Police Investigate Pay-to-Play Publisher 2 Moon Press

Posted by Victoria Strauss for Writer Beware

Pay to play publisher 2 Moon Press, located in Olivet, Michigan, closed abruptly last month, after having been purchased earlier in 2013 by one of its employees. It leaves a litany of sadly familiar complaints in its wake.

According to local news coverage,

...the [Marshall police] department has received about 25 complaints about 2 Moon Press since May 8. It is currently looking into authors’ claims of unpaid royalties, unfulfilled book orders and breaches of contracts, and is also investigating the current owner’s allegations of fraudulent activity against the former owner, Don Semora.

In return, Semora says that he is "proceeding with legal action against both [the current owner Melinda] Lundy and 2 Moon Press." He has denied Lundy's and authors' allegations.

Established in 2009, 2 Moon Press--which, possibly exaggerating a tad, billed itself as "Michigan's largest and most trusted book publisher"--charged thousands of dollars to publish. Its website is no longer extant, but examples of its prose stylings can be seen here--an immediate red flag for anyone with a decent grasp of grammar. As of April 2012, it claimed to be working with 283 authors, but per Amazon, it has published only around 215 books to date.

The Marshall Police Department is asking 2 Moon Press authors to contact them at 269-781-2596.

An Honor For Writer Beware Co-Founder and Chair, Ann C. Crispin

Posted by Victoria Strauss for Writer Beware

I'm thrilled and extremely proud to announce that my friend and colleague, Writer Beware co-founder and Chair Ann C. Crispin, has been named the 2013 Grandmaster by the International Association of Media Tie-In Writers (IAMTW).

The official announcement is here.

This annual honor, the highest awarded by the IAMTW, is given only to the most accomplished and successful authors in the field (previous Grandmasters include Kevin J. Anderson, Peter David, and Keith DeCandido). Ann's outstanding media tie-in achievements include best-selling novels in numerous franchises, including Star Trek (Yesterday's Son and Sarek, among others), Star Wars (the best-selling Han Solo trilogy), V (the original novelization), and Pirates of the Caribbean (The Price of Freedom).

Ann works in her own worlds as well. She created the acclaimed StarBridge series for young adults (recently brought back into circulation in electronic form), and, for adults, the high fantasy novel Storms of Destiny. She's also a respected writing teacher and workshop leader, many of whose students have gone on to be professionally published--and, of course, a founding member of Writer Beware, where she is a force to be reckoned with (just ask Martha Ivery).

On a personal note...Ann and I began as colleagues, united by our concern about the many scams that victimize writers. But our professional relationship quickly ripened into a close and deep friendship. We're not just fellow warriors in the battle against literary fraud, we're companions, confidantes, and trusted beta readers.We've shared so much over the fifteen years since Writer Beware's founding (holy crap--fifteen years!!), both good and bad, and we know each other inside out. That may sound corny...well, yes, it does sound corny. But it's the truth. I can't possibly be as thrilled as Ann that her accomplishments are being honored in this way--but I'm pretty chuffed!

Many people regard media tie-in writing as the red-headed stepchild of publishing. Not writing in your own universe--that's hackwork! A copout for those too unoriginal to make up their own stories! A half-step up from plagiarism! But having been Ann's beta reader through the entire process of creating The Price of Freedom, I can tell you that tie-in writing is a lot more difficult than most people think. It's challenging, exacting, and requires an incredible degree of discipline. Not everyone is capable of doing it.

Ann addresses this issue in her response to the award.

To be honest, for years I struggled with the prevailing attitude among some s.f. and fantasy writers that writing media tie-ins was the ultimate in degrading hackwork, lower on the authorial totem pole even than writing pornography to eke out a living.

Personally, I believe a good story is a good story, no matter what universe it’s written in. I really love being able to put characters from famous universes through their paces, and get inside their heads. I put as much effort into my tie-in books as I do for my original books (though I confess the original books are tougher to write, since you have to make it ALL up), and I was proud of the stories I produced. But I didn’t like getting openly snubbed or patronized sometimes when I was at conventions or writer gatherings.

One time I was talking to my dear friend, Andre Norton, about how I felt about this, and she set me straight. “Ann, you are a STORYTELLER,” she said. “One of the oldest and proudest professions known to the human race. No matter what kind of story you’re telling, be proud of that ability!”

Fortunately, that snotty attitude among the “purist” s.f. and fantasy writers seems much less prevalent today. Earning a living writing is so darned tough these days that whatever type of writing you’re doing, if you can make money doing it, hey, more power to you.

So I’m very proud to be receiving this award, and proud to be a storyteller.

Please join me and Writer Beware in congratulating a wonderful storyteller, caring mentor, fearless activist, and loyal friend: Ann Crispin.

For more info on Ann and her many novels, visit her at her website.

Outrageous French Copyright Grab: ReLIRE Goes Live

Posted by Victoria Strauss for Writer Beware

Just over a year ago, I wrote about a new French law that, under the guise of dealing with the pressing issue of orphan works, implements a truly massive rights transfer.

The law empowers the Bibliothèque Nationale de France to create an online database of works published in France before 2001 that are currently out of print (this includes not just works by French writers, but foreign works translated into French). Once a work has been listed in the database for more than six months, the right to digitize it transfers to a collective management organization, which thereafter has near-unlimited power to exploit that right--including granting it to publishers without the author's permission. The collective management organization will also be responsible for distributing (an unspecified portion of) the proceeds from such grants to rightsholders.

There's a six-month waiting period between a book's appearance in the database and the transfer of rights to the collective management organization. To be removed from the database, rightsholders--who are not currently being notified if their works are included--must opt out in writing before the six-month waiting period expires. If they miss that deadline, they lose control of the digital display and sale of their work, and can only demand removal by proving that that they are the sole holder of digital rights.

The database, known as ReLIRE, is now online,with an initial list of 60,000 books. According to a comprehensive post on the program by writer Gillian Spraggs, numerous problems have been noted, including data errors, inclusion of books published after the 2001 cutoff date, and inclusion of books still in print or already available in digital form. Also included are many translated works by foreign authors that are clearly not orphans.

