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Start Media Buys Whiskey Creek Press, Imposes New Contract Terms

28 June 2014

From Writer Beware:

In early June, Debra Womack, owner of Whiskey Creek Press, announced in a letter to authors that the publisher was in the process of being acquired by Start Media (a company that has recently acquired two other small presses, Night Shade Books and Salvo Press).

As part of the acquisition process, Start is asking all current WCP authors to agree to and sign an offer of new terms as follows on page two below. We are offering you the non-refundable sum of $1 and other good and valuable consideration, payable to you if and when the sale of the company to Start is completed (expected to be by the end of June 2014). Upon closing you will also receive a payment from WCP of current royalties and/or advances or any other sums owing to you by WCP for sales up through and including April 30, 2014.

. . . .

WCP’s contract includes this clause:

If the Publisher sells its assets to another publisher who does or plans to market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement.

In direct contradiction to this, however, the letter of agreement Start Media is asking authors to sign imposes some substantially different terms. WCP’s contract term is 3 years from publication; Start Media’s is life-of-copyright. WCP’s ebook royalties are 35% of the net download price; Start Media’s are 25% of net (“all monies actually received”). There’s also a troubling gap between April 30, when WCP ceases to pay royalties, and July 1, when Start Media’s new royalty rate kicks in. What happens to books sold in May and June?

Understandably, WCP authors are upset and angry. Many are refusing to sign–despite the fact that no explanation has been provided, either by Womack/WCP or Start Media, of what will happen to their rights if they don’t.

Link to the rest at Writer Beware

The moral of this cautionary tail is that authors can’t assume the publisher they sign with (and who gives them all sorts of promises that aren’t written into the contract) will be the same publisher they’ll be dealing with for the entire term of their contract.

Indeed, in a life-of-the-copyright agreement, it is virtually certain the existing publisher will disappear before the contract ends. At a bare minimum, all the people working for the existing publisher will be long gone before the contract is done.

Writer Beware is an excellent site and provides insightful analysis and warnings concerning publishers and their contracts. However, PG disagrees with WB’s defense of life-of-the-copyright contract terms. Ultimately, it’s the worst sort of rights grab and, in PG’s unceasingly humble opinion, is always unreasonable.

Additionally, as they are typically written, out-of-print clauses are seldom a reasonable solution to the problem of ridiculously long publishing contracts.

First, the typical OOP clause is extremely complex and difficult for an author to navigate. Having to pay an attorney to help figure out whether a book is out of print and work through the OOP administrative process is ridiculous.

Second, the typical OOP clause gives the publisher all sorts of ways to avoid reverting the title with no material benefit to the author.

Third the typical OOP clause is set to such a low trigger point – WB mentions 50 copies per year or 25 copies per year – that the author has probably experienced years of absurdly small royalties before the OOP clause can be triggered.

A long time ago (as measured in Internet time), PG suggested an improvement to OOP clauses – A Mimimum Wage for Authors. Basically, it’s tied to royalties paid by the publisher to the author, not the number of copies the publisher sells. The author cares about dollars (or euros, etc.), not how many ebooks were sold at 99 cents each.

In a nutshell, the Minimum Wage for Authors OOP clause says if the author doesn’t receive a certain minimum royalty payment for a book, the book reverts. In a life-of-the-copyright contract, PG recommends that an inflation adjustment provision be applied to the minimum royalty payment as well because $100 will be worth a lot less fifty years from now than it is today.

The best solution is, of course, a publishing contract that ends within a specific number of years which is the way contracts operate in the reality-based business world.

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Contracts, Legal Stuff, PG's Thoughts (such as they are)

21 Comments to “Start Media Buys Whiskey Creek Press, Imposes New Contract Terms”

  1. Thank you for sharing this and for your comment on it.
    What I would like to know, since the original (bought) contracts have a set duration 3 years before the rights return to author, which now, if one signs a new Start’s contracts becomes life of copyright. What happens when author refuses to sign? Does a new company, Start in this case, have to honor the original contract and stop selling author’s book after 3 years?

    • Without having read the contracts I can only speculate and this is not legal advice, but assuming WB has the right of it, yes. The license will expire and further sales (absent inventory close out and/or grace periods) would be infringement – and a good case could be made that it was willful infringement.

  2. I assure you that of my knowledge they will negotiate.

  3. The best solution is, of course, a publishing contract that ends within a specific number of years which is the way contracts operate in the reality-based business world.

    Seven years, 70%. #excitingpress

    Worthwhile to hit the link; apparently the new owner guy wrote in to clarify/update. From his email:

    Both the royalty rate and the length of copyright terms we are offering are very common, typically considered “standard” in publishing.

    Which is pretty much the crux of the entire problem, really.

    In addition to better out-of-print clauses and higher royalties, I think authors should push for a Reversion of Rights on Merger or Acquisition clause — meaning, if your publisher gets acquired, it renders the contract moot. I realize this would give a lot of publishers the opportunity to drop many authors, but that’s basically what just happened with those Angry Robot imprints, anyway, and I think in all situations, rights should default to creator’s ownership — not that of the publishing company. (I think it’s reprehensible Osprey wants to sell off those rights. Fine, close up the imprints. But the right thing to do is cancel the contracts and give those authors their rights back.)

