Shining a bright light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls. Also providing advice for writers, industry news, and commentary. Writer Beware is sponsored by the Science Fiction and Fantasy Writers of America, Inc.

December 23, 2011

Happy Holidays From Writer Beware

Because even watchdogs have to rest sometimes, the Writer Beware blog will be taking a break over the holiday season. Unless there's a really juicy publishing story, we'll be on hiatus until the new year. (We'll still be answering email, so if you want to reach us, drop us a line at beware [at] sfwa.org).

Wishing all our wonderful readers and subscribers a happy, healthy, and peaceful holiday season--whatever kind of holidays you celebrate. See you in 2012!

- A. C. Crispin
- Victoria Strauss
- Richard White

December 19, 2011

Publisher Alert: Arvo Basim Yayin of Turkey

Posted by Victoria Strauss for Writer Beware

A couple of weeks ago, I began hearing from self-published and small press authors who'd been approached over the summer by a Turkish publisher called Arvo Basim Yayin. All reported having been contacted out of the blue by an editor named Hulya Dayan, inquiring about buying Turkish language rights to their books (some examples of Ms. Dayan's emails have been posted on the Kindle boards).

Arvo signed up at least ten writers as a result of these approaches, some with multiple books (those are only the writers whose names I know; according to my sources, there are probably many more). Both royalty-only and licensing-fee-plus-royalties contracts were offered; the licensing fees ranged from hundreds to thousands of dollars, depending on the number of books involved. Publication was supposed to begin in September.

Some of the books have indeed been published. But others have missed multiple publication dates--and it appears that no one, including the authors whose books were published, has been paid.

Authors who've attempted to contact Ms. Dayan about the problems say they've gotten a raft of excuses--financial difficulties, personal and family ill health, religious holidays, trips out of town--along with repeated promises that schedules would be straightened out and monies owed would be forthcoming. As of this writing, none of those promises have been fulfilled. Authors tell me that Ms. Dayan has largely stopped responding to questions and concerns; some haven't heard from her since October.

I emailed Ms Dayan myself two weeks ago to ask for comment. Somewhat to my surprise, I received a quick reply alleging unspecified financial trouble and assuring me that Arvo would soon be paying everyone. When I wrote back to ask for a payment timeline, Ms. Dayan responded again that payments would be made (though again, she didn't say exactly when), and offered yet another excuse for their lateness: Arvo's printing machines had broken down and all the company's resources were going toward repaying a loan for the purchase of new machines.

Missed publication dates, missed payment schedules, books published that have not been paid for, dropped communication, bogus-sounding excuses--what's going on here? Let's take a closer look at Arvo.

Arvo's website lists only six books, but it actually appears to have published sixteen to twenty-three, depending on which online catalog you look at. The majority of these titles--by such authors as F. Scott Fitzgerald, Edith Wharton, Rudyard Kipling, Bram Stoker, and Jacqueline Susann--are from well-known authors of the past, and most--though not all--are in the public domain (I emailed the agent who reps Jacqueline Susann's estate to ask if rights had indeed been sold to Arvo, but to date I've received no response). The seven remaining titles were all acquired as a result of Ms. Dayan's approaches over the summer. All publication dates are in 2011, which makes Arvo a new publisher--always a red flag, since there's a really high attrition rate among new small presses, especially where they're under-capitalized or run by inexperienced people. The situation with Arvo is a good demonstration of why it's wise not to approach a new publisher until it has been issuing books for at least a year.

Arvo's website lists several staff names and email addresses, and the URL is registered to Arvo General Coordinator Volkan Dogan, who also signed the contract I saw. But Hulya Dayan, who gives her title as "Acquiring Editor," is the only Arvo staff member that anyone has reported dealing with. She's also listed as the translator of many of Arvo's books, despite the shaky command of English exhibited in her emails (several Arvo authors have told me that their translators were hired by the company as independent contractors). So Arvo's staff may be quite a bit smaller than its website encourages viewers to assume.

Arvo offers two kinds of contracts: a royalties-only contract, and a contract offering a licensing fee for the first 1,000 copies plus 8% royalties for additional printings. I've seen licensing fee contract, which is very short--just three wide-spaced pages--and it's an obviously unprofessional document. Among other things, it has been written by someone with a less-than-perfect command of English, which may account for some very confusing and ambiguous language--such as the clause covering the term of the contract, which could be interpreted to mean either that Arvo has the right to produce and sell the book for five years, or that it has five years to bring the book to market. In addition, there are no provisions for rights reversion, no indication as to whether the rights grant is exclusive or non-exclusive, nothing to address copyright, no translation warranty, and although a publication month is established, there is no mention of a publication year. 

(Authors: this is why you may not want to act as your own literary agent. Just because a contract is short and seems simple doesn't mean it's author-friendly. Unless you're very familiar with publishing contract terminology, it's difficult to recognize nonstandard clauses--and even more difficult to recognize what clauses may be missing. To her credit, Ms. Dayan appears to have been open to negotiation, and some of the authors I spoke with were able to alter the contract to make it more standard. But others signed the contracts pretty much as they were written.)

So is Arvo a scam that targeted writers with promises of money it never intended to pay? Is it a well-intentioned, if not very professional, small press that has fallen on hard times? Or is it an under-capitalized, poorly-planned, under-staffed amateur endeavor that was doomed from the start? There's no way to know for sure. But since Arvo has been so active in recruiting via the Internet, authors need to be aware that this is a publisher that appears to have serious difficulty fulfilling its contractual promises.

Beware of foreign publishers bearing gifts.

(For more information on the complicated world of foreign rights, see this interesting article, which covers the issues involved in selling rights overseas and offers a good overview of the value a literary agency can bring to such transactions.)

December 16, 2011

D Publishing: Dymocks' New Self-Pub Service

Posted by Victoria Strauss for Writer Beware

Last week, Dymocks, an Australian bookselling chain, announced the launch of D Publishing, a electronic and POD self-publishing service.

Like Amazon and Barnes and Noble, Dymocks is a major book vendor. Unlike Amazon and Barnes and Noble, it doesn't have its own ereading device--so D Publishing does not resemble the free, direct-to-device self-pub services offered by Amazon and B&N. Instead, it's more like the middleman self-pub services provided by AuthorHouse and its ilk. For a fee of $499 to $699, you can publish a print book, an ebook, or both (all prices are in Australian dollars). Additional charges for cover creation and setup bring the price as high as $997.

The pricing isn't horrible, by middleman self-pub standards (you can pay much more for a basic package from some services). But there are certainly better deals out there--especially since the only distribution you get is through Dymocks' catalog, Dymocks online, and Google eBooks. Even AuthorHouse et al. do better than that.

But the real problem with D Publishing is its contract, which authors must sign if they want access to an ISBN and what limited distribution Dymocks offers (you can also use D Publishing as a formatter or a printer, in which case the contract isn't required).

With very rare exceptions, self-publishing services' author contracts are nonexclusive, terminable at will, encumber only primary publishing rights, and make no claim on subsidiary rights.

Dymocks' contract, by contrast, is exclusive (all the bolding below is mine):
The scope of the Licence granted to D Publishing is as follows:

(1) sole and exclusive licence to distribution of the Work through the Core Distribution Channels identified from time to time on the Rate Card and Nominated Secondary Distribution Channels;
You cannot terminate the contract unless there is a breach, or unless Dymocks fails to publish:
Either party may by one month’s notice in writing to the other party terminate this Agreement without prejudice to any claims outstanding or any sub-licences properly granted in the event of a breach by the other party of a material term of this Agreement that has not been remedied within 28 days of receiving notice of the breach...

The Author may terminate this Agreement if D Publishing has not published the Work within 28 days of being requested to do so by notice in writing from the Author.
Dymocks, by contrast, can terminate at any time:
D Publishing may, at its discretion and at any time, terminate this Agreement for convenience on giving 30 days’ notice in writing to the Author.
In effect, this is a life-of-copyright contract--for a self-publishing service. And, not content with exclusively locking up your primary publishing rights for an inordinately long period of time, the contract makes a sweeping claim on subsidiary rights as well:
The Author grants to D Publishing a licence...to exercise, including by way of sub-licence, all rights in the Work other than its first volume and electronic publication rights (Subsidiary Rights). Without limiting the preceding, Subsidiary Rights include:

(a) anthology and quotation rights
(b) condensation e.g. magazines, newspapers and ezines
(c) radio and TV straight reading
(d) sound recording
(e) reprint under sub licence
(f) adaptation in other media, including but not limited to internet, apps or other software, collectively, ‘Licence’.
These terms would be a problem if you encountered them in the contract of any small publisher. From a self-publishing service, they are truly awful. And they're just the start. Dymocks can also change the terms of the contract at will. It reserves the right to publish tie-in editions, if a film or other media adaptation is made. The royalty structure is confusing (and, from the looks of it, actual royalties will be low). The payment terms for subsidiary rights sales aren't adequately defined. Royalties are paid and accounted only twice a year. And there's a confidentiality clause that could preclude authors from sharing sales information.

