Friday, April 25, 2008

Victoria Strauss -- Precautions for Small Press Authors

With the rash of small presses, both print and electronic, going out of business lately, it's a minefield out there for authors. A recent example: Rain Publishing, a Canadian publisher with a seriously nonstandard contract that abruptly closed its doors this month, supposedly due to the ill-health of the owner. This thread at Absolute Write follows the depressing saga from start to finish.

As I've noted before, publisher closures can be a nightmare for authors. While some presses do the right thing and formally release rights before shutting down, others simply vanish, yanking their websites, abandoning their email addresses, refusing to respond to letters and phone calls--and failing to terminate their contracts. Having your rights encumbered by a still-existing contract may make it extremely difficult to interest a new publisher in your book, even if the original publisher is clearly out of business. Writer Beware has gotten hundreds of complaints over the years from writers left in this kind of limbo by collapsing small publishers and micropresses.

How to protect yourself? You never can, completely--small press finances tend to be precarious at the best of times, and even the most assiduous research may not always turn up ongoing problems. But there are some things you can do, both to avoid problem publishers in the first place, and to ensure your contract makes it possible to get free if the publisher goes bust (or if, as sometimes happens, it turns into one of those Jim Jones-like enterprises where all authors have to wear a happy face and toe the party line, and dissent isn't tolerated).

AVOIDING PROBLEM PUBLISHERS

- Be an educated consumer. Don't go into the publisher search blind. Know what to look for and what to avoid. Some resources to help:

What authors should look for in an epublisher, from the excellent Dear Author blog.

More good advice on the same subject, from author December Quinn.

Also from December Quinn: how to evaluate a small print press.

From Write4Kids: how to tell if a new or small press is legitimate.

- Research, research, research. Yes, I know, I say this a lot (most recently, in this post). But many of you aren't listening. If you were, I wouldn't get nearly so much email.

Before submitting to a small press, make sure to thoroughly check it out. Google it. Write to me (beware@sfwa.org). See if it shows up on P&E, or if it's been discussed at Dear Author, Piers Anthony's Internet publishing resource, Clea Saal's Books and Tales, or Absolute Write. Contact some of its authors. Check its books' availability. Evaluate how the books are being marketed. Order a book and read it. This may seem like a lot of work--but if you don't do it and are ever caught up in a publisher closure, I guarantee you will wish you did.

- Avoid new publishers till they've established themselves. That means waiting till they've been in business for at least a year, and have put out a number of books. This gives you at least some assurance of stability and performance. It also allows time for complaints to surface, and makes it possible for you evaluate how (or if) the publisher is marketing its books. For more detail, see my previous blog post on the risks of querying new publishers.

GETTING FREE

- Make sure the contract is time-limited. That way, if the publisher vanishes without returning your rights, you won't have to wait forever to be released. Life-of-copyright contracts make things much more difficult.

- If the contract is time-limited, make sure the term is reasonable. Ten years is not reasonable. Nor is seven. In my opinion, five years is the longest term you should consider. Three years is better.

- If the contract is life-of-copyright or open-ended, make sure there's a termination clause. A good termination clause allows you to terminate the contract at will with adequate notice. Even if the publisher pulls up stakes and vanishes, you can still invoke the termination clause by sending notice to the last-known address.

- Don't give up copyright. Most writers know not to grant copyright outright. But some publishers try to play both ends against the middle by taking copyright temporarily, with the promise to return it when the book goes out of print. In those circumstances, writers may feel that giving up copyright is no big deal--after all, they're going to get it back eventually, right?

Not necessarily. Suppose the publisher gets into trouble and does a bunk. Temporarily or not, you gave up copyright--which means that you no longer own your book. The only way you can regain ownership is if and when the publisher releases copyright back to you. If your publisher vanishes without doing that, you're in a much worse situation than an author who has simply granted rights. Want to re-publish with another small press? Even the tiniest micropress is unlikely to want a book whose copyright is not free and clear. Want to self-publish? That could be a problem too. Most self-publishing services' agreements require authors to warrant that they are the copyright holder.

