Keiler v. Harlequin – Amicus Brief

1 October 2013

Keiler v. Harlequin is a lawsuit by Harlequin authors against Harlequin for actions by the publisher that resulted in massive underpayment of royalties to authors for ebooks. Some authors report receiving as little as six cents in royalties for sales of each of their ebooks by Harlequin

PG won’t bore you with the history of this case, but Romance Writes of America and The Authors Guild have filed what is called an amicus brief with the US Court of Appeals for the Second Circuit.

If you skip down to page 7 of the PDF (page 2 according to the brief’s page numbering) to Summary of the Argument, you’ll get to the meat of the filing.

Thanks to Julie for the tip.

. . . .



Do Romance Authors Receive Worse Treatment from Publishers Than Anyone Else?

25 April 2018

PG is trying to extricate a client from a nasty publishing contract with a large romance publisher. Both the client and the publisher shall remain nameless.

PG is frustrated. The client is frustrated.

PG has conducted extrications from enough publishers to have come to a conclusion.

Across the broad range of different types of books and different varieties of publishers with which PG has dealt, as a group romance publishers are the worst. Worst contracts, worst behavior, worst attitude towards writers.

A public event PG can talk about began in 2012 when a class action was filed against the company on behalf of Harlequin authors who signed book contracts with Harlequin between 1990 and 2004. The suit was filed in 2012 and settled in 2016. You can find information about the settlement of the class action at Harlequin Class Action Settlement.

The lawsuit was based on Harlequin’s practice of sublicensing e-book rights through a Swiss subsidiary, which resulted in authors receiving 3% to 4% of net profits from their works rather than the 50% Harlequin agreed to pay in its publishing contracts.

PG has previously blogged about this case. You can see prior posts, including some court documents, by Clicking Here

Basically, the story was that HQ didn’t mention ebook royalties in its publishing contracts. Those contracts included a catch-all clause which essentially said HQ could license other rights and split the proceeds on a 50/50 basis with the author. The contracts also included a provision which said if HQ licensed the other rights to an affiliated entity, the royalties paid to the author had to be equivalent to market rates for licensing those other rights to a company not affiliated with HQ.

When ebooks appeared on the scene, rather than asking its authors to sign new contracts or ebook addenda to their existing contracts, HQ decided to license ebooks to a related Swiss company for a royalty of 6% of the cover price. The Swiss company then sublicensed each book to HQ print and ebook companies to distribute, so HQ-Switzerland kept 94% of the ebook proceeds and paid 6% to HQ-SorrySucker.

Under the “other rights” clause in the publishing contract, the author would be paid 50% of the amount of the license fees received by HQ-SorrySucker. HQ-SorrySucker paid the authors 50% of 6%. Even English majors know that results in a royalty paid to the author of 3% of the cover price each ebook.

This was at a time when Amazon would license ebooks from authors under KDP for royalties of 70% of the cover price. If HQ-SorrySucker had taken the normal route taken by other publishers, HQ authors would have received royalties at the rate of 35% of the cover price.

The following is from an Amici (the plural of Amicus or Friend of Court) Brief filed in the case by Romance Writers of America and the Authors Guild:

In the spring of 2011, Amicus The Authors Guild began receiving reports from its members that their e-book royalties from Harlequin were extremely low. These members believed Harlequin was self-dealing by licensing e-book rights to one of its corporate affiliates for 6% of the cover price (i.e. suggested retail price). Because the royalty payable to the author under the “all other rights” clause is 50% of the amount received by the publisher, a 6% royalty to the publisher results in a royalty to the author of only 3% of the cover price – far below the customary range for sales in secondary media. The Authors Guild contacted Harlequin to voice these concerns and to request a copy of Harlequin’s inter-affiliate license agreement. Harlequin declined to provide the document on the ground that it was proprietary.

During the same timeframe, Amicus RWA was also in communication with Harlequin regarding e-book royalty issues. Harlequin  provided to its authors, RWA, and other industry participants the following explanation of Harlequin’s inter-affiliate licensing practice:

Our authors contract with Harlequin Books SA (“HBSA”), our related Swiss company.  HBSA licenses  the right to publish an author’s work in print and digital to our operating companies and to third-party publishers, which then bring books to market in their country (incurring costs of translation, production, distribution, marketing, branding, etc.). In return, HBSA receives a license fee.

The NAR [net amount received by the Publisher] is the license fee. For editions where the author is to be paid 50% of NAR, the author’s royalty is therefore 50% of the license fee received by HBSA. The license fees are expressed as a percentage of cover price. Historically they ranged from 6% to 8%. The author’s 50% share of that fee would then equal 3% to 4% of the cover  price.

