Contracts

Canelo searches for descendants of forgotten crime author

23 August 2016

From The Bookseller:

Canelo imprint Abandoned Bookshop is on a quest to locate the surviving relatives of crime author Clifton Robbins as it prepares to republish two of his books which have been out of print for over 80 years.

First published with “huge success” in the early 1930s by Ernest Benn, but unavailable since then, Dusty Death and The Man Without a Face are the first of five novels by Clifton Robbins featuring Clay Harrison, a London barrister-turned-detective, and his clerk, Henry.

According to the publisher “little is known” about Robbins. He appears to have been born in 1890, in London, studied at Cambridge and worked as a journalist. He wrote nine novels between 1931 and 1940, but none of the books were ever reprinted and he had nothing published after that date. Some records suggest Robbins died in 1944, others in 1964, but “numerous enquiries, requests and years of research have yet to reveal any living descendants,” the publisher said.

. . . .

Pack said all royalties from sales of the books will be kept aside in the hope that a relative of Clifton Robbins will come forward to claim them.

Link to the rest at The Bookseller

PG makes no claims to expertise in the history of UK copyright law, but he understands that, since The Copyright Act of 1911, copyright extends for at least the life of the author plus 50 years. In 1995, the term was extended to the life of the author plus 70 years for all works that were subject to copyright protection at that time.

Thus, if Mr. Robbins died in 1944, absent UK copyright twists of which PG is unaware, his books would appear to be out of copyright. However, if Mr. Robbins died in 1964, they would appear to still be under copyright protection, assuming the author, or author’s original publisher, did whatever was required to protect his books under UK copyright law.

PG will caution that there may be facts not included in the OP that would impact the presence or absence of copyright protection for Mr. Robbins’ books. PG will appreciate any comments from those who know more about UK copyright law than he does.

Agent Agreements

22 August 2016

From Kristine Kathryn Rusch:

We’re almost to the end of the contracts/dealbreakers series. I can’t tell you how pleased I am about this, because I feel dirty just looking at some of these contracts and agreements.

Most of you indie writers tuned this series out long ago, because you believed it didn’t apply to you. And yet, I read all the time about indie writers who sign with an agent to sell the print versions of an ebook and to sell foreign rights and auxiliary rights.

Bad move. Really, really, really bad move.

First, you’re signing traditional publishing contracts if you sell your paper book rights. You’re also signing traditional publishing contracts if you sell foreign rights. And I’m not even going into Hollywood options or movie deals or TV deals—

. . . .

Think about that for a moment: this writer hired an agent to represent all rights in the book, including movie and TV rights, and the agent had the writer sign a shopping agreement with a third party. Right there, that’s suspect. Because the agent should already have representatives from the agency (or a partner company) shopping the property.

This shopping agreement had no termination date, allowed the third party to shop the book to anyone who might make a film, a game, anything that moved, in technology developed or not yet developed, in territories around the world and the universe in perpetuity. For the duration of the agreement, the third party and the agent controlled all of those subsidiary rights in the project.

And the kicker? No money exchanged hands. The writer lost control of all subsidiary rights in her book project for no money and no reason, in perpetuity. All because her agent told her to sign the damn agreement. And the writer did.

And then she sent it to us as an example of the agent doing a good job.

. . . .

At first glance, these agent agreements, as they’re called, seem pretty benign. Most are no more than 3 pages long, and seem to be written in English. In fact, most of them are written in chatty language, usually in the form of a “letter,” so the writer thinks they’re signing something informal, when really, they’re signing a contract.

The worst one I’ve seen comes from a huge, very famous agency, whose chairman (and lead agent) apparently figured he could save money on legal fees, and cobbled an agreement together himself.

It looked like it was made of spit and glue, and had many unenforceable clauses. I’m sure it’s been revised since by lawyers, because I know two writers who challenged the thing in court.

But the version I have gave the agency 15% of the copyright in every project the agency represented. It said so flat out in the agreement. (I’m sure the updated version says the same thing, as well. I’m sure it says all the same things, except in better legalese.)

The agency also decided to cover its tushy by adding some version of this:

The writer agrees to follow any agent clause in a publishing contract to the letter.

In other words, that agent clause in your traditional publishing contract, the clause we discussed last week, the clause stuffed full of things that benefit the agent? Well, if you had no agreement like this with your agent, that clause is toothless.

