Contracts

And then it all went “Boom”!

15 October 2014

From author Graeme Reynolds:

Since writing my blapocalypseog post two weeks ago, I have been astonished at how quickly things escalated and then blew the hell up at the press in question. Those of you that follow or are friends with any of their authors will know by now that I was talking about Permuted Press.

How things went so badly, so quickly was not even among the reasons that I listed in my last post. Not directly at least. However the reasons for the atrocious contracts, vanishing advances and production delays are very likely share the same root cause as their decision to arbitrarily cease production of print on demand paperbacks this week. Money and Greed being primary factors.

Now, pretty much every author that I know who signed with Permuted did it for one reason, and one reason alone. Permuted had a track record of being able to get books into physical book stores, in the US at least.

. . . .

Authors saw this as their golden ticket. After all, even though Amazon and the eBook trade makes up a significant portion of the market, there is nothing like being able to go into a chain book store and see your title gracing the shelves alongside the likes of Stephen King.

. . . .

Release dates, even on the ebooks were being pushed back. In some instances, one poor author who was due to have their book come out this week as told that it had now been pushed back to next year.

So, yeah. It looks very much like they over reached themselves, grew too fast, too soon. Maybe the money started drying up. Perhaps they were just not able to give those 5-7 books a week the sort of publicity and attention they needed to rise above the sea of other books that are released each week. And because their investors didn’t see the sort of immediate return they were expecting, costs started being cut. Because, lets face it, even people who are fans of a particular publisher are going to struggle to buy 30 books a month, let along read them. You take a look at the sales ranks of the books they have put out there, and they are not exactly stellar. Most are, infact languishing. No money was being spent on launch publicity. No advertising They relied on social media and word of mouth, and then deluged their target market to the extent that the books fell through the cracks and were lost.

. . . .

I hear reports that they are releasing some authors from their contracts, but with caveats. Chief among these seems to be that they are intending to recoup editing costs. Remember that blog post I did two weeks ago? Where I mentioned that they were paying some editors a percentage of sales instead of actual money? Yeah. That’s the first thing that I thought as well. And apparently there is a gagging clause in the release as well, so that people can’t talk about how badly they have been treated.

Link to the rest at Graeme Reynolds’s Blog and thanks to Al for the tip.

Permuted Press Revokes Print Version of Books

15 October 2014

From Gabrielle Faust:

I honestly am not sure how to begin this because I am still, for lack of a better phrasing, at a loss for words over what has transpired this past week. Nearly ten years and several publishers later I had truly hoped that this one, Permuted Press, would prove my jaded perception of the publishing industry to be false, that the horrific abuse of the Creative Class I had witnessed perpetrated by so many other entities calling themselves publishers would be laid to rest and rectified. Before Permuted Press I was, honestly, done with traditional publishing. I was simply going to self-publish (oh, the horror!) my work since it seemed having complete control over the process and end product was worth the time, money, and energy it required simply for the fact that it saved me the heartache and headache of battling for what I spent years of my life creating. I was done. Then someone championed how this publisher was different. They were going to change things. They were going to take care of the authors. They were going to do right by them and make sure each and every one of them was successful in their own right. Because they cared. Because they were honest

My greatest weakness is I trust too easily.

Now, I realize hearing what comes next in this statement may seem disconcerting coming from someone who was recently a contract marketing director for said company. That’s exactly my point. I fought hard while I was working for them to stave off something like this. It was an uphill battle to make sure the 3 to 7 books they were released each week received at least the modicum of exposure they deserved. There was no marketing budget except for what could be done via social media, email and the newsletter (though they paid for a party bus at Wizard World and an open bar from what I hear). But I still believed I could change things if I worked hard enough and built up enough of a web presence for the company.

. . . .

