Legal Stuff

I’m now clear to write in my world again!

5 November 2014

From author Holly Lisle:

I didn’t want to say anything about the fact that I was pursuing the removal of the non-compete clause from my contract until I heard one way or the other.

I got the news today. The non-compete clause for my Scholastic contract is dead,and I’m now free to write stories in that world again.

Link to the rest at Holly Lisle:Writer and thanks to PD for the tip.

Here’s a link to Holly Lisle’s books

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)

The exciting world of the TRO

23 October 2014

From author Courtney Milan:

A brief recap of where we are in the EC/DA litigation.

  1. Jane wrote a post about Ellora’s Cave and whether it continues to be a viable business.
  2. As a result of that post, Ellora’s Cave filed suit against Dear Author, alleging defamation. EC also asked for a temporary restraining order (“TRO”) against Jane. (Note that I use the words “Jane” and “Dear Author” throughout to refer to the defendants.)
  3. There was an initial, brief hearing on the TRO in state court, at which point the state court decided that evidence would need to be presented. That hearing was set for October 27th.
  4. On October 20th, Dear Author removed the case to federal court on diversity jurisdiction grounds. (Diversity jurisdiction basically means that if one party is from one state and the other party is from another state, and there’s a lot of money at stake, parties can choose to go to federal court instead of state court.)
  5. EC again refiled its motion for a TRO in federal court.
  6. The TRO hearing in federal court is set for October 29th at 1:30 PM.
  7. Last night, Marc Randazza, Jane’s lawyer, filed an opposition to the motion, alongside seven exhibits (Exhibit A, from Jane, with a correction regarding the name “Red Rose Publishing”; Exhibit B, from an editor;Exhibit C, from an author; Exhibit D, from an author; Exhibit E, from an editor; Exhibit F, from an editor; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC.)

This blog post discusses the memos in support and in opposition to the motion for a temporary restraining order.

. . . .

Here’s my take:

  • On the basis of the exhibits currently available to the court, someone has to be lying.
  • In general, I think a judge would be extremely unlikely to squelch speech at this stage when there exists evidence from multiple people stating that the blogpost is substantially truthful.
  • EC is missing proof of a vital part of their case–namely, that Jane acted with actual malice–and I don’t know how they will ever be able to prove it, but they seem to think that proving that Jane dislikes EC is proof that she acted with actual malice. No.

. . . .

I said on Twitter the other night that there’s a difference between a good lawyer and a merely competent one, and that the lawyer for Ellora’s Cave (I refer to the party and the lawyer as “EC” throughout) has all the hallmarks of being competent, while Marc Randazza is a very good one.

. . . .

This is a perfectly competent motion for a TRO. It is also an exceedingly sloppy motion for a TRO. (In fact, when I first read Randazza’s opposition, I thought there were some sloppy elements in construction—but when I went back and looked at things from start to finish, any sloppiness in his opposition is due to the fact that the underlying motion is fundamentally sloppy to begin with. Slop begets slop.)

What do I mean by sloppy? Well, if you’re going to enjoin someone from engaging in conduct, you should really be very, very specific about what it is that you want them to do. For instance, if you’re seeking a restraining order against a vindictive ex, you want that restraining order to say things like, “Don’t come within 50 feet of me,” and “stop calling me at work.” You don’t want to say, “stop being a bad person” even if you want them to stop being a bad person, because what does that even mean?

On its face, this is a motion for a “stop being a bad person” kind of restraining order.

. . . .

Part of the problem is that the attorney for EC appears to be use the word ‘publish’ in a way that does not track typical usage. The blog post in question was published. It is not currently “being published” as anyone understands that word. The act of publication is not continuous: It was published once, it does not need to be continually republished day after day in order to persist, and so if you want it taken down, you should ask for only that. If you ask for someone to not publish things in the future, you’re actually asking to track everything they might say in the future. Is this what EC really wants?

. . . .

There are other things that a good opposition to a preliminary motion will do.