If you have an agreement saying you will abide by the clause in that traditional publishing contract, then suddenly the clause has teeth. And so does every version of that clause you signed from the beginning of your relationship with the agent.

. . . .

The agreement I have before me, from a long-time agency, founded by one of the big name agents of the mid-20th century, has an agency agreement that looks like the chatty letter-type agreements I saw in the 1980s.

Until you read it.

And then you find clauses like this (the emphasis in bold is mine):

You hereby irrevocably assign to us and we shall be entitled to retain a sum equal to fifteen (15%) percent of all gross monies and other considerations paid to you or on your behalf with respect to any and all contracts negotiated and concluded under the terms of this agreement…

Well, you can delete the word “irrevocably” and the clause isn’t that bad, right? If they negotiated something, then they’re entitled to their percentage, right?

Um, the clause doesn’t stand by itself. Combine it with this baby:

This agreement is effective immediately and continues in effect until terminated by either party…We will continue to function as your agent and to receive our commission on all contracts negotiated and concluded during the term of this agreement, or within six (6) months following termination, if negotiations were commenced during the term hereof, and any modifications, replacements, extensions, and supplements of such contracts regardless of when made or by whom negotiated or when payments were received

So imagine this: you fire the agency because they screwed up your negotiation. Say, maybe, they tried to give a free option to a big name actor, or something stupid like that.

You do the negotiating yourself on the deal (with a lawyer back-stopping you), get a movie option for six figures, that’s then made into a film for seven figures, plus the book the movie is founded on stays in print, and becomes a bestseller, and you renegotiate the contract and, according to this stupid agreement, you still have to pay the f***-up agent her 15%. The agent you fired because she was bad at negotiating.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

The Agent Clause

15 August 2016

From Kristine Kathryn Rusch:

So, you decided, even after last week’s post, that you need an agent. Maybe you were one of the people who found a way to dismiss the post because of my hyperbole in the beginning, figuring I don’t know what I’m talking about. Sure, sure, your agent would never do such things. Ever, ever, ever.

. . . .

[I]n case you’ve forgotten it, you hired that agent. They work for you. (In theory. Generally, in practice, their interests align with the publishing company, but that’s another blog.)

So what this means is that you have or you will sign contracts with your publishers that reference your agent. And you will sign an agreement with your agent, creating a document that governs your relationship with them.

Writers rely on their agents to negotiate contracts, which means that agents will negotiate things into those book contracts that benefit the agent.

. . . .

Because writers who rely on their agents to negotiate book contracts generally sign agreements with the agent or the agency which the agent is attached to without negotiating that agent agreement at all.

. . . .

This week, let’s deal with the clause that agents insert into your book contract with your publisher.

. . . .

Agents have been abusing this clause for years now. Agents, not publishers, even though this clause is in a publishing contract between the writer and her publisher.

Once upon a time, publishers paid the writer directly and the writer paid the agent. Which is, frankly, how it should be. After all, the agent is someone you hired, not the publisher.

However, some brainy publisher got the idea that if Agent A has 20 clients with the publishing house, it’s easier to write one check to Agent A than it is to write 20 checks to the writers. Agents liked this because that meant they didn’t have to browbeat their writers to get the commission.

If the contract is between the publisher and the writer, the publisher cannot just pay the agent. That’s illegal. The author can’t just say, “Oh, pay my agent,” because that’s not legally binding.

If the author wanted to the publisher to pay the agent directly, it had to say so in the writer-publisher contract. So some lawyer came up with the way to do this. That was the origin of the agent clause, which was, in reality, a payment clause.

Back when this started, the clause looked like this:

The Author hereby authorizes the Author’s agent, Agent A, to collect and receive all sums of money payable to the Author pursuant to any of the provisions of this Agreement.

And that’s it. That’s all. Really simple, right?

The net effect was this:

Checks sent to Agent A (at such-and-so address) counted as payment to Writer Z, and thus fulfilled the contract. That’s all. If the writer signed the contract, then the clause became activated, and all payments went to Agent A.

The problem with this is, if you fire Agent A, you need an addendum to the contract, so that payment would go either directly to you or to Agent B, who is now your representative.

Well, that might screw Agent A out of money that you might owe him. So the agent started adding words like “irrevocable” to the agent clause which, of course, he negotiated with the book publisher.