Apparently, over the last weekend of September, while some of the writers and the managers of Permuted Press gathered in Nashville at Wizard World, the announcement was made that it was now too expensive to create POD (print on demand) books so anyone who wasn’t a “best seller” would no longer have their book available in print format. Ebooks only from here on out. They kept this secret from the rest of us until two weeks later when they released a form email to the authors alerting us to this change in our contracts. We were all given the proverbial “pink slip”.

This wasn’t what we agreed to. This wasn’t what we signed on for.

. . . .

Meanwhile, they’re starting a film production company. Oh… Did I forget to mention that?

As you can imagine the carnage of the war that had begun is unspeakable. Authors are going after one another as the “chosen ones” defend Permuted and the rest are defending their sorrow and sense of betrayal. And that is, in effect, what it comes down to—betrayal. We trusted in Permuted Press to take care of our creations, to be honest with us, to protect us from the rest of the publishing world, and to do right by us. Instead they have proven to be just another underhanded business entity. The investor, who continues to remain nameless although I’ve heard almost DC Universe depictions of his wealth and stature from multiple parties, doesn’t care about the writers—he wants a return on his investment and he wants it now. I hate to break it to him, but…publishing is a money pit.

Link to the rest at Gabrielle Faust and thanks to Ron for the tip.

Signing a Publishing Contract

11 October 2014

What to Do Before Signing a Publishing Contract

Column by Brandon Tietz at LitReactor

Writing a novel is damn hard. Selling one to a publisher, in its own distinct way, is even more difficult because you’re essentially convincing a company to gamble on you and your work. This is part of the reason self-publishing is booming right now. Searching for a publisher is both a hassle and a blizzard of heartbreaking rejection, so when you actually do get an offer, it’s a huge moment. So euphoric that emotion can often blind the writer to those important details on what’s on the actual contract. It amazes me how many authors took their time working on their novels only to sign a contract after skimming it once. It’s not an iTunes update, guys…read the damn thing. Here are some key things you should know before signing on the dotted line.

Who Are These People?

I will go on record and say that I have scared away authors from a publisher I went through because it was a sub-par experience. They’re out of business now, if that tells you anything. What I’m saying though is that you should know the publisher before you sign any sort of contract that binds you to them. Now I don’t recommend asking authors whether they do or don’t like the publisher while you’re querying, but after you get the offer, feel free to reach out and get a feel for how they’re handling their business. Unhappy authors are usually a good indicator that you should tread lightly.

****

Conclusion

Don’t be blinded by your contract. Signing a bad one can be the thing that ends up screwing you over for the life of the novel. Do your research, ask questions, and for the love of God, don’t be afraid to ask for changes if you don’t like something. If three author copies sound low—ask for more. If you don’t want your book assigned to a certain designer—ask for an alternative. A contract is an agreement between two parties…not one party telling the other how it’s going to be.

Read the rest here.

From guest blogger Randall

Is Amazon responsible for the Ellora’s Cave fiasco?

3 October 2014

From Sal Robinson at Melville House

Ellora’s Cave, publisher of erotica, was for a long time a great success story of the electronic publishing age. Founded in 2000, they published stories and novels that contained material that was more explicit than mainstream romance publishers would touch. And because this was the pre-ebook age, they published them as PDFs, emailed to readers. Their audience turned out to be huge and undaunted by the format, and their revenues grew accordingly.

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Posts like the one by Kayelle Allen, founder of the site Marketing for Romance Writers, give a sense of what’s going to come out when these stories start being told: Allen published a novel with Ellora’s Cave in 2013 and was faced with, first, having to hassle the publisher just to get a royalty check (which, when it came, was for $17) and then a series of disturbing developments, like learning that her editor was being let go, that executives were leaving, and that many, many other Ellora’s Cave authors had also had problems with missing royalties.

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Each story adds to a larger picture of a company in dire straits. Which is weird. Because the perplexing thing about Ellora’s Cave (as Litte pointed out in her original post) is that as the ebook market has matured, the fortunes of the company — so good at ebook publishing they ruled it even before there were actual ebooks —have gone the opposite direction.
Growth stagnated. In 2010, it was revealed that EC’s revenues were $5 million but a reported $6.7 million in 2006. How on earth was a digital publisher’s income declining in the biggest boom period of digital books?