  1. It will explain the law to the judge and tell him where he can verify that the lawyers are telling the truth.
  2. It will explain the facts (and in so doing, paint a vivid picture of who/what/where/when/why).
  3. It will explain how the facts apply to law, and in doing so tell a story of the litigation at present.
  4. It will immediately sum up the litigation and give the judge a working explanation for what is going on.
  5. In some cases, it will also educate opposing counsel about things they do not appear to understand.

In this instance, there’s a sixth goal. Technically a motion for a TRO is not the same thing as a trial on the merits. You could win on the merits and lose a TRO. You could lose on the merits and win a TRO. But realistically a TRO hearing is kind of a mini-merits trial in the sense that it gives the parties an idea of whether the arguments will sink or swim. If the judge agrees with Randazza and says, “I cannot see how Ellora’s Cave has a prayer of a chance of prevailing on the merits,” that sends a certain message to opposing counsel. So another goal is to win the mini-trial, because that could influence whether the opposing party decides to continue with the lawsuit or dismiss it. Just about any case with a TRO contains a little dance to this effect: “Yes, this isn’t a real trial on the merits, but we all know that this could easily decide the case. We are going to pretend it won’t because reasons, but it usually does. So.”

. . . .

Now, finally, we get to the opposition motion. This is the first chance that Randazza has to introduce the concept of Dear Author and what it means to the romance community. He does. He explains that Dear Author “has become a respected source for news and information for the romance novel community.” He immediately positions Jane as a reporter who investigates facts. He talks about the things she has accomplished in the community–as being someone who provides information to authors without a legal background, and who lets them know what will happen in scary situations, and simultaneously as someone who provides a springboard for discussion of those issues.

(I’m glad that this was included as background, because up until this point, there has been little discussion in the case itself of what the DA community is and does–and there’s no way a federal judge will understand that unless it’s explained up front. Like it or hate it, there is a DA community, and it provides a place where authors and readers can discuss the changing publishing industry and what that means at large. The remedy that EC asks for would have a huge effect on that community.)

. . . .

Randazza sums up the litigation—including showing that he’s aware that EC has a motion on its face and a shadow motion that it might be trying to make instead—with this: “Ellora’s Cave is understandably concerned about any negative view of its business, but it has no right to ask this Honorable Court to use its equitable powers to suppress the truth, to suppress fair comment, and to suppress future unknown statements. The First Amendment protects [Jane’s] right to publish on matters of public concern, and her mission mandates that she share her findings with the author community. Given that her writing is a matter of public concern, about a public figure, [Jane]’s First Amendment rights are given an exalted position – one which makes sustaining a defamation claim against her in this context a virtually impossible task.”

Link to the rest at Courtney Milan

Here’s a link to Courtney Milan’s books

Courtney does an excellent job of discussing both sides of this litigation and the underlying law. PG will add that sometimes good attorneys are made to look not so good because they have problem clients.

So you have everything in the same place, PG has inserted Dear Author’s Opposition Motion and all of the Declarations below. A Declaration is a written statement summarizing what the person making the declaration would say if called to testify in court.

If you click on the box with four arrows in the lower left corner of each embedded document, it will open to a larger size.

 


Opposition Motion (Text)

.
.


EC Declarations 1 (Text)

Ellora’s Cave vs. Dear Author Suit Removed to Federal Court

22 October 2014

PG has previously posted about the lawsuit that Ellora’s Cave filed against Dear Author and its proprietor, alleging that Dear Author had defamed Ellora’s Cave in a blog post describing EC’s financial problems.

Dear Author has just removed the case from the Ohio state court where it was originally filed to the relevant U.S. District Court in Ohio claiming diversity jurisdiction is present in the case.

PG will not discuss diversity jurisdiction in detail because it’s pretty boring, but, in a nutshell, if a party (individual, corporation, etc.) sues a party that is a citizen of another state and the amount in controversy is more than $75,000, the defendant has the right to remove the lawsuit to federal court. Wikipedia has a mostly-correct discussion of diversity jurisdiction in layperson’s terms if you want more.

