Friday, March 30, 2012

PublishAmerica, Literary Agent: An Inside Look

Posted by Victoria Strauss for Writer Beware

A little while back, I blogged about yet another of the ways in which PublishAmerica was attempting to extract cash from its authors: a fee-charging "literary agency."

In the announcement that introduced this brand-new "service," PA claimed that its Literary Agency Department would "market your book to big ticket publishers such as Random House, Simon and Schuster, HarperCollins, Penguin, the new Amazon publishing company, but also university presses and independent publishers, and to a host of foreign publishers all over the world. We also work with Hollywood studios and producers..."

Needless to say, many people were skeptical (to put it mildly) of this venture (see, for instance, the comments thread on my post), especially since there were so few details of the literary agency's inner workings, apart from a bunch of agents with no last names (here's Agent Emily). What would PA do to earn the $199 fee? Would they be marketing new manuscripts, their own books, or both? Would they even send out submissions at all?

In a recent post on his company's blog, the editor-in-chief of Divertir Publishing, Ken Tupper, provided answers to some of these questions. He's given me permission to reproduce his post here.
The story you are about to read is true. Some names have been changed to protect the less-than-innocent…

In May, 2011, Victoria Strauss at Writer Beware wrote an excellent blog about how a certain “traditional publisher” had started a fee-charging literary agency. I’ve recently started to receive queries from this agency (along with other fee-charging agencies), and I thought it was important to write this blog and share my views on the quality of the queries from the fee-charging agencies that contact us.

In the case of the publisher-turned-agency, we received a query that contained a list of 22 manuscripts (none in genres we publish) that included nothing more than the title, author’s name, and a link to the product page for each book.

I sent a reply noting how unprofessional the query was and suggesting that no publisher would take the time to click through a list of 22 links to find out what each book in a query letter was about. The response: another query that included 5 manuscripts with a 1-2 sentence description of each title (taken directly from the product page) in addition to the product page link.

That’s right. For the $199 fee this agency-turned-publisher charges, the links to your manuscript’s product page and the pages for 5 to 20 of its “closest book friends” are being sent like spam to publishers, with inadequate descriptions of the titles and no discussion of the merits of the individual works or why they would be a good fit for the publisher. The publisher-turned-agency couldn’t even be bothered to send separate query letters for each manuscript.

In general I’ve noticed three common trends for queries from fee-charging agencies. First, it is usually apparent that the agent has not taken the time to learn much about Divertir Publishing and what we publish.

Second, almost none of the queries follow our submissions guidelines – which is an automatic rejection.

Finally, the query letters are much like the one from the agency above, with no discussion of the merit of the manuscript or why I should even be interested in reviewing it.

The simple truth is that most fee-charging agencies make their money off the authors they represent, selling everything from representation to critiques to editing services. Selling the rights to your book is often an afterthought. If you decide to consider this type of agency (which I do not recommend), ask the agent a simple question before sending your first payment: Where has the agency placed works for the authors they represented in the past? If the only answer they can give is that they have placed manuscripts with a “sister company” of the agency, you might be better off investing your money elsewhere.

For this publisher-turned-agency, the real question is the one you need to ask yourself – is a query letter containing 22 manuscripts with no descriptions really the best representation for your manuscript, and should you be paying for this type of representation?

Caveat Emptor.

Indeed.

Over the past year, I've heard from a couple of other small presses (but no "big ticket publishers") that received submissions from PA "agents." Some were like the blitz submission Dr. Tupper describes above; others were queries for single books, and actually made an effort to follow the publisher's guidelines. All were for books currently published by PA.

When one of the presses asked how exactly how things would work, given that PA still held the publishing rights, they were told that PA would "happily" transfer all rights for $1. 

Wednesday, March 28, 2012

To Our Readers: Thank You

Sometime over last weekend, the Writer Beware blog passed the 20,000 subscriber mark!

We'd like to offer a heartfelt thank you to all our readers and subscribers for their attention, support, and participation (we love comments! We love questions!) We couldn't do what we do without you.