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Well, funny you asked. Because in a story that doesn’t appear to be about Amazon (and we only let ourselves write stories that aren’t about Amazon when swayed by a) dogs and b) Satan), this tracks back at least partly to everyone’s favorite purveyor of pet sweaters.
Earlier this year, Ellora’s Cave saw steep declines in their Amazon sales. Calvin Reid reported on it for Publishers Weekly:
[CEO Patty Marks] said Ellora’s Cave sales via Amazon have dropped by as much as 75%. “We’re talking to Amazon and trying to figure out why this is happening,” Marks explained, noting that Amazon is the biggest sales channel for the digital-first erotic-romance publisher.
According to Marks, the issue is likely related to a change in Amazon’s search algorithm. Many of Ellora’s Cave’s bestselling authors and titles simply don’t show up in the Amazon search engine anymore. She pointed to one of the house’s most popular authors, Laurann Dohner, whose books are New York Times bestellers, noting that a search for her titles on Amazon initially retrieves only free giveaways.

****

Or it could be about money—discussions on romance messageboards describe the high prices of EC titles on Amazon, compared to buying the books through the company’s website, and it’s mentioned that Ellora’s Cave refused to give Amazon the discount they were asking for, which meant that prices were sometimes double on Amazon versus the EC site. Could Amazon have retaliated by making the Ellora’s Cave titles harder to find? Or was it a misjudgment of their strength on Ellora’s Cave side? A commenter on Litte’s post suggests the following explanation:

They’d been almost the only place that people could go to for that type of product for so long, that when competitors opened and started actually competing for authors and readers, and when Amazon became the third party seller powerhouse, it was like EC threw a tantrum, like, “No, *I* want to be the only one!” and packed up its toys and hoarded them, instead of trying to find a way to be part of this new way of selling books.

In any case, whether the house’s troubles are due to their own decisions or to outside factors, they’re a stark example of how much publishers are dependent on Amazon, and how much of the market it controls. When those sales disappear, all the abs and cowboy hats promised at Romanticon – EC’s annual conference, happening next week in Canton, Ohio – aren’t going to change the picture for authors.

Read the rest here.

From Guest Blogger Randall

The Flush Pile – An Author’s Perspective

30 September 2014

From author Carolyn Jewel at Writer’s Diary:

I am an author who was with a publishing company that was heading toward bankruptcy. (Dorchester Publishing) This post is about what the experience was like for me. My situation ended up with a silver lining, but the outcome I had was never certain, just as it is not certain for any of the EC authors who are wondering if they’ll ever get paid or if they are going to lose their books.

If you have books with a publisher in the Flush Pile, here’s what’s quite likely:
1. No, you are never going to be paid money owed to you.
2. Yes, you could well lose your books. Gone.

Every publishing contract I’ve ever signed has had a bankruptcy clause. The clause means nothing. Zero. Zlich. It might as well not be there. If your publisher declares bankruptcy, your book is an asset of the company to be liquidated and turned into cash to pay to creditors. Authors are dead last on the list of creditors.

At Dorchester, authors talked amongst themselves. Advances and royalties due to authors were paid slowly. Some of use waited months for advances to be paid. More and more often, authors just weren’t paid. Foreign rights got sold and authors were never told. Those monies never appeared on royalty statements. I was surprised, for example, to find that one of my books had a Dutch translation. Toward the end, I also learned about other translations I was never told about and never paid for. One of them did not even have a signed contract despite being on sale. As royalties continued to be paid in haphazard fashion, there were consolidations and reductions in books, imprints and staff, and sales of rights to backlist titles of prominent authors to other publishers.

. . . .

Dorchester had not filed for bankruptcy, but there was wide speculation that they could not recover from their difficulties and a filing was felt by some to be inevitable. I was advised that it was possible that rights reversions made within the year prior to a bankruptcy filing could be deemed fraudulent and any reversions negated. I was horrified to learn there was case law to that effect.

