or merges with Publishing House B that is not quite so benevolent?
Here’s the link for the HC & S&S possible merger: http://paidcontent.org/2012/11/20/harpercollins-simon-schuster-reportedly-in-preliminary-merger-talks/
But you do have to wonder why a benevolent entity spends all that money having lawyers create contract provisions it neither needs nor intends to enforce.
Exactly.
I believe that many in the industry work there because they love good stories, but the publisher as an entity is a business. Dollars *are* the bottom line for any business that wants to survive, and they make sure to protect themselves. Authors should do the same.
Bear in mind that publishing is a business largely built on relationships. As an example: there are often clauses in standard publishing boilerplate that say the author is responsible for the cost of a legal read – a check for libel, say. I have only ever seen that enforced once in the last decade, because it’s usually worth paying a few hundred quid for the lawyer out of our pocket rather than pissing off the author.
Reasonable people can disagree about things like non-compete clauses. So here’s the thing: if you don’t like a contractual term, renegotiate it before you sign. Our boilerplate isn’t carved into tablets of stone. Query the reason for it, talk to your editor or the contracts team, and come up with an agreement that satisfies both sides. It’s a partnership, not a tyranny.
Quote:”Our boilerplate isn’t carved into tablets of stone. Query the reason for it”
Sorry, can’t help it. I read that as “Quarry the reason for it.” As in blocks of stone… And it’s called boilerplate because it’s thick and heavy and hard to bend…
Sir or Ma’am, you make many excellent replies, but unfortunately when you make a bad one, it verges on nonsensical.
As has been pointed out many times, the fact that you do not intend to enforce certain provisions of a contract whether through diplomacy or laziness is not a defense in general to having those provisions. I go through my contract templates on a regular basis and remove or edit provisions which either no longer apply or need to be changed in light of changes in law, regulation or industry practice. While I know publishing is all about tradition *cough* there is no excuse for keeping all these provisions in the contract if you would never enforce them.
Furthermore, as had also been point out many times, you, and your employer, may be the very souls of reason, but tomorrow you could retire, or your employer could be purchased by MultiMegaUberPublishing Inc., and suddenly it’s all about the Benjamins. Arguments to “trust me” simply have no place in discussions like this.
Many businesses are built upon relationships, and while I agree that a relationship of trust between publisher and author is ideal, I also think it’s naive to believe that the publisher is your friend. Your editor might be, but publishing is a business, not a charity.
While what you suggest could be reasonable, from what I have seen, this ideal hasn’t really been achieved because of the balance of power. Prior to the resurgence of self-publishing, if an author wanted to get published, he/she ultimately had to go with what the publisher was willing to offer. For instance, one of the houses, (back in the 90s, I believe) said no ebook rights, no contract. No exceptions. This was before ebooks were even a viable market, but if the author didn’t capitulate, no deal. I would say that in a number of cases, boilerplate means exactly what it sounds like. Yes, there are things that can and have been negotiated, but not everything. And what could an author do prior to having more choices if they wanted to be published? I would assume that most–likely all–of the clauses benefit the publisher. I’m not sure I could say the same thing for the authors.
I’m sorry, but the type of language I’ve heard from a fair share of industry professionals sounds a lot like the language less than trustworthy business schemes use. (Not saying publishing/publishers/industry people are scammers, only that the language is similar.) There are good agents and industry people, but I’ve also heard many in both camps verbally pat the author on the head, tell the author to trust them–those pesky clauses *usually* just lie dormant (again, what about mergers?), just let us handle everything (money, etc.) so you don’t have to worry your pretty little head about it.
From what I’m seeing, this relationship is not a healthy one. Furthermore, if the publisher doesn’t have plans to activate most of the clauses, then they should be struck out by the publisher. What is the use of having a bunch of clauses in a contract you’re *probably* never going to even use? Where’s the trust for the author?
Publishing is (or should be if it wants to survive) a business, first and foremost. Yes, sometimes there’s enough money in the budget to publish a book everyone loved, but no one expects will sell well, but if the dollar wasn’t the bottom line in most cases, how would the business keep going? If it is a partnership, then it is an unequal one and I’m glad that *maybe* things are starting to change. I get that the people in the industry are there out of love for the most part, but the publisher–the business, not the people–can’t survive off love alone.