Huge appreciation also to those who contact us with complaints, alerts, information, and documentation--we rely on you to help us build our database, and we're honored by your trust in us.

Last but most certainly not least, our gratitude to everyone who links to us, re-tweets us, recommends us, and otherwise helps us get the word out.

THANK YOU!!!

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

Tuesday, March 27, 2012

Alert: Raider Publishing International / Purehaven Press

Posted by Victoria Strauss for Writer Beware

I've gotten a lot of questions about Raider Publishing International over the years. Founded by a former (and disgruntled) PublishAmerica author, it's basically a self-publishing service with some added bells and whistles.

Despite what started out as pretty reasonable package prices (by the standards of similar services), and an initially positive review from Mick Rooney at the Independent Publishing Magazine, Raider hasn't been a company I'd recommend, due in part to its origins in inexperience, but also to an unusually restrictive contract for this sort of service.

Raider's prices have risen over the past couple of years. Currently ranging between $899 and $4,499, with a menu of costly add-ons, they're now on a par with many of the Author Solutions brands. Could these increases have been made necessary by the company's efforts to expand--including establishing a brick-and-mortar bookstore to carry Raider titles? Perhaps. But with expansion, sometimes, comes trouble.

Over the past few months, I've begun receiving a steady trickle of complaints about Raider, where before I only received questions. I'm not the only one; as a result of the negative feedback he's gotten from Raider authors, Mick Rooney has revised his once-positive review of Raider to "not recommended." Other complaints can be found online--at Ripoff Report, for instance, and Scam Informer (I always take websites like this with a grain of salt, but in this case the complaints are quite consistent, and the problems reported reflect the reports I've been getting).

Author complaints include publication delays of up to 18 months (according to Raider's FAQ, books are published six to eight months after contract signing, unless you pay for a fast-track option; several of the authors I've heard from are still waiting for publication and fear their money is lost); quality issues (poor editing, poor design, finished books full of errors); trouble getting royalty statements and/or payments; communications problems (being shuffled from email address to email address within the company, or not being able to get any response at all; several authors say that as soon as they sent in their fees, communication ceased); and broken promises (repeatedly missed publication dates, author copies never received, promised marketing services not provided, substantial delays despite payment of the fast-track fee).

Raider currently has an A rating with the Better Business Bureau--which says more about the BBB's lack of usefulness for assessing publishers than it does about Raider's reputation. The BBB gives an A rating by default and doesn't change it as long as a company is willing to respond to complaints. The BBB does show six closed complaints for Raider--and it's interesting to note that they show the same sudden complaint surge that I'm seeing. Five of the six were closed in the past 12 months.

Possibly in an attempt to escape the negative press that's starting to accumulate, Raider has just launched Purehaven Press, which offers very similar services to Raider, both in details and in cost. As Mick Rooney says,
Sometimes it makes sense for a publisher - or subsidy publisher - to start another imprint. The company may be considering a completely new business strategy, or new line of services. But when that new imprint looks to be a mirror of what has gone before, you wonder...
And when the "parent company" is having major troubles, the odds of the baby company being trouble-free are pretty slim. Writer beware.

EDITED 12/13 TO ADD: Purehaven Press is now defunct.

EDTED 7/14 TO ADD: Adam Salviani has started a new venture, Green Shore Publishing, in the UK. See my blog post.

Friday, March 23, 2012

The Con Man Who Tried To Buy Writer Beware's Silence

Posted by A.C. Crispin for Writer Beware

I thought Writer Beware's readers might be interested in hearing about the only time I’ve ever had a face to face meeting with a known writing scammer. I still laugh when I remember that day.

You see, once upon a time the perpetrator of a bogus writing contest tried to bribe me into keeping mum about his chicanery.

Remember Mitchell Graham--real name Mitchell Gross--the writer who set up a fake writing contest in order to promote his debut fantasy novel, and later on--much later--turned out to be a serial con artist? (Victoria blogged about Mitchell a few weeks ago, in connection with his indictment on charges of wire fraud and money laundering for allegedly luring a woman into investing millions of dollars in a phony company.)