Then things went crazy. Agents started adding all kinds of things to the agent clause which are in the agent’s interest, but no one else’s. The agent would add things like “the agent represents the author on this book, and all foreign sales of this book” and so on.

. . . .

I’m not assigning anyone anything “irrevocably”—certainly not someone I can fire for cause. Especially if my money goes through their account first. I will not “fully empower” anyone to act for me.

(Some agents go so far as demanding legal power of attorney—which is something you should never give anyone. What that means is that they then have the right to be you in all legal matters. No. Do not give legal power of attorney to anyone without good cause—like you’re dying and need someone to handle your accounts [and even then, it might not be a good idea].)

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Protecting Your Content and Your Name

29 July 2016

From Kristine Kathryn Rusch:

Back when I was writing a lot of tie-in novels for Pocket Books’ Star Trek division, a brand-new editor asked me to help him rescue a short story anthology. It seems that the main writer on the project had quite unexpectedly. The writer had outlined the story, and the outline had been approved by Paramount, which was a major hurdle. What the editor needed from me was an actual draft of the story.

In other words, none of the characters were mine. The plot, setting, and theme were not mine. The editor needed my style as a writer and my name on the cover. That was it.

I had never worked with this editor before. My usual Star Trek editor advised me to stay clear. But, I figured, it was just a short story. What could it hurt?

Well…it didn’t exactly hurt. But it was perplexing. I wrote the 6,000 word story as requested from a 2,000 word outline. Turned the story in on time. Got an acceptance, and the ridiculously high acceptance payment.

Then I got the copyedit.

Which wasn’t a copyedit. The editor himself had rewritten every single sentence of the story. Every single one. Sometimes adding passive voice. Sometimes making the meaning unclear. Always dumbing down the content and the voice and the point of each sentence, let alone each paragraph.

I looked at that, glanced at my contract, and realized that even though this short story was written as work made for hire, I could make a huge stink about this. I could pull my name or pull the story or cause all kinds of grief.

In the end, I decided to leave it alone. If you look up this short story now, you’ll see the most poorly written thing ever published under my name.

. . . .

That is the only time in my recollection that I can recall allowing an editor’s or copyeditor’s full rewrite of my work to get into print. I’ve had worse rewrites in my career, including a copyeditor who changed every single piece of punctuation in one of my romance novels, but I never let those go through under my name.

I cited contract terms, refusing to allow the changes. I pulled books from publishers because of shenanigans like this. I got copyeditors fired. Repeatedly.

I defend what I write. My writing in some story or novel or nonfiction article might be awful, but it’s mine. If I put my name on it, guaranteed—except for that one short story—every word in the piece is a word I wrote or approved. Every single one.

. . . .

I told you that most writers check their traditional book contracts for the advance, the payout, and the due dates. They don’t look at anything else. Writer after writer, and editor after editor, have told me this.

I always look toward the editing clauses first. Because if they’re ugly, the rest of the contract usually is as well.

This applies to all kinds of writing for traditional markets, especially for nonfiction and short fiction. I’ve seen terrible editing clauses in those contracts, and what’s ironic is that those clauses often seem to be the most innocuous.

What you want is complete control of the content of your work. In every single short fiction contract I sign, I change the publisher’s right to “edit the Work” to “copyedit the Work.” I always add a line that ensures I must approve any changes, including those copyedits, to the Work.

If I don’t like the copyedit, my version stands. If my version isn’t going to stand, then the story doesn’t get published. Period, end of story.

. . . .

The British publishing company has the right—if the publisher deems that right necessary—to completely rewrite my article. They could change everything. They could add stuff I find objectionable—political points of view, for example. They could libel someone through careless writing or even deliberately. They could take a piece in which I say I love something, and change it to say I hate it.

They can do all of that, because I would have signed that right away. Then I would have waived my right to remove my name as the author of the piece. So they could write all this stuff, and claim I meant it, because my name is on it.

. . . .

Oh, and one that drives me as batty as the editing clauses: they have the right to my name. Not just to use my name in publicity. I “empowered” them to use my name in any situation they “considered necessary.”

My name.

I see this clause a lot. Writers give up the right to their own names to a corporation for a few thousand dollars and the publication of a novel.

. . . .