Believe it or not, this is an amended contract. D Publishing withdrew its original contract in response to criticism from the Australian literary community--such as this, from Steve Rossiter of the Australian Literature Review, and this, from contracts expert Alex Adsett. However, according to Rossiter,
The substantive change to the agreement is negligible. The major change has been to bury key details in less direct language and disperse that key information piecemeal across more clauses. This may make key details less obvious to inexperienced authors until they have accepted the agreement but doesn't address the problems.
Will Dymocks heed the continuing criticism and make real changes? Steve Rossiter reports that Michael Allara of D Publishing has promised to release another amended contract in the coming days. Until then, I think that authors would be wise to avoid D Publishing.

EDITED 12/21/11 TO ADD: The D Publishing contract has been taken down (hopefully in preparation for a new and better one), but a PDF of the version I was commenting on above is available here.

EDITED 1/10/12 TO ADD: D Publishing has overhauled and re-posted its publishing agreement. Changes include making the grant of subsidiary rights non-exclusive, and making the contract term 10 years (still much too long--plus, the contract renews automatically unless the author remembers to cancel). Most of the terms I've objected to--including the exclusive grant of primary publishing rights and the confusing royalty structure--remain.

Steve Rossiter agrees that the changes don't go far enough.

December 13, 2011

Pearson Education Extends Scope of Permissions Licenses

Posted by Victoria Strauss for Writer Beware

Writer Beware has learned that Pearson Education, a major education services company (and the parent company of trade publisher Penguin), is currently requesting vastly extended licenses for copyrighted text and images that it has received permission from rightsholders to include in its print textbooks and other publications.

The original licenses were limited by language, territory, and/or format. Here's an actual example: North American English rights only, for a first printing of 5,000 copies.

Pearson's extension request expands that limited scope to include pretty much everything, everywhere. Here's the exact language:
We are now requesting Extended rights for your selection(s) to include the following: All Languages, World Rights, Print Versions and Non-Print Media, Subsequent Editions, Derivative Versions, Disability Accessible Version and Promotional Use.
There's no doubt that this expanded language reflects the growing importance of digital publishing, with its proliferation of non-print formats and erosion of traditional territorial rights. But it's also alarmingly vague, and enormously expands not just the scope, but potentially the duration of the permission license.

My source for this information, an agent at a well-known agency, told me that when she contacted the third-party service that is handling the extension requests, she was told that she wasn't the first agent to call with concerns about the expanded language. She and the author have decided to deny the extension.

"My concern," she says, "is for authors without representation--that they would just sign [the extension] and not truly understand the repercussions."

December 8, 2011

The Fine Print of Amazon's New KDP Select Program

Posted by Victoria Strauss for Writer Beware

Almost since Amazon's controversial Kindle Owners' Lending Library--which allows Amazon Prime members to borrow selected ebooks for free--debuted, there have been rumors that Amazon was inviting KDP self-publishers to participate.

Amazon has just unveiled KDP Select, which allows self-publishers to "Distribute books through the Kindle Owners' Lending Library and reach the growing number of US Amazon Prime members." Authors will receive not just exposure, but payment, through a special fund established by Amazon. $500,000 is available in December, and "at least" $6 million in 2012. (See Amazon's detailed FAQ.)

The enrollment term for KDP Select is just 90 days, but enrollment renews automatically unless you opt out (and you can opt out at any time). During each 90-day term, you can promote your book to Amazon customers as free for up to 5 days; during those free days, however, your book won't be available in the Lending Library.

Payment is calculated according to a complicated formula:
Your share will be calculated as the number of times that the Digital Book has been borrowed during the month as a percentage of the number of times all KDP Digital Books have been borrowed, multiplied by the fund amount we establish for that month...For example, if the fund for a particular month is $500,000, your Digital Book is borrowed 1,500 times, and all participating Digital Books are cumulatively borrowed 100,000 times, your Digital Book will earn $7,500 ($500,000 x 1,500/100,000 = $7,500).
It sounds lucrative, but it should be remembered that this is only an example; KDP Select is too new for anyone to predict what the actual borrowing rates will be (according to Publishers Lunch, 129 titles are currently enrolled, from top KDP authors). Also, Amazon appears to have complete discretion in establishing the amount of the monthly fund, and in deciding on "the criteria for determining which borrowing events qualify for this calculation."

Also important to consider, if you're thinking of participating: you must be willing to distribute your work exclusively on the Kindle. Here is the relevant language:
1 Exclusivity. When you include a Digital Book in KDP Select, you give us the exclusive right to sell and distribute your Digital Book in digital format while your book is in KDP Select. During this period of exclusivity, you cannot sell or distribute, or give anyone else the right to sell or distribute, your Digital Book (or content that is reasonably likely to compete commercially with your Digital Book, diminish its value, or be confused with it), in digital format in any territory where you have rights.
This is a grant of rights and a non-competition clause all in one, and authors need to think carefully before agreeing to it. Contrary to what many authors seem to believe, the regular KDP program does encumber rights, and gives Amazon considerable control over intellectual property (see this comment from me on an earlier blog post for an analysis)--but it does so non-exclusively and imposes no burden on other works. KDP Select goes much farther: it makes Amazon, in effect, your publisher while your book is included in the program, and potentially has an impact on other work you are or are planning to publish. (See this post from Passive Voice for a detailed analysis of the dangers of non-competition clauses.)

Other things to note: if you opt out of KDP Select, your book remains subject to the Terms and Conditions until your current 90-day term expires. And if you violate the Terms and Conditions, there are consequences:
we will not owe you Royalties for that Digital Book earned through the Kindle Owners’ Lending Library Program, and we may offset any of those Royalties that were previously paid against future Royalties, or require you to remit them to us. We may also withhold your Royalty payments on all your Digital Books for a period of up to 90 days while we investigate. This doesn’t limit other remedies we have, such as prohibiting your future participation in KDP Select or KDP generally.
As always, read and be sure you understand the fine print.

December 6, 2011

Guest Blog Post: A Blast From the Past--Thieving "Literary Agent" Uwe Luserke Re-Surfaces

Posted by Victoria Strauss for Writer Beware

Every time I look at Writer Beware's bulging file drawers, and wonder whether I should get rid of files for agents and publishers that have gone silent (or at least consign them to the basement), I'm reminded of why it's important to keep old information handy. The bad guys may disappear--but, as this week's guest blog post by former SFWA President Michael Capobianco demonstrates, you never know when they're going to pop up again.

------------------------------

by Michael Capobianco

Even before the creation of Writer Beware, Ann Crispin was on the watch for literary malefactors.

Back in 1997, when I was serving my first term as SFWA President, SF writer Dave Smeds filed a complaint with SFWA's Grievance Committee (GriefCom for short), reporting that he'd found one of his short stories published in German, but hadn't received any payment or even been notified of the sale by his German literary agent, Uwe Luserke.

Consulting with GriefCom's Foreign Rights Chair Charles Sheffield, it soon became clear that Dave's complaint was the tip of the iceberg. There was an enormous problem with rights sales to German and other European publishers, affecting many SFWA members, including Andre Norton, Robert Jordan, and Terry Pratchett. Short stories and novels were being sold to European publishers, but authors weren’t receiving royalties; in many cases, writers weren't even aware that the sales had been made. (Here's a typical complaint.)

The common link in all these missing payments and stealth sales: Uwe Luserke. Many of the affected authors were represented by Luserke--but many others had never heard of him.

How could such a thing happen? It’s probably difficult today to understand how remote Europe seemed in those days of the early Internet. In addition to the language barrier, communication took place primarily via paper mail. Phone calls were prohibitively expensive, so there was simply not that much contact between the average American author and foreign publishers. Add to that authors’ general inhibition about contacting publishers directly, and you had a situation that was ripe for exploitation.

SFWA began working to connect the dots. In response to a call for information in the SFWA Forum, more and more SFWA members began to come forward with complaints. Dave Smeds, who had taken over as Chair of the Foreign Reprints Committee, did admirable work in collecting and disseminating information. Ann, who at the time was serving as SFWA's Eastern Regional Director--and who was herself affected by the scandal, through her collaborations with Andre Norton--met with representatives of Amber, the Polish publisher that had brought out Polish editions of Norton's Witch World books. Amber showed Ann documents proving that they had paid Luserke--payments that were never passed on to Norton.