The contest was the Delmont-Ross Writing Contest, with a $5000 prize, and prominent s.f. writer Ben Bova was hired to judge it. Trouble was, there was only one entry...Mitchell's own. So of course Ben declared the sole entrant to be the winner, which was according to the rules. (Ben thought this odd, but rules are rules, and most writers aren't as scam conscious as Victoria and I are.)

So Mitchell Gross won his own contest. Writer Beware did a lot of computer searching and tracing before we were able to link the contest with Mitchell's own financial projects, because it was pretty well hidden. We also verified that the contest had no link (as had been implied to us) to Merrill Lynch--though it was linked to Mitchell's own "front" business, the Merrill Company.

Aha. When I went to DragonCon that year, I was on a panel with Mitchell, the brand new shiny contest winning author who'd just had his brand new "award winning" book released from HarperCollins. Matter of fact, I sat next to him. When the time came for me to do my usual brief Writer Beware summary, I was careful to mention that the "Delmont-Ross Writing Contest" was bogus, and by all means don't send them any entries.

I didn't look at Mitchell as I was talking. But I'd stationed a friend in the second row of the audience, with orders to watch his expression. The moment I said the contest's name, his face took on a startled, then panicky expression, then smoothed out very quickly. Con artists get good at that.

Heh heh, I thought. So he knows we're on to him. He won't attempt to milk anyone else with his "contest." And he didn't.

But that's not the end of the story. Returning from DragonCon, I had barely walked in the door of my house when my home phone rang. It was Mitchell.

"Say, Ann," he said in a breezy tone, "I found your cellphone case right below where you were sitting at the panel. Did you miss it yet?"

"Can't be mine," I said, puzzled.

"Oh, you need to check," Mitchell insisted. "I'm sure I saw it while we were sitting there. And there's five hundred bucks in the front compartment. I'll send it right up to you, Fed Ex. You'll have it tomorrow."

OHO!

For a moment I was struck speechless by the sheer ballsiness of a guy who assumed everyone was as dishonest as himself. Then I shook my head and grinned an evil grin.

"Nope, Mitchell. Can't be mine. I don't have a cellphone case."

"Are you sure?" He sounded less sure of himself now.

"Yes, positive. Oh...and congratulations on winning such a...prestigious...contest."

Silence on the other end. Then he said, quietly, "Thank you."

"I have to go now," I said. "Bye."

And that was my only face to face encounter with a writing scammer. Of http://www.blogger.com/img/blank.gifcourse, since that time, Mitchell has gone on to bigger and better things. He now faces up to 20 years in prison.

-A.C. Crispin
Chair, Writer Beware
www.writerbeware.com

Tuesday, March 20, 2012

Publishing Industry Terms and Contracts: Some Resources, and Some Advice

Posted by Victoria Strauss for Writer Beware

On my last post, a reader posted this comment:
Can you recommend a site where publishing contract terms are, if not discussed, defined (and maybe have a note like "This is good, this is okay, this is bad")? I know I'd have an attorney explain any contract to me anyway, but it would be nice to have some working knowledge to begin with.
Like many other things to do with publishing, there's no one definitive source for this kind of information--you have to pull it together from multiple locations. Below are some resources that I've picked up in my travels around the Internet.

(Always, always vet the source for information like this. Make sure that the individual or group compiling it is qualified to do so. One of the things that's never in short supply on the Internet is bad or outdated or incomplete information put together by people who know even less than you do.)

Glossaries of Publishing Terms

- Author and former literary agent Nathan Bransford provides a pretty good set of definitions.

- Here's another glossary, from the Association of American University Presses (this includes a lot of terms that have been made obsolete or nearly so by digital production).

- Yet another glossary, from The Editorial Department.

- A glossary specific to children's book authors, from author and editor Harold Underdown.