She wrote back, refusing to change the editing clause, and then said this:

I’m afraid the moral rights clause is not one that I am able to make any alterations to. It is a standard clause across all of our contracts and our lawyers will not accept changes to it. As you say, this is a clause that relies somewhat on trust; I can only assure you that we will not act unreasonably, as it would not be in our interest to do so….

I kid you not. She wrote “Trust us. We won’t hurt you.”

. . . .

Make sure the editing clauses in your contracts—from short story contracts to article contracts to novel contracts—limit what the publisher can do to your work. You essentially should allow them to change some things to house style (like whether or not you put a capital after a colon). You should have the right to review a copyedit—and to have the final say on that copyedit.

You also need a clause that limits revisions. When there’s a clause in the contract that says that the finished book must be “accepted” by the Publisher, then you have to define what that means. If it means revisions, then those revisions should be limited to no more than two or three before the contract terminates.

I’ve known writers who rewrote their books for years before the books finally were tossed back as unacceptable by the publisher. One author I know rewrote her book every year for ten years for a textbook publishing house I worked for. When my boss left, and the next editor took his place, that editor saw this continual revision, and canceled the contract. the writer had to repay her entire advance.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

Regarding responses such as our lawyers will not accept changes [to a standard contract provision], PG says that the lawyers work for the publisher, not the other way around.

If a publisher tells its lawyer to modify a contract provision to reflect a request from an author, the lawyer will do so. The lawyer may advise the publisher not to make the change for this or that reason, but if the publisher instructs the lawyer to make the change anyway, the change will be made.

Reserve, Rinse, Repeat

28 July 2016

From Brillig:

Here is a letter which I am sending today to the CEO of one of the major publishing conglomerates.  All authors and agents should feel free to copy and paste, put in appropriate specific details, and do the same.

Once upon a time, the reserve against returns was kind of necessary.  Books only sold in print.  All those print books were fully returnable.  Sometimes 70% of the copies were returned.

But now, books sell digitally, with very few returns on ebooks and downloadable audio.  Printed books are still fully returnable, but for a great many books, sales through channels that lend themselves to especially high return rates have dwindled.  I’m not saying reserves are entirely unnecessary.  I’m saying it’s time to push back on doing things this way because they’ve always been done this way, accepting reserves in any quantity when they no longer serve their original and intended purpose.

There are too many business practices tilting against authors, and we can’t continue to accept all of them.

Dear CEO:

I hate arguing about pennies, but I also don’t understand why publishers want to keep pennies from my authors for no reason, holding reserves on titles where none is necessary.

I’m attaching the summary page of the just-received royalty statement for [book by my client] by [client name], as the quintessential example of this.

Please notice the book earned $1750 in ebook royalties.

So how can you justify the 92 copy reserve on the trade paperback?

The trade paperback royalty per US copy is $1.20.  If the ebook royalties were to drop by half on [book by my client], [you] would still have $875 to credit to the author’s royalty account on the next royalty report.  That is a sufficient reserve to cover the return of 730 trade paperback copies. The actual returns on the trade paperback were 46 copies.

This isn’t reasonable.  It’s time for your contracts to acknowledge that, and to renounce the right to hold reserves against returns when ebook income can reasonably be expected to cover print returns, as is clearly and abundantly the case on this royalty report, and on so many others.

Link to the rest at Brillig

Other Evil Clauses

22 July 2016

From Kristine Kathryn Rusch:

Writers tend to go through their business life like Pokémon Go players, looking for something that isn’t there, hoping to score a magic number of points, and not seeing what is there.

It’s impossible to show you all the bad contract terms. I’ve delineated several that you need to watch out for. I’m going to go through some important ones quickly in this blog post, and then look at a few more major terms in the next few weeks before we go to agents and attorneys.

After that, folks, you’re on your own.

. . . .

Definitions: Make sure all of the important and dicey terms in your contract come with an attached definition. And make sure that definition is in your favor, extremely clear, and very narrow. The biggest and most important definition in modern contracts is the definition of the word “net.”

Most contracts leave out the definition of the word “net” altogether. Those contracts assume, apparently, that we all agree on what the word means.

Here’s the thing about contracts, folks. Contracts create their own language and their own definitions. So if the word “net” is undefined, it means whatever someone wants it to mean.

If the publisher does define the word “net,” the publisher often does so in a way that benefits them. (Horrors! They don’t do that in other things…oh, wait, never mind.)