As noted, the publishing contracts at issue require that in any affiliate licensing arrangement the “Publisher” must receive license proceeds that are “equivalent to the amount reasonably obtainable by Publisher from an Unrelated Licensee for the license or sale of the said rights.” Based on their considerable reservoirs of knowledge and industry data sources regarding royalty rates in the publishing industry, the Amici confidently represent  to this Court  that  the  6% to 8% royalty that Harlequin Enterprises elects to pay to  its Swiss “Publisher” subsidiary is a small fraction of the proceeds that the “Publisher” could obtain from an unaffiliated licensee in the open market for e-books.

. . . .

Generally speaking, a book publisher makes money by exercising the rights that it has licensed from the author of a given work, through the sales of books or sub-licenses of publication rights in various sales and distribution channels.

Historically, the primary sales channel for print book publishers was through retail book stores. In the modern era of e-books, publishers sub-license their digital copyright rights to online “e-tailers.” The most well-known e-tailers of e-books are Amazon, Barnes & Noble, and Apple, but there are many others in the field.

There is no hard and fast rule or convention in the publishing industry on the royalty rates or license fees paid by e-tailers to publishers for e-books. There are, however, numerous sources ofdata on the market’s behavior. In the experience and collective knowledge of the Amici, publishers are almost universally able to extract from an e-tailer at least 50% of the cover price of an e-book. A 70% split for the publisher is quite common and can be obtained even from industry power­ houses such as Amazon and Apple.

It is clear to the Amici that if the Harlequin’s Swiss “Publisher” subsidiary operated as a normal market participant, it could readily license the new e-book versions of its backlist for license fees of 50% to 70% of the cover price of each work sold. In this scenario, the 50% royalty payable to authors under the 1990 to 2004 publishing agreements would be 25% to 35% of the cover price of each work sold. Instead, however, the Swiss “Publisher” licenses the e-books to its parent, Harlequin Enterprises, for 6% to 8% of the cover price, and the authors’ 50% royalty is thus only 3% to 4% of the cover price. From the perspective of the Amici, it appears that Harlequin Enterprises has simply siphoned off 42% to 64% of the cover price before the money reaches the Swiss “Publisher” subsidiary, so this amount will not have to be split with the authors.

PG has calmed down now, but he still wonders whether romance authors are treated worse than other authors by the publishing establishment.

PG does know Amazon loves romance authors and it shows its love by paying them money.

PG has never had a client ask him whether he thinks the author can make more money from HQ than from Amazon.

PG was not a math major, but he could probably figure out his answer to that question without a spreadsheet.

Harlequin Lawsuit’s Happy Ending

16 September 2016

From author Patricia McLinn:

Sitting in front of me is the settlement check I received from a class action lawsuit against Harlequin. Because this Harlequin lawsuit was settled out of court, there was no winner legally. That’s not how it feels. Not at all. Let me tell you, the authors won.

. . . .

In the spring of 2011 a group of authors, shepherded by Ginger Chambers and Barbara McMahon and with me part of the flock, hired Elaine English for a legal assessment of clauses governing ebook rights in various Harlequin contracts. Under contracts that spanned several years, ebook rights were lumped under “All Other Rights.” These contracts were written and signed before ebooks became truly commercially viable, but because of the length of Harlequin contracts they were still in force. The “All Other Rights” clause said Harlequin and the author split whatever monies came in from the exercise of these rights 50-50.

However, when books under those contracts eventually were digitized, it became quite clear the authors were getting way, way, way less than 50%.

What Harlequin did was say that our contracts were signed with Harlequin Switzerland, but the ebooks were published by Harlequin Toronto, and golly, gee, Harlequin Switzerland sold the rights to Harlequin Toronto for 6% of cover price. So Harlequin Toronto sent Switzerland 6%, Switzerland kept 3%, the author received 3% … and Harlequin Toronto kept all the rest. (BTW, this agreement between these Harlequins was created well after the contracts were signed. Authors were never informed about it.)

. . . .

A word about Harlequin contracts – they are essentially not negotiable, with extremely limited exceptions. You might be stunned at the major authors Harlequin could have kept if it had been willing to negotiate a bit. It chose instead to let those authors walk. You either accept the contract as Harlequin writes it or you don’t publish with Harlequin. (The latter became my choice around 2008.) They could do this because of the structure and business climate of publishing at that time.

I had a few excellent individual editors among the 34 I had for 25 books (yes, you read that right … editor turnover might lead some to suspect Harlequin didn’t treat many of its editors well, either), but my overall experience with Harlequin was … let’s say “not good.” By the end of 19 years with them I was disheartened, depressed, and done. I didn’t think I would write for publication ever again. I didn’t even want to try.

