From author Sarah Madison:
A lot of people have asked for the details surrounding my current copyright dilemma with Amazon. Here they are to the best of my recollection:
As you can see from the book cover and the banner at the head of this website, there has been a longtime connection between myself and A Summer Fling. It was originally titled Surf’s Up and is part of the 2011 Don’t Read in the Closet fest with the M/M Romance Group on Goodreads. It was a light frothy story written to a photo prompt and included in the anthology produced by the group.
In 2013, I edited the story and bundled it with a short story I’d written for the Just One Bite contest, using the fictional character Mikhail Frost created by my fictional author, Ryan McFarland. I thought it would be fun to put the two stories together–kind of like Rick Castle writing the Nikki Heat stories. I created a cover based on my website’s banner and submitted the new combination to Smashwords on July 28th, 2013. A short while later (the actual date is unclear–I can’t access it any longer on the websites in question), I submitted the story to Amazon and ARe. The story has largely been a permanent freebie ever since.
Over the weekend, I modified my bio within the story to include a link for my website. When I went to upload the new version on Amazon, I could no longer set the price to zero. I didn’t worry too much about it–I’d pulled it from Smashwords and ARe had folded. It was my intention to place it in KU (though in retrospect, its previous incarnations would prevent that) so I left the price as 99 cents and went on with my day.
That evening I received an email from Amazon. At first, I thought it was just a glitch, a red flag triggered by something I did in the update. But here’s the crucial statement that belies that:
“Prior to your submission, we received a notice and takedown for a book that matches to yours, from a third party claiming that the distribution of the book above was not properly authorized due to copyright infringement.”
So someone out there is ACTIVELY claiming this work belongs to them, not me, and though I provided Amazon with all the information they requested, it’s not good enough. Moreover, this attempt to snag the book took place prior to my making changes, so it isn’t that I did something to trigger a red flag. Someone is trying to steal it, but Amazon is laying the burden of proof on me and refusing to publish something that’s been on their website under my name for years. At least they are no longer threatening to ban me for life. I’ve asked for more information, but I have not heard back from them yet.
Process of elimination and the unethical behavior of All Romance Ebooks makes them the most likely suspect in my mind. Not just because they closed their doors with little warning, offering 10 cents on the dollar in owed royalties, but only if we promise not to take legal action. Not just because of the timing–within 24 hours of ARe’s closure. But because whoever this third party is laying claim to my story, they have a strong enough stance that Amazon is taking them seriously–despite my sending them all the information they requested to prove my copyright.
Link to the rest at Sarah Madison and thanks to P.D. for the tip.
Here’s a link to Sarah Madison’s books. If you like an author’s post, you can show your appreciation by checking out their books.
Sarah has her contract with ARe posted on her blog and it is an interesting read. I am not a lawyer, but two things leapt out at me.
1. I don’t see any language giving ARe exclusive rights. If they don’t have exclusive rights to distribute how can they prevent anybody else from distributing her story, including herself?
2. There is a clause concerning bankruptcy such that in the event of bankruptcy the contract is cancelled. Is that standard or is that strange? If that’s the case than her contract and story aren’t an asset to be preserved for the creditors. I am not a lawyer. I understand now why they were trying to avoid bankruptcy and trying to keep authors with the ten cents on the dollar offer, because if they went into bankruptcy all the entities under this contract would be freed.
“Bankruptcy
If a petition in bankruptcy is filed by All Romance or against All Romance (and is not dismissed within 90 days), this Agreement shall terminate automatically without notice, effective as of date of All Romance’s filing of a voluntary petition (or the expiration of the 90 day period, as applicable) and all rights granted in this Agreement shall revert to Publisher.”
Bankruptcy clauses in contracts are not enforceable if one of the parties goes into bankruptcy, MKS. Once a bankruptcy starts, the bankruptcy court takes control of all the petitioner’s assets and decides what happens to them after seeing claims made by creditors.
Perhaps it’s different outside of the US, but, under US bankruptcy law, contractual bankruptcy clauses are unenforceable 99.99% of the time. See 11 U.S.C. §541(c) and 11 U.S.C. §365(e)(1)
Wow. That tells us a lot about the legal competence of whoever wrote the contract and is (yet again) evidence for authors emplying their own lawyers.
It’s all publishing contracts, MKS. They all say that in the event of bankruptcy, you get your rights back, but it’s complete, weird nonsense that gets put in all contracts.
The only useful part of that clause/section is usually a statement saying you get your rights back if you haven’t been paid within a set amount of time, and that hasn’t be remedied after sending a written notification.
I am unaware of that 0.01% in which such a clause was enforced. Will you share the case with me?
I’m curious what evidence Amazon required of the takedown complainant that they had exclusive distribution rights or the copyright.
Ah, but it’s a *secret*!
“Amazon will not reveal the name of this third party nor the basis for their claim. ”
If that’s Amazon’s new official policy, that’s an emperor-sized chunk of fail…
Im sorry this has happened Sarah. Just last week amazon banned a purveyor who claimed to be ‘packaging’ our books in smaller segments, selling our work as their own. We provided all faces of the books from orig pub’s website, the registered copyright doc from Lib of Congress dates back to early 1900s, and included copyright belonging to person who did cover art. They took the creeps down in three days. With a sort of apology and invite to let them know if there be any other such.
We hope all works out alright for you. We did, i might mention, climb higher in the chain at amz by asking our facebook peeps if they knew anyone in that part of management. They did, and we applied accordingly.
Keep going. It may be that a lawyer can write a brief letter to amz telling them they are carrying a known, meaning you have alerted them, violation of copyright. Our experience now with three creep-outfits over the last 4 years rebundling or selling off large parts of our works and collecting money for their thievery, is that AMZ has each time been timely. May it be for you too.
I assume the other party is not responding to your requests for answers, and is a now-defunct distributor who’s attempting to stiff publishers and authors?
Wow! I follow your posts regularly, so I was surprised to see you link to one of mine–thank you!
The most recent update is that Amazon has accepted all my documentation proving that I wrote A Summer Fling–however someone disputes my right to *distribute* it.
Amazon will not reveal the name of this third party nor the basis for their claim. I’ve been advised to hire a copyright attorney.
The number of organizations that could possibly hope to make such a claim are very small. Two as a matter of fact. I’ve been in contact with one, who said they would contact Amazon on my behalf and make sure there hasn’t been a mistake, but given that they didn’t file a takedown notice, it seems it’s unlikely they are involved.
You’re welcome, Sarah.
Sarah, if your suspicions are correct we should soon see many similar problems. Because, no offense meant, just targeting you isn’t worth it. If we do see more claims against different authors coming from a single source, it should strengthen your claim. Actually, Amazon should see any spike even if the effected authors don’t.
No offense taken. I’m the first to say that this story simply isn’t worth it! However, I think it’s a shot across the bow. If I’m correct, and I hope I’m not, I think we’ll see more of the same, which is why I wanted to get my story out there.
The problem is the list of people who could even attempt to claim publishing rights on this story has two names on it. I’ve already been in touch with one of them, who has agreed to make sure they weren’t inadvertently involved. So unless this is a personal vendetta…
Amazon becomes so obstinate in these situations.
And yet we get upset when they don’t jump on a claim of ours of someone stealing our copyright. The wheels turn slowly, but they turn.