Digital-hungry publishers are already taking advantage of the database. Spraggs writes,

It appears that 10,000 (one in six) of the books in the database have been opted in by the publishers. The ReLIRE website FAQ outlines what a publisher will get out of the arrangement:

‘You will have the possibility of having an exclusive publishing licence for 10 years, implicitly renewable, to exploit the book in digital form, without having to sign a contract with the author or the author’s successors in title for the digital rights.

Sofia [the collecting society] will contact the authors or the successors in title to pay them, in accordance with the terms set out in the publishing contracts’...

Two points that the FAQ discreetly avoids spelling out are:

1. The legislation specifically charges the collecting society with developing contractual relationships that will ensure the greatest possible availability of the works...This puts prospective publishers in a very strong negotiating position and more or less guarantees that the contracts agreed will be bargain-basement deals with very low royalty rates, regardless of the market value of the work.

2. Certain administration costs that in a normal publishing arrangement would be borne by the publisher will instead be borne by the collecting society, which will take them out of royalties (so all or part of them will be taken from the authors’ share of any income). These include the cost of contacting authors and estates.

For authors, Spraggs says, it is "a ripoff deal."

Writers' groups in the US are taking notice of this threat to copyright. The Science Fiction and Fantasy Writers of America  has sent the letter below (reproduced with permission) to members, a number of whom have already found their works included in ReLIRE.

Dear SFWA Members,

As many of you already know, the ReLire program currently underway in France has scanned many books it considers to be "orphan works" in order to make them available through a public database. This database has already been found to contain many titles that are clearly not orphan works or in the public domain, including a number by prominent SF and fantasy authors. A more detailed explanation of the program is available here.

As this is a program of the Bibliotheque Nationale Francaise (French National Library), the Board is currently discussing options for applying pressure to the French government to prevent further works by SFWA members from being scanned and made available through this program, and we invite any members who have connections with the United States Trade Representative or any relevant branch of the U.S. Government to contact us. For the moment, however, we are informing all members of the issue and making them aware of the process involved in finding out whether a work is included and how to request that it be removed from the database.

All parts of the ReLire website and database are available only in  French. The Society of Authors has produced translations of four key pages:

- The ReLire home page
- The Your Rights page
- The Search page
- The FAQ

Here is a direct link to the advanced search page. The search fields are Titre( Title), Auteur (Author), Editeur (Editor) and Date d'edition (Publication date). If you are aware of any works of yours that have ever been published in French, you are strongly advised to search under all of the first three fields, as the entries in the database have been found to have many typos. Please notify SFWA of any of your works that are found in the database, as that will be valuable information in our efforts to protest the program.

If you do find any novels, stories or any other works belonging to you in the database you may request to have them removed. Please note that at this time it appears as though you will need either a French identification card (only available to residents of France) or a valid passport to make the application. We are awaiting clarification on the question of whether any other forms of identification will be accepted.

Thanks to Aliette de Bodard, Lawrence Schimel, Michael Capobianco and Jim Fiscus for their help in researching and co-ordinating SFWA's response.

If any of your works have been published in French, and you find them included in ReLIRE, see this step-by-step manual for applying to have the work removed. For many other helpful resources and links, as well as some of the writing/publishing community's reaction to ReLIRE, see Gillian Spraggs's blog post, French Copyright Grab: the Machine Creaks into Action.

Spraggs writes that a group of French authors are planning to challenge the new law on constitutional grounds. She concludes by urging all writers to protest ReLIRE:

Whether or not you find that any of the books on the list are by you, or contain works by you, make a complaint to your government about the ReLIRE project, and talk to any author societies to which you belong.

The Berne Convention says: ‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.’ (9.1) This can only be overriden ‘in certain special cases’ and ‘provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. (9.2) The Convention says of all the rights that are guaranteed under it: ‘The enjoyment and the exercise of these rights shall not be subject to any formality‘. (5.2)

By compelling foreign authors, in order to prevent their works’ being co-opted into collective management, to search for them on a database and request their removal, the French government has imposed an illegal formality on their exclusive exercise of the right of reproduction.

The ReLIRE scheme is in no sense a ‘special case’ within the meaning of Article 9.2. By intervening in such an outrageous manner in the fast-developing market for digital rights it interferes with the normal exploitation of the works and most unreasonably prejudices the legitimate interests of the authors.

Class Action Lawsuit Filed Against Author Solutions Inc.

Posted by Victoria Strauss for Writer Beware

In March, I wrote about New York law firm Giskan Solotaroff Anderson & Stewart LLP, which had opened an investigation of Author Solutions Inc. (ASI).

Well, now the other shoe has dropped. On April 26, Giskan Solotaroff filed a class action complaint on behalf of three plaintiffs against Author Solutions Inc. and Penguin Group USA (ASI is part of Penguin) in US District Court for the Southern District of New York. Allegations include breach of contract, unjust enrichment, various violations of the California Business and Professional Code, and violation of New York General Business Law.

The full text of the complaint can be seen here.

The complaint highlights issues that will be familiar to anyone who has followed discussion of Author Solutions over the past few years: poor quality products, poor quality customer service, relentless up-selling pressure on authors, particularly for ASI's expensive "marketing" packages, and trouble with accurate payment and royalty reporting.

4. Author Solutions' revenues are estimated at $100 million per year. Of the $100 million Author Solutions earns as revenue, approximately one third of that amount, or $33 million annually, comes from book sales. The rest of its revenue is derived from the services it offers, such as editorial services, formatting and design services, production services, and marketing services ("Services").

5. Despite its impressive profits from book sales, Author Solutions fails at the most basic task of a publisher: paying its authors their earned royalties and providing its authors with accurate sales statements.

6. Author Solutions also fails to take diligent care of its authors' works, making numerous and egregious publisher errors -- errors made by the publisher, not the author. These errors include errors on book covers, in addition to various typographical and formatting errors. In fact, Author Solutions profits from its own mistakes. Aggressive sales techniques ensure that these errors are corrected only for a fee of several hundred dollars. Even though, as a matter of policy, Author Solutions promises to correct publisher errors for free, it rarely does.

7. Most of Author Solutions' earnings are derived from its publishing and marketing Services. These Services, which can cost authors tens of thousands of dollars, likewise fail to deliver what they promise: more book sales and more opportunities for authors.

