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

August 10, 2018

Contest Beware: Fiction War Magazine


Posted by Victoria Strauss for Writer Beware

Fiction War Magazine, owned by Wolvesburrow Productions ("a front-to-back engineer of design, publishing, in print, and online content"), is a publisher of flash fiction (500-1,000 words). In addition to an open call, for which it charges a $5 submission fee via Submittable, it runs regular competitions--for instance, this one, for the third quarter of 2018. The fees for these quarterly contests are quite a bit higher: $25, plus a $3.45 "fee", for a total of $28.45.

Entry fees are not necessarily a sign of a questionable competition--though they do need to be proportional. Presumably, in Fiction War's case, they go to fund the sizeable prizes: $1,000 for the winner and $100 for 14 finalists, all of whom are promised publication in an issue of the magazine.

Prizes or no, $28.45 is still a big entry fee for a 500-1,000 word story--which, to my mind, raises the question of whether Fiction War may have folded some profit in there. I also find it somewhat unsavory that Fiction Wars has an affiliate program, which pays "recruiters" a 25% referral bonus for every registration they refer. (The tag line: "Quickly earn enough to pay your own entry fee!")

These concerns, along with competition guidelines that provide for prize payment "within 30 days of print publication" (it's always a red flag when publishers pay on or after publication, since they may use such provisions to delay or avoid payment--but prize winnings should never made contingent like this), and include language* requiring entrants to grant exclusive first and ongoing non-exclusive publishing rights simply by submitting (in other words, if you submit a story to Fiction War, you cannot ever publish it anywhere else unless Fiction War publishes it first), would be enough for me to advise serious caution to anyone thinking of entering one of Fiction War's competitions.

However, it appears that there are even more pressing reasons to avoid Fiction War.

Over the past two weeks, I've gotten multiple complaints from authors who won the grand prize or were chosen as finalists in one or another of Fiction War's competitions: aggressive editing (to writers concerned about major, and in some cases apparently random, changes to their work, Fiction Wars responded that they could always re-publish the original version elsewhere once the magazine had been released), major editing and proof delays (over a year in some cases), and prize payments delayed by months or absent entirely (see the payment provisions, above).

Although Fiction War is supposed to be quarterly, only two magazines have actually been published, both in 2017. Despite this, and even as timeliness and payment problems continued to develop and compound over the course of 2017 and 2018, Fiction Wars continued to conduct and advertise competitions (and, of course, to collect entry fees).

Writers who contacted me told me that they believe Fiction War is a well-intentioned enterprise that has gotten in over its head. But good intentions and $2.75 will get you on the subway, and if I had a dollar for every well-intentioned publisher I've heard about whose good intentions didn't prevent it from screwing its authors over, I'd have a nice nest egg by now. To me, Fiction War's recent response, to a writer who contacted it to ask about payment, speaks volumes: "Please know that we take defamation very seriously."

As of this writing, Duotrope has de-listed Fiction War.


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* Here's the actual language of the grant of rights clause.


Competitions often require writers to grant various rights upon submitting, as a kind of shortcut ensuring that the competition will have those rights already in hand when winners are chosen. But such a requirement should be temporary, and should always be balanced by language ensuring that rights are released back to entrants if they don't win. There's no such language in Fiction War's guidelines.

UPDATE 8/11/18: Fiction War responds.


It's pretty clear that Fiction War either doesn't understand, or is seriously misinterpreting, its own grant of rights language.

By requiring writers to grant first publishing rights simply by submitting to the contests, and failing to release them from that grant if they aren't chosen for publication, Fiction War is making it impossible for any writer who submits to its contests to publish anywhere else. To put it another way, Fiction War is not only claiming first publication rights for all submissions, it is retaining those rights even for writers who don't win its contests or are not chosen for publication.

It is not uncommon for a competition to claim exclusive first publishing rights if it intends to publish winners, finalists, etc. (even though writers thinking of entering such a competition should consider how long they are willing to have their work off the market). But its guidelines MUST include language releasing that claim THE INSTANT writers are eliminated from the competition. Fiction War currently does not do this.

