Friday, October 03, 2008

Victoria Strauss -- Blu Phier Publishing: Another Contract "Gotcha"

Some of you may be aware of the issues surrounding yet another troubled small publisher, Blu Phier Publishing.

It's a familiar story: A light bulb goes off over the head of someone with an interest in writing/publishing, but no professional experience in either. He starts a publishing company. Because he doesn't have the proper knowledge base, and can't be bothered to spend time acquiring it, he crafts a nonstandard contract (here's a brief analysis by me), provides inadequate editing and copy editing, cannot maintain professional design or production standards, and, unable to distribute or market in any meaningful fashion, puts the onus of making sales on his authors. The upshot: The publisher gets into logistical and financial trouble. Delays occur. Monies due aren't paid. Excuses, recriminations, and abrupt changes in policy ensue. The publisher limps on for a while. Eventually it goes belly up, with or without returning its authors' rights.

Well, that last bit, the belly up part, hasn't happened yet with Blu Phier. But the rest of it has. The saga has been followed at Absolute Write, and on a number of blogs, including The Rusty Nail, ButterFludget, and Cussedness. If you don't want to take the time to peruse the considerable amount of material at those links, a glance at the Publisher's Corner page of Blu Phier's website will give you a sense of how it does business. A sample:

Q: Why does your company get the rights to an author's books and never release those rights?

Answer: When an author writes a book he/she creates something very precious to him/her and they become protective and possessive of it. In a larger publishing company they generate books by the thousands and all they see is numbers and marketability. In my company however I am as attached to the books as the authors. I often get excited at the release of a new book because my money and my efforts helped bring it to the public. Once I publish a book it becomes a part of Blu Phi'er family and I get very possessive over it.


All righty, then.

The most recent controversy involves royalty statements. Per The Rusty Nail, Blu Phier recently sent a mass royalty report email to its authors, in lieu of more conventional individual royalty statements (I'll just note the huge unprofessionalism of this, and move on). Sales figures for many of the books were followed by this statement: "No royalties paid until publisher is reimbursed for expenditures."

This apparently has been a surprise to at least some authors. It shouldn't have been.

Here's the Royalties clause in an early version of BPP's contract:

[Blu Phier Publishing] agrees to pay client a royalty of 30% of the cover price per book sold, 15% of the cover price for all books sold by a wholesale distributor who [sic] has been granted a 45% or more discount by BPP (after all funds expended by B.P.P. in the production of the book have been reimbursed).

It's not what you'd call crisp wording, but it does make clear that BPP intends to recoup its production costs from sales before paying royalties. In other words, the publisher keeps what should be authors' income. Plain and simple, this is back-end vanity publishing.

A few months later, in part as a result of criticism at Absolute Write, the contract was revamped, and the Royalties clause became much more murky (all errors courtesy of the original):

B.P.P. will pay The Author royalties based upon profits obtained from net sales as reported by the B.P.P's distributors as follows: 15% of all profits. B.P.P. will pay The Author royalties based upon profits obtained from net sales from B.P.P.'s own website as follows: 30% of all profits.

The word "profits" in a royalty clause is ALWAYS a warning sign. Too often, writers assume it's just another way of saying "net income." It's not. When a publisher pays you based on net income, it's paying you based on the actual money it receives for your book (usually, cover price less any discounts to wholesalers or retailers). When a publisher pays you based on profits, it's paying you based on the actual money it receives, less costs involved in publishing and marketing your book (often not detailed in the contract, so you have no idea of what will actually be deducted). At best, this lowers the amount of money on which your royalties are calculated. At worst, it allows the publisher to manipulate your royalty payments in whatever way it wishes--conceivably, down to zero.

The Royalties clause of BPP's amended contract doesn't define what "profits" means. However, moving down to the Statements and Payments clause, we find the following:

B.P.P. shall forward to The Author via email detailed monthly statements concerning all book sales made by B.P.P. B.P.P. shall also deliver to The Author via email a statement of the total cost connected with the publication of The Work, the total profit B.P.P. will obtain for the sale of each book, and the projected number of books needed to be sold for B.P.P. to recover all publication costs.

In other words, exactly as in the original contract, BPP intends to recoup publication costs before paying royalties. Either through craftiness or ignorance, BPP never actually says so straight out. But putting this clause together with the Royalties clause, it’s pretty clear what BPP means by “profit.”