Publishers have moved to “net” in royalty payments at the same time as the rise in ebooks. But that’s not why publishers did it. They did it for the same reason that they have discount clauses in the contract, such as the ones we discussed in last week’s blog, to make sure the writer gets almost no money for the books the publisher sells.

If the publishing contracts end up defining the word “net,” then the clause usually looks something like this:

As used herein, the term “Net Receipts” means monies received by the Publisher on the sale or license of the Work after all discounts, fees, and returned copies have been deducted, and before addition of freight charges and/or handling charges.

It’s all very, very loosy-goosy. Monies received by the Publisher. I suppose you can audit for that, but there’s lots of room for dispute in that language. And lots of room for abuse.

. . . .

Basket Accounting: speaking of screwing the writer, let’s look at this old favorite, that has existed since the 1970s. Basket accounting refers to the fact that the publisher throws all of the books in one contract into the same “basket” before paying out royalties.

So if you have a three-book contract, and book one sells 5 times its advance, but books two and three never earn out, you probably won’t see a dime in royalties.

If each book were accounted separately, then you’d receive royalties for book one, making you significantly more money.

The clause is not called the “basket accounting” clause. Every contract does it differently.

And I have to tell you: in this modern world, it’s a lot more probable that you’ll get a basket accounting deal if you have a multiple book deal with a publisher. That publisher will guarantee that you don’t see a dime in royalties by underpublishing at least one of those books.

The best way to avoid this?

Have a one-book contract. Never ever ever sign a multiple book deal, no matter how much they offer you.

Traditional publishers and agents will tell you it’s in your best interest to sign a multiple book deal. After all, you’ll get money for years, and you’ll know how much. But you won’t necessarily get actual money for years, especially if there’s an “acceptance” clause in your contract. (Meaning your book is not considered publishable until the publisher deems it “accepted.”) And there’s no guarantee, in this publishing environment, that your publisher will be around five years from now.

Besides, if you have a one-book contract, and your book is successful, then you have the opportunity to negotiate a better contract for book two. And with the rise of indie publishing, if you can’t get a contract for book two, who cares? You can publish it yourself.

. . . .

Time limit on publication.

This one is sneaky. It caught me on my very first novel. What you want here is for the clause to read in your favor. Something like:

If the Work is not published within two years of the date of this contract, the contract terminates, and all rights revert to the author.

Usually this clause isn’t quite so writer-friendly. But something like this clause is in most good publishing contracts.

The contracts that leave it out—well, the publisher never has to publish the book.

. . . .

Why have the audit clause? Because right now, you’re going on faith that the publisher will be honest with you. They have no reason to accurately calculate your royalties and payments. Publishers have never been accurate in their royalty calculations. Never. Why should they start now?

So, get an audit clause on your book. Be prepared to use that clause, especially if you have royalty clauses in your contract that are different from the norm. Because publishers might “accidentally” default to the old way of doing things, and only shape up if you prod them.

An audit clause prods them.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

WriteIndia Writing Contest: When a Contest Sponsor Changes the Rules

20 July 2016

From Writer Beware:

I harp a lot here on how important it is to read the fine print–in your publishing contract, on websites that host user content, in literary contests. Sure, it’s tedious, especially if couched in lengthy legalese–but skipping this step can result in unpleasant surprises.

What happens, though, if the contest sponsor changes its guidelines while the contest is still in progress?

Last year, the Times of India–one of the world’s largest English-language newspapers–launched the WriteIndia contest. Each month for eleven months, a well-known Indian writer provided a passage or a prompt for contest entrants to develop into a short story. Eleven winners were awarded a Kindle, attendance at an exclusive writing camp, and publication in a compilation of winners’ stories published by TOI’s publishing imprint, Times Group Books.

Major newspaper, eminent writers, publication–what’s not to like? Thousands of writers entered the contest. The final slate of winners was announced July 15 on Twitter, prompting this question from one of the non-winning entrants:

To which the response was:

Wait, what? shocked writers demanded. How could that be?

When I put this post online earlier today, here’s how the next few paragraphs read.