Publishing Contract Resources

- SFWA's page on publishing contracts. I provide this with a major caveat: ignore the model contracts, which are so outdated as to be nearly useless. Do check out, however, "An Introduction to Publishing Contracts," which provides a helpful discussion of many publishing contract clauses and terms.

- This article from publishing and entertainment attorney Lloyd J. Jassin is written from the publisher's perspective, but provides a helpful checklist of the components of a book contract.

- Advice on book contract clauses from intellectual property lawyer Daniel Steven.

- The Authors Guild on improving your book contract.

- A checklist of publishing contract deal terms, from IP attorney Howard G. Zaharoff.

- David Koehser, also an IP attorney, provides advice on how to read a publishing agreement.

- Agent Rachelle Gardner on the book contract clauses she is most likely to negotiate.

- KeepYourCopyright.org provides examples and discussion of actual book contract clauses, good and bad.

- Publishing lawyer Mark Fowler provides some suggestions on resources for getting advice and information on publishing contracts.

- If you'd like experience-based feedback on your publishing contract (not legal advice--I am not a lawyer), you can email me: beware [at] sfwa [dot] org. (What does it say about me that I enjoy reading publishing contracts?)

Some General Comments

Most of the above resources assume that you are dealing with a professional trade publisher--which may be large or small, but is run by people who know how to acquire, edit, produce, distribute, and market books. Of course, no matter how reputable the publisher is or seems, you always need to watch your butt. Here's one example of why, from several years ago: a change in Simon & Schuster's boilerplate language that made rights reversion much more difficult.

But there are also enormous numbers of not-necessarily-very-professional small presses out there, whose staff may not be terribly experienced or knowledgeable--and with these, you REALLY have to be careful, since they may not have a good understanding of contract terms, or even be aware of what a publishing contract ought to include.

I often see small presses using a contract template they've picked up from somewhere, which may employ outdated terminology (such as referring to plates or unbound sheets) or contain unnecessary language (such as including a revised editions clause in a fiction contract) or make inappropriate claims on subsidiary rights (a larger publisher may be able to do something with translation rights, for instance, but there's no reason in the world for a cash-strapped, contactless small press to claim them).

These templates may not have been especially author-friendly to begin with. Or they may have been altered to make them even less author-friendly--such as allowing the publisher to edit at will without input or permission from the author (something I see a lot in small press contracts), or paying royalties on net profit rather than on list price or the publisher's net income, or requiring a permanent or temporary transfer of copyright.

It's also possible that the small press has created the contract itself, which, if it didn't receive expert advice, can result in unintelligible language, or copyright confusion, or perpetual options on series and sequels, or outrageous reversion clauses--or even no reversion clause at all (a big problem if the contract is life-of-copyright). Important clauses may be missing--the publisher may not be required to print a copyright notice, for example, or there may not be a defined period of time in which the publisher must publish or else return rights. A termination fee is another red flag, not only because it doesn't benefit the publisher, but because the publisher can use it abusively.

Small presses, unfortunately, may be less willing to negotiate their contracts than bigger, more professional publishers. However, if you receive a contract that's full of omissions and/or bad clauses, negotiation probably isn't the answer anyway. A publisher's contract says a lot about its attitude toward authors and the business of publishing. Even if you could get the publisher to remove the termination fee and the temporary copyright transfer, and option only your next work in the same genre, do you really want to go with a publisher for which such demands are the default position? 

Good reason to be careful out there.

Friday, March 16, 2012

When is a Dodgy Publisher Like a Stopped Clock?

Posted by Victoria Strauss for Writer Beware

A stopped clock is right twice a day. A dodgy publisher is right...well, less often. But sometimes.

I'm thinking of one publisher in particular--about which Writer Beware has gotten a LOT of complaints--that advertises itself by claiming that it pays 50% royalties. That sounds impressive, right? Except that what the big print giveth, the small print taketh away.

If you're unlucky enough to get an offer from Dodgy Publisher (and just about anyone who submits does), the contract reveals that the 50% isn't quite what you may have expected. It's actually 50% of what's left over after printing costs have been deducted from "the sale price."

