We All Need to Be Defended Against Predatory Publishing Practices

From Jane Friedman:

I’ve written and spoken about hybrid publishing for years now, and it’s a nuanced and complicated issue. Some of you may know I’m not a huge fan of the term “hybrid publisher,” because sometimes it’s little more than a marketing ploy by paid publishing services, meant to make authors feel good about their choice of paying to publish. (More on that here.) But there are excellent hybrid publishers who deserve to be categorized differently than your average paid publishing service. She Writes Press is one of them.

The barriers to getting a book published have never been lower, and the consequence of this reality—that anyone can publish a book—is that predatory bad actors come out of the woodwork, and would-be authors must be on guard.

A prerequisite to becoming an author these days is self-education about the industry. The pay-to-publish space has been on a steep growth trajectory, evermore so in the past decade. There’s been a proliferation of self-publishing, but also of other non-traditional models—which, lacking any clear identifying label, have had to define themselves. Non-traditional by design, these author-subsidized publishing models have adopted labels that include hybrid (the one that’s been mostly widely embraced by the industry), partnership, subsidy, entrepreneurial, cooperative, and others.

I’m the publisher of two hybrid imprints, She Writes Press and SparkPress, and when I first launched She Writes Press in 2012, there was no right label for what we were doing. The only other presses I knew with this kind of “in-between” publishing model, where authors paid for various aspects of production, printing, and warehousing in exchange for higher royalties, were traditional publishers who cut hybrid deals with authors (often at the authors’ request because these models can in fact be in the authors’ best interest), and Greenleaf Book Group, who didn’t call itself hybrid at the time.

It was my early authors who pushed me to call what we were doing something—anything. They wanted a label because they wanted to distinguish themselves, and to explain to the outside world that their publisher was neither traditional publishing nor self-publishing. But being neither, we were in a gray zone. Many of my authors advocated for partnership, but in the end I settled on hybrid because that’s what it felt like to me—a hybrid between traditional and self-publishing, and I first wrote about this “third way” space in a Publishers Weekly Soapbox piece in March 2014.

Since 2014, hybrid publishing has exploded, but with the model’s elevated attention and reputation, the sharks started to swarm. One of the most complicated and disappointing results of naming this third-way publishing something concrete—hybrid—was how it started to be exploited and coopted. As She Writes Press and SparkPress began seeing true results, and therefore legitimacy, in traditional spaces (reviews, awards, sales), we also started seeing all kinds of entities, most of them providing services to authors to varying degrees of professionalism, who were calling themselves hybrid publishers. In the absence of any true definition for what this middle-ground was (in fact, I myself didn’t really know what it was and wrote a definition of hybrid in the first edition of my book, Green-Light Your Book, that I wouldn’t stand behind today), the floodgates opened, and all kinds of businesses were suddenly calling themselves “publishers” even when they were not true publishing companies (which involves vetting manuscripts or being selective about what you publish) and having a marketing, distribution, and sales strategy for all books.

One early response to this coopting came from the Independent Book Publishers Association (IBPA), who released its Hybrid Publisher Criteria in early 2018. It offers nine criteria for the industry and authors alike to use as a measurement of a hybrid publisher’s integrity. The problem is that human beings run companies, and human beings fudge the rules, and in the aftermath of making public those criteria, I talked to more than a few heads of “hybrid publishers” who said to me with all sincerity, Yes, we’re hybrid; we meet all but two of the criteria.

The failure to force well-intentioned would-be hybrids and bad actors alike to comply to true standards met a new point of resistance last week with the release of a report called Is It a Steal?: An Investigation into ‘Hybrid’/Paid-for Publishing Services, put out by The Society of Authors and The Writers Union. It was clearly initiated to draw attention to the degree to which authors are exploited by “pay-for” publishing services, but the underlying and wrong assumption the report makes is that all hybrid publishing is vanity publishing, and that no existing hybrids have standards they adhere to—which would include things like vetting, traditional distribution, and proven sales records. Nor does it acknowledge IBPA’s criteria, which has been around for more than five years. The report, instead, is an attack on the whole of hybrid publishing, without any nuance or acknowledgment from its authors that perhaps hybrid publishing needs also to be on the offensive because our label is being misused, and therefore hybrid publishing is being exploited too. It’s important to note that the Society of Authors and The Writers Union are UK-based, and as the US-based Authors Guild rightly notes in a statement it released in response to “Is It a Steal?”, “The hybrid publishing space is larger and more nuanced in the United States. There are some highly reputable hybrid publishers in the U.S.”

. . . .