Even before the non-payment issue was a severe problem, it was clear to me that at long last, there was a good reason (ie, self-publishing) for an author to vigorously pursue reversions for all books that met the criteria of the out of print clauses. I’d read all those clauses and had begun that process with all my titles well before this. And by the way, I was roundly ignored everywhere except for Harper-Collins, who noted the request and put it on their schedule for a decision 6 months later. Literally. The meeting was in 6 months. Let that sink in.

My reversions from Dorchester came through at the end of 2010. Other publishers were an even harder nut to crack. St. Martin’s Press was spectacularly uncooperative. Hachette — I don’t even have words. And I have loads of hind-sight advice about what reversion clauses should say.

. . . .

My advice is going to sound harsh. But, assume you will never be paid. The risk of waiting to see if your publisher rights their ship is the complete loss of your rights in your books. This is your career and you must not fail to take steps to protect your back list and front list.

Link to the rest at Writer’s Diary and thanks to C.R. for the tip.

Here’s a link to Carolyn Jewel’s books

On Agency Clauses

29 August 2014

From Adventures in Agentland:

A typical agency clause will read something like:

Author authorizes Agent, located at (ADDRESS), to collect all gross sums of money due under this Agreement. Any receipt of such sums shall be a good and valid discharge of Publisher’s obligations to make payments to Author. Agent is empowered to act on behalf of Author in any and all matters arising out of this Agreement.

In the article, the author addresses why this is problematic, and recommends either not having this clause, and having all money go directly to you, or modifying it to be revocable at any time.

For the record, I HIGHLY respect SCBWI, and I HIGHLY respect the author of the article. The intention behind it is very good, and authors SHOULD think about what they’re agreeing to; it IS problematic if you’ve signed with a “schmagent” – someone who disappears, along with your statements and royalty checks, leaving you high and dry.

I shared my post with Sara Rutenberg, the author of the SCBWI article, who pointed out: “Unfortunately, there are so many agents out there who are unscrupulous. The column was written in response to a number of people who found themselves in [the position of being with an agent who is not remitting timely or disappears]. It is critical to [discuss the agency clause] up front, or people will not feel comfortable taking actions needed to protect themselves.”

. . . .

I think it would be a mistake to feel that you are getting a bad deal from, or not sign with, an agent or agency that insists on this language.

Why?

There are several issues with direct payments. If you have your royalty statements and payments coming to you, instead of your agency, you would be responsible for remitting your agency’s commission and, at the end of the year, also remitting a 1099 to that agency for what you paid them. I actually can’t imagine that any foreign publisher would be ok sending payment to the author, instead of the foreign co-agent who brokered the deal – but, in that case, you’d be responsible for remitting payment to your agent, your co-agent, and dealing with any tax withholdings applicable to the specific country’s laws when you pay your co-agent (and then have to remit a tax form to them, too, at the end of the year).

You would also be responsible for sharing statements with your agent(s). Why? We need to check them! Think mistakes never happen? Think again!! It is part of my job to monitor any statements that come in, to be sure everything is calculated and reported correctly.

. . . .

You can absolutely discuss the split payment option with your agent upfront. However, keep in mind that not all publishers will agree to this (particularly in the case of subsidiary rights), which is why an agent may not agree to contractually be obligated to secure split payments for you.

. . . .

But, as I said, this isn’t something every agent will agree to, even if discussed upfront. And that doesn’t have to mean the agent is a schmagent, or that you’re getting screwed. The agency clause is VERY common. At the end of the day, if you have doubts about whether or not you can trust your agent to handle funds or statements – why are you signing with this person?! I think the true warning, and really, what Sara was after too, should go against schmagents, rather than the agency clause. You sure as heck should have done your research to make sure the agent offering rep is legit.