I think trade publishing is wonderful and have supported it for many years, but have noticed some marked changes in the last year or two I haven’t been so happy with as a reader. As an author, I think the relationship between publisher and author/ agent and author has been severely out of balance–neither in favor of the author. And shouldn’t a partnership be an equal one?
I also think it’s naive to believe that the publisher is your friend. Your editor might be, but publishing is a business, not a charity.
Your editor is NOT your friend. He/she is an employee of the publisher hired to acquire and edit manuscripts (some of which happen to be yours). Do not assume that her loyalty to you trumps her loyalty to the company that signs her paychecks.
And that’s a good thing.
I have seen many friends go into business. Sometimes the business survives, but rarely the friendship. Usually neither does.
I agree. I wrote that because I’ve seen a lot of authors who view their editors as friends and as their advocates. While that can happen, I think it’s risky to view anyone you’re working with as anything other than a business relationship.
“There are good agents and industry people, but I’ve also heard many in both camps verbally pat the author on the head, tell the author to trust them–those pesky clauses *usually* just lie dormant (again, what about mergers?), just let us handle everything (money, etc.) so you don’t have to worry your pretty little head about it.”
It needn’t even be a merger or buyout that changes the playing field. It needn’t even be the VERY common scenario of a new editor replacing your old one (or new dept head replacing the one one) and completely oblitering all those verbal promises that the old one made to you.
After 24 years in the biz, I know first-hand (my own experiences and the experiences of friends related to me first-hand) where heads-of-house, heads-of-program, and editors made verbal promises and handshake deals–and then changed their minds or “forgot” what they had said earlier and now denied having said it. TOO MANY instances.
This business. If it’s not WRITTEN DOWN in a signed contract, it doesn’t exist. If it IS written down in the signed contract, it can be enforced.
And it reenforces the generally negative impression of publishing professionals as either dishonest or incompetent to insist that what’s in a contract doesn’t matter and we should sign it without worrying about it. Moreover, many writers, including me, have experienced and/or have numerous friends who’ve experienced career damage and problems precisely due to those clauses you naively claim won’t be enforced BEING enforced. Do you even KNOW what’s going on in your own profession, for goodness sake?
Yep. I would think verbal agreements would be very hard to prove or uphold in court, as opposed to a written contract.
Too many people seem to forget to treat publishing like the business it is. It is rather worrying when you see industry professionals advising authors not to see this as a business and to take appropriate measures.
Danyelle,I’d be interested to know what sort of changes you’ve seen as a reader.
I don’t think publishers claim to be authors’ friends, though as in any business some solid friendships do come out of it sometimes, which is good.
I’m tired right now, so this may be a little blunt. No offense intended.
All of this relates to books that are on the shelves at the local bookstore. (For me, that’s B&N.)
My knowledge base is in kidlit–MG and YA specifically, so I have no idea if this holds true for adult fiction. I spend a couple of thousand a year on books.
As a reader, it has become increasingly hard to find good, well-crafted, interesting stories. More and more typos are slipping through, poorly structured stories, and stories with giant plot holes. I know books are in the eye of the beholder, but as a reader, I’m purchasing books that look and sound interesting to me, because I want to enjoy it. I want to love it. More and more, the storytelling is getting sloppy. There is also a push from industry professionals (authors, librarians, editors, etc.) toward darker/edgier material. Which is fine, I believe there should be many different options to choose from, but it’s gotten to the point where this type describes most of the books on the shelves at the bookstore. No real variety there, and I’ve pretty much stopped buying YA unless I’ve checked it out from the library first. I’ve be an avid reader of YA for as long as the section has been around, and it’s been within the last 1-3 years that this has happened in a big enough way for me to notice.
Lack of variety is, in part I believe, because of the transition of thought from growing an author to expecting each new novel to be a potential bestseller. What’s happening is there are more books coming out, yes, but many of them are carbon copies or weak imitations of books that made it big. Chasing the trends. There is a marked lack of diversity in stories that are available. I know there are only a few plots in literature, however, it is possible to make them new and exciting and different. Over the last year or two, it seems like most of the books have become more homogenous where, basically, if you’ve read one, you’ve read them all. (Not so in MG, though. It’s finally blossoming and expanding.) Very few books have distinct author voices anymore.