8. Therefore, even while Defendant Author Solutions prominently markets itself on its website as "[t]he leading indie publishing company in the world," authors often discover, once it is too late, that Author Solutions is not an "indie publisher" at all. It is a printing service that fails to maintain even the most rudimentary standards of book publishing, profiting not for its authors but from them.

In addition to asking the Court to approve class action status, the complaint requests release of publishing rights for the class, and payment by the plaintiffs of restitution, court costs, and compensatory damages in excess of $5 million.

Authors wishing to contact Giskan Solotaroff about the suit can use this online form.

I've blogged about ASI and its questionable practices a good deal over the past few years. For background, here's a selection of my posts:

Pearson Buys Author Solutions (but questions about ASI's business practices remain open--will Pearson address them?)

A Partridge in a Penguin Tree (ASI expands into India).

Archway Publishing: Simon & Schuster Adds a Self-Publishing Division (outsourced to ASI, and it's eye-poppingly expensive).

Fake Jared And His Friends: Author Solutions' Misleading PR Strategies

Democratization or Disinformation? (ASI's misleading "white paper" on independent" publishing).

Posts by others:

Writer and editor Emily Suess is a relentless critic of ASI, and has exposed many of its business practices and collected many complaints from unhappy authors who've used its services.

Mick Rooney of The Independent Publishing Magazine has a long piece on the Giskan Solotaroff investigation and related matters.

Author and blogger David Gaughran deconstructs the ASI empire.

ASJA Annual Conference 2013, Plus Tidbits

Posted by Victoria Strauss for Writer Beware

I was in New York this past weekend for the 2013 ASJA Annual Writers Conference. I participated in two panels with Writer Beware-er Richard White: a Writer Beware panel (of course) on schemes, scams, and pitfalls in the publishing industry; and a panel on breaking into science fiction and fantasy publishing.

We had a good and engaged crowd for the Writer Beware panel. Rich and I presented on Writer Beware, what it is and does, and the kinds of schemes and scams we track and warn about. The Authors Guild's Jan Constantine spoke about poor contract terms, payment problems, and other issues confronting writers who publish traditionally; and marketing expert Penny Sansevieri spoke on scams in the marketing field and how to avoid them.

The SF/fantasy panel had sparser attendance, but was still a good discussion, with Rich and I talking about our experience as writers, and editor Sheila Williams and former editor/current agent Shawna McCarthy providing an industry perspective.

As usual, the Writer Beware-hating wingnuts at The Write Agenda  had a hissy fit about my and Rich's participation in the conference. However, ASJA staff know wingnuts when they encounter them, and provided an appropriate response--which, predictably, provoked a fresh explosion of indignation. I only wish I had the arcane powers TWA ascribes to me.

P.S., wingnuts: hurrying from the train to the hotel where the conference was taking place, I stepped in a pothole and sprained my ankle. Now you can do another post on karma biting the ladies of Writer Beware. You're welcome.

Turning to other matters...here's some recent publishing news that caught my eye.

- Last year, complaints began to emerge about Noble Romance Publishing, including poor sales, non-payment of royalties, and poor communication. Then, last July, owner Jill Noble walked out without notice, leaving the company to a new owner, Jean Gombart. Since then, things have only gone further downhill. Recently, author Margie Church blogged about the continuing problems and broken promises at Noble Romance. Despite every sign that Noble Romance is "a business in its last vestiges of life," Gombart adamantly refuses to relinquish book rights back to authors.

- The always-insightful Porter Anderson provides perspective on a major Twitter freakout of last week: some literary agents' angry reaction to Barry Eisler's keynote address at the Pike's Peak Writers' Conference, in which he stated that print distribution is the only thing traditional publishers provide that self-publishers can't obtain on their own. I don't entirely agree with him--in the best publishing experiences, there's a synergy among all the various parts of the process that can't be duplicated when you piece them out--and I also think that the potentially substantial costs of creating a really professional self-published book should be emphasized more. But he makes provocative points that are well worth considering.

(I do wish, though, that we could we could get rid of the term “legacy publisher.” It's a term that embodies an assumption about the state of traditional publishing that hasn’t yet been proven [a legacy system is a system that has been supplanted by new technology but is still in use]--plus, it was coined by self-publishing evangelists as an epithet, and has a negative connotation that I don’t think adds to serious discussion.)

- Last February, several independent booksellers filed an anti-trust lawsuit against Amazon and several large publishing houses, alleging that by requiring the use of DRM on the Kindle, Amazon and the publishers have colluded to restrict the sale of ebooks. Now a judge is considering tossing the suit, citing a lack of evidence of any conspiracy.

Tidbits

Posted by Victoria Strauss for Writer Beware

It's spring! Here in chilly New England, climate change seems to be taking a break, and it felt as if the warm weather would never arrive. But daffodils and primroses are blooming in my garden, and it's almost--almost!--mild enough to sit outside.

My family emergency situation is still ongoing, and my book deadline is only three months away--so it'll be a while before I can return to a normal schedule. However, I'm still following the news (and answering email), so I can at least share with you the publishing stories that caught my eye over the past week or so.

One more note: I'll be at the ASJA's 2013 annual conference in New York City on Friday, April 26, appearing on two panels: Writer Beware! How to Avoid Publishing Scams, Ripoffs, Pitfalls, and Deadbeats; and Fiction Spotlight On...Science Fiction and Fantasy. If you're there, stop by and say hi.

- Ebooks accounted for nearly 23% of US publishing revenue in 2012, according to the Association of American Publishers, That's up from 17% in 2011.

- On the flip side, ebook growth in the US, while robust, seems to have plateaued--"only" 41% in 2012, as compared to triple-digit growth in previous years. The market is starting to mature, and print isn't going away as fast as many people predicted.

- Scam publisher Peter Campbell-Copp, of Historical Pages Publishing, has been sentenced to six months' jail time for defrauding authors. It's a sadly familiar story: promises given, money taken, books never produced. In this case, at least, law enforcement took notice (though the authors will not get their money back.) Most deadbeat publishers go unreported and unpunished.

- Another small press in trouble: Leaf Books. The company's most recent newsletter attempts to explain the situation (publication delays of up to two years, hundreds of unanswered emails, ongoing financial problems) and promises to fix them. However, the newsletter was issued last August, and there have been no updates since then, or any indication that the troubles have been resolved. Writers should be very wary.

