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

July 19, 2016

WriteIndia Writing Contest: When a Contest Sponsor Changes The Rules

Posted by Victoria Strauss for Writer Beware

NOTE: This post has been updated.

I harp a lot here on how important it is to read the fine print--in your publishing contract, on websites that host user content, in literary contests. Sure, it's tedious, especially if couched in lengthy legalese--but skipping this step can result in unpleasant surprises.

What happens, though, if the contest sponsor changes its guidelines while the contest is still in progress?

Last year, the Times of India--one of the world's largest English-language newspapers--launched the WriteIndia contest. Each month for eleven months, a well-known Indian writer provided a passage or a prompt for contest entrants to develop into a short story. Eleven winners were awarded a Kindle, attendance at an exclusive writing camp, and publication in a compilation of winners' stories published by TOI's publishing imprint, Times Group Books.

Major newspaper, eminent writers, publication--what's not to like? Thousands of writers entered the contest. The final slate of winners was announced July 15 on Twitter, prompting this question from one of the non-winning entrants:
To which the response was:
Wait, what? shocked writers demanded. How could that be?

When I put this post online earlier today, here's how the next few paragraphs read.
Well, because of the fine print of WriteIndia's Terms & Conditions:
7. OTHER TERMS AND CONDITIONS:

a. Participant acknowledge and agrees that [Times Internet Limited] shall have irrevocable, worldwide, exclusive right to publish and commercially exploit the story/content submitted with TIL, through any medium and channel for the period of two years from the date of completion of campaign. After two years exclusivity period, TIL shall have non- exclusive right to publish and commercially exploit the story, worldwide and in perpetuity. TIL shall have the right to adapt, edit or modify the story as solely determined by TIL. TIL shall not be required to take any further approval or to notify the participant or to pay any additional consideration for the grant of aforesaid rights.
Simply by entering the contest, writers granted TOI perpetual rights to their stories, whether or not they won--and not just nonexclusively, but on an exclusive basis for a full two years. TOI doesn't have to pay writers whose work they use, or even notify them.

I've rarely seen such a greedy rights grab in contest guidelines. If anyone had contacted me to ask about this contest, I would have advised them not to enter. On the other hand, TOI didn't attempt to hide or obfuscate the rights grab--it was right there in black and white for anyone to read. Problem is, lots of writers apparently didn't read it. So now, basically, they're stuck.
In fact, the above is not quite correct, as I discovered late this afternoon when I checked into what's claimed in the first comment on this post. When most writers entered the WriteIndia contest, the T&C were different from what they are today. Here's a screenshot from April 19 of this year, courtesy of the Internet Archive.


As you can see, the rights grab is still there (the last sentence in the shot), but in vague language that's much easier to miss or misinterpret, especially since there's no mention of irrevocability, perpetuity, or exclusivity. As the contest was coming to an end, TOI must have decided it needed something more precise, so it completely re-wrote the T&C--which it was within its rights to do because of this paragraph:
The Times of India reserves the right at any time without prior notice to add, alter, modify, all or any of these terms and conditions or replace, wholly or in part, this Offer by any other Offer, whether similar to this Offer or not or to withdraw it altogether.
It's not unusual to find such language in contest guidelines, but it's rare for a contest sponsor to make such wholesale changes while the contest is in progress. While writers who ignore or miss plain language in a contest T&C have only themselves to blame, and the mention of "commercialisation" in TOI's original T&C should have been a red flag, it seems to me that WriteIndia entrants were substantially misled by rights language that TOI's own alterations of its T&C acknowledge weren't nearly clear or comprehensive enough, and didn't adequately convey its intentions for the entries. In my opinion, this is pretty shameful.

TOI has attempted to allay one concern--that the stories might be published without writers' names:


Sounds good, but I have to point out that since neither the original nor the revised T&Cs mention the issue of moral rights at all, writers have no recourse if this pledge isn't honored.

In response to the flap, TOI's Director, Vinita Nawra Nangia, is now saying that "anyone who does not agree to the said terms and conditions, is free to withdraw from the campaign." (Contact info: writeindia@timesinternet.in.) TOI should go farther. It should formally relinquish any and all rights to any and all non-winning entries.

July 15, 2016

How Publishers Abuse Termination Fees: Sky Warrior Books

Posted by Victoria Strauss for Writer Beware


I've written before about termination fees in publishing contracts: why they are bad not just for authors, but for publishers, and how publishers can abuse them. Here's another case study in how termination fees can become a tool for retaliation.