Well, because of the fine print of WriteIndia’s Terms & Conditions:

7. OTHER TERMS AND CONDITIONS:

a. Participant acknowledge and agrees that [Times Internet Limited] shall have irrevocable, worldwide, exclusive right to publish and commercially exploit the story/content submitted with TIL, through any medium and channel for the period of two years from the date of completion of campaign. After two years exclusivity period, TIL shall have non- exclusive right to publish and commercially exploit the story, worldwide and in perpetuity. TIL shall have the right to adapt, edit or modify the story as solely determined by TIL. TIL shall not be required to take any further approval or to notify the participant or to pay any additional consideration for the grant of aforesaid rights.

Simply by entering the contest, writers granted TOI perpetual rights to their stories, whether or not they won–and not just nonexclusively, but on an exclusive basis for a full two years. TOI doesn’t have to pay writers whose work they use, or even notify them.

. . . .

In response to the flap, TOI’s Director, Vinita Nawra Nangia, is now saying that “anyone who does not agree to the said terms and conditions, is free to withdraw from the campaign.”

Link to the rest at Writer Beware and thanks to Deb for the tip.

Indian copyright law is on the long list of things PG knows nothing about.

In the US, PG wonders if there would be adequate consideration paid to the authors (accepting their stories in the contest and presumably reading them) to support an agreement to license their copyrights to the newspaper forever.

Regardless of the answer to that question, PG agrees with Victoria that you should read the terms and conditions of any writing contest you enter. Or just skip entering any writing contests and self publish your entry.

How Publishers Abuse Termination Fees

17 July 2016

From Writer Beware:

I’ve written before about termination fees in publishing contracts: why they are bad not just for authors, but for publishers, and how publishers can abuse them. Here’s another case study in how termination fees can become a tool for retaliation.

Sky Warrior Books, “a press dedicated to publishing quality SFF, mystery, historical fiction, paranormal, nonfiction, and other genres”, is run by publisher and author Maggie Bonham (who also writes as MH Bonham and Margaret H. Bonham). Among the lesser-known authors on its list, there are several books and anthologies written/edited by established SF/fantasy authors.

Sky Warrior’s contract–which is problematic in a number of respects, including vagueness in the royalty language–has not one, but two early termination fee provisions:

12.a.ii.: Prior to publication, the Author may terminate this contract for unspecified reasons by reimbursing the Publisher for costs incurred, plus a termination fee of $500. Examples of costs incurred include expenses such as editorial and cover art.

12.f.ii.: Post Publication: In the event that the Author is terminating the agreement in order to sell the Work to another publisher, individual or company for publication, the Author shall pay a termination fee of 10% of the advance and royalties earned on the Work to the Publisher, plus purchase all remaining inventory at cost +15%, with no royalties paid on copies purchased under this clause.

Sky Warrior also appears to have issues with timely royalty accounting. Complaints can be seen at the Absolute Write Water Cooler and at Ripoff Report; I’ve gotten some as well. Two of the authors who contacted me challenged the lack of payment and pressed for answers, whereupon Maggie Bonham terminated their contracts and reverted their rights, without asking for money. A third author–the one who’s the subject of this blog post–also got her rights back. From her, however, Bonham demanded termination fees.

. . . .

As it happens, Eve is an active member of the Science Fiction and Fantasy Writers of America. She turned the matter over to SFWA’s Grievance Committee, which has a good record of mediating disputes between authors and publishers. Bonham, however, refused to cooperate, doubling down on her denial of wrongdoing and reiterating her her demand for money. She also accused SFWA and Writer Beware of a dastardly conspiracy:

After all, if we are harmed, you will have participated in the further erosion of independent, small presses, and I can’t believe the rumor that SFWA and Writer Beware are cooperating with the Big Five publishing houses’ efforts to destroy the independents once and for all. Although I did find it curious that Writer Beware’s publisher avoid list is populated exclusively with small presses, often based in rural areas, far from the New York in-crowd.

Damn. And we thought we were being so discreet.

Seriously, though, I think Eve’s experience illustrates how publishers can use termination fee clauses to retaliate against authors who displease them. The other authors I heard from who complained about nonpayment had their rights reverted without any demand for money. It’s hard not to conclude that Eve was being punished for having the temerity to hire legal assistance.

Link to the rest at Writer Beware and thanks to Leah for the tip.

 

 

Discount Abuse

15 July 2016

From Kristine Kathryn Rusch:

Contracts have gotten worse, much worse in the past thirty years—and that’s with agents (so-called experts) negotiating them.

. . . .

For this blog, however, I’m going to focus on the discount clause.