EDITED 4/20 TO ADD: In the day since I put this post online, Leaf has changed the date on its newsletter to April 2013. However, if you paste the newsletter link into Google's search box, or right-click on the newsletter so you can view the HTML code, you can still see the August 2012 date.

- A new definition of "crowdfunding?" This week I ran across an anthology that presents itself as a crowdfunding scheme, with the "crowd" actually being would-be contributors, who must "donate" £50 in order to submit (and don't get it back if their submission isn't chosen). This is just pay-to-play by a different name. Vanity publishers take note--now you, too, can be a crowdfunding project!

- What could possibly be wrong with a book that collects over 100 "encouraging, motivating, inspiring and instructional passages" about writing from actual writers? (Click the "Show more" link under the book description to see a partial list of "contributors.") How about if the author didn't get permission to use those passages, and is making money from them by selling the book?

Chuck Wendig, who found himself quoted in the book, explains why he isn't happy. The book's author is claiming fair use--but fair use is a slippery thing, and defending it has sunk many a lawsuit. Fair use or not, it's simply polite to ask permission to borrow someone else's words. Especially where you intend to make money from the words you're borrowing.

- Does reading on a screen change the way we read? Is it good, or bad, for focus and/or comprehension? This article takes a look at the many studies addressing this issue, concluding that paper and ink still has the edge for certain kinds of reading--but that, increasingly, "text is not the only way to read."

Why I'm Not Here

Posted by Victoria Strauss for Writer Beware

You may have noticed there was no blog post last week.

That's because I'm currently dealing with a family emergency (helping my disabled stepmother, who has broken her shoulder) that's eating up my time. Between that and trying to maintain my writing schedule (book deadline approaching...) I just haven't been able to manage any blog posts.

I'm hoping to get back to a more normal schedule next week, or possibly the week after.

I am still answering email, so if you need to reach me, it's beware [at] sfwa.org.

Happy writing, and I'll see you all soon!

Author-Unfriendly Terms at Autharium

Posted by Victoria Strauss for Writer Beware

 Over the past few weeks I've gotten a number of questions and alerts about author-unfriendly Terms and Conditions at Autharium, a new epublishing startup. So I thought I'd check into it myself.

Autharium describes itself thus:

Autharium was created with the purpose of discovering great writers and publishing their work. The idea struck the co-founders Matt Bradbeer, Simon Maylott and Aaron Bell when they discovered and became frustrated with how difficult or expensive it was to publish a book, break through the old publishing routes and reach readers...

There is no charge to be published and distributed through Autharium, there are no hidden costs and the royalties are always split in the authors [sic] favour. Our mission is to discover and publish the next great books and the authors behind them.

Authors can use Autharium's online tools to upload, format, and edit their books (which sure sounds like self-publishing, although, according to Autharium's FAQ,  books are "curated" and not everything that's submitted is published). Once books are uploaded, authors can can send them to the Autharium community for comment and review, or submit them for publication. Payment is 85% of net revenue.

Autharium is in beta, and currently free to use. However (and despite the language quoted above), wording on the site and in the Terms and Conditions strongly suggests that there will be publishing and other fees at some point in the future.

So far, Autharium sounds like one of those combination writing communities/self-publishing services, a la Book Country, YouWriteOn, or the recently-defunct WeBook. As long as there's a decent community sharing feedback, and the publishing service is free or low-cost, where's the problem?

As is so often the case, in the publishing agreement.

Trouble appears in the very first clause of Autharium's Publishing Terms and Conditions for Authors (I've bolded the significant language):

1.1 By submitting your Work to Autharium and accepting these Terms & Conditions, you grant to Autharium the exclusive right and licence to produce, publish, promote, market and sell your Work in any Digital Form...in all languages throughout the world for the entire legal term of copyright (and any and all extensions, renewals and revivals of the term of copyright).

1.2 You agree that Autharium shall also be entitled to license retailers, distributors, agents, licensees, sub-contractors and other third parties to exercise the rights you have granted to Autharium under this Agreement.

1.3 The rights granted in paragraphs 1.1 and 1.2 above shall also apply to any adaptation or any abridgement of your Work or any substantial part of your Work.

In other words, by submitting your manuscript to Autharium for publication, you are granting exclusive digital publishing rights to your work, and to adaptations/abridgements of your work, in all languages, for the entire duration of copyright, as well as the ability to license those rights to others. That's a pretty sweeping grant of rights--not what you typically expect to find in the contract of a self-publishing service.

If Autharium decides not to publish your manuscript, it will notify you, and the grant will terminate immediately. But until you receive such notification you are bound to Autharium, and cannot publish your work anywhere else in digital form. Since there's nothing in the contract that requires Autharium to be prompt, or gives it a timeframe in which to respond, you could be waiting for a while.
 
It gets worse. Authors who publish with Autharium can remove their work from sale at any time--but this "will not terminate this Agreement nor cause the exclusive digital publishing rights that you have granted to Autharium...to revert to you." So you can terminate your book--but Autharium will still hold the rights and you won't be able to publish elsewhere unless you can get Autharium to give you permission. (Enquiring minds can't help wondering whether, in such a case, a fee might be involved.)

In fact, per Autharium's Term, Termination, Reversion and Suspension of Rights clause, authors have no termination rights whatever unless Autharium breaches the terms of the Agreement and fails to remedy the breach, or allows a work to become "unavailable in all editions" (and "available" might just mean an ebook for sale on Autharium's own website).

There is so much wrong here.

- A life-of-copyright grant term. I've said elsewhere that life-of-copyright grant terms are not a problem as long as there's precise reversion language that ensures that authors can get their rights back once sales fall below stated minimums. However, that's in reference to publishers--not glorified self-publishing services like Autharium. Life-of-copyright terms are completely inappropriate for such services (this is one of the things that made the agreement for Dymocks' recently-terminated D Publishing service so horrific). Even a fixed-term contract isn't desirable when you're self-publishing.

- An exclusive grant term. Exclusivity is also not desirable when you're self-publishing, unless the publishing service is offering something major in return (such as payment for ebook lending, as with Amazon's Kindle Owners' Lending Library). You want to be able to maximize sales and readership by publishing to as many platforms as possible; exclusivity prevents you from doing that.