Sky Warrior Books, "a press dedicated to publishing quality SFF, mystery, historical fiction, paranormal, nonfiction, and other genres", is run by publisher and author Maggie Bonham (who also writes as MH Bonham and Margaret H. Bonham). Among the lesser-known authors on its list, there are several books and anthologies written/edited by established SF/fantasy authors.

Sky Warrior's contract--which is problematic in a number of respects, including vagueness in the royalty language--has not one, but two early termination fee provisions:
12.a.ii.: Prior to publication, the Author may terminate this contract for unspecified reasons by reimbursing the Publisher for costs incurred, plus a termination fee of $500. Examples of costs incurred include expenses such as editorial and cover art.

12.f.ii.: Post Publication: In the event that the Author is terminating the agreement in order to sell the Work to another publisher, individual or company for publication, the Author shall pay a termination fee of 10% of the advance and royalties earned on the Work to the Publisher, plus purchase all remaining inventory at cost +15%, with no royalties paid on copies purchased under this clause.
Sky Warrior also appears to have issues with timely royalty accounting. Complaints can be seen at the Absolute Write Water Cooler and at Ripoff Report; I've gotten some as well. Two of the authors who contacted me challenged the lack of payment and pressed for answers, whereupon Maggie Bonham terminated their contracts and reverted their rights, without asking for money. A third author--the one who's the subject of this blog post--also got her rights back. From her, however, Bonham demanded termination fees.

The author--who has asked that I don't use her name, so I'll call her Eve--signed a four-book contract with Sky Warrior in early 2013. Book 1 was issued in late 2013. Sky Warrior has two royalty periods--January-June and July-December--with the publisher required to make "all efforts" to issue payment within 120 days of the period's close. But it wasn't until September 2014, nearly nine months after the close of the July-December 2013 royalty period, that Eve even got a royalty statement for her 2013 sales. As for payment, Bonham indicated, without explanation, that she wouldn't be doing that until December 31. (Here's where the vague royalty language I mentioned comes back to bite: if a publisher isn't contractually required to pay within a stated timeframe, but only obliged to make "all efforts" to do so, it can argue "circumstances beyond our control" and do pretty much whatever it wants.)

Meanwhile, Book 2 had been published in early 2014. Eve says she wasn't given notice of the pub date until 24 hours prior, and never saw page proofs, despite the stipulation in her contract that she be able to review and approve them (according to Eve, the book included many errors). Royalty statements and payment for Book 2, due by the end of October 2014, didn't materialize--nor did royalty statements and payment for the same period for Book 1.

By December 2014, Eve was fed up. She hired a lawyer and demanded contract termination and rights reversion for all four books, citing multiple breaches of contract. In response, Bonham categorically denied breach, and defended the absence of royalty payments by claiming that, because vendors take up to six months to pay, the contract's 120-day royalty payment window actually began to run six months after the end of a royalty period (even though there is no wording whatsoever in Eve's contract to support this). She admitted she didn't make even that extended deadline for Eve's 2013 royalties. It wasn't her fault, though: it was due to--wait for it--"circumstances beyond our control".

On the up side, Bonham did agree to revert Eve's rights--but on the down side, not for free. For Books 1 and 2, she invoked Clause 12.b.ii., levying a fee of $56.13, which she claimed was 10% of royalties for the first half of 2014 (an additional 10% of royalties for the second half of 2014 would be due "when calculated"). For Books 2 and 3, which hadn't yet been published, she invoked Clause12.a.ii: $500 for each book, plus $317 for assorted costs including editing. The total of $1,373.13 was due within 60 days; any royalties accrued and owing would be applied to this "outstanding balance." As the cherry on top, Bonham warned Eve that "any libelous or slanderous statements by her, her family members, or her associates" would result in legal action.

In my opinion, it's debatable whether Bonham was entitled to invoke the termination clauses, since Eve wasn't seeking to terminate the contract for "unspecified reasons" (she cited specific breaches) or "in order to sell the Work to another publisher, individual or company for publication" (she had no competing offer; she just wanted out). Be that as it may, for Bonham this is a win, whichever way it goes. She gets rid of a pro-active author, and if Eve pays up, she also gets some extra cash. If Eve refuses, Bonham gets to hold onto royalties she otherwise would have been on the hook for paying (in Eve's case these amount to several hundred dollars).