Another problem is the lack of shelf time a book is allowed. I noticed this about a year-ish ago. I’m one of those readers that inspects every shelf and considers every book that’s facing spine out. The problem is that if I don’t get to the bookstore at least twice a month, I miss books because they don’t remain on the shelves long enough for me to discover them. Another problem is (and I know publishers have no direct control over this) that many books aren’t shelved by their release date. Again, making it harder for me to find the books I *want* to purchase. And that’s if the bookstore is carrying the book in-store in the first place.
/reader rant. :p
As for publishers claiming to be authors’ friends–no. But people who work for the publisher–editors, agents (I know, technically they work for the author), etc. do make these claims. *Some of them.* They don’t come out and *say* they are your friends, but the concept is there. They want authors to trust them and not to worry about anything but writing the story, but publishing is a business, and authors need to start treating it like one. Trust is something that should be earned, and while (if I were to enter into a contract with a publishing house) I would want to believe I would be treated reasonably and fairly, it makes no sense to go in trusting everyone without making sure that the contract especially is something I can trust. I’ve heard of (first hand) too much shoddy treatment of the author to believe that I would be the exception.
Oh, get off it. You and I both know that unless you’re King or Rowling those clauses are non-negotiable. Try being honest here. Most of us on this forum have either negotiated contracts are know numerous people who have.
There are non-negotiable clauses, yes. I won’t sign a contract without a copyright warranty and indemnity for instance.
But loads of clauses are negotiable for most publishers and it’s a bad idea to be fatalistic about it as it makes it less likely that authors will get the deal that suits them. I strike clauses out or amend them all the time, and I’ve knocked out the competition clause in about half of the contracts I negotiated this year (mainly because they were clearly irrelevant).
And yet, in publishing contracts I have reviewed from every major US publisher, the copyright warranty and indemnity clause is usually the single most unreasonable provision in the contract. It typically requires the author to guarantee that nothing in the book will violate any law or regulation in any nation in the world. In most, this clause probably requires the author to make this guarantee even if the law is not presently in existence but comes into being in the future.
I don’t know any attorney who is competent to give an opinion concerning the libel, slander, indecency and religious insult laws for every country in the world. I doubt any reputable law firm would issue an opinion letter to that effect concerning a manuscript. Will a book violate the slander laws of Fiji? Myanmar? Sierra Leone? How is the author supposed to know that?
Under these contracts, typically granting world-wide rights, the publisher has the sole right to decide where a book is sold. Even if the author objects, if the publisher decides to release the book in Bolivia, the book will appear there. If Bolivian law is violated, the author pays.
True, that is pretty unreasonable in theory. In practise I can’t think of many (or any?) cases of anyone getting sued in some distant country let alone passing on the costs to the author, but it is something to be aware of.
For what it’s worth I just dealt with a contract for some books that were reissues – the agent said his client (the estate) refused point blank to sign the warranty with all that libel stuff etc in it. In that case I took the view that these books have been out for a long time, have very little chance of provoking any kind of legal action, so I reduced the warranty and indemnity down to a really basic version which only asserted that they were the legal copyright owner and would indemnify me on that assertion – that’s something I do need to be sure of so that really is my bottom line.
I do also often take out that stuff about libel, obscenity and injuring people where it is self-evidently irrelevant, though I won’t always bother if I am not asked to.
I think lack of common sense is often a problem with the publishing companies – you get people who are scared to use a bit of sense about what really needs to be in there. I also think it’s really interesting to see blogs of this sort – it would help if authors and agents do get more militant over this kind of stuff, because there is clearly stuff in contracts that needn’t be there (and I work for a mid-size company with a fairly decent 8 page boilerplate, but have seen some of the more corporate quagmires). I’m also alarmed to see people talking about contracts and clauses as though they are non-negotiable – I just read Kristine Rusch’s excellent advice on reversion clauses via your link and she makes the point well that loads of authors have different contracts to the boilerplate, and not just the heavyweights.
My insouciant opening was partly based on knowing how rarely a lot of this stuff really applies, but I can accept that people still feel it is a bit oppressive. And also it’s apparent from the comments that there are too many cases of certain publishers abusing those clauses.
Oh, and one more thought on that aspect of the warranty. In theory if you self-publish a book on Amazon or however, you could theoretically get sued in some distant country for libel or religious insult or whatever. So that is the default situation if you publish a book, you are incurring that (infinitesimal for most books) risk simply by being the author.