- A claim on rights beyond ebooks. Autharium publishes "in Digital Form," which is sweepingly defined as "any and all electronic and/or digital forms and media whether now known or later invented or developed." This conceivably could include not just ebooks but audiobooks, enhanced ebooks, and video games. Additionally, Autharium claims the right to publish in all languages, and to license your rights to others. All of this negates one of the main benefits of self-publishing: minimal encumbrance of your rights. A self-publishing service should not require you to grant rights beyond those necessary to provide the service.

- Authors cannot terminate at will. Another of the major benefits of self-publishing is control. If you lose the right to terminate an agreement at any time, for any reason, you're giving up a huge amount of control--especially if the terms of the agreement don't allow you to publish anywhere else.

- Inadequate definition of out-of-print. See life-of-copyright, above. If you can't terminate at will, there should at least be clear, objective reversion terms that allow you to regain your rights after a fixed period of time or once sales fall below stated minimums. Otherwise, the publishing service can hang onto your rights for as long as it chooses, whether or not your book is selling. Autharium's vague out-of-print language, the effect of which is to enable it to keep a death-grip on your rights as long as a single electronic edition of your book is available on a single website somewhere, is completely inadequate.

- Will eager authors discover these unfavorable terms? I signed up for Autharium and uploaded a document. I got as far as the Publishing Options page, where, before they can submit for publication, authors are required to check a box to accept Autharium's Terms and Conditions. Not only is it not stated that these are the publishing terms and conditions (there are also general terms and conditions), the link provided goes nowhere. Often enough, authors barely skim Terms and Conditions or publishing agreements, even when they're easy to find. Making authors work to find them is practically a guarantee they won't be read.

In response to criticism elsewhere, Autharium staff have argued that Autharium is a publisher, not a self-publishing service, because "we do not publish everything submitted." However, publishers don't leave formatting, editing, and cover art to authors, or allow authors to set book prices. Those are hallmarks of self-publishing services. And even if we cut Autharium a hundred miles of slack and agree it's a publisher, its reversion language still sucks.

All in all, a bad deal for authors.

For Those of You Who Are Wondering Why Someone Might Want to Launch a Class Action Lawsuit Against PublishAmerica

Posted by Victoria Strauss for Writer Beware

Here is an example of the sort of solicitation PublishAmerica authors receive daily (if not more often).

Dear author:

For authors with multiple titles only!

The March Madness Multi-title option is here!

We're offering two of our most popular services for ALL of your books, for one low price!

Your own Literary Agent

+

Direct Book Distribution

combo package

for ALL of your books

That's right, ALL your books, one low price, two high exposure services!

**Go to www.publishamerica.net/MarchMadMulti

to activate this super combo deal for only $179.

Direct Book Distribution: Bookstores that use Direct Distribution receive a bookstore discount of up to 55 pct, which is more than 10 times than what they may get elsewhere. And the books they order to carry are returnable . This means that the bookstore can return unsold copies to PublishAmerica's direct distribution center.

Our March Madness Multi-title option will add ALL your books to our Direct Distribution system. Your local bookstore will love it. In fact, we'll get on the phone right away to negotiate the bookstore's first next order of of any one, or all, or your books! They will also keep their Ingram option. PublishAmerica books are non-returnable through Ingram.

PLUS

Your own Literary Agent for ALL your books:

We'll shop ALL of your books around the industry! Our literary agency department takes their job very seriously. Last year they submitted PublishAmerica books to publishers all over the nation and the world. We'll contact publishers and urge them to take a serious, close look at every one of your books for a possible transfer of publication rights. We'll let them know that should they be interested, we'll clear the path and transfer the rights to them smoothly!

The average agented book was introduced to 15 other publishers in 2012. The vast majority of these are U.S. publishers, some really big; twenty percent is foreign, including countries as far away as Germany, South Africa, Australia, India, and Spain.

** Go to www.publishamerica.net/MarchMadMulti to activate today! You will be contacted within 48 business hours by our Special Services Department so we can begin working for your ALL of your books in earnest!

Must choose a shipping option to activate. No use of coupons is allowed.

Include ALL of your books today!

Thank you,
--PublishAmerica Special Services Team

Random House Announces New Terms at Digital Imprints Hydra, Alibi, Loveswept, and Flirt

Posted by Victoria Strauss for Writer Beware

Yesterday afternoon, I had a cordial conversation with Allison Dobson, Director of Digital Imprints at Random House, about the the recent controversy over deal terms at Hydra, Alibi, Loveswept, and Flirt.

Based on strong criticism from writers' groups, authors, and agents, Random House has decided to make major changes in its digital contract. Allison was kind enough to share these changes with me. She asked me to keep them confidential until they could be officially posted on the Random House website, which is why you didn't see this post yesterday.

A pdf of the announcement is here. Briefly, here are the changes:

- Authors will now be offered their choice of two options: a re-worked profit-sharing arrangement and a traditional advance-and-royalties deal.

For the profit-sharing arrangement, there's still no advance. But Random House has eliminated all chargebacks for digital editions, so the split between author and publisher is 50/50 of net revenue (actual sales income) from the first copy sold. In other words: no setup costs, no 10% deduction for sales and marketing. For print editions, if they are produced (and this won't be frequent; these are primarily ebook imprints), there will still be a chargeback for actual production and shipping costs (these costs will be fully broken out for the author ahead of time if a print edition is planned). Random House will cover general publicity costs for the imprint, and up to $10,000 of book-specific publicity. Any book-specific PR above that amount will be borne by the author and deducted from net revenue before the profit split--but such expenditures will be optional.

For the advance-and-royalty deal, authors will receive a traditional publishing contract, with the publisher covering 100% of costs. There will be an advance, and royalties will be paid at Random House's standard ebook royalty rate of 25% of net.

- The contract will still be life-of-copyright, but the reversion clause has been improved. As I've explained on this blog and elsewhere, I don't have a problem with life-of-copyright, as long as it's balanced by precise reversion language. That is now the case. Three years after publication, the author can demand reversion if sales fall below 300 copies over the 12 months preceding the demand.

- Random House will still take both primary publishing rights and subsidiary rights, but performance rights and transformative digital edition rights are no longer included. If Random House wants to acquire these, it will negotiate separately. Random House is also open to negotiation on other subrights.