By 2011, however, I was back on track. I was publishing backlist books as an indie, I was writing again and publishing those originals as an indie. And, thanks to Harlequin’s machinations, I got a good jolt of indignation to return me to my feisty self. My reaction to what Harlequin was doing was summed up after reading one of their missives to authors that summer when I said aloud, “How stupid do you think I am?”

. . . .

David Wolf, bless his heart, took the case on as a potential class action lawsuit, which he and Michael Boni and John Sindoni of Boni & Zack, LLC, filed in July 2012. The lawsuit is Keiler v. Harlequin. The three named plaintiffs on whose behalf the suit was filed are authors Barbara Keiler (who writes asJudith Arnold), Linda Barrett, and Gay Wilson (who publishes as Gayle Wilson.)

Harlequin’s reaction? “This is the first we’ve heard of it.” That is what’s known in writing as A Big Fat Lie.

Remember, David Wolf had been talking to them for the better part of a year at that point.

The Harlequin lawsuit had plenty of twists and turns. It was completely dismissed at one point in 2013. The lawyers decided to appeal.  Mind you, they were Not Paid a Cent all this time. Once they started down the class action road it was all on contingency. (Yes, they’ve been paid out of the settlement now – getting nowhere near what they could have earned through ordinary billable hours for the years of work they put in on this.)

The appeals court upheld the most important element of the case in spring 2014 … and the next day, the sale of Harlequin to Harper Collins was announced. How would that affect things? We had no idea.

On top of that, the appeals court sent the case back to the same judge. Who hadn’t, to my unlegal eye, seemed to grasp much of anything about the issues. So how could we hope to fare better than the first time round with him?

Then that judge died unexpectedly as the result of a fall. I am not kidding you.

. . . .

The new judge took a different approach. In October 2014, the 1,200 authors affected by the contract clause were certified as a class. We were, truly, a class action lawsuit. There was champagne that day.

The work wasn’t over. There was discovery. There were depositions. Harlequin subpoenaed at least two authors groups, demanding from one all communication among its members. So much for privacy. It was an onerous effort for a volunteer-run organization to gather all the information and, as expected, it got Harlequin nowhere.

If I were writing this in a novel, I’d let the reader know that the big corporation had done it just because it could – to punish those upstart authors any way possible.

Finally, in June 2016, a settlement of the Harlequin lawsuit was announced.  While maintaining it never did anything wrong, Harlequin agreed to pay $4.1 million.

The settlement checks from the Harlequin lawsuit began arriving in authors’ mailboxes Monday, Sept. 12.

The checks are nice. Very nice.

. . . .

Most vividly, I remember tears from some of the communications from these authors. They were risking their livelihoods, but had to join the group because what Harlequin was doing was simply wrong. They had written for Harlequin for 30 years and felt betrayed and would never write for them again. They had just achieved their dream of selling their first book to Harlequin and they were scared, but this was too important to ignore. They were from all over the United States and Canada, from the U.K., Australia, and New Zealand. They couldn’t afford the $35 each of us put in to start, but would send me $5 a month until they had paid their share. They wrote a check for well over their share to help cover those who struggled to pay.

And the subgroup that first hired David Wolf became warriors. They collected, organized, and dug through contracts and correspondence. They taught themselves legal concepts. They searched corporate reports. They asked brilliant questions. They did what needed to be done.

Link to the rest at Patricia McLinn

Here’s a link to Patricia McLinn’s books. If you like an author’s post, you can show your appreciation by checking out their books.

PG can’t go into detail, but he will say that HQ is not the only publisher that is not living up to its contracts.

Class Action Suit against Harlequin by its Authors Moves a Step Forward

23 October 2014

PG has just learned that the judge hearing Keiler et al v. Harlequin Enterprises Limited et al, a class-action suit brought by a group of Harlequin authors against HQ alleging a massive underpayment of royalties, has formally certified the authors as a class.

This means that the lawsuit, which was previously dismissed then reinstated in part by an appellate court, can move forward.

Here’s the order docket entry:

U.S. District Court

Southern District of New York

Notice of Electronic Filing

The following transaction was entered on 10/23/2014 at 3:00 PM EDT and filed on 10/16/2014

Case Name: Keiler et al v. Harlequin Enterprises Limited et al
Case Number: 1:12-cv-05558-WHP
Filer:
Document Number: 49