What the publishing contract does is leaves that as the legal situation – if your book gets sued you are still ultimately responsible, not the company. And it also sets out the ways in which we are able to defend such actions (also negotiable as some authors add the right to arrange their own defence).
I’m not sure that really is that outrageous now I think about it. It’s not like we have made up this liability and transferred it to the author – we have just made it clear at the outset that we aren’t taking it on. In practise we also do everything we can to minimise the risk of anything going wrong, we check safety requirements, recipes, get a libel/obscenity legal advice if we feel it is needed (usually at our own expense even though the contract might allow us to charge the author…) So we are trying to protect them from anything bad actually happening. (And of course ourselves because we know in practise that we might not actually be able to get the costs back from the author. So I could even argue that the published author probably has marginally more protection than the self-published one in this case.)
It is an outrageous clause.
I have negotiated and reviewed thousands of business contracts over the course of my legal career, including contracts involving many of the largest business entities in the world. I’ve never seen a non-negotiable warranty as unfair as this anywhere outside of big publishing.
It’s another piece of evidence manifesting the miserable attitude of publishers toward authors.
OK, firstly as I said it is negotiable up to a point and I have often negotiated on it.
Secondly, I’ll stop trying soon but let me at least ask this:
Do you accept that a self-published author is (theoretically) exposing themselves to the risk of legal action on the basis of slander, indecency and religious insult laws etc around the world?
The self-published author has a choice about where he/she publishes with Amazon. A self-published author can immediately remove a book from publication if there is any threat of a lawsuit. A self-published author can immediately remove or alter any material that disturbs anyone.
Additionally, the exposure to legal action arises from the publication of a book, not from the writing of a book. The publisher publishes, therefore it seems reasonable that the publisher would bear the liability that arises from publishing.
As has been mentioned, a large publisher is a lawsuit magnet whereas a self-published author will not look like a promising target to most civil plaintiffs.
The warranty and indemnity language binds only the parties to a contract, not third parties. If a publisher is sued and the author has inadequate funds to defend the lawsuit or pay damages, the publisher will end up paying the damages anyway after forcing the author into bankruptcy. Only a small number of authors have the means for paying the kinds of damages that arise from a substantial libel or similar suit.
Finally, as a cost of doing business, all major publishers carry liability insurance to cover them against lawsuits of this type. Why not rely upon that and leave the author alone for anything other than intentional misconduct?
Don’t most lawsuits go where there’s money to be had? In which case, the traditionally published author would be in trouble. The big publisher would draw the suit and then be contractually allowed to slough off the costs onto the author. An indie pubbed author wouldn’t be a magnet for lawsuits.
Just wondering…
(As Kris says: I am not a lawyer, nor do I play one on TV. Grin!)
You’re correct, J.M. The big publishers will draw a lawsuit where a self-pubbed author would not.
J.M Ney-Grimm
Yes, that’s true – someone might think it worth trying it on with a publisher more than they would for a self-published author, so maybe you do become a bigger target if you are with a publisher. One reason publishers are extra careful about this stuff – I’ve often had the author of something that had been published on the internet arguing that a potential libel or copyright problem was “OK because it’s already been published and no-one complained…” or similar. But once we publish something we become responsible for it and we can’t respond to takedown notices by just pulling a web page.
So there are swings and roundabouts in terms of the risk, but there is risk there if you publish something either way. As the author you are responsible and I’m not sure it would be especially fair for the author to be able to simply transfer that risk to the publisher, which would be the consequence of no warranty in the contract.
(I think that food suppliers sign similar warranties with supermarkets for a comparison – the supermarket may be the one that gets sued in a case of food poisoning, but there will be a warranty from the supplier allowing the supermarket to recover costs in theory).
“It’s another piece of evidence manifesting the miserable attitude of publishers toward authors.”
I agree. The more I learn about how the publishing industry is currently structured, the more I’m glad I didn’t get entangled in it. From her posts, the author of the article might not have understood why so many of us were harping on contracts, but contracts are very much at the heart of the relationship between publisher and author. At least, in my opinion.
I agree with the original premise of the post, but am not optimistic. Everyone in the industry would have to go through a major paradigm shift for this to happen. Publishers would need to start treating authors with more respect and less disdain, and authors would need to stop tolerating being treated poorly or having the need ‘to be taken care of.’