If this sound far-fetched, it's not. I'm seeing a fair number of small press contracts that take temporary possession of copyright, and no fewer than two temporary-copyright publishers have gone bust in the past year. One of them is Rain Publishing--which, in the first stroke of good luck its authors have had, appears to have sent out releases prior to its demise.

- Don't let the publisher claim copyright on editing. Some publishers claim that they, or their editors, hold the copyright on any editing or copy editing done by the publisher. Some go even farther, claiming copyright on editing done by you if that editing is based on their suggestions. So even if you get your rights back, you regain them only to the manuscript you originally submitted, not to the edited and published version--which, if the editing process was fruitful, may well be the version you'll want to try and re-sell.

For some publishers, claiming copyright on editing has no clear benefit. Why should they care if you use their edits, especially if the reason you're re-publishing is that they've gone out of business? For others, it's a way to make some extra income by charging departing authors a fee if they want to take their edits with them--and also, possibly, to snag a final cash infusion on the way out of business.

Friday, April 18, 2008

Victoria Strauss -- Words on WEbook (Or, Another Reason to Read the Fine Print)

EDITED 5/2/08 TO ADD: WEBook has improved its terms of use, but concerns still remain. See my followup post.
Always on the lookout for strange new phenomena in the world of writing and publishing, I recently discovered a brand-new collaborative writing website called WEbook. WEbook describes itself as "an online publishing platform that allows writers, editors, reviewers, illustrators and others to join forces to create great works of fiction and non-fiction, thrillers and essays, short stories, children's books and more."

How does WEbook work? According to its FAQ page, writers can initiate public collaboration or anthology projects, to which anyone can contribute, Wiki-style. They can form groups for private collaborations, with a limited number of contributors. Or, if they' prefer to work alone, the WEbook platform can be used to produce a single author work. Completed books can then be opened up to the entire WEbook community for ratings, in order to "leverage the wisdom of the crowd to create, rate, and elevate the very best work..." At WEbook's discretion, those top-rated books may then be published.

I could go on about the tired cliches WEbook recycles (again from its FAQ page: "WEbook is the vision of a few occasionally erudite people who believe there are millions of talented writers whose work is ignored by the staid and exclusive world of book publishing"), or the dangers of putting too much trust in the Wiki model (remember Essjay, anyone?). I could discuss A Million Penguins, a wiki-novel sponsored as an experiment by Penguin UK that spiraled wildly out of control, or I could editorialize on my opinion that "the wisdom of crowds" is a contradiction in terms. Call me cynical, but I did my co-op time in the 1980's, and I don't have a lot of faith in collectives.

What I really want to talk about, though, is WEbook's Terms of Use.

According to section 5 of the Terms of Use, WEbook divides the creation of books into three stages: the writing stage (the time between a work being posted on the site and the work being opened up to public feedback or ratings; this stage includes a period of private feedback, where authors can invite selected members to review and comment); the public feedback stage (in which a work is opened up for review and comment by all WEbook members); and the ratings stage (in which the work is opened up to public rating by WEbook members for potential publication by WEbook).

During the writing/private feedback stage, authors "retain ownership of all copyrights in the Content authored by each author," and can remove their work from the site at any time. At the start of the public feedback or ratings stages, however, the author (if it's a single author work) or authors (if it's a collective work or an anthology) "immediately grants WEbook the Exclusive Option to Publish...as set forth in section 6 of this Agreement." Their ability to remove their work also becomes restricted.

What exactly does "Option to Publish" mean?

According to section 6, the option term begins when the work is opened up for public feedback, and ends 180 days after the ratings stage has concluded. During this time, WEbook can consider whether to publish the work. "Publish," as defined by section 6, means "publication of a Work or part of a Work in or as a book, an electronic book, a digital book, a magazine, a journal, a downloadable or electronically transferable file(s), an audio-book, online, a format that can be used with products such as Amazon's 'Kindle' or Sony's 'Reader' (or any device created in the future), and in any other manner that exists now or in the future that enables humans to read, hear, or view the Work."