SFWA also contacted the major German publisher of science fiction, Wilhelm Heyne Verlag, and began action against Luserke in the German courts. Ultimately, Wolfgang Jeschke of Heyne provided SFWA with a list of more than 100 stories that Heyne had purchased from Luserke. Robert Jordan supplemented this with a list of novels sold by Luserke to Heyne, including one by SFWA founder Damon Knight.

In some cases, especially early in his career, Luserke had been making appropriate payments to authors, but it appeared that he had mostly stopped after about 1990. While the problems with Heyne and Amber were fully corroborated, Luserke was also doing business in then-Czechoslovakia, Romania, and other European countries, and the extent of his thefts was never fully discovered. SFWA’s efforts to bring him to justice in Germany were impeded by the distances involved, and the case was dropped after my term as President was over.

Why go into all this now? Over the last few years a shadow has been growing in the East. We’ve heard various reports that Luserke is again asking writers and artists if they need representation. (Here's one recent example. Here's another.) Writer Beware has received a handful of questions about Luserke from writers who've been approached by him. And it was just discovered, as part of SFWA’s Estates Project, that Luserke is listed as the agent of the estate of one well-regarded author.

Luserke has an active Facebook page.

It seems clear that Luserke is active again--even if only sporadically. Given how few reminders of his perfidy survive on the Internet, I and Writer Beware feel it's important for writers and artist to be aware of his history of financial and intellectual property theft. Anyone who is currently doing business with Uwe Luserke, or considering making him their agent, should most certainly beware.

Michael Capobianco is the author of one solo science fiction novel, Burster (Bantam 1990), and co-author, with William Barton, of the controversial hardcore SF book Iris (Doubleday 1990, Bantam paperback 1991, Avon Eos 1999), Alpha Centauri (Avon, 1997), and the critically acclaimed near-future novel Fellow Traveler (Bantam, 1991). Capobianco served as President of Science Fiction and Fantasy Writers of America (SFWA) from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA's Board of Advisors.

November 29, 2011

Lies, Damned Lies, and Statistics: How Relying on Numbers Can Get You Into Trouble

 Posted by Victoria Strauss for Writer Beware


Today I saw the following statement used as justification for choosing a fee-based publisher that charges its authors nearly $4,000, and actively presents itself as a real publisher, rather than a vanity publisher or a (very costly) self-publishing service:

A couple ratios I read a while back convinced me I did the right thing by publishing through [pay-to-play publisher's name redacted]. One ratio involved an author finding an agent - 1-in-5000 - and the other involved an agent finding a publisher - 1-in-100.
I've seen these sorts of statistics (most of which appear to be plucked from thin air, and few of which are ever linked to actual sources of information) used again and again to justify bad decisions--from settling for fee-charging agents, to paying huge amounts of money to deceptive "publishers," to defaulting directly to self-publishing (there are good reasons to self-publish, but believing that it's impossible for a new writer to find an agent or a commercial publishing deal isn't one of them). It's unfortunately very easy for writers to buy into these faux numbers--whether out of fear, or inexperience, or simply because they vindicate writers' own frustration with rejection. But if you look at the numbers closely, they don't hold up.

The problem with the first statistic is that it assumes that all authors and all manuscripts are equal, and thus equally in competition with one another. But manuscripts fall into markets and genres, and the competition within each market or genre is different. Beyond that, the hard truth is that most of the manuscripts that are circulating at any given time are not commercially publishable (anyone who has ever looked at an agent's or publisher's slush pile will confirm this). Perhaps 10% even approach publishability; a much smaller percentage is actually marketable. If your manuscript is marketable--which really is the biggest "if" for writers whose goal is traditional publication--you aren't competing with every writer out there, just with the very small number whose work is also marketable. Your odds, in other words, are better than you think.

The problem with the second statistic is that it is very clearly illogical. Agents earn their income from commissions on sales--i.e., they get paid only if they sell something. If agents sold only 1 in every 100 manuscripts they represented, they couldn't make enough money to keep their doors open--except maybe the disreputable ones who charge fees. (Nor, with so few sales, is it likely that trade publishers would be able to churn out over 300,000 new titles a year in the USA alone.) And imagine the work load, if for every success you also had to market 99 duds! No agent will manage to sell every single manuscript--but no agent could possibly remain in business with such a high failure rate.

The fact that not every manuscript will sell punctures another common myth: that it's harder to find an agent than it is to get a publishing deal. Publishers have a one-to-one relationship with the manuscripts they acquire: every single manuscript they take on gets published. Agents know that not every manuscript they represent will find a home--but they need enough sales to keep their businesses going. In other words, they need spares. So while a publisher will only take on manuscripts it will publish, an agent will take on any manuscript he or she thinks may sell--within the limits of his or her workload, of course.

It is certainly tough to find a reputable agent. But it is very far from impossible. And even if your agent search does strike out, there is a huge alternative market in the large number of small presses that don't charge their authors a penny. Unless you want to self-publish (in which case you don't have to shell out anything close to $4,000), there's no reason ever to pay for publication.

November 25, 2011

MLM for Writers: The Best Authors Lounge

Posted by Victoria Strauss for Writer Beware

Writers: Forget about that boring day job. Forget about tedious book promotion. Heck, forget about writing books! There's another way to make money--and it was created with authors in mind.

I received a spam a couple of weeks ago from an outfit called The Best Authors Lounge for a query letter webinar. Intrigued by the sizeable signup fee ($74.99, rising to $99.99 after November 15), as well as the presenter's apparent lack of any professional experience that would qualify her to teach query letter-writing, I decided to investigate further.

From The Best Authors Lounge's opening page:
In order to be “the best author” you can be, join TBA Lounge, an interactive social network that puts the writer, freelance journalist, the author, the songwriter, the poet, and the speaker in a positive atmosphere in which you can be supported and therefore become more successful doing what you love to do, creating a world out of words.
So far, so groovy. There's a catch, though: to join this social network, you have to pay--and it isn't cheap. Fees range from $100 to $200 per month, depending on the level of networking you desire. There are also courses you can take (for more fees, natch) from something called TBA University. You can even self-publish your book, via a variety of packages ranging from $698 to over $1,200.

If you think this all sounds really cool (if so, I'm guessing that you've been living under a rock for a number of years and aren't aware that most social networking is free), but feel you're too cash-strapped to afford it--don't fret. The helpful folks at TBA Lounge have made it possible for you to recoup your investment and then some--by luring other authors to TBA Lounge, and pocketing 50% of their signup fee. (In fact, you can't sign up for TBA Lounge at all unless you have a referral.)

Oh, the money you'll make!
Assume that you refer 20 people to TBA who come in at the Gold Level. You have just created an extra $2,000/mo which is $120,000 per year.

Assume that you refer 10 people at the Bronze Level, 10 people at the Silver Level and 10 people at the Gold Level. You are now earning an extra $2250/mo.
And that's not all! You can earn not just on your referrals, but on your referrals' referrals!
Assume that you referred 5 people to TBA Lounge and those 5 people did the exact same thing down to 5 Generations.

Referral Level 1: 5
Referral Level 2: 25
Referral Level 3: 125
Referral Level 4: 625
Referral Level 5: 3125
-----------------------------
Total Referrals: 390

Also assume that the people above purchased a bronze package. Of course, you will earn $50/mo from each of the 5 people that you referred, which is Referral Level 1.

You will then earn $12.5/mo for each person that those people refer down to your 5th Referral Level. If you do the multiplication, you will see that you’re now earning an extra $49,000/mo.
TBA Lounge, in other words, is a multi-level marketing scheme.

Actually, it's just one part of an MLM scheme--its parent is Team FAM, an MLM organization that claims to "combine THREE of the World's Largest Industries into ONE: Real Estate, Personal Development, and Network Marketing!", but whose real business is selling would-be entrepreneurs a system for establishing an income-producing referral network.

This is the second MLM scheme I've encountered that involves books--the now-defunct BookWise program was the other--but it is the first that specifically targets writers. Bottom line: despite the literary trimmings, TBA Lounge is far less about authors and writing, than it is about the recruitment of participants to sell the service to others.

For much more information on MLM schemes, and their misleading promises of easy money, see MLM Watch and The Truth About MLM.

November 23, 2011

Book Country And Self-Publishing: Why the Hate?

Posted by Victoria Strauss for Writer Beware

Last week, Penguin subsidiary Book Country--a digital slush pile/peer critique community with a focus on genre fiction--announced that it was adding self-publishing services.