The agent-author relationship should be one of trust. If you’re worried your agent is going to, or currently is, screwing you over…you’ve got issues that need to be addressed immediately, either in conversation with your agent, or by parting ways/not signing with that agent.

Link to the rest at Adventures in Agentland and thanks to Sandra for the tip.

The original post is incoherent in spots, so allow PG to clarify a few points:

1. The agreement between author and agent as well as an agency clause in a publishing agreement should always provide for split payments with 85% going directly from the publisher to the author and 15% paid to the agent. Each payment should be accompanied by a royalty report delivered to both the author and the agent.

There are no benefits and many potential downsides for an author to have the entire royalty check sent to the agent. At a minimum, there will be an unnecessary delay of a few days or a few weeks between the time the royalties are paid to the agent and the time the author receives his/her share of the royalties.

And if an agent runs into financial troubles or develops a drug habit . . . . Stories of agents stealing from authors are legion. PG believes most agents are honest, but everyone is better off to avoid the possibility of temptation. An old Mark Twain (PG thinks) saying applies here, “Many a man has been saved from sin by the lack of opportunity.” Mark Twain spoke before gender language equity, but the saying would also apply to many a woman.

2. PG usually doesn’t play  the lawyer card, but the advice to check out your agent and go on trust (instead of a proper contract) is typical of the way non-lawyers think about business relationships. And very few agents are lawyers.

How long does the contract last? While PG strongly objects to their length, a typical publishing contract lasts for the life of the author plus 70 years in the US and for a similarly long time in most other industrialized nations.

Under a standard agency contract, how long will the agent be collecting royalties when an author signs a typical publishing contract? You guessed it, the life of the author plus 70 years.

Agents die. Agents go out of business. Agents sell their businesses to other agents. Agents merge their businesses with other agencies. The probability that the agent who sells a book to a typical publisher will still be around when the publishing contract finally ends is very close to zero. The probability that, at some time during the life of the publishing contract, a total stranger will take over administration of the contract in place of the original agent is close to 100%.

Your original agent could be the Mother Teresa of the agent world, someone who would never, ever do anything to harm an author under any circumstances. But, when Mother Agent goes to her heavenly reward, she could be succeeded by Mother Devil. You don’t want Mother Devil’s hands on your money.

3. PG could mumble on about other problems with the original post, but he won’t. Like many other fields of human endeavor, some agents are wonderful and capable, other agents are terrible and incompetent and most are somewhere in the middle.

Some of the problems with agents are a result of the fact that anybody can call themselves a literary agent regardless of qualifications or the lack thereof. Cathy Convict could walk out of a twenty-year stretch in Folsom Prison on Monday afternoon and set herself up as Cathy Agent on Tuesday morning.

For all their shortcomings, lawyers must hold a valid license to practice law. For all their shortcomings, bar associations can and do cause lawyers’ licenses to be yanked if the lawyers don’t follow the rules. Clients can file complaints with bar associations without hiring a lawyer to assist them. For all its shortcomings, the threat of losing a license helps keep lawyers in line.

If a lawyer does what virtually all agents do – receives all the royalties payable under a publishing contract, then pays the author 85% of the proceeds – the lawyer would be required to maintain a trust account separate from any other bank accounts for the purpose of holding client funds. The lawyer would have to deposit the publisher’s check into the trust account and pay the author directly from that account. The trust account is subject to audit by the bar association to make sure client money is handled properly.

Trust account mismanagement is one of the quickest ways to lose a law license. A complaint from a client to a bar association about trust account problems may be the best way to fast-track a bar association investigation of that lawyer. A lot of lawyers (including PG) strive to avoid receiving client funds in order to stay clear of potential trust account issues.

None of these safeguards apply to a literary agent. There is no agent’s license to yank. The agent may have a trust account, but nothing requires the agent to put all client funds in the trust account. If a client has a complaint about improper behavior by an agent, there is no agents’ bar association where the client can lodge a complaint. An author has no way to resolve a large problem with an agent short of hiring an attorney and, if that doesn’t work, filing suit against the agent.