There are a wide range of reasons that a defendant might want to remove a lawsuit to federal court, but, as a general proposition, many attorneys feel that the quality of federal judges and magistrates may be higher than that of state judges (although PG will attest to exactly the opposite being the case on many occasions) and that some state court judges may tend to give the benefit of the doubt to a local litigant (ditto for exactly the opposite).

At a minimum, this indicates to PG that Ellora’s Cave will have a real fight on its hands. He is not familiar with Ohio laws and practices, but many federal courts have the reputation for not putting up with a lot of smoke and mirrors on the part of parties or their attorneys. In prior litigation in state court, EC reportedly was extremely dilatory in responding to requests for financial documents, etc. PG would not have wanted to try to defend such behavior in most of the federal courts where he appeared in past years.

An upset federal judge sitting in his/her court can be an intimidating presence.

Here’s the Notice of Removal:



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.

Please Stop Calling Amazon A Monopoly

15 October 2014

From Litigation and Trial:

I read a lot of book-related publications and blogs, and thus I have endured weeks of Hachette-versus-Amazon posts, as the publishing giant has wrangled with the online retail giant over the terms of their contract. Perhaps unsurprisingly, the writers and publications with ties to the “Big Five” in the publishing industry have sided with Hachette, whereas the commenters to the articles and the blogs (most of which are presumably customers of books) tend to wonder why a garden-variety dispute between two big companies over money is being billed as the downfall of civilization.

I ignored most of these articles until I read Steve Wasserman’s op-ed in The Nation — which argues “the time has come for closer scrutiny and regulation of a company that, like Standard Oil a century ago, provides an indispensable service for a modern economy and a healthy culture” — and I just couldn’t take it anymore. For the sake of our “modern economy” and “healthy culture,” we must stop calling Amazon a “monopoly.” 

. . . .

But we can’t be cavalier about accusations of “monopoly” or “predatory pricing,” or we risk diluting the terms and losing sight of real antitrust violations. Amazon is neither a “monopoly” nor a “monopsony.”

A “monopoly” is when one supplier of a particular product or service is able to control the market. That does not remotely describe Amazon: the vast majority of books sold by Amazon are supplied by someone else, i.e., the publisher, and those same books are available elsewhere. As Hachette’s own statement on the Amazon dispute says:

HBG’s titles are widely and immediately available on barnesandnoble.com, powells.com, booksamillion.com, walmart.com, target.com, overstock.com, and in thousands of great chain and independent bookstores across the country.

It is rather hard to have a “monopoly” over sales of something when the exactly same product is also sold online, through the largest retailers in the country, and through “thousands” of independent stores.

A “monopsony” is when one buyer of a particular productive or service is able to control the market. (Consider, for example, if there were several commercial airplane manufacturers, but only one commercial airline.) “Monopsony” is potentially a better fit for Amazon than “monopoly,” because Amazon’s real pricing power is that it can push a hard bargain with publishers when it buys the ebooks, whereas with consumers Amazon sells the books at or below the prevailing market prices. And, indeed, publishers feel obligated to deal with Amazon given its position as the largest retailer of ebooks.

But the claim just doesn’t hold up. In a monopsony, the monopsonist refrains from buying to force the suppliers to start discounting against one another (because there are no other buyers), until they are no longer making a profit. That simply isn’t the case here. First, the publishers have total control over where they sell their ebooks, and they exercise that power: the “Big Five” chose to not participate in Amazon Unlimited. Second, the ebooks are available all over the place, like Walmart and Target. Apple, for example, has used the feud as an opportunity to discount Hachette’s books. There’s nothing wrong with Apple doing that: this is competitive capitalism working for the benefit of consumers, as it should.