How publishing is viewed and run would have to change in fundamental ways I’m not sure most of the big publishers would get on board with until it was too late. (I would also posit that how literary agencies are run would need to go through a significant overhaul. I prefer the government to keep at a distance, but why aren’t literary agents regulated like, for example, real estate agents? Literary agents have access to large amounts of money on behalf of their clients. There should be measures in place beyond the AAR.)
I do think the publishers should be able to protect themselves in a commonsense way from badly behaving authors, but they should not begrudge authors from doing what they can to protect themselves badly behaving publishers. I am grateful there are more choices right now so that authors don’t have to cave in to bad contract clauses in order to be published.
But Passive Guy, are you using that last post to avoid answering my question? By implying that a self-pubbed author couldn’t get sued simply because they aren’t with a trad publisher? That seems a bit of a cop out so I’ll ask the question again.
“Do you accept that a self-published author is (theoretically) exposing themselves to the risk of legal action on the basis of slander, indecency and religious insult laws etc around the world?”
Apologies, I missed your other post answering my question.
Will respond to that in a moment…
Passive Guy
“The self-published author has a choice about where he/she publishes with Amazon.”
A trad published author can limit territories (I just bought UK rights to a fiction series that is with Penguin in the US, for instance).
“A self-published author can immediately remove a book from publication if there is any threat of a lawsuit. A self-published author can immediately remove or alter any material that disturbs anyone.”
This is a point about digital publishing vs print, not self-pub vs trad pub. A self-pubbed author who prints their books can’t do this.
“Additionally, the exposure to legal action arises from the publication of a book, not from the writing of a book. The publisher publishes, therefore it seems reasonable that the publisher would bear the liability that arises from publishing.”
I disagree. A book that isn’t published isn’t really a book, it’s some text. And my original point stands, that if you self-publish you are exposing yourself to whatever legal risk there is with regard to slander, blasphemy etc.
“As has been mentioned, a large publisher is a lawsuit magnet whereas a self-published author will not look like a promising target to most civil plaintiffs.”
This is a fair point, but it is also why publisher go to such lengths to avoid risk on these fronts, so I’d suggest the extra due diligence we carry out as a matter of course probably about balances out this imbalance. You could give me a list of cases where an author had the legal costs of a Bolivian libel passed on to them if you want to?
“The warranty and indemnity language binds only the parties to a contract, not third parties. If a publisher is sued and the author has inadequate funds to defend the lawsuit or pay damages, the publisher will end up paying the damages anyway. Only a small number of authors have the means for paying the kinds of damages that arise from a substantial libel or similar suit.”
Correct, which means we still take a big risk by taking on the author. So, nice that you’ve accepted that the odds are we will be the ones who actually end up paying. If anything the warranty serves to make it clear to the author what we expect them to avoid. I am not aware of lots of cases where it has led to authors being charged back for legal fees, are you?
“Finally, as a cost of doing business, all major publishers carry liability insurance to cover them against lawsuits of this type. Why not rely upon that and leave the author alone for anything other than intentional misconduct?”
That’s an interesting question. Without digging through files and checking small print, I have a hunch that liability insurance probably assumes we are following standard industry practise by seeking warranties and would thus be invalid if we don’t? Insurers generally find any excuse they can to not pay out and if we had left ourselves wide open in that way it might be seen as the equivalent of driving a car that wasn’t roadworthy.
But in any case I don’t think the case has really been made yet for why we should be expected to accept a risk that the self-published author would have been running anyway. Your starting point was that it was completely outrageous of us to impose that risk on the author, I would strongly argue that anyone who publishes a book takes that risk anyway and the warranty just sets out a businesslike way of dealing with any problems that might arise.
“after forcing the author into bankruptcy.”
I think you edited your post to add this while I was replying… Feel free to give me a list of cases where this has happened – my last post was on the basis that
“the publisher will end up paying the damages anyway. Only a small number of authors have the means for paying the kinds of damages that arise from a substantial libel or similar suit.”
Which is why we try very hard not to let anything be published which will lead to us paying the damages in the first instance.
I have, but not many. It was certainly not an industry practice even in the industry in which I saw them from time to time. They didn’t even put up a fight when I told them it had to go. I agree that it’s totally outrageous and stretches my default position that there’s nothing wrong with asking to the breaking point.