In other words, nearly all book and serial publication rights, in all possible formats. And that's just the start. If WEbook decides to publish, the author or authors must "assign to WEbook all rights, title, and interest in and to the Content...as set forth in section 9.C of this Agreement."

All rights, title, and interest? Does that sound like a copyright grab to you? It sure does to me. Let's take a look at section 9.C (my bolding):

Member grants, transfers, assigns, and conveys to WEbook, its successors and assigns all worldwide, exclusive, and perpetual rights, title, interests, ownership, as well as all exclusive, perpetual, and worldwide subsidiary, derivative, renewal, termination, control, administrative, and transfer rights, in and to the Work/Content.

To enable WEbook to register, maintain, renew, extend, enforce, and protect its rights in the Work/Content, Member hereby irrevocably appoints WEbook its attorney-in-fact with all powers necessary to sign all such documents (including but not limited to the power of substitution). Member shall not at any time take any action contesting or in any way impairing or tending to impair any part of WEbook's exclusive, worldwide, and perpetual rights, title, and interests in and to the Work/Content.


Wow.

What do writers get for surrendering ownership of their work? According to section 7, a 5% net royalty. No, I did not mis-type that. WEbook pays a royalty of five percent of net. For collaborative works, this amount is pro-rated among contributors--which, depending on the number of contributors and the price of the book, could work out to pennies per author per book (and WEbook doesn't make a royalty payment until at least $50 is due). Single authors do somewhat better--they get to keep a whole 75% of their 5%. The remaining 25% goes to people who provided feedback, "based on WEbook's exclusive and discretionary evaluation of the significance and importance of [their] contributions."

Even PublishAmerica pays better than that.

But wait, we're not done yet. Remember those removal restrictions I mentioned? Prior to the public feedback stage, writers can remove their work from WEbook at will. Once the work has been opened to public feedback, however, and during WEbook's exclusive option term, removal is not allowed. Writers' right to removal returns once the option term has expired--but if they do remove the work, they must agree "in perpetuity to pay WEbook 2.5% of all monies received by Member from Member's sale, license, transfer, or other business transaction of the Content or subsidiary rights in the Content and/or deriving from the Content or subsidiary rights in the Content (including derivative works of the Content)." Essentially, writers must pay WEbook a kill fee if they ever sell an optioned work they removed from the site, or any part, adaptation, or sequel to it.

And we're still not done. WEbook retains "irrevocable" and "perpetual" archival rights to all content ever posted on the site, optioned or not, and "has no obligation to Member to disclose any aspect of how, where, and when WEbook exercises and employs the Archival License." So years from now, your work could still be online--but you'll have no way, other than Internet searching, of finding out where or how.

In my opinion, "rapacious" is not too strong a word for all of these provisions.

Writers using WEbook are not required to open up their work for public feedback. Those who don't will not have to worry about any of the above except for the archival license. A number of groups do seem to be using WEbook for non-publication-related activity: writing exercises, topic discussions, compiling material just for fun. But the lure of publication is strong, and this is certainly what will draw many of WEbook's users--and the site is clearly wooing such users by describing itself (as on its opening page) as an "avant-garde book publishing company [that] applies an interactive approach to the process - in every sense of the word - by using the Internet as a platform to connect truly brilliant writers to print publication."

Proving, yet again, the vital importance of carefully reading the fine print.

WEbook released its first collaborative novel in March. Pandora (currently without a sales ranking on Amazon.com, and apparently not available on Barnes&Noble.com) is described as "a riveting thriller, written by more than 30 writers and other contributors." Only 17 of these contributors appear on the book's cover (only "the most significant contributors" are so recognized, WEbook's FAQ explains). Ten other releases are apparently planned for 2008.

Sunday, April 13, 2008

Victoria Strauss -- Research First, Query Next

You've finished and polished your manuscript. You've assembled your submission package. You've compiled a list of agents or publishers. You're ready for the next step: sending out your work.