Bad enough to have printing costs taken out. But what writers who aren't familiar with dodgy publisher-speak may not realize is that "sale price" doesn't mean list price, but the publisher's net income--the money it actually receives from retailers and distributors, which, because of discounting, may be as little as 40% of list. (This is what's known as a net profit royalty--and it's not a good thing.) So instead of getting $7.50 on the sale of each of your $15 books, you might actually receive as little as $1 ($15 x 40% = $6, less $4 for printing = $2 x 50%).

Not exactly what you were dreaming of.

Many authors, unfortunately, don't read their contracts carefully enough, or don't recognize the misleading terminology, or are just dazzled by the hype. I recently heard from an author who was convinced that Dodgy Publisher had breached his contract because it had paid him a royalty of around $1.75 on a $15 book--rather than the $5.50 he believed he was due (50% of $11, assuming a $4 printing fee).

His assumption, of course, was that the royalty calculation would always be based on list price. But the books had been purchased from a major online retailer. When he contacted the staff at Dodgy to demand that they pay the full 50%, they gave him quite a reasonable explanation of wholesale discounts and net income. He wasn't prepared to accept this, though--not only because of his confusion about the meaning of "sale price," but because he was certain that "wholesale" meant "purchased in bulk," while these books had been bought one at a time.

So he wrote to me. I had to explain to him that Dodgy Publisher--which had taken advantage of him in plenty of other ways--was actually having a stopped clock moment: its explanation was entirely correct, and although its contract terminology was deliberately confusing, there was no breach. It was painful to take Dodgy's side, but in this case I had to do it.

Writers are a cautious (not to say paranoid) bunch. But I often see them worrying about the wrong things. My correspondent became incensed when he believed his royalty payments were being shorted, but apparently had no problem with Dodgy's print cost deduction. I also often hear from writers who are distressed about perfectly reasonable contract provisions--such as the standard list of author warranties--yet overlook really heinous language, such as a perpetual option on future works, or royalties that are cut in half for sales at standard wholesale discounts, or the absence of a reversion clause in a life-of-copyright contract.

It's so important not just to read and understand the fine print (my mantra), but to constantly pursue knowledge about writing and publishing (while always being discriminating about the source) so you'll know how to properly evaluate the opportunities (or pitfalls) that come your way. The more you know, the better armed you will be against Dodgy and its ilk.

Friday, March 09, 2012

When a Writing Contest Has a Hidden Agenda

Posted by Victoria Strauss for Writer Beware

If you've been reading this blog for long, you may have guessed that I'm not a big fan of writing contests.

Partly this is because so many contests are a waste of time, with minimal prizes, negligible prestige, and zero cachet on your writing resume. Why not spend your energy on something that can get you closer to building a readership--submitting for publication, or publishing on your own if that's what you want to do?

There's also the risk of bad stuff in the entry guidelines--such as the MeeGenius Golden Owl Contest, where simply submitting constitutes agreement to publish and acceptance of a publishing contract that claims rights in perpetuity. Writers who don't read the fine print carefully enough may find themselves trapped by such provisions.

And then there are the contests with a hidden agenda: making money for the sponsor.

Published Book Contest Moneymakers

There are any number of moneymaking contests that focus on published books. Their M.O.: a huge entry fee, dozens or scores or even hundreds of entry categories, and the sale of additional merchandise to winners and honorees. Prizes are typically things that cost the sponsors little or nothing (website features, electronic press releases, vague promises of publicity campaigns). Judges are never named--and may not exist--and, although commercially published books are sometimes declared winners, the contests are marketed mainly to small press and self-published authors.

For instance, the USA Best Book Awards and the International Book Awards, both sponsored by JPX Media. Each contest has a $69 entry fee, over 150 categories, a prize that basically consists of a feature on one of JPX Media's websites, and the "opportunity" to purchase award stickers and certificates. If just 500 people enter each contest (and I'm guessing that's an extremely conservative estimate), JPX grosses $69,000--and that doesn't even include the extra income from sticker and certificate sales.