What I don’t get underneath all of the snide comments about ‘legacy’ (really, what does ‘legacy’ mean in this context?) is why people who are successful as writing entrepreneurs feel the need to constantly bite at the corporate publishing world?
Sure, there’s a lot about corporate publishing which doesn’t work, although I reckon there’s a fair amount that does, too, but if people who, from their rhetoric, appear to despise the corporate publishing world are convinced that it is on the verge of disappearing into its own sink-hole then why concern yourselves with it?
If the model you are pursuing is working for you, and is going to guarantee you success then why bother with the ailing competitor, who really isn’t a competitor at all? Amazon doesn’t waste energy there.
If your own preferred approach to publishing is going to win, and you have the reader on your side, why waste time taking shots at a wheezing carcass? Surely your actual work and enterprise is going to do that for you, so why waste the energy on telling the sickly old man that he’s about to die and nobody will mourn him?
Unless there’s something your hiding with the bluster… is there?
A fair point, but Tradpub vs. Indiepub has already become, in just a few years, the Battle of Koom Valley. Both sides are convinced that the other side started it and wishes to continue hostilities and they are just defending themselves.
Mike, the reasons to keep talking about this are:
a. Alot of people feel abused, exploited and betrayed by their past histories or current histories with Publishers. They are venting, and they are sharing that information.
b. There is a slow movement toward forming more of a collective force for authors. This is the start of it.
c. It is outreach to educate new authors.
d. What Publishers are doing is wrong. I personally am not published, will never publish traditionally, so you could say I have no dog in this fight. But I would spend hours every day trying to stop Publishers from continuing to exploit writers. It is called Social Justice.
This is what happens when an oppressed population finally starts to become liberated. They talk about it, they yell about it, they grieve and pound their fists. And writers write ALOT. And they write on the internet ALOT.
Publishers are multi-billion dollar corporations that need to be held accountable, and they have escaped that for decades.
No longer.
This! Very much this!
Mira, thank you for articulating this so clearly and with such insight.
J.M, thank you!
We didn’t write the article we’re responding to. According to you we aren’t supposed to respond. Think again. I don’t like being lied to. By the way, NOTHING guarantees success. Or are you trying to say that legacy publishing does? Really? Don’t bet the old homestead on it.
Most things in publishing contracts are just about common sense and guarding against unlikely problems – most of the clauses are never enacted even in situations where a legalistic pedant could argue they could be. So maybe the best plan is to not take competition clauses too seriously?
Utterly disrespectful and 100% incorrect. “We’re nice and benevolent! Don’t worry your pretty lil heads, lil authors, and just sign the damned thing.”
The fact that the author of the article feels this way says everything I need to know about how she truly regards authors.
“So maybe the best plan is to not take competition clauses too seriously?”
No, I have a MUCH BETTER plan: ELIMINATE non-compete clauses from publishing contracts.
This is not a wild and wacky notion. For example, NONE of my current contracts have nonc-compete clauses in them. At all. In any form.
All of my current contracts are with DAW Books, a 50-year-old sf/f house with very broad distribution; DAW had two books on the NYT hardcover bestseller list last year and published the 2011 World Fantasy Award winner; it’s co-publisher, Betsy Wollheim, won the 2012 Hugo as Best Editor–IOW, this is a major, well-established publishing program… and my contracts with them DO NOT HAVE non-compete clauses.
So how about THAT as a better plan the a publisher recommending that the author SIGN A BAD CLAUSE IN A LEGALLY BINDING CONTRACT… because an employee at the publishing house verbally suggests that bad clause won’t (or might not be) enforced.
For chrissake. Why not just keep going down that “don’t worry, we won’t enforce these contractual clauses we’re asking you to sign” path and lace your authors’ contracts with rohypnol?
Hi Nadia. I did already post this comment but I put a link in it and I think it might have been marked as spam. Sorry if it comes up twice.
Basic gist was I’m the author of the article but not the author of that comment, which was made by an independent editor. As I said, I don’t work in contracts so wouldn’t presume to comment on their details.
The piece was no really intended as a defence or poof that publisher love authors (which I have written, earlier in the year on the Futurebook blog). It wrote it because I have an issue with how publishers represent themselves to authors, so was writing it to publishers, really – one industry person to another. Not that this invalidates your comment, I just wante to say it probably won’t serve the function of proving the amazing way authors are treated as that wasn’t its original purpose.