Up Against Amazon

15 August 2014

From the Independent Book Publishers Association:

Amazon doesn’t just take orders. It is used to barking orders at publishers and getting us to salute. But bullying only goes so far, and I’m thankful that a single large publisher, Hachette, stood up to it and that The New York Times ran an editorial about its strong-arm tactics.

I’ve been sitting on my own Amazon story for a while, after having receiving a threatening phone call from its legal department when I refused to agree to a unilateral change of terms. But with all the publicity and debate about Hachette, I thought other publishers, as well as Berkshire Publishing’s friends, colleagues, and customers, might like to know about our experience and why I believe that Amazon is destroying healthy competition in the publishing world.

. . . .

My fight with Amazon began when it decided to go after traditional “short discount” publishers (academic presses as well as presses like Berkshire Publishing) with a unilaterally imposed change in business terms announced only in a “case note” within their order-processing platform. This platform is normally used to inquire about the availability of certain books and is used by customer service staff.

A colleague of mine whose staff was puzzled enough to pass the “case note” along to him asked Amazon to contact him directly by telephone or email, saying that business terms were a matter for our company’s executive team. Amazon refused to talk—communication would take place only through the “case.”

Berkshire Publishing had sold print through Amazon.com since 2006. Although it originally demanded a 40% discount—four times our standard—I decided that we should make books available through any major platform that individual readers and libraries use. Our authors like knowing that their books are readily available worldwide. And we reach some people who would never otherwise know about our titles. In fact, I was recently at a meeting in Beijing and showed a copy of our book This Is China: The First 5,000 Years. Two of the people there started whispering and giggling, and finally one spoke up, “I have that book. I ordered it from Amazon!”

Amazon’s demand in 2012 was for an additional 5%, bringing the discount to 45% (some academic presses had been at 25%, so the change to 45% meant a reduction of 80% in their net income from Amazon sales). Bookstores generally get a discount of 30-40%. Amazon has been getting 50-55% from the big trade presses, and the current battles are in part over further discounts that Amazon is demanding to increase its marginal profit.

. . . .

Amazon is destroying competition and innovation because it is not letting the market determine winners and losers, but is instead making the selection itself, deciding arbitrarily where to take its pound of flesh and shore up its feeble margins. Publishers (and authors) would be fine if they were actually competing with one other for sales without Amazon sucking the life out of every transaction.

Finally, what happened? Are Berkshire Publishing titles available through Amazon? Dear reader, I capitulated after four months. It wasn’t fair; it wasn’t good for anyone but Amazon, but I was losing sales that I needed and I gave in.

Link to the rest at the Independent Book Publishers Association and thanks to Karen, who points out that this brings into focus the area where independent publishers and independent authors are NOT aligned for the tip.

While PG almost reflexively takes the side of the little guy/gal in any battle, he would suggest that Amazon is exquisitely attuned to the market, much more so than any publisher.

 

For the Authors Guild & Other Legacy Publishing Pundits

4 August 2014

From Joe Konrath:

Recently on Twitter, Barry Eisler asked with sincerity, “Why would anyone want to join the Authors Guild?”

Bestselling author and celebrated indie, CJ Lyons, whom the AG mentioned as an example of diversity, responded with, “What’s your wish list for a Guild?”

Barry didn’t miss a beat, and immediately replied that the Authors Guild should change its name to reflect its fundamental purpose, because the Guild clearly represents legacy publishers more than it represents writers.

. . . .

So here is my wish list:

1. Support the authors in the Harlequin lawsuit and fight to get their backlist rights returned. Then do the same for all members who want to get their backlist rights returned.

It’s no secret I got my rights back, and there are hundreds, if not thousands, of other authors who want theirs back, too. It’s the single most asked-question I get via email, and my required response is that my publishers and I parted amicably, which is the limit of what I can say. I can’t help. But the AG could.