“Is It a Steal?” attempts to address a known problem: predatory publishing practices. There are many bad actors out there, and we do need strategies to address this problem. We need to protect and educate writers. However, “Is It a Steal?” wants to strongarm bad actors by insisting that they follow a set of “recommendations.” But the bad actors won’t give a lick about recommendations; they will not be moved by a report telling them to be transparent and to produce a viable marketing plan if that’s not what they do or intend to do.

The better—and only—way to address the problem of bad actors in the publishing space, especially those who are coopting the good name of “hybrid” for their own reputational and financial gains, is to educate would-be authors. We must equip authors with the tools they need to see past flattery and compliments, to support them to think clearly when someone tells them they’ll make them a bestseller, to empower them ask critical questions about contracts and rights and finances.

. . . .

I started She Writes Press specifically because the barriers to traditional publishing are so high (too high) for most authors, and because there are many authors who do not want to self-publish, and for whom distribution and sales, reviews, and a team that supports them through the publishing process is the right combination of elements they’re looking for in a publishing experience. My own efforts as a hybrid publisher have focused from Day One on leveling the playing field for authors, to give them a fighting chance against their traditionally published counterparts and to sell more books that the average self-published author can on their own without infrastructure and publisher support.

Link to the rest at Jane Friedman

PG checked out SheWrites Press and quickly discovered that they offer one package for $8500.00. On their submissions page, they are upfront about their $35.00 Submission Fee.

As the OP states, they offer a single package which you can find in bullet-point form here. The same page notes that the press is acquiring titles for its Spring, 2024, book list.

The Our Process page provides more details about what they’ll do. Near the bottom of the page, the following information is provided in bold type:

The cost of printing your ARCs and final books is not included in the She Writes Press publishing package.

In looking through the About Us page, PG learned that in 2014, SheWrites Press was acquired by SparkPoint Studio, LLC and got a new CEO. SparkPoint Studio has its own brand of hybrid publishing called SparkPoint Press. A quick run through the website of SparkPoint Press made it appear that it had adopted the same type of hybrid publishing model that SheWrites uses.

It was not clear to PG whether there is any distinction between the SheWrites plans and operations and those of SparkPoint.

SparkPoint Press also has a couple of additional links to more related and She-prefix sites that the company appears to own, BookSparks, SheReads and SheBooks. All the About Us pages (or their equivalents) PG reviewed featured women with the exception of one guy in what looked like it might have a peon job on one of the sites, so these are definitely women-run businesses. PG didn’t notice any information about ownership, but lots of businesses don’t talk about that unless they’re a subsidiary of a large parent company that doesn’t show information about ownership.

What PG didn’t find in all the She’s and Spark’s was a copy of the publishing contract any of these organizations ask authors to sign and return with an $8500 check.

PG would be very interesting in seeing a publishing contract for the She’s or the Spark’s.

He wonders why, with all the non-predatory practices of She Writes Press and SparkPress, the publisher of those two organizations who wrote the OP didn’t include a lot more information about the contract terms of those two organizations.

If anyone says, “We don’t want others to copy our contract!”, PG’s skepticism meter would jump to Stun immediately.

Contracts cannot be copyrighted. Anyone can copy some or all of the contract terms s/he finds in a contract used by another company. Since time immemorial, attorneys have kept copies of contracts they have drafted, contracts others have drafted and contracts they may stumble across anywhere else.

This hoarding practice allows attorneys to avoid re-inventing the wheel while drafting a new contract when they already have a perfectly good wheel-invention contract in their form files AKA copies of contracts they’ve collected over the years.

One of the things that first impressed PG about Kindle Direct Publishing is that they had their Terms and Conditions (internet-speak for publishing contract) available on their website. You can see the latest version here.

Reading it won’t keep you up past your bedtime, but everything that indie authors (and more than a few publishers who distribute ebooks via Zon) are asked to digitally “sign” is right out there for all to see.

The right of the author or Amazon to terminate the publishing agreement at any time is described in Section 3. The royalty provisions for KDP as referenced in Section 5.4.1 of Amazon’s online agreement are available here. Details concerning payments from Amazon Serviços de Varejo do Brasil Ltda are found in Section 5.4.5 of the online agreement.

End of Amazon minutiae.

If anyone can provide PG with a copy of an $8500 contract from the She’s or the Spark’s, he would appreciate reviewing it and, possibly, doing a blog post about the contract. Use the Contact PG link at the top of the blog to commence that process.

15 thoughts on “We All Need to Be Defended Against Predatory Publishing Practices”

  1. I went to the link and read the whole thing. I still don’t know what a hybrid publisher is. That alone raises a red flag.

  2. Not a scientific approach, but I randomly looked at over a dozen of their titles published last fall, and only one was ranked higher than 1 million on Amazon. They do have very nice covers and lots of professional looking reviews and awards.