The moral of this tale? Aside from the obvious (avoid amateur publishers), there are several.

First, royalties paid on profit is never a good thing to see in a publishing contract. Second, if your publisher wants to recoup its production costs out of what should be your royalty income, it's nothing more than back-end vanity publishing. Third, read your publishing contract carefully, and consider the meaning of every word. Fourth, contract clauses don't exist in separate vacuums: They have bearing on one another. Wording in one clause can substantially change the impact of wording in another, or clarify a previous clause whose wording is vague or ambiguous.

And finally, as always: Caveat writer. It is your responsibility to understand the contracts you sign--or, if you don't, to obtain advice from someone who does.

13 comments:

Marian said...

Thanks, Victoria, that was a cautionary tale. And the part about the publisher getting "very possessive" about books because they're part of the "family" sounded disturbing, to say the least.

There seem to be so many ways that amateur publishers can bleed writers. I just hope none of the Blu Phier authors end up too badly off.

By the way, I've always mentally pronounced the name "Blue Fear" rather than what it's supposed to be, "Blue Fire".

Deirdre Mundy said...

Phier = fire??? What are they, phish phollowers?

Samuel Tinianow said...

And the part about the publisher getting "very possessive" about books because they're part of the "family" sounded disturbing, to say the least.

Yeah, it reminds me why I shy away from employers who refer to their employees as some manner of family or friends. In my experience, it's usually a sign that you're dealing with poor or predatory management.

Jane Smith said...

"By the way, I've always mentally pronounced the name "Blue Fear" rather than what it's supposed to be, "Blue Fire"."

Me too.

"...I shy away from employers who refer to their employees as some manner of family or friends. In my experience, it's usually a sign that you're dealing with poor or predatory management."

And again, me too.

Once again the writers who got involved are going to suffer. Yet another demonstration of why research is so very valuable.

Deb said...

Warning: rant ahead.

Reading this blog and others, I am getting sick to death of publisher-predators. Caveat writer, yes, but no new writer can possibly do due diligence on every one of these well- or ill-intentioned pubs in time to do much good.

This rant won't change anything. I've been round the racetrack with small presses a couple times now, and no, it's not easy. Even with legit small presses, it was very difficult to find out enough about their business models and ways. I learned while doing, and fortunately I was well treated and not ripped off.

A thank-you now, to WB, AW, Piers Anthony and the legion of others who try to keep writers up to date on these rip-off artists. But I'm getting really tired of the need.

December/Stacia said...

Caveat writer, yes, but no new writer can possibly do due diligence on every one of these well- or ill-intentioned pubs in time to do much good.


With all due respect, Deb, there's no need to practice due diligence with new/start-up publishers. Just avoid them.

If they haven't been around for at least a couple of years, if you haven't seen their books in stores, or--in the case of epublishers--you haven't seen some big, familiar names publish with them, don't submit to them.

JMO, of course. And a house's being in business several years isn't a guarantee against failure. But it does lessen the odds, and makes it much easier to keep track.

ICE said...

It shouldn't have been difficult to do "due diligence" on this particular publisher: the lack of professionalism shone through loud and clear from its website.

Folks, if a publisher's website looks sloppy and incompetent, if the text is in fractured, subliterate English, and if there's any language about the group being a "family" then RUN LIKE THE WIND.

This is not rocket surgery.

Janny said...

"With all due respect, Deb, there's no need to practice due diligence with new/start-up publishers. Just avoid them."

Exactly.

Yeah, it sounds heartless. It sounds like you're "cutting off your potential." It's not. In reality, it's only good business practice. There are business organizations that won't allow people/firms to join until they've been in successful operation for a certain number of years...for a reason.

One thing writers ought to remember, that so many seem to forget: we're not obligated to "rally around" new publishers on the block in order to "help them succeed." While on the surface, it's a great idea to have more publishers on the block rather than fewer--so that we as authors have some choice, rather than feeling like so many members of a cattle call in submitting our work and selling it--sheer NUMBERS of publishers don't make for a wider market. More publishers who compete on equal footing, who set themselves up on a professional basis, who know what in the world they're doing, who have working capital enough to honestly compete, and who meet their obligations EVERY SINGLE TIME...? Those, we need. But far, far too few startup companies meet these criteria--and far, far too many of them turn on the authors and blame the very writers they're claiming to "help" when things go wrong. This kind of "wider market" doesn't help anyone.