Also sorry for the typos, I’m on my phone.
Nadia, that was me not the author of the article, and I’ve retracted that point – I agree you need to take every clause seriously and make sure you can live with it.
But on a wider point, I don’t think it’s patronising to point out that contracts are designed to cover all eventualities, no matter how improbable. So as a matter of actual fact very few of the clauses of a publishing contract are ever enforced. They are there to cover problems that we all hope won’t happen and probably won’t.
But, yes, I belatedly accept you still need to take them all seriously and get them adapted or struck out if you think they are too much of a problem.
The fact that you think it is necessary to point it out is patronizing. The fact that you don’t understand why it is is even more patronizing.
Really?
If so I apologise, but there have been several comments here along the lines of “why put it in the contract if you don’t intend to enforce it?” To me that is a basic misunderstanding of how contracts work.
I’m genuinely sorry if that seems patronising, but I am talking not just as a publisher, but also as an author who has had to negotiate contracts from both sides.
Reposting here the comment I wrote on the Book Machine piece:
I’ve been a full-time, self-supporting career novelist for 24 years, have sold about 30 genre novels and have worked with about 10 publishers. In all that time, I’ve only ever encountered or dealt with one (1)–ONE–that did -not- treat me like a diseased streetwalker.
Happily, it’s my current publisher. Unlike EVERY other house I’ve dealt with in my full-time writing career spanning a little more than two decades, this house–DAW Books–treats me like a valued asset and a valued professional partner. After many years of being a full-time writers dealing with publishers, this experience has been BRAND NEW to me.
I am a longtime member of two national organizations for professional writers, have been a columnist for both of these orgs, and am a past president of one of them. Based on many years of interaction with others in my profession, one of the things I learn over and over and over again is that my current experience–of being treated like a respected professional colleague by my publisher–is unusual, and that my consistent previous experiences for years, of being treated like a scab-ridden streetwalker by my various publishers, was all too common.
So speaking as a long time professional in this arena, I’d say EXPERIENCE, rather than perception, is what most writers tend to have against most publishers.
**NOTE: I’ve worked with some excellent editors (as well as a few very bad ones). But editors, in my experience, aren’t able to mitigate the negative effect of the publisher’s attitude.
“I’d say EXPERIENCE, rather than perception, is what most writers tend to have against most publishers.”
Hear, hear! When my then-publisher was cutting 90% of the debut authors they’d acquired in the last two years, but still saying at their publisher spotlight at a huge national conference “We value every author, and nurture their careers!” I wanted to throw up. Or throw things.
And to Mike, above, it’s pretty much what Mira said. I’m vocal about my experience with traditional publishing because I don’t want another starry-eyed debut author like I was thinking they were going for a nice swim in a beautiful lake and ending up shredded by the piranhas.
I know editors get equally frustrated with the publishing business, and there are many good people in the corporate ranks – but the bottom line is that the corporate agenda is actively unfriendly to authors most of the time. And, as Laura says above, this has been proven for years, over and over.
A thought inspired by various gripes on this page about royalties.
There are good reasons why 25% ebook royalty makes sense for a new publication – there are genuine start-up costs to creating a book. Currently these get amortised against the print edition, but in future the ebook will have to bear a larger part of the start-up costs.
But once a book has amortised its start-up costs that argument no longer works. So a thought for writers and agents. Maybe you need to start demanding an escalator on ebook royalties – accept the 25% standard for a certain number of copies, but have it escalating after that?
Just a thought…
Thalia, that’s 25% of NET – which on my tradpub ebooks are running around 11% of cover, with net undefined. I’d have less of a problem with 25% of cover price, although the digital-only presses that have been in business for several years (Ellora’s Cave and Samhain spring to mind) have always paid authors 40% of COVER and seem to be doing fine.
Which to me just proves the point that ebooks are subsidizing print at the traditional publishing houses.
Anthea
It’s a tricky one, but that’s partly why I am suggesting escalators which would be anathema to many of my colleagues. Having said that…
Seems to me that the %age you get as an author is related to what you get for it. You can get 2/3 from Amazon if you do it all yourself. You can get 40% of cover from someone like Ellora’s Cave. Or actually you can get
“Royalties: 40% of cover price for digital releases sold through our webstore; 45% of amount received for digital releases sold through third-party e-tailers; 7.5% of cover price for print books.