2. Draft a petition to raise ebook royalties for all authors. If a publisher doesn’t comply, these authors will no longer submit work to that publisher. If you could align with a like-minded AAR, real change could be instituted.

The Guild has stated publicly that they don’t believe 25% of net is fair. Well, DO SOMETHING ABOUT IT.

3. Demand that unconscionable contract terms are removed in legacy boilerplate, including holding rights for term of copyright, impossible rights reversion clauses, the elimination of non-compete clauses, the elimination of first option clauses.

A guild for authors would not only pressure publishers to return rights that they’re sitting on without making any discernible profit, but it would also use attorneys to get the DOJ to examine the unconscionability of publishing contracts. I can’t think of a more lopsided abuse of power than the paper oligopoly controlled by the Big Publishing cartel for the last fifty years, and how many authors have been forced to take ridiculously one-sided terms in order to get their books into bookstores.

Seriously. This is perfect for a class action suit.

. . . .

 7. Coordinate with David Gaughran to petition and publicly disapprove of any publisher engaged in vanity publishing. As far as I’m concerned, Gaughran should be a paid consultant for the Guild on this issue. And if the AG were behind him, with some legal muscle, predatory vanity publishers could be crippled, if not erased.

. . . .

11. An Author’s Guild worthy of the name would be all over the legacy practice of paying out royalties only twice a year.

As suggested int he comments by Barry Eisler: In the 21st century, this practice is a disgrace and it’s astonishing that anyone can take it remotely seriously. Yes, I know legacy publishers earn millions of dollars in interest by holding onto that money for six months at a time instead of putting it in author pockets promptly. But why does the “Authors Guild” let them get away with it?

Hint: a cynic might suspect it’s because fat cats like Scott Turow, the former Guild president, get paid advances so large it’s understood they will never earn out. Turow himself, in a rare moment of clarity and candor, acknowledged as much: “Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it.” So authors like Turow never get paid in royalties, meaning that for Turow, yearly, monthly, even daily payments are an irrelevance. He gets all his money upfront.

By the way, for any legacy apologist inclined to argue that paying authors more frequently than twice a year would be oh-so-difficult, Amazon pays its authors monthly. And I’d like to hear of any other business in the 21st century that pays its people twice a year.

Or to put it another way: if all legacy-publisher employees agree to switch from being paid monthly to being paid twice a year, I’ll relax a bit on this issue.

Link to the rest at Joe Konrath and thanks to Bridget for the tip.

Here’s a link to Joe Konrath’s books

PG says it’s often easier to build a new house than it is to fix up the old one.

PG agrees with Joe that the only authors’ organization with enough power to influence traditional publishers is one with a credible litigation fund. Even very large organizations pay attention to a well-drafted civil complaint. (No, PG doesn’t do litigation any more but in the past, he has had some delightful experiences litigating against organizations much larger than any publisher.)

Self-Publishing and Author-Agent Agreements: The Need for Change

27 July 2014

From Writer Beware:

Earlier this week, I ran across a blog post by best-selling author Claire King about the process by which she decided to become a hybrid author, ditching her high-powered agency in the process. It’s an interesting story–but what really caught my eye was this:

And then one day on the phone my agent informed me that in order to continue to be represented by this mighty agency, I would have to turn over 15% of the proceeds of my about-to-be self-published book to said agency. Not only that, but I would have to publish it exclusively through Amazon, because the agency had a system in place with Amazon where I could check a box and their 15% would go straight to them, no muss, no fuss.

I’ve warned in the past about interminable agency clauses in author-agent agreements (language through which an agency claims the right to remain the agent of record not just for the duration of any contracts it negotiates for your book, but for the life of the book’s copyright). One of the many concerns raised by such language is what happens if you want to self-publish backlist books that the agency originally sold for you. With an interminable agency clause, might your agency feel entitled to a share of your self-publishing income?

. . . .

Contract language often lags behind technological innovation. For instance, years after the advent of digital publishing, many publishing contracts still don’t include adequate rights reversion language (I’ve written here about why that’s a problem).