Yes, there are exceptions. But that's the meaning of the word "exceptional"--it defies the norm and beats the odds. Our problems as aspiring authors too often stem from being so determined (desperate?) to have a published book to our credit that we overlook all the "oinking" we hear or see in the proposed "publisher" and persist in thinking that WE will end up with the silk purse instead.

How to avoid this particular nightmare? Wait. You can avoid a great deal of hurt, disillusionment, and loss in this business if you're just willing to exercise an iota of patience. Yeah, it's hard. But it's the kind of discipline that, when you do get that wonderful contract with a wonderful publisher, will prove well worth every agonizing moment.

Victoria Strauss said...

December/Stacia said,

With all due respect, Deb, there's no need to practice due diligence with new/start-up publishers. Just avoid them.

Janny said,

One thing writers ought to remember, that so many seem to forget: we're not obligated to "rally around" new publishers on the block in order to "help them succeed."

Amen to both. These are excellent pieces of advice that all writers would do well to heed.

One of the things that people sometimes express puzzlement about is how it is that amateur publishers can survive, even for the short amount of time that many of them do. If they are really so clueless, how can they stay in business for any time at all? The answer: Writers. Writers make it possible for these deadbeats to function, no matter how dysfunctionally--by cutting them a break despite obvious unprofessionalism, by not holding them to the standards to which they'd hold any other business, by ignoring their gut instincts, by not taking the time to learn enough or research enough. The past year of small press implosions has really brought this home to me.

Deb said...

I hear what the other posters are saying. However: I never said anything about start-ups. I also do not believe in my heart that everyone who googles a pub they've never heard of is, by nature, impatient. For my first book I went with a small press which was NOT a start up...there was loads to learn during the next few years that no amount of pre-research would have told me.

Do I share my experience with that pub? Yes. I'd rather have a new writer who considers a small press go into this environment with his or her eyes open. I'd prefer that they have the advantage I didn't have. But I feel that to say every author should go the distance with every small press--it's a tall order.

K, I'm done now.

Shawn James said...

Yeah, writers have to watch our for these obscure publishers like Blu Phier. Sometimes it's best to wait for a good contract than take the first offer.

I feel it's always best to ask questions first before submitting ANYTHING to ANYONE. If they're not willing to give you straight answers RUN. It says a lot about your future business dealings with that publisher.

Writers really need to think about their dealings with a publisher five years from today before signing a contract. If the contract is bad now, it's only going to get worse on things like rights, royalties audits, or what happens when the publisher goes out of business.

Before I submit to any publisher or agent I go onto a board like Absoulte Write, log on here, or do a google search. I avoided a few scammers this way. Saves a lot of money and postage.

I also do a search on some of their titles online. Then I look for them on bookstore shelves, supermarkets, even vendor tables. This says a lot about how they're being distributed and a lot about the effectiveness of their sales force.

The more i'm learning about the publishing industry, the more I learn to look out for the little things. Who owns the rights and who will own what rights is sometimes more important than seeing the book in print.


Ann and Victoria:

There's a copuple of urban (African-American) publishers represnting their authors as their agent. I wanted to know if this is kosher. My gut says this type of contract is fishy because without an agent there to look out for the author's intests (audits, royalties and rights) The author is at the mercy of their publishers when things go sour between them. Plus I think it gives the publisher the opportunity to double-dip on an author's royalties. (Get paid a 15% commission on their author's advance, plus get paid a 15%comission on the author's future royalties in addition to getting a part of the sale of each book)

Anonymous said...

It wouldn't take much due diligence to judge that train wreck of a website. It doesn't cost any more money to code one that doesn't blind viewers.

And since I can post anonymously here, check out this publisher:
http://www.reagentpress.com/

The back story on that one reads like a soap opera, with the owner slash publisher being accused of posting hundreds of reviews about his books on Amazon.

I can't verify any of the claims he makes about best seller status and as far as I can tell, and I could be wrong, the media write-ups he refers to are in some case, news releases sent by his own company.

Mad Scientist Matt said...

I had also signed into the comments to note that, like Marian, I mentally pronounced the publisher's name "Blue Fear." In my case I think it's because I can (sort of) speak German. What would have been wrong with calling it "Blue Fire," anyway, and spelling it normally?

Thanks for your analysis of the contract. Even publishers with more professional sounding names can have shady contracts, and even top publishers like to offer a contract that favors the house.