Even if a company is not a monopolist or monopsonist, it can engage in predatory pricing — but Amazon didn’t. Wasserman claims, “the Obama Justice Department, seemingly mesmerized by visions of a digital utopia, is oddly blind to the threat to publishing posed by Amazon’s growing monopoly,” and concludes, “A serious Justice Department investigation is past due.” But the Justice Department already investigated Amazon as part of the Apple case, and they published the results two years ago.

Back in 2012, as part of the settlement with the Big Five publishers for their admitted collusion with Apple to raise prices, the Justice Department solicited public comment, receiving hundreds of comments, including from Barnes & Noble, the Authors Guild, and the American Booksellers Association. As the Justice Department summarized in its response to the comments, the most common complaint against Amazon is that it sometimes charges too little for ebooks, and that “that lower pricing will mean reduced profits for bookstores, authors, literary agents, and publishers, and an eventual reduction in quality, service, variety, and other benefits to consumers.”

In response, the Justice Department explained — I know this is a long blockquote, but it’s the root of the issue — on page 21-22:

The United States recognizes that many of the comments reflect a concern that a firm with the heft of Amazon may harm competition through sustained low or predatory pricing. In the course of its investigation, the United States examined complaints about Amazon’s alleged predatory practices and found persuasive evidence lacking. As is alleged in the Complaint, the United States concluded, based on its investigation and review of data from Amazon and others, that “[f]rom the time of its launch, Amazon’s e-book distribution business has been consistently profitable, even when substantially discounting some newly released and bestselling titles.” Compl. ¶ 30.

Some of the criticism directed at Amazon may be attributed to a misunderstanding of the legal standard for predatory pricing. Low prices, of course, are one of the principal goals of the antitrust laws. Cf. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 340 (1990). This is because of the unmistakable benefit to consumers when firms cut prices. Id. “Loss leaders,” two-for-one specials, deep discounting, and other aggressive price strategies are common in many industries, including among booksellers. This is to be celebrated, not outlawed. Unlawful “predatory pricing,” therefore, is something more than prices that are “too low.” Antitrust law prohibits low prices only if the price is “below an appropriate measure of . . . cost,” and there exists “a dangerous probability” that the discounter will be able to drive out competition, raise prices, and thereby “recoup[] its investment in below-cost pricing.” Brooke Group v. Brown and Williamson Tobacco Corp., 509 U.S. 209, 222-24 (1993). No objector to the proposed Final Judgment has supplied evidence that, in the dynamic and evolving e-book industry, Amazon threatens to drive out competition and obtain the monopoly pricing power which is the ultimate concern of predatory pricing law. The presence and continued investment by technology giants, multinational book publishers, and national retailers in e-books businesses renders such a prospect highly speculative. Of course, should Amazon or any other firm commit future antitrust violations, the United States (as well as private parties) will remain free to challenge that conduct.

. . . .

If you don’t like how Amazon deals with ebook publishers, then stop buying ebooks from them! A boycott is exactly the right idea — vote with your wallets! Amazon is not Bell Telephone. Amazon is not Standard Oil. Amazon is not the Hollywood studio system. If you don’t want to deal with them, you don’t have to; the fact that everyone, from publishers to consumers, continues to want to deal with Amazon is proof enough that they’re not abusing a monopoly position, they’re just doing a better job.

Link to the rest at Litigation and Trial and thanks to Pete for the tip.

Erotica publisher takes blogger to court over financial trouble allegations

14 October 2014

From The Daily Dot:

A major erotica publisher is suing a beloved one-woman blog site, and everyone from the blog’s readers to the publisher’s authors are rallying in support of the blogger.

The publishing community has done everything but hold a bake sale to help blog owner Jennifer Gerrish-Lampe, better known as Jane Litte of Dear Author, raise the money for her legal defense fund against Ellora’s Cave, the erotica publisher suing her for defamation.

Ellora’s Cave, whose storehouse of popular romance titles raked in $15 million last year, is demanding $25,000 in damages from Gerrish-Lampe after she blogged about the company’s allegedly questionable business practices.