This prompted an explosion of negative commentary, including criticism from self-published authors. But I've been following the Book Country story for some time--Book Country staff have been active in reaching out to the writing/blogging community--and a good deal of the commentary I've seen is either inaccurate, or ignores the forest for the trees.

It's a scam!

A fair number of people have been claiming that Book Country's self-publishing service is a scam or a con. How, exactly? You may not think the service is a good idea; you may not like its terms. That doesn't make it a scam. A scam is an enterprise deliberately set up to deceive, cheat, and defraud victims. Using the word so loosely and inaccurately cheapens it, and makes it less meaningful when it's used to describe a real fraud.

Book Country is targeting vulnerable writers with deceptive hype!

I wonder if some of the people who are saying this have actually looked at the self-publishing pages on Book Country's website. There's actually very little hype, and none of the implied false promises of success that you find with so many other self-publishing services.

Book Country is gouging authors by keeping 30% of their income!

The problem here is that many people are comparing apples to oranges, contrasting Book Country, which acts as a middleman, with Amazon's KDP program or Barnes and Noble's PubIt, where there is no middleman.

All middleman self-publishing services keep a percentage of authors' income. Book Country keeps more than some, and less than others. For instance, Lulu keeps 20%. CreateSpace keeps 20-60%, depending on what distribution options you pick. Author Solutions companies (iUniverse, Xlibris, etc.) keep a whopping 80%.

I'm not saying this is good or bad. I'm just saying that Book Country isn't unique.

Book Country is overpriced!

Packages from self-publishing services run the price gamut. You can pay anything from $99 to over $10,000. Book Country's packages, which range from $99 to around $600, are at the lower end of this spectrum.

I'd also point out that, unlike other self-publishing endeavors associated with major publishers, Book Country hasn't contracted its program out to Author Solutions, but is doing the work in-house.

The fees don't even include editing or marketing!

Seriously? That's a criticism? The editing and marketing services sold by self-publishing companies--whether a la carte, or included in publishing packages as a way of bumping up the price--are like liquor in restaurants: a major profit center, because they can be bought cheap and sold high. Like cocktails, they are frequently overpriced, undersized, and cause for serious buyer's remorse once consumed. I frankly think that one of Book Country's strengths is that it doesn't lard its packages with this crap, or nickel-and-dime authors by shilling it separately.

It's not self-publishing, it's vanity publishing!

This is absolutely correct. So what? Publishing through Lulu, CreateSpace, or any other middleman service that charges a fee is also vanity publishing--yet authors who use these services routinely identify themselves as self-published or (shudder) "indie," and no one challenges them. Besides, the lines between self-publishing and vanity publishing have become so blurred over the past decade or so that I'm not sure this is a meaningful distinction any longer.

Am I endorsing Book Country's self-publishing program? No. Am I suggesting that anyone run out and use it? Certainly not. And I remain concerned by the potential conflicts of interest that arise when trade publishers expand into self-publishing.

But given the realities of Book Country's program--especially compared with other trade publishers' self-pub divisions, all of which are much more directly connected to their parent companies--it seems to me that the hating is out of proportion (and I do wish that some of the commentary were more accurate). Sure, Book Country's packages look costly when you contrast them with self-publishing on the Kindle or the Nook; sure, there's no need to use a middleman service when you can DIY for free. But the truth is that not everyone wants to DIY--and there's absolutely no shame in that, as long as you do your research and choose your middleman wisely. If you want a middleman, you can do a lot worse than Book Country.

All of which, of course, is entirely separate from the question of whether or not it's a good idea for you to self-publish to begin with. 

It's interesting how human nature seems to drive us toward caste and class systems. One of the things that has really jumped out at me in the response to Book Country is how the self-publishing community seems to be organizing itself into hierarchies, drawing a line between digital self-publishers and those who use middleman services. The implication is that only the former are truly self-published, are truly entrepreneurs. Could we be moving toward a point where the stigma that has traditionally attached to vanity publishing will arise from within the self-pub community, rather than from outside?

November 18, 2011

Alert: Light Sword Publishing, a.k.a. LSP Digital, Returns

Posted by Victoria Strauss for Writer Beware

In July of 2008, I blogged about Light Sword Publishing, a.k.a. LSP Digital, about which Writer Beware had received a substantial number of complaints (delays, nonpayment of royalties, unprofessional behavior,  misrepresentation of the company's expertise and capabilities). For examples, see the Light Sword Publishing thread at Absolute Write, and also the comments thread of my blog post.

LSP was sued in 2007 by one of its authors, alleging breach of contract, fraud in the inducement, and intentional infliction of emotional distress. The author prevailed: in April 2008, default judgments totaling more than $30,000 were entered against Light Sword Publishing and Light Sword's then-owners, Bonnie Kirby and Linda Daly. (The judgments were later declared non-dischargeable and dismissed.)

The judgments (and my blog post) occasioned quite a bit of discussion, and in May or June 2008, in time-honored dodgy-publisher style, Daly changed Light Sword Publishing's name to LSP Digital. It doesn't seem to have helped. December 2008, Linda Daly and Light Sword Publishing filed Chapter 7 bankruptcy petitions with the US Bankruptcy Court in the Eastern District of Michigan. By March 2010, the bankruptcy trustee had decided to abandon assets and close the file; and in June 2010, Daly was granted a discharge.



Daly's bankruptcy petition made no mention of LSP Digital, which remained open to submissions and continued to do business well into the bankruptcy proceedings, using Light Sword Publishing's URL (here's a snapshot from May 2009, courtesy of the Internet Archive). That URL lapsed in 2009 or 2010--but Daly had registered a new URL in late 2008, and LSP Digital was active at that URL as late as February 2011. At some point, though, it too disappeared. It looked as if Daly and LSP Digital were gone for good.

Wrong. Daly and LSP are back, with a new website that includes many of the same books (apparently, when the bankruptcy trustee decided to abandon assets, he didn't order return of rights to authors) as well as a new line called Coffee Break Reads. Naturally, the website--which blandly proclaims that LSP is "A publisher who believes in timeless tradition, using modern technology"--gives no hint of LSP's or Daly's earlier troubles.

LSP Digital will re-open to submissions in January 2012.

Here's one of the important evaluation tips on Writer Beware's new Small Presses page:
- Are there any complaints about the press or its staff?

Do some research to find out. A websearch on the publisher’s name will sometimes turn up information–often on authors’ websites or in their blogs. Or contact Writer Beware. We’ll tell you if we’ve gotten any negative reports.

Don’t skip this step. Some small presses that fail under one name start up again almost immediately under another; and staff who leave under questionable circumstances may start their own publishing enterprises....It’s a very, very good idea to do some digging into a small press’s business background so you can be reasonably sure it doesn’t have a seamy past.
The re-launch of LSP Digital is a prime example of why this is so important.

November 15, 2011

The Authors Guild on Amazon's Kindle Lending Library

Posted by Victoria Strauss for Writer Beware

Two weeks ago, Amazon announced its brand-new Kindle Owners' Lending Library, which makes it possible for Amazon Prime members to borrow ebooks for free. Members can borrow one ebook a month, which they can keep on their Kindle for as long as they like. Since borrowing is limited to one book at a time, downloading a new title causes the old one to be deleted.

Sounds cool, right? Except that over the days that followed the Library's launch, it was discovered that Amazon in fact didn't have permission from many of the publishers whose ebooks were included in the Library. Among the questions posed by this unauthorized use: how do authors get paid? (For a good overview of this and other issues, see this blog post by agent Rachelle Gardner.)

The AAR has released a statement expressing its concerns about author payment. A further concern: most book contracts don't provide for author compensation under subscription models, and "[w]ithout a clear contractual understanding with their authors, it is unclear to us how publishers can participate in this program."

Now the Authors Guild has weighed in with concerns similar to the AAR's, particularly about publishers' contractual right to enroll titles in the Library. The AG's full statement, which includes suggestions about what to do if your book is included without your approval, appears below.

----------------------------------
Contracts on Fire: Amazon's Lending Library Mess

Are any of the books in Amazon’s new e-book subscription/lending program properly there?

Earlier this month, Amazon launched its Kindle Online Lending Library as a perk for its best group of customers, the millions who’ve paid $79 per year to join Amazon Prime and get free delivery of their Amazon purchases. Under the Lending Library program, Amazon Prime members are allowed to download for free onto their Kindles any of more than 5,000 books. Customers are limited to one book per month and one book at a time – when a new book is downloaded, the old one disappears from the Kindle.

The program has caused quite a stir in the publishing industry, for good reason (as you'll see).