Overall, I think this represents a significant improvement. I was impressed with Allison's openness to discussion, and with what seemed to me like a sincere commitment to responding to criticism and making the digital imprints' contracts more author-friendly.

Another Class Action Suit Launched Against PublishAmerica

Posted by Victoria Strauss for Writer Beware

I wasn't optimistic that I would ever be writing a post like this, after the class action filed last year against PublishAmerica was dismissed.

However, on January 31, 2013, the Maryland law firm Z Law and the New York law firm Giskan Solotaroff Anderson & Stewart (the same firm that is currently investigating Author Solutions Inc.) filed an amended complaint (the original complaint was filed last November) against Willem Meiners, Larry Clopper, and PublishAmerica LLLC on behalf of Diana Waterman, Jennifer Grant, Danita Clemons, and the class of PA authors in similar situations.

The amended complaint was filed in the Circuit Court of Maryland for Frederick County (case number 10-C-12-003498 OT), and can be read in full here. The electronic case record can be viewed here.

Plaintiffs allege breach of contract, unjust enrichment, fraud, violations of the California Business and Professions Code (for untrue advertising), violations of the California Unfair Competition Law (for unlawful business acts and practices, unfair business acts and practices, and fraudulent business acts and practices), and deceptive acts and practices under New York General Business Law.

The allegations of fraud, unjust enrichment, and breach of contract are similar to those of the earlier complaint, but where the previous complaint sought judgment under the Maryland Consumer Protection Act--and was dismissed in large part because it failed to adequately demonstrate that PA authors should be treated as consumers under the Act--this complaint focuses on laws governing business acts and practices, both in Maryland and in the home states of the named plaintiffs. Does it have a better chance of success? That remains to be seen.

The complaint's Preliminary Statement is worth quoting in (nearly) full.

2. Defendant markets itself as a “traditional advance and royalty paying book publisher” that is home to over 50,000 authors.

3. As PublishAmerica openly states on its website, it specializes in books and authors “who face and overcome hardships and obstacles in life.”

4. Defendants shamelessly prey on ambitious first time authors and those who have faced significant personal hardships, luring them into exploitatively long contracts, often as long as ten years -- that can only be broken for a high fee.

5. On its website, PublishAmerica uses the tagline: “We treat our authors the old-
fashioned way–we pay them.” Nothing could be further from the truth. PublishAmerica makes money from its authors, not for them. As alleged below, authors published by PublishAmerica have no chance of selling their books to a general audience.

6. PublishAmerica makes its authors’ books unsellable in a number of ways. The most obvious is pricing. Plaintiff Waterman’s paperback children’s book is priced at $24.95. By contrast, Curious George, a beloved children’s book, is available online at Houghton Mifflin Harcourt for $6.99. In fact, Plaintiff Waterman’s book is priced significantly higher than all of New York Times’ ten best-selling children’s books. See Exhibit 1 attached hereto.

7. PublishAmerica sabotages its authors’ ability to sell and market their books by printing them with errors. These errors are inserted by PublishAmerica itself. Plaintiff Grant’s book has glaring typographical errors. On the side binding of the book, the word “collection” is misspelled as “collectrion.” If that were not enough, on every other page, the title of the book is misspelled, replacing “romantically” with “roimantically.” These errors humiliated Grant once the book became widely searchable on the Internet. Notwithstanding these glaring errors, PublishAmerica prices Plaintiff Grant’s book at $30. This price is notably higher than the top ten selling fiction paperback books. See Exhibit 2 attached hereto.

8. The simple fact is that the only consumers who will purchase these overpriced, poorly published books are the authors themselves.

9. PublishAmerica then bombards its authors with services ostensibly designed to promote, improve, and sell books that PublishAmerica knows cannot be sold. But as alleged below, these services are often themselves a scam or simply fictitious. For example, PublishAmerica offers to correct its own publishing errors – for a fee.

I've highlighted the allegations that were unfamiliar to me. Although they fit perfectly with the many other aspects of PublishAmerica's business model that Writer Beware has received complaints about over the years, I still find them shocking. The complaint includes many other gems, including a couple of PA's famous "tone" letters and examples of PA's solicitations for bogus marketing services.
 
Plaintiffs are asking the court to approve the class, to order PA to release and return publication rights, to order PA to pay actual damages, restitution, and court costs including attorneys' fees, and to order "such other, further relief as may be determined to be just, equitable and proper by this Court, including but not limited to punitive damages."

The contact person for Giskan Solotaroff:

O. Iliana Konidaris
11 Broadway, Suite 2150
New York, NY 10004
Direct: 646-366-5140
Fax: (646) 964-9610

I'll keep y'all posted as this works its way through the courts.

SFWA De-Lists Hydra; Random House Responds

Posted by Victoria Strauss for Writer Beware

Following on my post last week about unattractive deal terms at Random House's new digital-only imprint, Hydra, the Science Fiction and Fantasy Writers of America has determined that Hydra will not be a qualifying market for SFWA membership.

SFWA has determined that works published by Random House’s electronic imprint Hydra can not be used as credentials for SFWA membership, and that Hydra is not an approved market. Hydra fails to pay authors an advance against royalties, as SFWA requires, and has contract terms that are onerous and unconscionable.

In a blistering blog post, SFWA President John Scalzi also criticized** Hydra's terms:

This is a horrendously bad deal and if you are ever offered something like it, you should run away as fast as your legs or other conveyances will carry you.

Today, Random House responded to the critics, including me, in an open letter. As the letter requests, I'm posting it here in full, redacting only Ms. Dobson's phone number.

Dear John, Victoria, Jaym and SFWA Members,

We read with interest your posts today about the new Random House digital imprints and our business model. While we respect your position, you’ll not be surprised to learn that we strongly disagree with it, and wish you had contacted us before you published your posts. We would appreciate you giving us an opportunity to share why we believe Hydra is an excellent publishing opportunity for the science fiction community by posting ours below to them.

Hydra offers a different-- but potentially lucrative--publishing model for authors: a profit share. In the more traditional advance- plus-royalty model, the publisher takes all the financial risk up front, and recoups the advance before the author earns any cash royalties. With a profit-share model, there is no advance. Instead, the author and publisher share equally in the profits from each and every sale. In effect, we partner with the author for each book.