The same is true for author-agent agreements, many–if not most–of which don’t address self-publishing at all. Right now, I’m sure that most self-publishing questions are dealt with amicably one-on-one between author and agent. But with more and more writers choosing to become hybrid authors, and more and more agencies branching out into publishing and self-publishing-related activities, those kinds of informal resolutions aren’t enough. For the protection of both author and agent, author-agent agreements need to explicitly address what happens (or doesn’t happen) when clients self-publish, either on their own or through the agency.

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

PG says the contractual solution for this is simple. Agency agreements should be terminable by the author at any time.

If the agent has already made a sale for the author, the agent should be entitled to commissions on that sale. If the author has signed a life-of-copyright publishing contract the agent has procured, then the agent’s commissions will continue for the length of the publishing contract (another very good reason to insist on split checks – who knows what kind of people will be running the agency in 50 years).

In PG’s everlastingly humble opinion, a trip to the courthouse would end most agency agreements that purport to tie the author to the agent when the author no longer desires the agent’s services.

Doubling Down on DRM

17 July 2014

From Cory Doctorow via Publishers Weekly:

I’ve just seen a letter sent to an author who has published books under Hachette’s imprints in some territories and with Tor Books and its sister companies in other territories (Tor is part of Macmillan). The letter, signed by Little, Brown U.K. CEO Ursula Mackenzie, explains to the author that Hachette has “acquired exclusive publication rights in our territories from you in good faith,” but warns that in other territories, Tor’s no-DRM policy “will make it difficult for the rights granted to us to be properly protected.” Hachette’s proposed solution: that the author insist Tor use DRM on these titles. “We look forward to hearing what action you propose taking.”

The letter also contains language that will apparently be included in future Hachette imprint contracts, language that would require authors to “ensure that any of his or her licensees of rights in territories not licensed under this agreement” will use DRM.

It’s hard to say what’s more shocking to me: the temerity of Hachette to attempt to dictate terms to its rivals on the use of anti-customer technology, or the evidence-free insistence that DRM has some nexus with improving the commercial fortunes of writers and their publishers. Let’s just say that Hachette has balls the size of Mars if it thinks it can dictate what other publishers do with titles in territories where it has no rights.

. . . .

The truth is that anyone who wants to avail herself of a Hachette e-book title without paying for it will have no problem doing so. DRM doesn’t stop people who scan books, or retype books. DRM doesn’t stop people who download widely available cracks that can remove all the DRM from an entire e-book collection. And DRM doesn’t stop people who are inclined to download the DRM-free pirate editions. All DRM does is punish legitimate users who had the misfortune to be so honest that they paid for the book, rather than taking it.

Hachette’s letter claims, “Improvements in retailer systems and e-book platforms has led to more flexible DRM which grants the consumer” (this being the odious term the letter uses in place of “the reader”) “greater flexibility in their use of purchased files, such as the ability to share across multiple devices.”

Devices, perhaps. But not across multiple platforms. With the exception of the Kindle Reader app, or the Nook app, available in Apple’s App Store and Google Play, there is no way to read e-books across platforms. And recently, we got a reminder as to what happens when Apple decides that an app is eating into its profits: out it goes. Just last week, Apple stopped bundling the YouTube player with its devices as part of its ongoing war with Google.

. . . .

Readers aren’t stupid. When they discover that paying for books results in locked, crippled editions, and downloading for free (simply by typing the title and “free e-book” into Google or Pirate Bay) gets them the same book, minus the offensive restrictions, they start to put two and two together. After all, DRM is not a selling point. There’s no one who’s ever bought a book because it had DRM. No one has ever clicked onto Amazon saying, “I wonder if there’s any way I can buy a book that offers less than the books I’ve been buying all my life.” People buy DRM e-books because they have no choice, or because they don’t care about it, or because they don’t know it’s there. But DRM never leads to a sale.

Link to the rest at Publishers Weekly and thanks to SMH for the tip.

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