First, let’s look at how books from some major U.S. trade publishers wound up on the Lending Library list.

Major Publishers Turn Amazon Down

Amazon approached the six largest U.S. trade book publishers earlier this year to seek their participation in the program. By all accounts, each refused. Small wonder. Publishers aren’t eager to allow Amazon to undermine the economics of the e-book market, representing the lone bright spot for the industry, by permitting an estimated two to five million Amazon Prime customers to start downloading e-books for free. So books from the Big Six publishers – Random House, Simon & Schuster, Penguin, HarperCollins, Hachette, and Macmillan – are not in the Library Lending program.

Amazon’s attempts to enlist the next tier of U.S. trade book publishers, major publishers that are slightly smaller than the Big Six, appear to have fared no better. Many, perhaps all, also refused.

No matter. Amazon simply disregarded these publishers’ wishes, and enrolled many of their titles in the program anyway. Some of these publishers learned of Amazon’s unilateral decision as the first news stories about the program appeared.

How can Amazon get away with this? By giving its boilerplate contract with these publishers a tortured reading.

Amazon has decided that it doesn’t need the publishers’ permission, because, as Amazon apparently sees it, its contracts with these publishers merely require it to pay publishers the wholesale price of the books that Amazon Prime customers download. By reasoning this way, Amazon claims it can sell e-books at any price, even giving them away, so long as the publishers are paid.

From our understanding of Amazon’s standard contractual terms, this is nonsense – publishers did not surrender this level of control to the retailer. Amazon’s boilerplate terms specifically contemplate the sale of e-books, not giveaways, subscriptions, or lending (Amazon does have a lending program that some publishers have authorized, but it’s a program that allows customers – not Amazon – to lend their purchased e-books). Amazon can make other uses of e-books only with the publishers’ consent.

Amazon, in other words, appears to be boldly breaching its contracts with these publishers. This is an exercise of brute economic power. Amazon knows it can largely dictate terms to non-Big Six publishers, and it badly wanted to launch this program with some notable titles.

Why did it matter so much to Amazon? It’s all about the Kindle Fire, and Amazon’s unexpected e-book device battle with Apple and especially Barnes & Noble. (More on that, in another post.)

Some Small Publishers Sign On, Without Authority

Now, let’s look at the publishers who did willingly sign on to the Kindle Lending Library. Many (but not all) of these are smaller, newer companies that devote their efforts to e-book and on-demand publishing. They signed licensing agreements with Amazon for a selection of their titles, providing for a flat annual fee per title.

While these publishers generally have the right to license e-book uses for many of their authors’ titles (just as most trade publishers do), our reading of the standard terms of these contracts is that they do not have the right to do so without the prior approval of the books’ authors.

Licenses are traditionally done on an advance-and-royalty basis. In this way, the interests of the author and the publisher are aligned: if the license pays off, both benefit. When a list of titles is licensed for a flat fee, however, interests can easily become misaligned, and opportunities for mischief abound.

For example, a publisher could cherry pick a selection of “loss leaders” to license for unlimited use in order to attract readers to the publisher’s other books. To avoid this conflict of interests, publishing contracts have for decades included an array of clauses intended to prevent a publisher from using cheap or free copies of one author’s books to promote another’s.

Under most (perhaps all) publishing contracts, a license to Amazon’s Lending Library is outside the bounds of the publisher’s licensing authority. This isn’t a minor matter – in order to protect the author’s interests, all publishers should be asking permission before entering into such a bulk licensing agreement, and most would need to seek a contract amendment to do so. For more on this, see the post of Simon Lipskar of Writers House at the AAR’s blog.

What to do if your book is in the program

If your book is in the Lending Library without your approval, we recommend that you:

1. Get in touch with your publisher (or ask your agent to do so) and say that you object to your book’s inclusion in the program without your approval and that you do not consent to have your work in any such initiatives without your prior authorization. This is fundamental.

2. Ask your publisher why your book is in the program. The publisher may be using the program to introduce your books to Amazon Prime customers with the hope that they’ll then come back to buy your other titles. Other publishers may be seeking to give some life to quiescent titles. Once you’ve heard your publisher’s rationale (it may be well considered and in your favor), you’ll have to decide whether you’d like your book to remain in the program.

If it’s a major publisher, however, you may learn that Amazon chose to include your work in its lending program over your publisher’s objections. If so, we expect that you will be compensated for the uses (Amazon is paying its regular wholesale price for the e-books from these publishers), but this may still not be in your best interests: Amazon, for its own reasons, has chosen to override your publisher’s marketing plan.

No matter what you decide to do, please be in touch – one of our attorneys would be happy to discuss the matter with you.

So, are any of the more than 5,000 books legitimately in the program? Probably. Amazon published 138 of the titles in the lending program, according to Publishers Lunch (subscription required). Other publishers may have gotten their authors' permission, or may have unusual contracts that give them authority to enter into bulk licenses without their authors' approval. If so, we've yet to learn of such arrangements.

November 11, 2011

Introducing Writer Beware's Small Presses Page

Posted by Victoria Strauss for Writer Beware

A brand-new page on Small Presses has been added to the Writer Beware website.

Here's what you'll find:
  • An overview of issues to consider if you're thinking of submitting to a small press. For instance, stability can be a problem--the attrition rate among small presses is very high--as can competence. It's easy and cheap to set yourself up as a publisher these days, and not everyone who does so has the necessary expertise.
  • Tips on evaluating small presses. Is there a fee? Are there any complaints? What kind of distribution is in place? How does the publisher market itself and its authors? These questions and more can help you identify the right publisher for your manuscript, and screen out those that are less desirable.
  • Warning signs of vanity publishers masquerading as small presses. Unfortunately, it's quite common for fee-charging publishers to pretend to be legitimate small presses. Some of them are quite inventive in hiding their fees, or pretending they don't charge fees at all. This section provides a handy rundown on some of their sneaky tricks.
  • A discussion of misleading terminology. Whether out of inexperience or an active desire to deceive, small presses may describe themselves in misleading ways. For instance, the term "traditional publisher"--which is intended to conjure up images of commercial publishers like Random House or Sourcebooks--is almost meaningless. A small press may also be confused, or want to confuse you, about the difference between a wholesaler and a distributor.
  • Links to helpful resources that will, among other things, help you research a small press's reputation and identify common bad contract clauses.
We've also discontinued the Electronic Publishing page, and folded much of its content into the Small Press page. When we first put the Electronic Publishing page online over a decade ago, epublishing and print publishing were parallel universes, but those differences have eroded--over the past couple of years especially--and we no longer see a need for a separate page on epublishing.

Please visit the Small Presses page, and let me know what you think by leaving a comment here. All comments and suggestions are welcome.

November 9, 2011

The Brit Writers Awards: Questions and Threats

Posted by Victoria Strauss for Writer Beware

Last December, I blogged about the Brit Writers Awards, an awards program for first-time authors, which was dogged by allegations of loose judging standards and poor communication. (Max Dunbar's blog provides a summary of some of these allegations.) I was especially worried about the BWA's Publishing Programme, which offered unpublished writers mentoring and publishing for £1,795 apiece. (Nearly a year later, I can find no mention on the BWA website of this program.)

I wasn't the only person with concerns. Jane Smith of How Publishing Really Works and author Claire King also weighed in, and last February, the UK's Writing Magazine withdrew from its association with the BWA, citing concerns over the judging process and a lack of transparency.

Now more questions have arisen.

A couple of weeks ago, Claire King received an email from the BWA announcing a literary agent referral program through its new Agent Division (Claire has posted the text of the email on her blog). According to the email, "a number of partner agents have asked us to help them identify potential literary gems to save them ploughing through their slush pile." Writers were invited to submit a synopsis and samples, which the BWA would then "consider" for a referral.

Are such programs (and the BWA's is not the only one) worthwhile? Not in my opinion. Literary agents are already the middlemen of the publishing world; as such, they expect to be approached by writers directly, and there's really no need for an intermediary to add another layer to the process. Plus, as tempting as it may seem to have someone else do the work for you, it's far more effective to control the process yourself, since you know your own work best and thus can best research and choose whom to approach.

More specifically, as Jane Smith points out, the BWA doesn't identify the agents it's working with--which means that writers have no way of verifying the agents' track records and reputations. Also, the list of requested genres includes "Short stories and Poetry for anthologies," material that reputable literary agents usually don't consider--which raises still more questions about the usefulness of this service.