So you start submitting--via email if you can, via snail mail if you can't. And you wait. You try not to obsess, but you can't suppress that tingle of anticipation whenever you open your email program, every time you fetch the snail mail from the mailbox. And then--oh joy! Requests start coming in. Requests for partials. Requests for fulls. It's time to do some research to see if those agents or publishers are reputable.

Wait. What's wrong with this picture?

Here's another version of the story. You've finished and polished...etc. Requests come in...you mail off your material. And one day, the moment you've been dreaming of arrives: you get an offer of representation or publication. It's time to do some research to see if the agent or publisher is reputable.

Uh...no.

Writers--the time to research agents and publishers is before you query, not after.

I know that many readers are rolling their eyes at this point and saying "Duh!" But if I had a dollar for every writer who has contacted me post-query to check reputation, I could go on vacation. Sometimes it's inexperience. Sometimes it's laziness. Sometimes it's just that querying by email is so easy. Once upon a time, the cost of paper and postage was a barrier to scattershot querying--but as the submission process increasingly moves online, more and more writers figure they have nothing to lose by firing off a barrage of equeries, and doing the research later.

In a way they're right. Email is free. But they're also wrong. Time isn't free, nor is emotional energy.

It's simply a waste of time to query an agent or publisher that isn't reputable. There's just no reason to do it. I mean, you're not going to sign with an agent who charges a $400 submission fee and has never sold a book, are you? You won't contract with a publisher that wants you to buy cover art and has been the subject of scathing complaints on industry blogs, will you? So why not avoid such agents and publishers right from the get-go? You'll have to spend that research time anyway, if you get a submission request--and you will get a submission request. That's the one thing you can count on with questionable agents and publishers: they'll ask for your work. Because it's not really your work they care about, just your money.

It's also a waste of emotional energy to query an agent or publisher that isn't reputable. Imagine your elation when you're asked to submit. They like you! They really like you! Now imagine the letdown when you discover that the publisher hasn't been paying its authors, or that the agent charges fees and has a sales record of exactly zero. Just like the invitation to submit, the letdown is a given if you approach non-reputable people. Why put yourself through it? Why not eliminate those people in advance?

Don't underestimate the power of desperation, either. Suppose you get all the way to the offer stage before you decide to research the agent's or publisher's reputation. Suppose you discover that there are problems. Suppose you've been querying for a while, and this is the first offer you've received. Will you do the right thing and say no? Maybe you think you will. But I've heard from too many writers who allowed the joy of validation, or the hope that they would be the one exception to a publisher's or agent's history of failure, to overcome their good sense. Saying "no" isn't easy, even when the warning signs are right before your eyes.

So don't waste your time. Don't squander your emotional energy. Don't risk putting yourself in a situation where desperation or frustration or just the need for recognition may drive you to make a bad choice. Research first. Query next.

Tuesday, April 08, 2008

Victoria Strauss -- Tidbits

Items that piqued my interest over the past couple of weeks.

Amazon Breakthrough Novel Contest Winner

Sauron...excuse me, Amazon.com has announced that the winner of the Breakthrough Novel Award is Bill Loehfelm, author of the mystery novel Fresh Kills. Loehfelm wins a $25,000 publishing contract with Penguin, which will issue the book via its Putnam imprint on July 31.

As with the first First Chapters competition, the rush to print is no doubt intended to beat the public's short attention span and take advantage of the publicity generated by the award. According to PW, Penguin hopes to have a galley on hand at the upcoming BEA.

Russell Grandinetti, Amazon Vice President for Books, said that "the contest received a tremendous response, and hit its cap of 5,000 submissions two weeks before the deadline. Submissions came from 18 countries and every state, and more than 30,000 Amazon.com customers downloaded excerpts of the submitted novels." Will that translate into sales for Mr. Loehfelm? Only time will tell.

Congratulations and best of luck to Mr. Loehfelm.

New Imprint from HarperCollins

Robert S. Miller, founder and president of Hyperion, is moving to HarperCollins to start a new imprint with, according to the announcement from Harper, "the aim to combine the best practices of trade publishing while taking full advantage of the internet for sales, marketing and distribution." Details are preliminary, but the imprint will focus on short, lower-price nonfiction hardcovers, will pay low or no advances, and will be dividing profits 50/50 between publisher and author rather than paying conventional royalties. Books will be issued simultaneously in multiple formats, with ebook and audio versions possibly offered along with the hardcovers at no extra cost. The imprint will also aim at selling books on a nonreturnable basis.