Other published book contest moneymakers include Readers Favorite ($89, over 70 categories, plenty of adjunct merchandise and services for sale) and the Pinnacle Book Achievement Awards ($90, over 40 categories; the current entry deadline is March 16, with winners announced in "late March," which wouldn't seem to allow much time for judging). 

(A side effect of such faux contests: the opportunity they afford vanity and otherwise dubious publishers to present a gloss of legitimacy or to make an extra buck.)

Unpublished Manuscript Contest Moneymakers 

Another kind of contest with a hidden moneymaking agenda is conducted by fee-charging publishers. These contests focus on unpublished authors, and since entry fees are small or nonexistent, and prizes often involve a promise of fee-free publication, they can seem very attractive. Beware, though: the contest may be mostly, or partly, a way for the publisher to gather a pool of potential paying customers.

For instance, the Deep River Books Writer's Contest, the 2011-2012 results of which were just announced. Deep River Books (formerly VMI Publishing) is a "partner publisher" that requires authors to buy a minimum of 1,000 books. This year's winners received non-fee contracts; other entrants were recognized for various degrees of merit. They were also solicited for publication.
I wanted to be the first to Congratulate you! Your manuscript received “Honorable Mention” in the 2011-12 Deep River Books Writer’s Contest. And while you did not win first place, “Honorable Mention” is a significant achievement when you consider there were over 400 contest entries. You are to be applauded for what you have accomplished.

As you know, Deep River Books is a full-service partner publisher. Our goal is to publish the best manuscripts from new authors, and we certainly feel yours could fit into that category. Due to the high score your manuscript achieved by our judges, I would like to send your manuscript through our regular editorial review process for possible publishing by Deep River Books.

If your book were to be selected by our editorial review board, we would make it a “Feature Title” which includes media coverage and an invitation to be a featured author signing books at our booth during next year's International Christian Retail Show where over 10,000 people, including many bookstore owners/buyers attend. It would also be a featured title at the Deep River Books website.

And because of the “Honorable Mention” status in the contest, we plan to offer you a $500 discount off our standard partnership program as an added incentive, if your book is selected by our in-house editorial team for publication.

This letter (which concludes by assuring the recipient that their manuscript was "a joy to read") sounds personalized, but it's not. Other contest entrants received identical solicitations. I can't help thinking of the "free contests" conducted by vanity anthology companies, where just about everyone who enters is declared a semi-finalist and offered publication, along with the chance to buy the anthology in which their work appears.

So even if a fee-charging publisher's contest sounds attractive, be aware that it may have a hidden agenda, and that entering may make you a target for a sales pitch.

Tuesday, March 06, 2012

Why You Can't Always Trust the Source

Posted by Victoria Strauss for Writer Beware

Many writers assume that a literary agent's inclusion in a market guide or listing--whether it's a print book, such as Jeff Herman's Guide, or a website, such as QueryTracker--is an imprimatur of reputability. Surely the agent wouldn't be listed if there were any questions about his/her honesty or competence.

But the worst market listings--which may have been compiled by people who aren't very expert (like this one), or may be the corpses of once-active resources that haven't been updated in years (here's an example), or may be databases where every Tom, Dick, and Harriet can create an entry, no matter their qualifications or ethics (WritersNet is a case in point)--may be full of questionable agents. And even the best may allow some undesirables to slip through.

For instance: Publishers Marketplace, which in my opinion is one of the most useful websites around for researching agents and keeping up with the US publishing industry generally. PM offers a wealth of solid information, and is one of the few membership fee resources of its type that I consider to be worth the investment.

However, PM is a membership site--which means that anyone who is able to pay the fee is free to join. While the fee does provide a deterrent to disreputable people, and the great majority of agents on PM are real and reputable, bad apples do sometimes turn up. Two recent listings provide red flag-filled examples.

Listing #1: Linda Cooper at Literary House

Red flag #1: The opening sentence, which I think requires no further comment: "I'm an [sic] hungry hunter... YES, but only of... bestsellers!!!"