Jane continues:
Some of the members of Harry Bingham’s Word Cloud sent their work in and have now heard back from the BWA, and this is part of the message they’ve all received:

from what you have submitted, the assessors could not refer your work to agents immediately, but they see great potential here. The issues highlighted above can be rectified easily, so before you go any further with this, we suggest that you need a consultancy to advice on your synopsis, positioning the book for an agent/publisher, highlighting USPs and ensuring that the main plots are woven into the synopsis which also needs some basic formatting. We believe this will encourage the agent/publisher to read on to see its true potential.

You need to find an experienced literary consultant/marketing expert that can help you with this. There are many providers out there and it shouldn’t cost very much but it’s important to find the right person that knows what agents/publishers are looking for. Please do not have it edited at this stage, as this is not required. If you would like us to arrange this for you, please let me know immediately.
(The bolding is Jane's.) So in addition to offering referrals to literary agents, is the BWA also offering referrals to literary consultants? If so, this is odd--I can't think of any industry expert who'd suggest that writers hire a literary consultant to tweak their synopsis. Also, if the BWA is providing consultant referrals, what's the relationship--if any--between the BWA and the consultant(s)? Transparency is extremely important here, since, even though such a program may be perfectly above-board, referrals of this sort have been extensively abused over the years.

If you tried clicking the link in that quote from Jane, you'll note that it leads to a deleted page. Here's why: Harry Bingham received a threat of legal action from BWA's solicitors. (He has since received another.) And when Claire King wrote to the BWA (at the BWA's own invitation) with a list of questions, she was told that "this matter is now being investigated and dealt with by our solicitors and they will be contacting you."

One has to wonder why the BWA has chosen to address the situation in this manner. Whatever bad press may be generated by skeptical bloggers--and despite the questions that have been raised about the BWA's structure and operations, I'm not aware that anyone has accused it outright of dishonesty--the kind of publicity created by attempting to silence critics with legal threats is orders of magnitude worse.

Today, still under threat, Harry Bingham posted a series of questions for the BWA about the Agent Division and the BWA in general. He concludes:
In short, I know tremendously little about the BWA and its operations, and have no reason to think that its activities are any less honourable than our own. If its model is non-conventional, that’s fine too.

On the other hand, the torrent of internet gossip and implication threatens the BWA’s reputation and, to some degree, the reputation of all those who, like the Writers’ Workshop, do their damndest to help the new writer.

In conclusion – and here I’m addressing the BWA / Brit Writers directly – your current non-disclosure of information is, in my view, causing legitimate concern amongst the community of new writers. We will always vigorously champion any organisation or initiative which helps the new writer. I hope we can champion you. But at present we need some answers. I invite you to supply them.
Hopefully the BWA will respond.

Edited 11/11 to add: The BWA has responded to some of the questions about its Agents Division.

Also, a national newspaper is investigating, and would like to hear from people who've been shortlisted for or won one of the BWA’s awards, entered its Publishing Programme, and/or received consultancy advice from its Agents Division. More details and contact information at The Writers Workshop blog.

Edited 11/16 to add: In a statement dated today, the BWA has withdrawn its threatened legal action against Harry Bingham, Claire King, and Jane Smith. However, it has largely declined to answer Harry's questions.

Edited 11/21 to add: Harry Bingham's final word on the BWA--originally posted 11/17, but amended 11/18 as follows:
This article was originally written and posted on 17th Nov and relied in part on a number of written statements made by the BWA, who knew their statements would be scrutinised. Unfortunately, I now have incontrovertible evidence that the company lies, even in circumstances where its claims are likely to be closely examined. Nothing this company says can be taken on trust. Its financial promises are unreliable. The same is true of its literary promises. Writers should avoid having anything at all to do with this company. The whole thing is incredibly sad.

This paragraph replaces a previous, somewhat more upbeat, conclusion to this post.

November 2, 2011

Beware Zombies: Franklin-Madison Literary Agency

Posted by Victoria Strauss for Writer Beware

I'm writing this in my local Panera, which is one of the few places where I can power my computer just now. Here in Massachusetts, we are still suffering through the after-effects of the massive Snowtober storm, and after four days I still don't have power at home. And it has been COLD. And my friends are in the same boat, so no shelter there.

I feel like a hobo right now, migrating from place to place in search of warmth and electricity. This morning I was at the gym (hello, hot shower). When I've dawdled as long as possible over my second mug of Panera tea, I'll move on to the library at the University of Massachusetts. After that, home to my dark, chill house, which at noon was actually colder inside than out. It may be Thursday or Friday before power returns, but my fingers are crossed that when I get home tonight I'll see the porch light on. Wish me luck.

At any rate, this is a little late for Halloween--but today's post is about zombie literary agencies...agencies that die only to rise again and lurch out onto the Internet in search of writers' brains. More specifically, it's about one zombie agency, which is attempting to eat brains under two zombie identities.

A few weeks ago, I began getting questions about the Franklin-Madison Literary Agency. Never having heard the name before, I did some research. What I found rang warning bells. From the creepy image of what look like conjoined twins on the opening page, to the badly-written text, to the absence of any substantive information on the agency and its staff, Franklin-Madison offers an impressive collection of red flags.

Franklin-Madison also gave me a strong sense of deja vu, both in some of the qualities of its website and its Washington, DC address. But none of the writers who contacted me mentioned fees, and domain registration information (which can sometimes provide important data) wasn't helpful--so even though I had a strong hunch about which zombie agency had created Franklin-Madison as a zombie clone, I couldn't prove it.

I've finally received a copy of the Franklin-Madison contract and intake correspondence. Neither, of course, contained any (obvious) mention of Zombie Agency, and crucial aspects of the contract differed from Zombie Agency's (a term of 360 days rather than 180 days, for instance). The upfront fee was the same, though ($150 for US submissions, or $250 for US plus overseas submissions). More tellingly, Zombie Agency failed to cover all its tracks.

Here's a screenshot of the first page of the Franklin-Madison contract (click for a larger view):

Note that it's a pdf document. The file name (Franklin-Madison_Agency_Agreement-signed-1.pdf) is consistent with the contract's heading. But see what happens when you access the File menu, and click the Document Properties link:

Franklin-Madison's creator has forgotten to remove Zombie Agency's toe tag--i.e., the document's title, which is Clark, Mendelson, and Scott, LLC.

Clark, Mendelson, and Scott is a fee-charging "agency" that I began hearing about last June, and exposed on this blog as the risen corpse of fee-charger American Literary Agents of Washington Inc., a.k.a. Capital Literary Agency, a.k.a. Washington Literary Agency, a.k.a. Washington House, a.k.a. Trident Media Company/Mandrill Publishing, a.k.a. New World Media/American Bookpress (all vanity publishers).

These companies--about all of which Writer Beware received many complaints--were run by a guy named Samuel C. Asinugo out of Washington, DC from the late 1990's until around 2008, when Asinugo was found guilty of forgery. No doubt remembering how easy it was to eat writers' brains, Asinugo raised his fee-charging endeavors from the dead as soon as he was able, first with Clark, Mendelson, and Scott, and now with Franklin-Madison Literary Agency.

Possibly this zombie clone is a result of my blog post--which I know Asinugo knows about, since he (under an alias) sent me a legal threat. On the other hand, Asinugo may simply be attempting to diversify in an attempt to snag more victims. With all the semi-sleazy self-publishing companies and dodgy small presses out there, the brain-eating business is a bit more competitive than it used to be.

So there you have it: Zombie Agency times two. Because where there's one, there are always likely to be more.

October 28, 2011

Guest Blog Post: Copyright Is People

by Michael Capobianco

Recently, a consortium of university libraries called HathiTrust decided to make more than one hundred digitized books available as e-books to the universities’ communities because the books were “orphans,” works for whom the rightsholders could not be located after a diligent search.

Shortly thereafter, the Authors Guild filed a lawsuit against HathiTrust, and began to blog about how easy it was to find the authors of those books or their heirs, ridiculing HathiTrust’s process for designating orphan works (two of which, it was ultimately discovered, were actually still in print). After some defensive maneuvers, HathiTrust admitted that their process was faulty and announced they would re-think it, but intended to continue with their plan to release works they deemed to be “orphans.” Librarians across the Internet came out in support of HathiTrust, and reviled the Guild.

There is clearly a disconnect between HathiTrust and commercial writers, very handily illustrated by Duke University Scholarly Communications Officer Kevin Smith’s condescending open letter to J. R. Salamanca, author of The Lost Country, a novel originally published by Simon and Schuster in 1958, and made into the movie Wild in the Country, starring Elvis Presley, in 1961. The book was one of the “orphan works” included in the HathiTrust’s list. Within days, the Authors Guild had located Mr. Salamanca, and it wasn’t long before he was signed onto an amended complaint.