At first glance, this is reminiscent of the Macmillan New Writing experiment, which publishes novels from unagented debut writers on a no-advance basis. In fact, there's not a lot of similarity. Other than not working with agents and not paying advances, Macmillan seems to follow the basic trade fiction publishing model. Harper's experiment sounds far more, well, experimental, jettisoning not just advances, but traditional payment structures and bookselling protocols. Significantly, also, it does not exclude agents.

This story has received a fair bit of news coverage, and has spurred much buzzing in the writing community (along with some unfounded rumors, such as the notion that Harper will be eschewing bookstore distribution and selling the books solely online). Given that many things are likely to change as the new imprint shifts from concept to reality, it's premature to do much commenting at this point. But it will be fascinating to see how this shakes out.

PFD goes POD

Troubled uber-agency Peters Fraser Dunlop recently announced that it will be entering into a POD arrangement with Lightning Source to re-publish out of print works from clients and clients' estates. (According to The Guardian, the books will be sold on Amazon.co.uk, so the recent flap over BookSurge shouldn't be a factor here.)

Quoted in The Guardian, PFD's Marcella Edwards describes the plan as "a logical way of plugging gaps that publishers can't fill," and claims that PFD is not turning into a publisher. But the UK's Society of Authors is not amused. According to Kate Pool, the Society's deputy general secretary, "An agency sitting back and saying you can find this book listed on a website is very different from trying to find a publisher who'll take these titles on and bring them back into print. The agents' role is to go out and get the best deal they can. [PFD] seems to be taking 90% of the money for no work."

I agree. Agency as publisher? It's a huge conflict of interest. If an agency can re-publish out of print works itself and reap most of the profits (according to a The Guardian, authors will be paid a flat 10% royalty), what incentive does it have to market those works to other publishers? At what point might it start to seem appealing to offer a publication option to all clients, rather than just those with OP books?

PFD isn't the first to make this move. Richard Curtis's Ereads offers a similar program--and faced similar criticism when it started up.

Magic Lantern

One of the strategies often advised for agent-hunters is to find books similar to theirs in theme, subject, tone, style, and/or genre, and try to find out who agents them.

This is much more difficult than it sounds--not the agent-finding part, which is relatively easy for resourceful search engine users, but the book-identifying part. Genre isn't so hard, nor is theme or subject--but tone and style? How do you quantify something so elusive? And supposing you can, how do you identify similar books?

Here's an intriguing possibility: Booklamp, "a system for matching readers to books through an analysis of writing styles...The technology behind BookLamp allows you to find books that are written with a similar tone, tense, perspective, action level, description level, and dialog level, while at the same time allowing you to specify details." So if you think your manuscript has something of the feel of Kafka, only more humorous, you could plug those specifications into Booklamp and it would, theoretically, spit out a list of matching books.

Kewl? Sure. On the flip side, though, Booklamp presents some knotty copyright issues. In order to make those matches, Booklamp must presumably scan entire books into its database, which it may or may not have permission to do--much like Google and its Google Books Project. Except that unlike Google, Booklamp doesn't list the books it has scanned, so authors who may not want their books to be part of such a system have no way of discovering whether or not they are.

On its FAQ page, Booklamp claims that its use of the copyrighted material is transformative and/or covered by fair use. Booklamp is in beta at the moment, but if it goes live, I expect those claims will be tested.

Friday, April 04, 2008

Victoria Strauss -- The Authors Guild on Amazon/BookSurge

I received this email from the Authors Guild today, with permission to re-post.

*********

Last week Amazon announced that it would be requiring that all books that it sells that are produced through on-demand means be printed by BookSurge, their in-house on-demand printer/publisher. Amazon pitched this as a customer service matter, a means for more speedily delivering print-on-demand books and allowing for the bundling of shipments with other items purchased at the same time from Amazon. It also put a bit of an environmental spin on the move -- claiming less transportation fuel is used (this is unlikely, but that's another story) when all items are shipped directly from Amazon.