As it happens, Eve is an active member of the Science Fiction and Fantasy Writers of America. She turned the matter over to SFWA's Grievance Committee, which has a good record of mediating disputes between authors and publishers. Bonham, however, refused to cooperate, doubling down on her denial of wrongdoing and reiterating her her demand for money. She also accused SFWA and Writer Beware of a dastardly conspiracy:
After all, if we are harmed, you will have participated in the further erosion of independent, small presses, and I can't believe the rumor that SFWA and Writer Beware are cooperating with the Big Five publishing houses' efforts to destroy the independents once and for all. Although I did find it curious that Writer Beware's publisher avoid list is populated exclusively with small presses, often based in rural areas, far from the New York in-crowd.
Damn. And we thought we were being so discreet.

Seriously, though, I think Eve's experience illustrates how publishers can use termination fee clauses to retaliate against authors who displease them. The other authors I heard from who complained about nonpayment had their rights reverted without any demand for money. It's hard not to conclude that Eve was being punished for having the temerity to hire legal assistance.

The other takeaway here is the importance of taking contract language seriously. No matter how good a publishing relationship looks at the start, things don't always go on as they begin. Never assume that provisions in your contract won't at some point apply to you--no matter how unlikely that seems--or that your publisher, who right now seems so responsive and enthusiastic, won't invoke onerous clauses if things go south. To quote author and editor Jane Friedman, contracts aren’t there for when times are good and everyone is well-intentioned--they need to work for you when things go to hell. (For more on the danger of making assumptions, see my 2014 blog post, Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself.)

Bonham is now threatening to turn Eve's "debt" over to a debt collector.

July 8, 2016

"Cutting Lists Isn't New": Q&A With Month9Books Founder Georgia McBride

Posted by Victoria Strauss for Writer Beware


Last week, as I was researching my blog post on the troubles at YA publisher Month9Books (which recently reverted rights to 40-50 authors amid allegations of non-payment and other problems), I reached out to owner Georgia McBride with some questions. Her responses are below. (You can also read McBride's interview with YA Interrobang, which published a long article on author and staff allegations.)

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VICTORIA STRAUSS: Your email to authors [about the rights reversions] mentions that you fired an accountant who created problems for Month9, including missing and incorrect payments. Can you tell me more about what happened, and what steps you're taking to address the problems and ensure that staff and authors receive payments due them?

GEORGIA MCBRIDE: I can't say more than I have already said about the accountant, and really, I prefer not to focus on him. What I can tell you is that I am working to get everyone caught up and paid in full who is owed a payment. From the many books ​we've published, there are only about 7 or so outstanding payments actually due at this time. We've managed to get mostly everyone paid since the author email was sent.

VS: Communications I've received from both authors and staff indicate that payment problems go back at least to 2013. I've heard from staff who say they were never paid at all. Can you comment?

​GM: I can't comment on what you've heard, since I am not privy to it. ​I'm also not aware of any freelancers who have never received payment for satisfactory work. There are however, several freelancers who delivered work extremely late or work that was not up to the standard and had to be redone by someone else in order to meet that standard who have not and will not be paid.

When we first started, I paid on a "commission" type basis where the freelancers income was tied to the book's performance. It was a good idea to motivate and encourage people, but I later realized that sometimes a book simply does not sell. And, even if it does, after distribution, printing, marketing, etc., there is little left to pay the editor. So, for those people, who may have worked on projects for little to no payments through 2014, I paid them all--even though I did not have to. Even though they signed contracts stating they would get paid only after the author is paid. In some cases it took almost 2 years to pay them all--but it was important to me to do it, even though I did not have to. Of course, no one is talking about that.

VS: Initially Month9 planned a small publishing list--8-12 books a year is what I've been told--but both acquisitions and the release schedule seems to have very quickly increased far beyond that, and in your Q&A with YA Interrobang you acknowledge that an overcrowded publishing schedule was the source of some of the problems authors are reporting. Why did Month9 ramp up its publishing schedule so quickly, and in hindsight, would you do anything differently?

​GM: A publisher needs content to grow. It baffles my mind how anyone who understands the business and what it takes to launch a publishing company could question this. ​I have said many times that a good publisher not only has awesome books. But a good publisher must have reliable and qualified staff and a solid business foundation that includes accounting and legal counsel. At various points in our short life, Month9Books struggled in all those areas.

Acquiring books and publishing them is not just about the cover. If the compliance isn't there, or there is a lot of turnover in staffing, and or the accounting is lacking; you are going to have a BIG problem. This is where we faulted. And, because I have a habit of not wanting to micromanage, I got into a situation where we simply had too many titles to manage with the resources we had. The right thing to do was to put the brakes on, make some hard decisions regarding which books to release and take steps to solidify the business foundation before moving forward.