Librarians complained that this was just a publicity stunt, and it was, but it represented much more, and cuts to the heart of authors’ problem with what happened, because it showed that librarians could regard their search for the rightsholder of a work as diligent and not be even remotely so from an author’s point of view.

“Due diligence” has come up repeatedly as the minimum standard for a rightsholder search before a work could be declared an orphan, and many authors have conceded that it might be okay to allow limited use of a work if no rightsholders could be found after a truly diligent search. (See SFWA's White Paper on Orphan Copyrights.) One of the expectations of a truly diligent search for rightsholders is that it would be conducted by someone who understands publishing and is able to search intelligently. This appears not to be the case with HathiTrust’s search, and is probably the underlying cause of the problems they encountered.

First, and most important, there’s evidence that HathiTrust was not searching for the authors themselves, but assumed that the publishers would be the rightsholders of these works. In response to an author comment that for a work published in 1958, the author would almost certainly be the only rightsholder because publishing contracts from the fifties don’t mention e-book rights, Kevin Smith comments that “The issue about who has the right to reproduce and distribute a digital copy of a work is usually a matter of interpreting the scope of the contractual assignment of those basic reproduction and distribution rights.” While this may be true in academic publishing, it’s certainly not the case in trade publishing, in which contracts explicitly lay out reproduction and distribution rights. The obvious conclusion is that HathiTrust didn’t find Mr. Salamanca because it wasn’t looking for him.

If true, this is very troubling. There is case law indicating that the author retains all rights that have not been explicitly assigned to a publisher (the Tasini case), and a preliminary finding by a judge that says that pre-electronic rights contracts do not give publishers e-book rights simply because the contracts specified book rights (Random House, Inc. v. Rosetta Book LLC). While the issue is by no means resolved (unfortunately, Rosetta Books settled with Random House, and the actual dispute wasn’t litigated, so we don’t know for sure how the case would have turned out), that’s surely enough case law to indicate that for out-of-print works, the author is likely to be the rightsholder that HathiTrust (and projects like it) should be looking for.

There’s another thing that points to the author being the rightsholder of out-of-print books, even if one concedes that the precedents above aren’t conclusive. Almost all commercial book contracts include a reversion clause that allows authors to reclaim all of their rights and terminate the contract after the book has gone out of print. Considering that a book such as The Lost Country has been out of print for at least four decades, wouldn’t it be reasonable to assume that a canny author like Mr. Salamanca had reverted his rights?

It would be extremely helpful if the folks at HathiTrust would reveal the steps they took to try and locate the rightsholder(s) of The Lost Country. What assumptions did they make? Whom did they talk to, if anyone? What references did they consult? Most important, what do they think a diligent search is? One thing is quite clear, and that is that a diligent search requires a diligent searcher. It can’t be automated. In many cases, it’s going to take time and effort and detective skills. And asking the publisher will only be one step in the process, which must involve looking at the publishing contract, and ultimately must include consulting with the author or his/her estate.

The good news is that there are many resources available to locate authors, both on the Internet and elsewhere. As the Authors Guild blog demonstrated, crowdsourcing works to some extent, but even a thoughtful Google search can produce a remarkable number of leads and, in some cases, an email address or phone number.

When the AG publicized the list of potential orphan works in HathiTrust’s hopper, one name jumped out at me: Fletcher Pratt. Although the book in question was one of his historical works, Pratt wrote some fine science fiction, both solo and in collaboration with SFWA Grand Master L. Sprague de Camp. I figured that would be a good test case, so I started investigating.

As it so happens, several years ago, SFWA initiated a project to locate contact information for the estates of deceased science fiction and fantasy writers. Bud Webster, who has deep roots in the SF pro and fan communities, heads up the project. Pratt died in 1956, but there was no contact information for Pratt’s literary estate in SFWA's existing Estates Database. Bud put the word out among his contacts, and Orion CEO Malcolm Edwards came back with a name and address for Pratt’s heir, the daughter of Pratt’s wife Inga with her second husband. Case closed? Not quite…we’ve been unable to find a phone number or e-mail address that we could use to confirm her status, but the search is ongoing.

The moral of this story is twofold: 1) sources such as SFWA’s Estate Project should be consulted as part of any diligent search, and 2) copyright is people. Finding the heir(s) of an author can be very complicated, but that doesn’t mean a work is an orphan simply because several generations have passed since the author died.

That’s where the definition of diligence comes into play; if the trail peters out and the author or heirs can’t be found after a truly diligent search, then perhaps it’s time to declare the work an orphan. But a truly diligent search can’t economically be made for hundreds, if not thousands, of works; unless HathiTrust’s resources are very large, they are going to have to prioritize among their choices and be content with a slow, painstaking process. No doubt they would say that this defeats the whole point, which is based on Google’s notion that a thousand random books are worth more than a few carefully chosen ones. Books from academic publishers in which copyright was assigned to the publisher will undoubtedly be easier to trace. But if the orphan work concept is to have any validity at all for commercially published works, slow and painstaking is HathiTrust's only choice.

Michael Capobianco is the author of one solo science fiction novel, Burster (Bantam 1990), and co-author, with William Barton, of the controversial hardcore SF book Iris (Doubleday 1990, Bantam paperback 1991, Avon Eos 1999), Alpha Centauri (Avon, 1997), and the critically acclaimed near-future novel Fellow Traveler (Bantam, 1991). Capobianco served as President of Science Fiction and Fantasy Writers of America (SFWA) from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA's Board of Advisors.

October 25, 2011

A Small Press Implodes: The Inside Story of Aspen Mountain Press

Posted by Victoria Strauss for Writer Beware

A month ago, I blogged about the troubles at Aspen Mountain Press, whose authors report nonpayment of royalties, contract breaches, delayed publication schedules, and other problems; and whose senior staff resigned en masse in early August.

Usually, when this kind of turmoil engulfs a publisher, authors and staff members are reluctant to say too much, and the details don't become widely known. But recently, in a searing blog post, AMP's former head editor Celina Summers broke her silence, and went public with the whole sordid story of AMP's demise.

Celina writes,
My first indication that anything was wrong came when one of my authors at [AMP imprint] Aurora Regency—a writer who was in my writing group, who was a dear friend, who was someone whose integrity I trusted absolutely—wrote to me in concern because she hadn't received her royalties.
When it became apparent that this was more than an isolated problem, AMP staff attempted to intercede with the owner, Sandra Hicks, to get things straightened out. Ultimately, the owner turned the running of the company over to staff (who were themselves owed substantial amounts of money in back pay), and brought in a bookkeeper to straighten out the royalty mess. But the mess was worse than anyone imagined.
Hundreds of emails in all the AMP accounts, gone unanswered and unopened from authors and staff. The customer service email account alone had over 500 unanswered emails over the previous eight months. That took two people working eight hours to resolve—and in the process, we discovered a frighteningly large number of AMP books that had serious formatting problems for a long time.

Authors who were contracted and never heard back from the company, leaving their books unpublished and their rights tied up. I found books from two years previously that were still stranded by AMP, the authors begging to just get a response from somebody…anybody.

The royalties were such a mess that the bookkeeper, Kerry Mand, elected to concentrate on just getting that month's royalties out and working on some of the most pressing cases before working backwards through the books and auditing a year's worth of royalty spreadsheets and reports--a course of action I agreed with. We discovered that in previous months, only portions of the royalties had been paid at any given time.
Celina describes the staff's all-out efforts to get things back on track. And it looked as if they were succeeding. Correspondence was answered, books were uploaded, release schedules were established, and the royalty accounts were untangled.

The accounts were then sent to Ms. Hicks for payment. But within days, staff began hearing from authors who hadn't received their royalties. When Ms. Hicks was confronted about this, Celina reports,
...she said that to her knowledge, [payments] all had been [made]. We were online IN the bank account and Paypal, trying to match authors (and pen names) to amounts to see who'd went unpaid. And as I asked her about a specific author, we watched the payment go out from that account. Then she texted me back each time and said that I was mistaken, that author had been paid.

Up until that moment, I believed that all the problems at AMP were unintentional, and that there wasn't a chance of dishonesty on the part of the owner. But that, when considered along with everything else, made me suspicious for the first time. After that, we couldn't believe Ms. Hicks when she told us she'd paid for something. So we began to monitor the bank account...It was then that we starting noticing some peculiar activities in the AMP bank account.

The owner was using the business's bank account for personal expenses.
Staff begged Ms. Hicks to separate her personal expenses from the company's. She refused. Believe it or not, the story goes downhill from there, with scheduled books left unpublished, rights reversion requests refused or ignored, threats from Ms. Hicks, authors chastised and banned from discussion loops, and royalties and salaries still unpaid. All of this, apparently, has been complicated by Ms. Hicks' personal and health issues.