    Sure, publishers might refuse to sign contracts to that effect, but really, would you want to do business with one who did, anyway? I sure wouldn’t.

    • The problem with that is that if there are many licenses like it it makes the company unsalable. Plus, it’s kinda silly. If the terms are agreeable, the terms are agreeable. Yes, who you make deals with is important, but if their trust is so all-important, are you going to get a clause that says if your editor is fired or the lady who made the cover art you loved so much retires, the publisher can’t publish any more of your books?

      I have many, many problems with tradpub contracts, but the ability to transfer them – on the same terms and if the new license holder breaches then the license terminates – is not one of them. When I make a license non-transferrable – and I do, all the time – I have a specific reason for it. Otherwise, as far as I’m concerned, it’s an asset of the licensee, and as long as they perform, they can reasonably treat it as such, just like I can treat my IP (and, say, my royalty revenue stream.)

      I usually, for instance, limit transfers to either a complete sale/transfer of the company, or else give my client/the licensor discretion to approve it. Sell the whole company, and I can have some assurance my client’s rights will be treated as a valuable asset of a valuable concern. Not perfect, but better than nothing. But no selling off just one thing at a time at a whim: if it’s just my rights you’re selling, I get a say in the transaction.

      • You know, Marc, I actually started writing Option for Reversion — but I think we’re talking about the same thing. The authors can decide. On sale or merger, they can either choose to approve that they will have the same terms with the same company, or the rights will revert.

        I’d love to see more freelance use of editors and cover artists, and not just among indie authors.

  4. Trust me. Just sign this. If I sell the company, I promise the guy I sell it to will be nurturing.

  5. I hope they do not sign, or if they sign it’s a totally new negotiated contract that’s exactly like or better than the one they originally had.

    Naw, they should just not sign.

  6. Every time I see these stories I’m reminded of how “hard” it is to get out of an indie contract with Amazon. 😉

  7. PG would you care to comment on the 35 year opinion writers have to revoke copyright? It is my understanding that that would trump any life-of-copyright clause (unless it was a renegotiation). Obviously, 35 years isn’t so good anyway, but I’m curious about your thoughts so writers who might be trapped in such a deal know there might be a way out.

    • I read somewhere that publishing contracts have a clause which overrides the the 35 year copyright rule, so you’re back to the old life plus 70 years or whatever it is.

      Can’t for the life of my find where I read it though.

      • However, U.S. copyright law specifically states that the right of reversion after 35 years cannot be overridden by any contract and cannot be taken away from the copyright owner.

        As I understand it, any contractual language taking away a writer’s 35-year right is therefore legally void. The only possible purpose of including it in the contract is to fool dumb writers into thinking they have signed that right away so they will not exercise it.

        • The esteemed Mr. Simon has the right of it. While there are some shenanigans that have gone one with agreements not to cancel, by and large, the statute says, “the author’s right to cancel is absolute.” If anything, it’s harder to enforce than a no-bankruptcy clause, and serves the same purpose.

      • It would be interesting where you saw that, as the statutory provision would override license terms.

  8. Just a note related to an earlier post here that Writer Beware is a service of Science Fiction and Fantasy Writers of America, and would not exist without it.

    I doubt WB was suggesting that a life-of-copyright clause is optimum; only that it’s fairly standard among the biggies and difficult to negotiate, so the best way to deal with it is by negotiating a reasonable reversion clause.

  9. My lawyer friend read it and advised me not to sign it. Whiskey Creek press has given me unprofessional bogus invoices as to how many of my books have sold. They’ve paid me less than $100 this year since my book was published last August 2013. Now they want to give me $200 to sign this contract? I don’t think so. There’s no professional accounting from Amazon.com or Barnes & Noble from them as to how many books have sold. I’ve spent $12,000 on PR website and travel and been on hundreds of radio stations across the country and a few television stations this past year and I have a hard time believing I’ve only sold a few books. Not in the position to go after them to find out what’s going on at this point but the new company and whiskey Creek have refused to answer my requests for more accurate accounting. I think they’re all crooks.

    • I’m sorry to hear that you had such a bad experience. I’m grateful that you are willing to share publicly.

  10. In my post I stated clearly that I don’t consider life-of-copyright optimum for small press contracts. A limited term is always better.

    I also stated that in my opinion, Start’s contract is a “beware”, because I consider its rights reversion language inadequate.

  11. I forgot to add–according to Jarred Weisfeld of Start Publishing, the contracts of authors who don’t sign the new Start agreement will continue to run until the original grant term expires. Authors can also terminate early if they like–without the big fat fee Whiskey Creek would have charged them.

    “For those authors who prefer not to sign on under the new terms, that’s absolutely fine and we’ll continue to honor the terms of their contract as they already stand. When their license has expired they are free to go elsewhere if they wish. They’re also free to exercise their termination clause if they’d like to get out before the end of the license period. (Please be advised there will be no termination fees in the new Whiskey Creek Agreements)”

    I would like to hear from authors who don’t sign with Start, to be sure these promises are honored.

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