But Gerrish-Lampe won’t be fighting the suit alone: A crowdfunding campaign to defray her legal costs created by well-known book blogger Sarah Wendell of Smart Bitches, Trashy Books has raised more than $50,000 in five days. It’s also given rise to a hashtag, spawned a charity erotica anthology, and created a strange backlash for the long list of authors who have supported the blog.

. . . .

Enter Dear Author. Dear Author is a popular publishing industry blog that has built its reputation on analyzing industry news, debunking rumors, and serving as an information resource for authors and readers. Following Ellora’s sales drop, Gerrish-Lampe, who is a lawyer by day, dug deeper into Ellora’s Cave and its financial records.

On Sept. 14, she compiled a long litany of alleged evidence that Elllora’s is on its last financial leg, including claims from authors that they had not received royalties, financial records showing years of unpaid taxes, and erratic behavior from Engler who was taken to task by a judge for “systematic delays and flagrant disrespect for the court” in a 2008 civil court case.

. . . .

Dear Author’s Attorney Marc John Randazza told the Daily Dot via email that the lawsuit was an intimidation tactic:

Clearly the plaintiff has never read Near v. Minnesota [a legal precedent in favor of allowing negative press to be published] or seen The Big Lebowski. As Walter Sobchak taught us, “the Supreme Court has roundly rejected prior restraint.”

This is clearly a SLAPP suit. Ellora’s has filed a lawsuit without any possible damages. The only thing they seem to want to accomplish is inflicting attorney’s fees on the defendant.

Speaking to the Dot by phone, Ellora’s lawyer Steven Mastrantonio insisted that it isn’t a SLAPP, or strategic lawsuit against public participation, suit, and said that although they “would love to resolve the lawsuit,” it was important to clear the air about the false claims made against the company. A SLAPP suit is intended to essentially silence critics by burying them with legal threats and fees, but that’s not what’s happening here according to Mastrantonio:

We have paid the authors, we have paid the editors. The case is not a SLAPP suit by any means. It’s not an anti-first Amendment lawsuit. It’s simply a case where Dear Author has made a malicious and false statement about my client which has caused real damage to them. It’s a defamation case. We want to set the record straight.

Allegations like they made in a public forum, and causing panic among the authors and fans, that has the unintended consequences of affecting sales of the books and actually affecting the authors who want to get paid. So if people aren’t buying the books, the royalties go down.

Link to the rest at The Daily Dot

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

A note about confidentiality clauses

1 October 2014

From author Courtney Milan:

A brief update of what is going on:

1. Jane Litte of Dear Author was sued for defamation by Ellora’s Cave, after she signal-boosted news from Ellora’s Cave authors, editors, and cover artists saying that they were not getting paid, along with other warning signs of impending company failure.

. . . .

3. Jane has asked for people–specifically editors, cover-artists, and authors–to come forward who are willing to testify that they have not been paid.

I have seen multiple times (in emails and on the web) the statement that many people who would like to come forward feel that they are bound by the confidentiality clause in their contracts, and so cannot speak on this issue.

. . . .

(A) If you think you know something that can help, e-mail Jane (jane@dearauthor.com). If you are afraid you can’t testify because of the confidentiality clause, tell her that.

(B) I feel that with (A) you need to know that your interests and Jane’s interests do not align perfectly, and I’m sure some of you know that. So here’s an option B. If you are an author, an editor, or a cover-artist who would testify as to the truth of the statements Jane made, but for the confidentiality clause, contact me. If there is enough interest from those who would testify but are afraid for confidentiality reasons, I will look into finding a lawyer to accompany you to the hearing–someone whose job it is to represent your interests, and to make sure that you’re speaking up to the maximum allowed without putting yourselves at risk. But in order to do that, I need to know who you are. E-mail me at contact@courtneymilan.com. You do not have to tell me anything except that you would be willing to testify as to the truth of the statements Jane made, but feel that you cannot except for the confidentiality clause.

Link to the rest at Courtney Milan and thanks to Lily for the tip.

Here’s a link to Courtney Milan’s books

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

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