Red flag #2: For an agent supposedly located in Chicago and selling to US publishers, she sure writes bad English. This is not really something that enhances a publisher submission.

Red flag #3: A fee of $120, though there's some disagreement between PM and the agency's website on exactly what the fee is for.

Red flag #4: The agency's website.

Red flag #5: Delusional submission procedures.
We offer you a good literary file (about 9-10 pages written by me, an english literary agent, a literary critic (Us, Uk), a tv agent, and an expert in advertising about book) and this is the perfect "material" for the best publishers. If we consider your creation a good product, we contact the publishers sending this file, and we can offer you a quick response (about 7 days! Not more!).
Red flag #6: Big claims ("PUBLISHED AUTHORS: 90% [2009], 91% [2010], 93% [2011]"), zero specifics. If sales claims can't be verified, they might as well not exist (and in fact, probably don't).

Red flag #7: Beware of an agent who uses a stock photo.

Listing #2: Alexis Avi

Red flag #1: Another unfortunate opening sentence: "I'm a literary agent who loves this job!" Oh, goody.

Red flag #2: Dear me--more bad writing and spelling (unless "mistery" is a new fiction genre I haven't heard of).

Red flag #3: Stealth agents. Googling the names of the four agents who are supposedly part of this agency turns up nothing whatsoever related to writing or publishing. This might be understandable if the agents were new--but for the kind of experience that's being claimed (15 years, in one case), it's a tad implausible.

Red flag #4: Stealth clients. A spot check on client names not only turns up no sign of published or about-to-be-published books, but in some cases turns up no sign of clients. Hint to fake agents: if you're going to invent your clients, calling them things like Omi Wonn, Mariangela Thunder, and Tom Hooberg is not the best idea. For heaven's sake give them common names, so a websearch won't make it so obvious that they're bogus.

Red flag #5: Big claims ("114 clients-published authors"), zero specifics. Reputable agencies name their published books--it's a form of advertising.

Red flag #6: Beware of an agent who uses a stock photo.

Wait. A stock photo? Again? What are the odds that two agencies would simultaneously utilize this unfortunate strategy?

And--hmmm--there are some other odd similarities. Both agencies are looking for "thriller horror," a term I've not seen used anywhere else. Cooper claims that "big EDITORS PUT SUBMISSIONS FROM US TO THE TOP OF THEIR PILE," while Avi avers that "in fact editors put our submissions to the top of the pile." And check out the submission requirements, which, while different, are couched in identical terms. Avi:
If you want, you can contact me.
alexisavi.agent@gmail.com
Put in the subject line: "query_title of the book_your name".
Cooper:
If you want,
you can send me all material (certified mail): info@agenzialetterariaidolidinchiostro.com
Put in the subject line "QUERY_your name and surname_literaryfile".
(Uh, certified mail? To an email address?)

Either these two agencies are the same operation, or they hired the same incompetent person to create their listings.

Debunking such obviously fake agencies is like shooting fish in a barrel--it's so easy it may not seem like it's worth the bother. But there are always writers who are too inexperienced to recognize the red flags--or who overlook them because they believe that a reputable market listing must automatically screen out any questionable agents. I've already gotten inquiries about both these agencies, and I expect I will get more.

Even if you trust the resource, it's always wise to double-check.

Friday, March 02, 2012

New French Law Seizes Digital Rights

Posted by Victoria Strauss for Writer Beware

The issue of orphan works--out of print, still-in-copyright books, films, photographs, etc. whose rightsholders can't be found--is one that has been much in the news lately.

Concern over a potential monopoly on orphan works was a major component of the criticism of the now-defunct Google Book Settlement, which sought to resolve authors' and publishers' objections to Google's unauthorized scanning of in-copyright books.

Orphan works are also at the heart of the Authors Guild's recent lawsuit against a number of US universities, which have combined digitized books--including unauthorized scans provided by Google--into a repository called HathiTrust. HathiTrust's proposed Orphan Works project, which was intended to make the full text of selected orphaned books available for faculty and student download, was put on hold after the Authors Guild demonstrated that HathiTrust's research process was flawed, and many of the books included in the project weren't orphans at all.