Cutting lists isn't new. I didn't invent it. In fact, we do it annually in October. Anyone who has been through it with us can tell you. That said, when my blood clot happened (I had been having bouts of Vertigo earlier in the year), I knew it was way past time to bite the bullet and do what had to be done. Not only were we understaffed in the areas that mattered the most, but now, I was not going to be able to work as much as I had. It would have been unfair and very selfish of me to try to keep all the books. Believe me, I wanted to. I wanted to because I hated disappointing the authors. I was sick to my stomach for weeks because of what I was about to do. But the thing that got me through it was knowing it was ultimately the best for everyone involved, even if it hurt like hell while going through it.

VS: I know this is a tough question, but...many of the authors who've contacted me describe an atmosphere of intimidation at Month9, and have told me they fear reprisals for going public. Does this concern you, and do you have plans for addressing this perception going forward?

​GM: Not at all, but then again, I can't comment on what you have heard since I have no idea what you were told. That said, I am not at all concerned about these comments since many authors naturally feel scared about saying anything derogatory about their publishers or future publishers or agents, etc. This isn't anything new. But here's the thing, I have rights too. It's my right to protect myself, my family, my staff, my authors and my partners from anything that could potentially negatively impact my business. I have every right to defend myself and my company against libel and defamation. I will continue to assert that right, no matter who it upsets.

VS: What's next for Month9Books?

​GM: You know what? We've been busy working! I have announced 4 audiobook deals in the last couple of weeks, a new reading club license with Scholastic, and we have our first China release coming in a few months! China! In the immediate future, we have an amazing slate of Fall books and are looking to publish our very first young reader series in early 2017. Thanks so much!

July 1, 2016

Month9Books Scales Back Its List Amid Allegations of Nonpayment

Posted by Victoria Strauss for Writer Beware


See bottom of post for updates.

On May 20, Publishers Lunch broke the news that Month9Books, a well-regarded and apparently successful publisher of young adult and middle-grade fiction, was scaling back its list and reverting rights to "40-50 authors across all imprints". In an email to Month9 authors sent the same day, company founder Georgia McBride cited her own health problems, along with staffing issues and the company's "substantial growing pains" over the past six to nine months.
The announcement set off a small flurry of conversations about the publication and about small presses overall, with many wondering how McBride could afford to acquire new works if authors were complaining about loyal or absent royalty payments.

McBride ignored speculation and turned her attention towards working – even as authors on Twitter began to discuss how lack of payment was a recurring problem for the company.
The quote above comes from YA Interrobang (an online magazine focusing on the YA market), in a long and detailed article by editor Nicole Brinkley published a few days after McBride's announcement. The article focuses on reports of serious problems at Month9--not just lack of payment (for staff as well as authors), but delayed pub dates, broken marketing promises, overcrowded publication schedules, communications breakdowns, problems with royalty accounting, and alleged harsh treatment and/or bullying by McBride. According to authors and staff quoted in the article--most of them anonymous--these problems are not new or even recent, but have been ongoing for a long time.

From questions sent to Writer Beware by authors considering submitting to Month9, I know that rumors of nonpayment were floating around as early as mid-2013. But apart from one nonpayment report in 2015, I didn't receive any complaints about Month9 until the mass rights reversion and the YA Interrobang article opened the floodgates. Since then, I've heard from Month9 authors and staff who've shared their experiences and provided me with documentation--amply confirming Nicole Brinkley's reporting, and also adding additional data: rapid turnover of editorial and PR staff, problems coordinating ebook and print releases, an official (and non-standard) policy of not paying or accounting royalties until the year following publication, no accounting for books entered into Kindle Unlimited, and more. (Several complaints from Month9 authors can be seen in this thread at Absolute Write, starting on Page 5.)

What I've heard from authors and staff also suggests why the troubles at Month9 haven't really come to light--publicly at least--until now. I've reported on a lot of publisher problems over the years, and it's normal for authors to feel conflicted about coming forward, or to worry about repercussions--but I've never encountered a situation where authors expressed such a level of fear and intimidation.

Nearly every author who contacted me described domineering, brusque, bullying, and even threatening behavior by McBride, and said they feared reprisals and/or damage to their careers if they revealed too much or let me use their names. They also pointed to the draconian non-disclosure agreements included in Month9 contracts, which bar authors from discussing the terms of their agreements "in person, online, verbally or in print, in public or in private except and only with officially documented legal and or agency representatives" and promise legal action if they don't comply. Even Month9's reversion letters include an NDA, requiring authors to keep reversion terms confidential for a full five years (something that could pose problems for an author seeking to re-publish her reverted book).

As one individual told me, "It’s astounding to see the difference between the public perception of this pub and the reality."