Length of grant of publishing rights: Life of copyright”
(And what I’m suggesting is badgering publishers for an escalator to something more like 40-45% on digital releases sold third party)
And there are some advantages to being with a trad publisher, like (in theory and at this point in history) we do more editorial work, go to print from the start, pay an advance and are a bit better at selling the final product.
But in the end it’s a free market and I’m not here to try and persuade anyone that trad publishers are their best option – I think it’s great that self-publishing (or e-publishing) has become more common and feasible and have self-published myself – I only got involved in the conversation to try and explain or defend some of the standard terms in trad contracts.
Oh, but before I finish, ebooks really aren’t subsidising print. I see the costings every day, and I won’t bore you with the detail, but we amortise all the costs of production against print and treat ebooks in the same way we treat rights, as extra revenue that will help to improve the picture. The only significant difference between producing a print book and ebook is 1) typesetting (maybe $500) 2) design (not relevant for text only, and will come back into play for ebooks as colour becomes more common, though it will be more akin to web design) and the cost of the paper.
So, I have trad-pubbed friends who are right at 50% of their sales being ebooks (published in romance)- and once their print books are pulled from the retail stores, it’s clear that their ebook sales will surpass the print sales.
At what point do the publishers stop thinking of ebooks as ‘subsidiary’?
“At what point do the publishers stop thinking of ebooks as ‘subsidiary’?”
That’s not really the point I was making. If you stop thinking of the ebook as subsidiary then you have to allot the costs of production against the ebook, at which point the equation looks different, but as things stand, the print book is effectively subsidising the ebook (by disguising the true cost of production), not the other way round.
Beyond that, our sales are currently at about 85-90% print, 10-15% ebook. So ebooks are significant, but still relatively the junior partner. In genre titles (we publish crime, romance, erotica among others) the balance is closer, so I think writers in those genres may have a slightly distorted view of how important ebooks are to the overall market. For some areas of publishing ebooks are still a negligible part of the sales. Also, where we have titles that sell as many in ebook as print it is still mostly because we discount the ebook heavily (we’ll do this for instance with the early titles in a series), so it is still pulling less weight than the print edition.
But the balance is changing extremely fast and we honestly don’t know where we will be in 5 years time. I’m not sure if trad publishing as it exists now will still be here at that point, or in ten years. But however the market changes there will probably be a range of ways of publishing offering higher and lower royalties in exchange for more or less production, editing, media promotion, kudos or whatever.
Going back to my original point (which was actually more of a pro-ebook/selfpublishing point) the big thing about ebooks that is different to print is that the marginal costs of production drop to almost nothing, so it would make sense in any deal with a publisher (whether it be Samhain or Manhattan Snob Corporation) to fight for an escalator – allowing for the fact that the initial production carries costs but after a few thousand those have been amortised.
Oh, and one more thought.
I was too blithe in the way I phrased the thing about contracts having clauses that won’t be enforced, so let me give a couple of examples:
I just authorised a contract for a science fiction series. 1. The books are already written, but the contract still has all the language about what we can do if the author misses the delivery date. 2. The warranty includes a bit where the author promised that any recipes or formulae in the book won’t injure anyone – there aren’t any recipes or formulae in there, so we could have struck that out but no-one bothered so it is still in there. Guess we could have taken out the libel bit too as it’s pretty hard to imagine how that could be relevant…. 3. Oh, our competition clause is in there. The author already told me they have some self-published stuff coming out, it didn’t even occur to me to run to the contract to see if I could stop them because in this case it isn’t remotely important and will only help to grow their readership and this will cross over to the books we are selling…
I could go on, because there is some other guff in there that I can’t imagine will ever matter, but hopefully that clarifies the sort of thing I was talking about.
But I absolutely accept that you shouldn’t sign a contract with a clause that could present problems to you on the basis of verbal assurances it won’t be enforced – if it’s in the contract it could get enforced – and as Marc Cabot says above, it might be someone else who ends up holding the contract. To be honest, this thread and the other one have made me think I should strike out that competition clause more often, even though most of my authors don’t seem to have an issue with it.
Thanks to Felice, Thalia, and the other publishing industry folk for being open to this dialogue! It’s quite a ride we’re all on.