There has been some positive movement recently. In subsequent posts, Celina notes that a few AMP writers have received reversion letters. More important, the AMP website is down--and per the AMP contract, if the company suspends operations for 60 days or more, all rights automatically revert to authors. Other problems, however, including outstanding royalty payments, continue to be unresolved.

In conclusion, Celina writes:
Publishers need to be held accountable for their actions. It is time now for Aspen Mountain Press to pay what they owe.

Give the authors their rights back.

Give the authors an internal audit of the books.

Pay the authors and staff what they are owed.

And shut the doors on a one-time great little publisher that is now the biggest cautionary tale of all.
A cautionary tale, indeed.

For every writer and editor caught up in a disaster like this, the situation is unique. But for us at Writer Beware, it's a sadly familiar story. Small press publishing is inherently risky--for publishers as well as for authors--and while the situation at AMP is uglier than many, it's also far from unusual. Small presses tend to be much more directly tied to the personal lives and resources of their owners than bigger companies are, and that makes them uniquely vulnerable to not just to money problems, but to logistical and personal ones as well.

The problem is, while some small presses reveal their iffiness on initial research, or demand a wait-and-see approach because they're untried start-ups, there's no way to predict the implosion of an apparently established, active publisher like Aspen Mountain Press. No matter how careful you are, some risk is inevitable. Fortunately, there are ways to protect yourself--some of which are suggested in my blog post, Precautions for Small Press Authors, and also in the brand-new Small Press page at Writer Beware.

Over the past few weeks, a number of AMP authors have come forward with their stories. Here are some of them:

Charles E. Wells
Esther Mitchell
Andy Dunn
Kimberly Nee
Grace Wen
Destiny Blaine
Samantha Combs
Barbra Custer
Celia Kyle

Also, a local reporter is looking for authors who are having issues with AMP; TeddyPig has posted his contact details.

October 18, 2011

Guest Blog Post: Fitzhenry and Whiteside--Writer Beware

Posted by Victoria Strauss for Writer Beware

Today's guest post by multi-published author Doranna Durgin is about a publisher behaving badly.

More than that, however, it highlights something that every writer signing a publishing contract needs to be aware of: the importance of reversion clauses (which publishers often like to keep as vague as possible so they can hold on to rights for as long as possible), and the problems that can arise even when authors and their agents re-write open-ended reversion clauses to make them more precise.

This post was originally published at Doranna's blog, where an active conversation is ongoing in the comments thread.

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by Doranna Durgin

When hikers Dayna and Eric find a young woman naked, terrified, and speechless, they're sure she's the victim of foul play. But the truth is much more shocking: she isn't human at all. She's Dun Lady's Jess, a horse transformed into this new shape by the spell that brought her and her rider, to whom she is utterly devoted, into this world.

Possessed now of human intelligence but still a horse deep inside, Jess desperately searches this world for her master and rider, using her fiery equine spirit to take on human idiosyncracies--and human threats.

Dun Lady's Jess is my heart book—my first book. A fantasy, it was first published by Baen in 1994, and in 1995 it won the prestigious Stephen Tall/Compton Crook Award for Best First SF/F/H of the year. It grew two sequels, and it stayed in print for a good long run—but eventually, some years later, it fell off the shelves and the rights reverted to me.

Halfway through the next decade, I was invited by a delightful editor to reprint the book through the new Star Ink imprint of the Canadian publisher Fitzhenry and Whiteside. We had a wonderful time with the new edition, giving painstaking attention to the details large and small. It became stalled in production, however, and by the time it was released, the editor had chosen to part ways with the publisher. Eventually the book was released under Fitzhenry and Whiteside's Red Deer Press line.

The reversion clause for Dun Lady's Jess reads:
"16.(a) If the Publisher fails to keep the Work in print *through regular trade channels* and for sale and written demand from the Author declines or neglects to reprint it within six (6) months thereafter and to offer it for sale, or after two (2) years from the date of the first publication the Publisher wishes to discontinue publication of the Work and gives three (3) months' notice to this effect to the Author in writing."
The part between asterisks? My agent and I added that to the boilerplate, because the clause as it stood was far too open-ended. The new phrase was approved and initialed by both myself and Richard Dionne, for Fitzhenry and Whiteside.

(The part right after the asterisks? Yes, it seems to be missing a word—probably "upon." But that's part of the boilerplate.)

The book was published in November 2007, although the U.S. distribution didn't take place until April 2008. By spring of 2010, it was evident, through royalty reports, that the book wasn't being placed on the shelves anywhere (that is, "regular trade channels"). For a couple of years now, it's sold only a handful of copies per year, and has slowly slid off availability via online sources. (see the screenshot below).

But when we asked for reversion of rights, the response shocked us: if I would buy the considerable copies the publisher had sitting in their warehouse, they would revert the book. I have to tell you...it felt like coercion.

We responded that this wasn't possible, and reminded them that they naturally had the ability to sell their remaining stock should the rights to the book be reverted. In other words, for them, nothing would change.

But they didn't respond to that email, nor to the one after that, or the one after that, or to the phone call by the book's original editor with that line, or—after we'd let the situation sit for a year—to the query after that.

We sent screenshots of the book's lack of availability and its failure to appear in any distributor warehouse. It's in the publisher warehouse alone—which does not equal being available through regular trade channels. We also sent a PDF of the relevant contract page with the initialed changes to their boilerplate. This material went out return receipt—and finally, we received a promise to review the situation and get back to us in a week.

Dun Lady's Jess: The warehouse listing. Unlike books that are available through regular trade channels, this title is stocked only in the Fitzhenry and Whiteside warehouse

This did not happen.

After another nudge—which included the reminder that the publisher could continue to sell warehoused copies in their usual fashion, as well as a reminder of the boilerplate changes--we were finally told: "This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. [my note: yes, a handful of copies a year] We have some 1,600 in stock with no reason to revert rights. "

How about because it's a contractual obligation?

Finally, I went to SFWA GriefCom. You may not have heard much about this committee; when GriefCom mediates a dispute, the parties involved maintain a strict nondisclosure; no one's dirty laundry is aired. And because they see a high level of success, that means you see very little dirty laundry and very little about GriefCom.

In this case, the request from GriefCom to Fitzhenry and Whiteside was simple: Revert the book per the contract obligations, or provide proof that the book is available via regular trade channels.

It took a week of trying for GriefCom to connect with Richard Dionne, at which point we were given a promise that Red Deer would provide proof of distribution within a week.

This did not happen.

After three weeks of silence and unreturned phone calls, GriefCom sent a different kind of request, giving Red Deer forty-eight hours to either revert the book or provide proof that it was being sold via regular trade channels, and asserting that after that, I would be forced to take additional steps.

Early the next day, I heard from the GriefCom chair that he had received a phone call, and that the unidentified caller took him to task in no uncertain terms--claiming harassment, declaring there would be no reversion on the title, and warning that she would "report" us to [prominent Canadian SF writer #1] and [prominent Canadian SF writer #2]—all before hanging up on him.

We took this as an indication that the publisher no longer wishes to interact with GriefCom.

Finally—knowing that truly, no one wants a big dramafest, I emailed Richard Dionne and made the same request: Please send either the reversion or the proof that Dun Lady's Jess is being sold via regular trade channels, and please do so within the next three business days.

This did not happen.

I don't have a lot of options left, but I do have some. For one thing, I have this: I can break the silence that protects Fitzhenry and Whiteside from the consequences of their actions—a silence I've kept for a year and a half. And I can do it to warn everyone possible, via the big wide Internets: This is my documented experience with this publisher. We have a contract clause that was approved and initialed, but is not being honored. A critical contract clause—one that protects my interests in my book per the agreed-upon terms. A contract clause that is of utmost importance these days, when publishers and writers are scrambling to negotiate shifting terms and a shifting industry.

A contract clause no writer should take lightly.

Meanwhile, I still want my book back. I still want Fitzhenry and Whiteside to honor the contract they signed. Contracts are not a thing of convenience, to be ignored when a publisher pleases. "Make me," isn't in a professional lexicon...or shouldn't be. If you feel the same, I hope you'll pass this warning along.

Doranna Durgin responded to all early injunctions to "put down that book/notebook and go outside to play" by climbing trees to read and write. Such quirkiness of spirit has led to an eclectic publishing journey, spanning genres over 30 novels to include mystery, SF/F, action-romance, paranormal, franchise, and a slew of essays and short stories.
 
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