Before you indie writers go heading off to the hills thinking none of this applies to you, look at the title of this post. Discount Abuse. Many of you indies are as guilty of discount abuse as traditional publishers are.

You just do it in different ways.

. . . .

Second: Do not do what traditional publishers do when they discount books. Generally speaking, traditional publishers do it wrong. Or their strategy is aimed at promoting their company, not at promotingan author. Your strategy is to grow your readership. A totally different thing.

Third: Be glad, as you scan this post, that you’re an indie writer. Even if you screw up and decide to discount your first book, you’ll make more money than your traditionally published friends do on theirdiscounted books. (Unless, you put your book up for free. Sigh.)

And—a bonus Fourth: Read this post now in case you decide to get a traditional publisher to publish your paper copies. Especially if you had (or will have) an agent negotiate the deal. Because much of what I’m going to discuss here applies to paper books, not ebooks. This is one of those areas where you, the indie who has gone hybrid, is most likely to get screwed.

In fact, this area is where writers have been getting screwed since some publisher thought to change their contracts in the last 1990s—and then all the other publishers followed suit.

. . . .

Discount clauses always send a ting of discomfort through me, and not just because the things are damaging to writers’ careers and writers’ incomes. But because they are one of those let’s-screw-the-writer clauses that got added into contracts in the past twenty years or so.

. . . .

And these modern documents have lots of let’s-screw-the-writer clauses. Sometimes they’re bunched into a single clause marked “the discount clause” and sometimes they’re spread out, such as these clauses from a fairly recent contract:

  1. Discounted sales. Some sales of the Work in the forms specified in [another part of the contract—forms like hardcover, trade paperback, mass market] above may be to jobbers, chain stores or others at substantial discount. Where the discount is fifty percent (50%) or more from the Retail Price, a royalty equal to one-half the regular royalty. Where the discount is sixty-five percent (65%) or more from the Retail Price, a royalty equal to ten percent (10%) of the Net Receipts per copy sold.
  2. Cheap editions. On all net copies sold of any cheap edition that the Publisher publishes at a price not greater than two-thirds (2/3) of the original retail price, a royalty of ten percent (10%) of the Net Receipts, but if the Publisher licenses publication of such edition by another publisher, a royalty of fifty percent (50%) of the Net Receipts.
  3. Other Book Publication. For other editions (including but not limited to premiums, mail order, schoolbook and book fair editions, and other special editions) sold in the United States: Ten percent (10%) of the Net Receipts.

This lovely publisher starts screwing writers right from the start. Chain stores or others? Most of the large stores get discounts over 50% as a matter of course, so that means that most of the royalties paid from a writer’s book are paid at half the usual royalty rate.

. . . .

These “discounted” books have no time limit, so if your book is really popular, and it sells to Barnes & Noble (chain store) or Wal-Mart (chain store) at publication, the publisher can discount the royalty rate too. Right from the moment of publication. No waiting a year, as in the 1980 contract.

And lookie here! The publisher doesn’t have to pay full royalties on books sold by mail order, which many publishers are now considering as books sold off their websites. In fact that entire clause that mentions other editions? It’s pernicious all by itself.

It says “For other editions (including but not limited to…)”

In other words, they can publish the definitive book, and then all kinds of other editions, because the author didn’t limit the kinds of books the publisher can publish. And believe me, there are a million different editions the publisher can think up, none of which the publisher has to pay full royalties on.

Things get even worse for writers. For example, this lovely publisher from whose contract I’m quoting has an even lovelier clause in its ebook royalty rate. That clause says:

Royalties For Ebook Editions sold in the United States, except as described in paragraphs 1-3 below: Fifteen percent (15%) of the Net Receipts.

Guess what, folks? Paragraphs 1-3 are the clauses I excerpted above. The discount clauses. So if your publisher has this clause in their ebook editions royalty rates, then your publisher can sell your discounted ebook and pay you even less. So that wonderful $1.99 sale they’re doing to “promote” you? Well, that $1.99 is significantly less than 50% of the cover price of your $9.99 ebook, isn’t it? Guess who doesn’t get paid a full 15% of net receipts on the ebook edition.

You.

By the way, the contracts I’m using for this modern stuff were all negotiated by agents, not attorneys. Just pointing this out.

. . . .

My solution is to go back to 1980.