As with every business partnership, there are specific costs associated with bringing a book successfully to market, and we state them very straightforwardly and transparently in our author agreements. These costs could be much higher--and certainly be more stressful and labor-intensive to undertake--for an author with a self-publishing model. Profits are generated once those costs are subtracted from the sales revenue. Hydra and the author split those profits equally from the very first sale.

When we acquire a title in the Hydra program, it is an all-encompassing collaboration. Our authors provide the storytelling, and we at Hydra support their creativity with best-in-class services throughout the publishing process: from dedicated editorial, cover design, copy editing and production, to publicity, digital marketing and social media tools, trade sales, academic and library sales, piracy protection, negotiating and selling of subsidiary rights, as well as access to Random House coop and merchandising programs. Together, we deliver the best science fiction, fantasy and horror books to the widest possible readership, thus giving authors maximum earning potential.

As a last point to the SFWA leadership, my colleagues and I would welcome the opportunity to meet with you at your earliest convenience to discuss the advantages of the Hydra business model, describe the program overall, and respond to any of your expressed concerns. Please let me know a good time for us to set up this meeting.

Many thanks and all the best,
Allison Dobson

Allison R. Dobson
V.P., Digital Publishing Director
Random House Publishing Group

I think we'll have to wait for time to show whether Hydra really represents a lucrative business model for authors (I note RH's careful pairing of "potentially" with "lucrative"). Hydra is speculative in more than just the genre it publishes: it, and digital-only imprints like it, are experiments, with authors as guinea pigs.

I also note that in an email I saw from Random House, ebook setup costs (editing, design, production) were estimated as "usually" amounting to "no more than a few hundred dollars"--so I can't help wondering what level of services authors will actually receive.

In fairness, from what I've heard, Hydra is very willing to negotiate, and some authors seem to have been able to arrange considerably better terms for themselves. (I would love to be more precise, but I don't want to inadvertently identify the people who've contacted me. If you're curious, write to me and I'll tell you.)

I'd welcome the chance to meet with Random House staff to discuss these issues. Hopefully this can be arranged in the near future.

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

** While I agree with most of John's points about Hydra's deal terms, I don't agree that life-of-copyright contracts are an automatic red flag. For one thing, they're standard in the publishing industry (and that includes many smaller digital-only publishers). Is this fair? Does the publisher need it? Maybe not. But it's a fact.

For another thing, as long as there's precise reversion language that ensures a book goes out of print when sales fall below a reasonable minimum ("reasonable" being keyed to the publisher's average sales expectations), life-of-copyright doesn't have to be a problem. The publisher does not get to hold your rights indefinitely. When your book stops selling, you can demand reversion and get your rights back. I've done this, so I'm speaking from experience.

I have seen terrible life-of-copyright contracts where reversion was left entirely to the publisher's discretion, or where there was no reversion clause at all. If a life-of-copyright rights grant is not offset by good reversion language, or if the publisher is unwilling to insert it at the author's request, writers absolutely should run away. But in principle, life-of-copyright contracts do not have to be scary.

Law Firm Investigates Author Solutions Inc.

Posted by Victoria Strauss for Writer Beware

The New York law firm of Giskan Solotaroff Anderson & Stewart LLP has opened an investigation of Author Solutions Inc. (ASI), alleging deceptive practices.

Authors using Author Solutions have complained of deceptive practices, including enticing authors to purchase promotional services that are not provided or are worthless, failing to pay royalties, and spamming authors and publishing blogs/sites with promotional material.

They're calling for contact from authors who believe they've been the victims of these and/or other deceptive practices. The contact form is here.

Giskan Solotaroff Anderson & Stewart specializes in, among other things, consumers and small businesses in class actions. Where possible, they enter into contingency fee arrangements--i.e., they take a percentage of the winnings rather than a fee. Given that Author Solutions is now owned by Pearson, there are some deep pockets here, which  may make a lawsuit more feasible than it has been in the past. (To my knowledge, no lawsuit has actually been filed; this is a preliminary investigation only.)

I've blogged about ASI and its questionable practices a good deal over the past few years. For background, here's a selection of my posts:

Pearson Buys Author Solutions (but questions about ASI's business practices remain open--will Pearson address them?)

A Partridge in a Penguin Tree (ASI expands into India).

Archway Publishing: Simon & Schuster Adds a Self-Publishing Division (outsourced to ASI, and it's eye-poppingly expensive).

Fake Jared And His Friends: Author Solutions' Misleading PR Strategies

Democratization or Disinformation? (ASI's misleading "white paper" on independent" publishing).

Posts by others:

Writer and editor Emily Suess is a relentless critic of ASI, and has exposed many of its business practices and collected many complaints from unhappy authors who've used its services.

Mick Rooney of The Independent Publishing Magazine has a long piece on the Giskan Solotaroff investigation and related matters.

Author and blogger David Gaughran deconstructs the ASI empire.

Second-Class Contracts? Deal Terms at Random House's Hydra Imprint

Posted by Victoria Strauss for Writer Beware

Over the past few years, more and more trade publishers have created digital-only imprints. Another new one just popped up in my newsfeed today: Little, Brown UK's Blackfriars will be launching its first list this coming June.

Last November, there was some excitement over three brand new digital imprints from Random House: Hydra for SF/fantasy, Alibi for mysteries and thrillers, and Flirt for the is-it-or-isn't-it category of New Adult. I was interested by the fact that these new lines were pitched in language reminiscent of self-publishing services:

Under this program, authors will have a complete and unique publishing package. Every book will be assigned to an accomplished Random House editor and a dedicated publicist. They will also have the invaluable support of Random House’s experienced marketing and digital sales teams, who know how to reach out to and expand each book’s dedicated readership. Not only will authors benefit from working with the finest cover designers to ensure irresistibly eye-catching books, but they will also be offered the unique advantage of social media tools and training that will allow them to connect directly with their readers. To reach the widest possible readership, every title will be available for purchase at major e-retailers and will be compatible with all reading devices.

I wasn't alone in this impression--much of the news coverage of the new imprints speculated that Random House was attempting to snag self-publishers, what with the imprints' focus on short content, their willingness to accept previously-published books, and their literary-agent-optional submission procedure.