    But at that rate of sales, I wonder if any of them make back $8,500 after also paying for printing and shipping of the books.

    In contrast, I went through several of my wife’s nonfiction books (including ones published 10 years ago) and they all rank above 500,000 and some much higher. We did all of the publishing ourselves.

  3. “Custom interior design for up to 100,000 words (if your manuscript is over 100k words, you will need to work with an editor to cut it down)”

    That would be quite a job for some novels. The one I just finished writing, and will publish myself on Amazon asap, is 186K – and it’s going to stay that size. It’s getting close to the maximum size for a print POD volume at Amazon. The first volume in the trilogy is 167K; I assume the last will be somewhere in there.

    One more example of a Procrustean publisher. What you need is irrelevant; they will stretch or compress you into their templates. I’d expect a bit more for that price.

    As an actual SPA, I find their description of process and product scary.

  4. The mind boggles. Despite the incredible (incredulous?) number of writers taken-in every day, the fact remains that the distinction between a scam outfit and a valid, authentic publisher is easy to discern: If the publisher charges ANY fees for publishing a book, it’s a scam. Period. No matter what kind of publisher they say they are.

    Of course, that’s only the pre-contract filter. I recommend you hire an attorney to seek out and correct any scams included in the contract itself before you sign it.

    That’s if you’re unwilling to, you know, do it yourself and keep the lion’s share of the royalties.

  5. The failure to force well-intentioned would-be hybrids and bad actors alike to comply to true standards met a new point of resistance last week with the release of a report called Is It a Steal?: An Investigation into ‘Hybrid’/Paid-for Publishing Services, put out by The Society of Authors and The Writers Union.

    1. Who does the forcing?
    2. How do they force?
    3. Who sets the true standards?

  6. Just as a lawyerly note that you might actually want to pay attention to:

    There is no “ordinary public meaning” that can be applied to publishing contracts.† In particular, the OP entirely botches both the sources of and the meaning of “standard.” What it really means is “best and relatively fair practices,” drawing upon experiences in England where authors — who are, under the law of the US, independent contractors and not employees and therefore prohibited from organizing to “restrain trade,” and if you think “enforcing standards” in that context would evade antitrust scrutiny you’re far too optimistic — have organized and have legal enforceability rights.

    Because it’s final exam time, I’m giving the OP a C+. It correctly spotted the issue and then blew all of the analysis.

    † This is, in large part, due to quirks in both the common law of contracts in New York and, to a lesser extend but still (often incorrectly) relied upon by courts, the Uniform Commercial Code. The primary of these quirks is the overriding interpretive/construction meme that all contracts are presumed to be “commercially reasonable”… which, in turn, means “reasonable to highly experienced commercial lawyers who’ve practiced in that field for at least a couple of decades and play golf with the leaders in the specific industry so they speak the same language and have the same between-the-lines understandings.” I don’t know an awful lot of authors, or for that matter agents or “general”/non-NY-based commercial, attorneys who fit that description! (Not even litigators who’ve litigated extensively in NY courts; and just because neither the publisher nor the author is in NY, don’t think you’re escaping the Manhattan echobox that easily.)

  7. “Contracts cannot be copyrighted”

    Cite please.

    Are you doing an analogy with US copyright law on recipes?

    You may be right in practice, I recall (I am a Brit) a bank ‘s credit card conditions of use which copied a 1966 Barclaycard nonsensical clause, original long since corrected.

    • I should add that your copyright office /will/ register contracts.

      717.2 Legal Documents
      Contracts, insurance policies, or other legal documents may be registered if they contain
      a sufficient amount of expression that is original to the author. The U.S. Copyright Office
      may register briefs, motions, prepared testimony …

      • Mike – As a first point, you quote a document that defines what documents the US Copyright Office is willing to register. Registration creates a rebuttable presumption that the copyright is valid.

        Every successful attack on the validity of a copyright involves a document or other expression that the Copyright Office registered that wasn’t protected by copyright laws.

        The section you quoted from the copyright office registration standards demonstrates one of the problems with obtaining a copyright on a contract or other legal document.

        The contract needs to have a “sufficient amount” of original expression.

        This is a problem because a competent contract should, first and foremost, be enforceable according to its terms. One of the easiest and most bulletproof ways of accomplishing this is to use provisions that have been tested in court and been found to be enforceable. I suggest an attorney who created a contract which s/he later registered with the copyright office would be opening him/herself to a potential malpractice suit if the contract was challenged in court and found to be defective in a material way. Unless the underlying agreement or one similar to it had never been made before in the long history of contracting, failing to use one or more proven contract provisions, or minor variations thereof, when they were available would be a very difficult malpractice allegation to rebut.