First, the publisher can’t discount anything without seeking the author’s permission.

Second, the publisher can only discount a book after the book has been out for a year or more.

If the publisher wants to discount titles to promote sales in the first year of publication, let the publisher eat the difference in the cost. Not the writer.

. . . .

Traditionally published authors have no idea what price their book is selling for and what royalty percentage they will get on that book. Without a full-blown audit of their publisher, there’s no way the traditionally published writer can know.

These discount clauses—which the authors have freely signed—are the way that publishers are increasing their bottom lines. This is also why so many #1 New York Times bestselling authors are seeing their royalty rates decline. It’s not because the books sell fewer copies (although that’s happening as well); it’s because the authors are being paid less per copy sold—significantly less.

. . . .

Do your best to negotiate out these pernicious clauses. If you do manage to get those clauses out of your contract, be prepared to audit your publisher regularly. Because they’ll probably still act as if the clauses are in your contract, and figure you won’t catch them at it.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

PG is always conflicted when an author proudly tells him that Costco is selling the author’s books. The author is understandably excited at the prospect of selling a lot of books.

PG has not had any author mention that he/she understands that royalties on such sales will fall through the floor because of deep discount clauses. So far, PG hasn’t had the heart to share the bad royalty news with the author.

The increasing rapaciousness of deep discount clauses explains why fewer and fewer traditionally-published books are earning out their advances.

Whenever PG is banging heads with a publisher trying to extricate an author from a bad publishing contract, the publisher’s counsel invariably mentions that some or all of the books haven’t earned out their advances (as if this is a mortal sin on the author’s part). PG usually responds by saying he’s not surprised because the publisher is paying the author 5% royalties instead of 25% royalties.

Kris is correct that publishing contracts have become longer and longer over the past 10-20 years.

The basic rule for all types of form contracts in the computer word processing age is that lawyers never take anything out of a form contract and constantly insert new provisions and expand old ones. PG sees this in enterprise software licenses and internet terms of service as well as publishing contracts.

He’s also seen an increase an old contract trick that gives something to the other side on page three and takes it back on page 15. A 30-page contract makes this easier than a 10-page contract does.

When PG is reviewing a contemporary contract, he’s constantly going back and forth to see how Paragraph 48 may affect Paragraph 12, etc., etc., etc.

The bigger the jungle, the more places the tiger can hide.

What Does ‘Brexit’ Mean for Publishing?

3 July 2016

The day I feared since David Cameron stepped out the door of 10 Downing Street in May 2015 to declare victory for the Conservative Party came to pass in the early hours of June 24, when news spread that voters opted to take Britain out of the European Union, of which it had been a grouchy member for more than 40 years. “No man is an island,” John Donne wrote in his Devotions upon Emergent Occasions. “If a clod be washed away by the sea, Europe is the less.”

At the most basic level, uncertainty is always bad for business. Small British publishers—always conscious of cutting their cloth—will be cautious indeed. The multinational houses that dominate the industry will be modeling various scenarios. I hear that one has already put new projects and contracts on hold. And as with the 2008 recession, some will use Brexit as an excuse to rationalize, to put out to grass older and wiser, but more expensive, heads and hire younger, cheaper staff. (How must indebted British postgraduate students feel, their futures blighted?)

On both the high street and Amazon, sales of books (and much besides) in the U.K. will slump. Brexit will mean an increase in the cost of living. Inevitably, all that means at least a short-term cut in discretionary spending, as there was in 2008. Clearly that will have impact on British booksellers and publishers; lists will be trimmed—perhaps slashed—in response.

Publisher turnover will be further imperiled by the loss of European sales. After skirmishes a few years ago, it was broadly agreed that U.K. publishers should be able to acquire exclusive English-language rights for the entire E.U. market. But with Britain out of the E.U., Europe—including Ireland—becomes an open market, a battleground where the cheapest edition wins out. Academic and educational publishers will be able to continue to seek world English rights and possibly continue to obtain a full assignment of copyright, but trade publishers will not.

Moreover, U.K. trade publishers need Europe to give them scale; after all, their U.S. counterparts already have Latin America and sometimes Canada. The realignment will reduce the income of British authors for whom Europe is currently part of the home market so far as royalties are concerned. The situation could become desperate if—or when—Scotland gains independence in order to remain in the E.U.

Read the rest at Publishers Weekly.

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