Authors who are accepted by Hydra and the others will have access to professional editors and designers, and will benefit from Random House's publicity team--just as with conventional imprints. If they desire the prestige of being able to say they're published by Random House, they'll have that too.

Even so, I can't help feeling that, with digital-only or digital-mostly imprints, print-based publishers are offering a kind of second-class publication. Ebooks are still experiencing triple-digit growth, but they're only one of several formats, and publishing in a single format limits your audience. For volume sales, print is still important, and a lot of book discovery still happens in bookstores. There's also the fragility of digital content, where formats are regularly and rapidly rendered obsolete by the advance of technology.

It seems to me that digital imprints require authors to embrace the limitations of digital publishing, without providing any of the offsetting advantages that are available to digital self-publishers--namely, control over format and pricing, and the freedom of not being tied to a restrictive contract. Meanwhile, the publisher can push books into a growing marketplace at a much lower cost than with a conventional imprint, and reap the profits.

Perhaps I'm just too conditioned from having grown up, and begun my writing career, in a time when print was all there was. Not that I'm anti-digital, or resistant to new technology--quite the opposite. But I'm willing to admit that my reservations about digital imprints may have something to do with the fact that I prefer to read print, and am sad at the thought that we're heading for a future in which many books will never have physical existence.

On the other hand...what if digital imprints are offering second-class contracts?

I recently saw the deal terms for Random House's Hydra imprint. A summary:

- It's a life-of-copyright contract that includes both primary and subsidiary rights. 

- There's no advance. Net proceeds (defined as net income plus subrights income less the deductions detailed below) are split 50/50 between author and publisher.

- Deductions for ebook edition: "one-time out of pocket title set up costs" (editing, cover art, design, etc.), plus a "sales, marketing, and publicity fee" of 10% of net sales revenue.

- Deductions for print edition, if there is one: "actual direct out-of-pocket paper, printing and binding costs," plus 6% of gross sales revenue to cover freight and warehousing costs.

Note that authors are not being asked to pay any costs upfront (despite that scary "out of pocket" term). Hydra "advances" those.

However, the costs are deducted from sales and licensing income, and reduce the amount of the author-publisher split. This is reminiscent of what's known as Hollywood accounting, where net proceeds are made to disappear by charging expenses against profit. Authors going into a deal like this can't be certain of what they will earn on a per-book basis--while the publisher is assured that its expenses will be recouped at the point of sale.

I should also note that I've seen only one Hydra deal memo to date. But the author who contacted me was given to understand that these are Hydra's (and by extension, Flirt's and Alibi's) standard offer terms, and I've heard anecdotal reports of other authors who've received similar or identical offers. Hydra does seem to be willing to negotiate--but publishers don't usually budge very far on core items like royalty splits.

If Random House indeed intends to reach out to self-publishers with these new imprints, it may want to re-think its contract terms. It's hard for me to imagine even moderately successful self-publishers finding a deal like this attractive.

Why Not to Register Copyright for Unpublished Work

Posted by Victoria Strauss for Writer Beware

If you have an unpublished manuscript that you're shopping to agents and/or publishers, or considering self-publishing, there's no need to register your copyright prior to publication.

Why?

Well, for one thing, you're fully protected by copyright law from the moment you fix your work in tangible form (write down the words). In countries that have an official copyright registration process--and many don't--registration provides no additional copyright protection.

It does confer various legal benefits. Where available, official registration provides prima facie evidence of copyright ownership that can be used in court. In the US only, registration is a pre-requisite for filing a copyright infringement lawsuit.

However, you are not in danger of copyright infringement at the submission stage. Many authors have an unreasonable fear of theft by agents and publishers--but good agents and publishers won't risk their reputations this way, and in any case it's easier just to work with you than go to all the trouble of stealing your work and pretending it belongs to someone else. As for bad agents and publishers...they aren't interested in your work at all, only in your money.

It's not until your manuscript is about to be exposed to a large audience--i.e., published--that you need to think about copyright registration. If you publish with a larger publishing house, the publisher will take care of this for you. For small presses, you may have to take care of it on your own. Ditto for self-publishing (you may be able to pay the service to register for you, but this will always be more expensive than doing it yourself).

By the way, don't be confused by the many faux registration services (such as this one or this one). Whatever datestamping or timestamping they provide is not a substitute for official registration--and possibly won't hold up in court, since it can be faked. So-called "poor man's copyright"--putting a manuscript in an envelope, mailing it to yourself, and retaining it unopened--is similarly useless, though it's often touted online as a cheap registration substitute.

Why else might you want to avoid registering copyright for unpublished work? You may be solicited by questionable companies. Vanity publishers and dodgy literary agents have long used copyright registration lists (and magazine subscription lists) to troll for customers. Dorrance Publishing--an old-line vanity publisher that has re-tooled itself for the digital age--is a particular offender in this regard. Here's an example, recently received by a writer who knew better than to respond:

Dear [name redacted],

One of our researchers has discovered your manuscript titled, [title redacted], registered with the Library of Congress and has forwarded your name to me as a possible candidate for publication with our company.

As an author, you are probably aware of (and perhaps have experienced) some of the problems of trying to get your work published by a commercial publisher. Just having your manuscript read by most commercial publishers is difficult and usually involves long delays.

Dorrance Publishing Company, Inc. provides a practical alternative for consideration by authors of book length fiction and nonfiction manuscripts, collections of poetry, collections of short stories, children’s books, etc., who wish to see their works in print.

The Dorrance name has been associated with a tradition of quality author services since 1920. I welcome the opportunity to discuss our services with you and to review your manuscript to determine whether it meets our requirements for publication, and if so, if we can be of help. You may submit your completed, typewritten manuscript to me for a no-fee, no-obligation review.

Also, I will be happy to send you a complimentary copy of our 32-page brochure, Author's Guide to Subsidy Publishing. The brochure outlines our publishing programs, including the manner in which we mechanically edit, design, produce, and promote our books.

The email goes on to provide submission instructions. Note that, except for the word "subsidy" in the last paragraph, no mention whatever is made of fees. In fact, Dorrance charges thousands of dollars to publish.

For more on copyright, see the Copyright page of the Writer Beware website.