        There’s also the original expression requirement for a valid copyright.

        If I were defending an infringement claim based upon a copyrighted contract, one of the first things I would do is take the contract apart and search computer legal databases to find identical or similar provisions used in previously litigated contracts. The computer does all the work and contemporary legal research services will also pull up documents with that include language that is not identical, but similar enough to undercut a claim that the contract was an original creative work.

        Lots of lawyers have been writing lots of contracts for a long time. While contracts can be structured in innovative ways, enforceability and avoidance of vague or ambiguous language in provisions that aren’t new in and of themselves would, I think, be an ethical obligation for the competent attorney. While no contract can avoid any conceivable misunderstanding or dispute based on its language, one reason for using provisions that have been used before is that attorneys on all sides understand what those provisions mean in the real world.

        If an attorney writes a contract for a client and is paid by the client for her/his labors, that’s a classic example of a work made for hire and any copyright interest in the contract would be owned by the client. A retainer agreement could include provisions that negate this presumption, but, again, in a dispute between an attorney and client, I think more than one jury would side with the client in such a dispute.

        As a general proposition, any document filed with a court becomes a public record freely available for copying and use by the public in general. Litigation involving a written contract virtually always includes one or more copies of the written contract as exhibits to court filings.

        There’s also the idea/expression issue in copyright law. Copyrights do not protect ideas – boy meets girl, boy loses girl, boy gets girl (or something similar involving every gender now existing or which may come into existence in the future) is not protected by copyright. The idea that if one party to a contract fails to do what they commit to do under the contract, the other party is entitled to damages of some character is similarly not protectable under copyright law.

        An attorney writing a contract is, first and foremost, using words, phrases, paragraphs to obtain a desired legal effect. If the attorney obtains the desired legal effect, it will likely occur when the attorney uses words, phrases, etc., that any judge will recognize as those that result in the desired legal effect. Judges virtually always recognize language they have seen before.

        Finally, there is the “useful article” exception to copyrightable creations. This a legal cousin of the idea/expression distinction for copyright mentioned above. You can’t protect an idea under copyright law, just the expression of the idea.

        Following is from the USPTO:

        “Copyright in a work that portrays a useful article extends only to the artistic expression of the author of the pictorial, graphic, or sculptural work. It does not extend to the design of the article that is portrayed. For example, a drawing or photograph of an automobile or a dress design may be copyrighted, but that does not give the artist or photographer the exclusive right to make automobiles or dresses of the same design.”

        I would suggest that a written contract qualifies as something like a useful article.

      • That’s a deceptively misleading statement, because it’s quoted in isolation.† If one looks at the general description of legal materials in Compendium § 717, one finds this caution:

        … legal materials often contain an appreciable amount of content that is not eligible for copyright protection. They also may contain an appreciable amount of content that is in the public domain, content that has been previously published, content that has been previously registered, or content that is owned by a third party. If so, the applicant should exclude this content from the application…

        which makes clear that “a contract” cannot be protected, by the lawyer who drafted/assembled it, as a whole — regardless of registration status for the entire contract, and one should recall that registration is whole-work-or-nothing — unless it is completely original, see Compendium § 308.

        The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.

        Feist Publ., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991) (denying protection, as a Constitutional matter, to a phone book that included fictitious entries designed to “catch” copyists — despite the prior registration of copyright in that phone book).

        The irony that context matters to enforceability and actual “copyright” — as distinct from the administrative act of registration that makes a work eligible to be considered for enforceability, but that eligiblity can be defeated — does not appear to have sunk in to the writers of the Compendium (and CFR and Copyright Act) when they were writing segments that are so easily taken out of context. And that is why the fact that a contract can in theory be registered†† doesn’t mean that it has any actual copyright protection.

        † And for this, I blame Congress. The Compendium of Procedures, and the relevant sections of the Code of Federal Regulations, are really badly organized and written, with inadequate internal and external cross-referencing and unclear definitions. Just like the Copyright Act itself, and the Compendium and CFR are sort of forced to follow the organizational memes of the Act.

        †† Every so often, some law firm gets the bright idea to claim copyright in its “inventive” court documents, especially complaints in fast-moving areas of law. That doesn’t make the actual copyright valid; indeed, it doesn’t make the claim ethical. I know of two mass-tort lawyers who received reprimands after they tried to prevent other attorneys from filing “me, too” complaints (of course, those attorneys had other problems that brought them to the bar authorities’ attention, but the letters of reprimand specifically mentioned the misuse of copyight regarding court filings).

  8. I am sooo glad I went into engineering.
    All we had to worry about was a test rig blowing up.
    😐

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