We, and many others, think something else is afoot. Ingram Industries' Lightning Source is currently the dominant printer for on-demand titles, and they appear to be quite efficient at their task. They ship on-demand titles shortly after they are ordered through Amazon directly to the customer. It's a nice business for Ingram, since they get a percentage of the sales and a printing fee for every on-demand book they ship. Amazon would be foolish not to covet that business.

What's the rub? Once Amazon owns the supply chain, it has effective control of much of the "long tail" of publishing -- the enormous number of titles that sell in low volumes but which, in aggregate, make a lot of money for the aggregator. Since Amazon has a firm grip on the retailing of these books (it's uneconomic for physical book stores to stock many of these titles), owning the supply chain would allow it to easily increase its profit margins on these books: it need only insist on buying at a deeper discount -- or it can choose to charge more for its printing of the books -- to increase its profits. Most publishers could do little but grumble and comply.

We suspect this maneuver by Amazon is far more about profit margin than it is about customer service or fossil fuels. The potential big losers (other than Ingram) if Amazon does impose greater discounts on the industry, are authors -- since many are paid for on-demand sales based on the publisher's gross revenues -- and publishers.

We're reviewing the antitrust and other legal implications of Amazon's bold move. If you have any information on this matter that you think could be helpful to us, please call us at (212) 563-5904 and ask for the legal services department, or send an e-mail to staff@authorsguild.org.

Wednesday, April 02, 2008

Setting the Record Straight on April 2nd...

It's rather a tradition here at Writer Beware to make a joke post on April Fool's Day. I think this is the third or fourth time I've done it.

To me the idea that PublishAmerica could actually acquire DISNEY was so patently absurd that the joke would be obvious. Apparently, however, there are a number of folks who just didn't get it. To those individuals, I apologize for spoofing them, seeming self-centered, conceited, etc.

Just for the record, everything I wrote up until the point where I mentioned Atlanta Nights and Touchstone happens to be true. After that, it was a complete fabrication, cooked up in my febrile little brain, intoxicated by the rites of Spring and a warm April 1st.

-Ann C. Crispin

Tuesday, April 01, 2008

Some Really Bad News...

You folks know I'm a private person. I don't usually write about what's going on in my life. That's not the purpose of this blog. But I just got some very bad news, and I feel I need the support of my friends...and you, the supporters of Writer Beware, have always been people I've regarded as friends.

Until this morning, everything was going so well...I was energized and excited by my two new projects. But now...everything has fallen apart. I'm afraid my writing career may be over. You see, I had signed last year to do a very important project for Disney. I was so proud to be chosen from among many writers in my genre to be the first writer contracted to do a full-length Pirates of the Caribbean novel. I LOVED those movies, and it seemed like a dream come true that I'd get to be the first writer to write a full-length novel in that universe. Even when I found out I wouldn't get to meet Johnny Depp, I just nodded and kept smiling. (Can't blame a girl for trying, can you?) My Disney editor was wonderful, and the project, though challenging, held out hopes for being a bestseller.

And as soon after I signed the contract for the Pirates of the Caribbean novel, another completely unexpected offer dropped into my lap, to occupy my time in 2009. It seems that the publicity surrounding Atlanta Nights, as well as all the steamy sex scenes in jail cells and at funerals had caused Touchstone to option the book for a major motion picture to appear next year And I was the writer they signed to do the novelization!

But now all my hopes are dashed, lying in ruins. My agent just called to give me the BAD NEWS. It seems that Disney has been acquired by a new, up-and- coming publishing company, one that wouldn't hire me on a bet. One that has good reason to detest both me and Writer Beware. Matter of fact, I'm their Public Enemy No. 1.

It's only a matter of time before they see my name on those contracts and pull the plug. PublishAmerica would never allow me to write for them in a zillion years. Woe is me...

-Ann C. Crispin