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When it started up in 2012, Month9 looked really promising. McBride had a long involvement with and many contacts within the YA publishing market, and she seemed to be making all the right moves--employing qualified editors and designers, planning a conservative publishing schedule, signing up well-known writers for Month9's debut anthology, snagging real-world distribution through Independent Publishers Group. Although some agents were wary of Month9 as a new and untried small press, others were willing to work with it on the strength of what seemed a solid start.

So how did things go wrong? In her May 20 email, McBride mentions health problems that have made it difficult for her to manage her workload (obviously, something that can happen to anyone and can't be helped if it does--but also a cautionary reminder of the risks of contracting with a publisher that's essentially a one-person operation). She also blames late contracts on Month9's legal counsel's departure "a few months ago", and "late and often erroneous payments...made to staff and some authors" on a fired accountant, who "made some pretty damaging transactions". (Some of the authors who contacted me disputed these statements, claiming that the lawyer had actually been gone for closer to a year and confirming that payment issues go back almost to Month9's inception.)

McBride also cites "substantial growing pains." And I think that's really the crux of it, because Month9 did grow--and grow. Authors who signed on in the beginning were told that the company planned to publish 8-12 books a year--a reasonable output for a new small press--but that conservative publishing schedule seems to have quickly fallen by the wayside. In 2013 Month9 released 23 books (figures based on Amazon listings), an expansion due in part to the addition of a new imprint, Swoon Romance. Another new imprint, Tantrum Books, was added in 2014, helping to balloon the list to 71 titles. 2015 saw just over 50 releases--a considerable drop, but still more than quadruple the original release plan. 2016 looks to be about the same, with 47 releases scheduled through November.

On its website, Month9 proudly confirms this rapid growth: "Since [2012], we have announced 182 book deals and published over 100 books." But if you plan for 8-12 books a year, yet almost immediately double and quadruple and even quintuple that, you are going to encounter--at a minimum--logistical problems, especially if you suffer (as multiple authors allege Month9 does or did) from high staff turnover. At which point you'll either have to try and do it all at the risk of things falling through the cracks, or cut vital services such as marketing--or, as appears to have been the case for Month9, both. You'll also have to decide how to deal with the questions and complaints that will inevitably start rolling in, especially if you are having trouble cutting checks. Will you be candid? String people along with excuses? Put the blame on troublemakers? Just stop communicating? Will you even acknowledge to yourself how bad things are?

Over-acquisition is a rock on which many small presses have run aground (one example is Permuted Press, which actually had to stop publishing for a while when its hugely inflated production schedule got out of hand). Faced with an abundance of good manuscripts, an ambitious publisher's eyes can easily outstrip its stomach. But as much as running a publisher may be a labor of love, it's also a business. You have to balance ambition and growth with sensible business practice--which means, among other things, maintaining a disciplined release schedule and making sure that your workload and your staffing are a match. More and more, it seems to me that many small presses fall apart not just because their owners lack publishing savvy and expertise, but because they simply don't know how to run a business.

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How things will go from here is anyone's guess. Both in her May 20 email and the interview that accompanies the YA Interrobang article, McBride indicates she is continuing to make acquisitions--which in the circumstances hardly seems wise--though she notes that there have been "significant changes to both our submissions and acquisitions process."

She also dismisses the negative information that has surfaced in the past few weeks as social media-fueled "personal vendettas or campaigns against me." But even if that's the case--and based on the volume of  complaints, as well as their consistency, I don't believe it is--there are, by McBride's own admission, serious problems at Month9 that need to be addressed.

I hope McBride does address them--including taking a hard look at the culture of fear authors have described. And I hope Month9 survives. But I think that's going to require more than just a change in the company's submissions and acquisitions process.

I invited McBride to comment for this article. Our Q&A can be seen here, in a separate post. (The Q&A is accumulating comments from Month9 authors and staff; those are worth reading as well.)

UPDATE, 10/16: Writer Beware is receiving new complaints from Month9 authors, citing non-payment, absent or incorrect royalty accounting, and bullying emails from Georgia McBride.

UPDATE, 11/7/16: Two Month9 authors, Abi Ketner and Missy Kalcicki, have filed a lawsuit against Georgia McBride and Month9 Books. "As alleged in the complaint, the authors’ publishing agreement has terminated due to Month9’s breach of the agreement, including Month9’s failure to deliver timely royalty statements and to pay royalties due to the authors. Among other matters, the complaint requests the court to declare that all rights in the Sinners series previously granted to Month9Books have reverted back to the authors."
 
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