Docket Text:
STIPULATION AND ORDER REGARDING CLASS CERTIFICATION:… Pursuant to stipulation of the parties, and based on the allegations in the Fourth Claim for Relief of the First Amended Complaint filed November 5, 2012 (“Complaint”) and submitted by proposed class representatives Barbara Keiler, Mona Gay Thomas, and Linda Barrett, the Court hereby certifies the claims and issues in the Complaint for class treatment under Fed. R. Civ. P. 23, as more fully set out in this Order. When fashioning an order under Rule 23, the Court must satisfy itself that the prerequisites of Fed. R. Civ. P. 23(a) have been satisfied… Once the prerequisites of Fed. R. Civ. P. 23(a) are satisfied, a class action may only be maintained if the action falls within one of the categories enumerated within Fed. R. Civ. P. 23(b)… Accordingly, the Court makes the following findings and conclusions as stated herein. THE COURT HAVING READ AND CONSIDERED the Stipulation of the parties, and finding that the requirements of Rules 23(a) and (b) are satisfied, IT IS HEREBY ORDERED that the class is certified, defined as follows as set forth herein. IT IS FURTHER ORDERED that Barbara Keiler, Mona Gay Thomas, and Linda Barrett are designated as Representative Plaintiffs for the class; IT IS FURTHER ORDERED that DavidWolfLaw PLLC and Boni & Zack LLC are appointed Class Counsel; and IT IS FURTHER ORDERED that Class Counsel are directed to submit within thirty (30) days of the entry date of this Order, a proposed plan concerning Notice of Pendency of Class Action to be given to the members of the class. (Signed by Judge William H. Pauley, III on 10/16/2014) (ja)

 

It’s not the end of the lawsuit, but, as mentioned, this is a major step forward for the authors.

The class covers authors from the US, Canada, UK, Republic of Ireland, Australia and New Zealand who signed standard HQ publishing contracts between 1990 and 2004 that included the following language in the All Other Rights clause:

On all other rights exercised by Publisher or its Related Licensees
fif typercent (50%) ofthe Net Amount Received by Publisher for
the license or sale of said rights. The Net Amount Received for the
exercise, sale or license of said rights by Publisher from a Related
Licensee shall, in Publisher’s estimate, be equivalent to the amount
reasonably obtainable by Publisher from an Unrelated Licensee for
the license or sale of the said rights;

Which contracts also provide that New York law will apply and include no arbitration clause. The class covers those authors whose works have been published as ebooks.

The full order is set out below (click the four-arrows box in the lower left corner for a larger version):

 


HQ Order (Text)

Appeals Court Reinstates Lawsuit Against Harlequin

1 May 2014

Keiler v. Harlequin is a proposed class-action lawsuit by Harlequin authors against Harlequin for actions by the publisher that resulted in massive underpayment of royalties to authors for ebooks. Some authors report receiving as little as six cents in royalties for sales of each of their ebooks by Harlequin. PG has posted about the case previously here, here and here.

The trial court ended up giving HQ a win, but the authors appealed. Today, the Second Circuit Court of Appeals reversed the trial court on one count, allowing the HQ authors a chance to move forward with their case at the trial level. Here’s the appellate court’s summary of its decision:

The United States District Court for the Southern District of New York (Baer, J.) concluded that plaintiffs’ allegations failed to state claims and dismissed the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).  See Keiler v. Harlequin Enters. Ltd., No. 12-5558, 2013 WL 1324093 (S.D.N.Y. Apr. 2, 2013). For the reasons set forth below, we hold that plaintiffs’ claims based on agency, assignment, and alter ego theories cannot serve to modify the terms of the Publishing Agreements and were properly dismissed.  We also conclude that the amended complaint set forth sufficient facts to plead a breach of the Publishing Agreements on the theory that defendants calculated their e-book royalties based on an unreasonable license fee.  Accordingly, we affirm the judgment in part, reverse it in part, and remand for further proceedings consistent with this Opinion.

The appellate court’s decision to partially reinstate the suit is based upon contentions by the authors that the license from Harlequin Switzerland to Harlequin Enterprise in return for a royalty of 6-8% of the cover price of the books is not “equivalent to the amount reasonably obtainable by Publisher from an Unrelated Licensee for the license or sale of the said rights.”

The court further  found that the authors had contended that such royalties should be at least 50% of net receipts. The decision gives the opportunity for the HQ authors to prove such a contention.

This is not a final win for the authors, but it does open the door for them to proceed with their suit on the theory that the royalty rates between one HQ company and another were substantially lower than HQ would have received from an unrelated licensee.

While today’s ruling doesn’t bring the suit to a close, PG believes this is an important decision that appears to provide the authors a path to a trial on the merits of their claims.

The long path forward would involve moving through the preliminaries for such a trial, the trial itself and then appeals from the trial court’s decision, no matter which way it goes.

The shorter path would be a negotiated settlement between the authors and HQ that would likely involve some substantial additional royalty payments to HQ authors.

PG says HQ authors shouldn’t spend any money they don’t already have, but they may wish to hoist a glass to the Second Circuit.

Here’s the full opinion:

Keiler v Harlequin (Text)