Why should we worry about orphan works? A good summary of the importance of this issue is provided by former US Register of Copyrights, MaryBeth Peters:
The problem is pervasive. Our study recounts the challenges that publishers, film makers, museums, libraries, universities, and private citizens, among others, have had in managing risk and liability when a copyright owner cannot be identified or located.  In testimony before the Senate, a filmmaker spoke of the historically significant images that are removed from documentaries and never reach the public because ownership cannot be determined.  In testimony before the House, the U.S. Holocaust Museum spoke of the millions of pages of archival documents, photographs, oral histories, and reels of film that it and other museums cannot publish or digitize. 

The problem has been created, in part, by the changing provisions of copyright. Copyright used to be dependent upon rightsholders' obligation to register their works; if works weren't timely registered or re-registered, they fell into the public domain. Now protection is automatic, with no need for registration, and the term of copyright has been extended far beyond authors' lifetimes. The unintended result is a huge pool of orphan works--whose rights no one is managing, and whose content no one can use. (How huge? It's estimated that in Europe alone, over 3 million books--13% of all in-copyright books--are orphans.)

Many people feel that legislation is the answer--both to create a legal definition of orphan works and to reduce the liability of those who want to use them. But the most recent legislation proposed in the USA failed to pass, and the EU's proposed directive on orphan works is still being debated.

Now France has taken action--and its new law, passed last week, is a jaw-dropper. It empowers the Bibliothèque Nationale de France to create "a freely accessible online database" of all works--not just orphans--published in France before 2001 that are currently out of print. Once a book has been listed in the database for more than six months, the right to "authorize its reproduction and display in digital form" transfers to a collective management organization, which thereafter has the power to exploit those rights, including selling the works and distributing a portion of the proceeds to the rightsholders. To be removed from the database, rightsholders must opt out in writing before the six-month waiting period expires. If a rightsholder misses the six-month deadline, s/he can only demand removal by proving that s/he is the sole holder of digital rights (good luck with that, if you have a pre-digital contract) or by arguing that the work's "reproduction or display [is] prejudicial to his honour or reputation."

If you stalled out in the middle of that long paragraph, here's the short version: any book published in France--which would include translated foreign-language books--that went out of print in France--not necessarily elsewhere--before 2001, can be scanned into a database. If authors--who may or may not be notified of their inclusion--do not opt out within six months, they lose control of the digital display and sale of their work.

This is a rights transfer on a massive scale that makes the Google Book Settlement look benign. By including any out of print book--not just those whose rightsholders can't be located--it goes far beyond the issue of orphan works. By forcing authors to opt out in order to regain control of their work, it turns copyright law on its head. The problem of orphan works urgently needs solution--but not via measures like this.

French authors, who are rightly concerned about this draconian legislation, have been signing a petition protesting the law. Let's hope they are successful in forcing change.

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For my more wonky readers: what I've noted above is just the start. There's much more to object to in the new law--see this long blog post from Gillian Spraggs of Action on Authors' Rights for a detailed summary.

One interesting apparent feature of the law: the opportunity it potentially affords publishers to get around the difficulties of claiming the digital rights to books with pre-digital contracts. For any work in the database whose author doesn't opt out within the six-month window, the collective management organization is empowered to offer digital rights to the publisher that holds the print rights. As Gillian Spraggs comments, "what this legislation has achieved is to hand the publisher of the print edition the digital rights to any out-of-print twentieth-century French book that they think might make them money in a digital edition."

And--oh yes--if authors who didn't realize their works were included in the database discover this only after a publishing deal has been brokered, they are out of luck. Spraggs writes, "If an author misses the six months' window to reclaim a book, then even if he/she subsequently proves ownership of the rights (and that may well be a difficult process), then it will most likely still remain subject to the terms of a contract negotiated by the collecting society. That contract (if exclusive) will then become non-exclusive, but it will still last for up to five years."

Shocking.