Also, prize winnings should not be treated like story payments. Publishers can and do pay on or after publication (though this can be a red flag, as indicated above)--but prize winnings should be disbursed immediately upon announcement of the winners, and not made contingent upon a further action, such as publication.

I'm also scratching my head over this, received this morning. I appreciate the polite tone, but...really?
ANOTHER UPDATE 8/11/18: Fiction War continues to respond. Note the reference to "bullies."


UPDATE 8/13/18: Fiction War has added the following to the guidelines on its competition pages, just below the grant of rights language quoted above (though it has not changed its general submission guidelines): "For works not selected for publishing, all rights are solely held by the author."

In private correspondence with me, Fiction War has indicated that this is intended to address the concerns about rights that I've outlined in this post. Unfortunately the language it has chosen is quite vague, and does not make explicitly clear a) that the grant of rights does terminate (unless they surrender copyright, authors always hold all their rights; that's what makes it possible for them to license those rights to others), or b) if it terminates, when (do writers find out they haven't been chosen for publication when competition winners are announced? Some other time?)

Here's the language I suggested to Fiction War: "For writers who are not chosen for publication, this grant of rights terminates immediately upon announcement of the winners."

All of this quibbling over wording may seem trivial, but any writer who's been involved in a dispute over contract terms knows how non-trivial the consequences of vague, imprecise, or incomplete contract language can be. Here's just one example.

August 2, 2018

Author Rachel Ann Nunes Wins Her Copyright Infringement Lawsuit Against an Amazon Scammer


Posted by Victoria Strauss for Writer Beware

In 2014, author Rachel Ann Nunes learned that her 1998 novel, A Bid For Love, had been plagiarized in its entirety by someone calling themselves Sam Taylor Mullens. Re-titled The Auction Bid, the book was being sold on Amazon, and the "author" was not only promoting it, but sending copies to reviewers.

Unfortunately for the plagiarist, some of the reviewers had read Nunes's book. Although the plagiarist had switched the narrative from third to first person, the similarities were unmistakable.

Confronted by reviewers about the similarities, the plagiarist did not back down. She claimed she'd collaborated with Nunes; later, she claimed she was Nunes's niece and had given Nunes the idea for the book. She began harassing Nunes, using fake identities to send nasty messages on Goodreads and post one-star reviews of Nunes's novels on Amazon. When Nunes went public about the plagiarism, the plagiarist began harassing reviewers and others who spoke out in support of Nunes. (For screenshots of this and other harassment, see Nunes's blog post.)

The plagiarist was eventually identified (thanks to sleuthing by Nunes's supporters) as Tiffanie Rushton, a third grade teacher from Utah. It turned out that Nunes wasn't the first author Rushton had stolen from. Nor was intellectual property the only thing she'd filched: parents in her school district alleged that she had also used the real names of some of the children in her class as aliases to post reviews of her own and other explicit books.

In August 2014, Nunes filed a copyright infringement complaint against Rushton in Federal court. Nearly four years later, in March 2018, Nunes won the case, with a judgment requiring Rushton to stipulate that her infringement of Nunes's copyright was committed "willfully," and making Rushton liable for the maximum statutory penalty under copyright law of $150,000. Rushton was also ordered to provide and sign an apology letter, which she did (though not without a struggle).
So copyright law and the good guys prevailed--but only at a cost of a lot of time and a lot of money, not to mention untold emotional distress for Nunes. Most authors who find themselves in this position--and many will, plagiarism is a major and ongoing problem, particularly on Amazon--will not have the financial and emotional resources to take the kind of action Nunes did.

That's what the scammers count on.

July 26, 2018

How Predatory Companies Are Trying to Hijack Your Publisher Search


Posted by Victoria Strauss for Writer Beware

If you've completed a book and are looking for a publisher, you might think it makes sense to turn to Google. You aren't alone. "How to get published," "how to find a publisher," and "how to get a book published for the first time" are all popular internet search phrases.

This is not a great idea.

While such searches turn up excellent resources (such as Jane Friedman's Start Here: How to Get Your Book Published), a lot of what you'll see on the first couple of pages (which is as far as most people look), is useless or worse.

For instance, ads from vanity publishers, like Dorrance and Austin Macauley, and predatory author services companies, like Bookwhip and Readers Magnet.


A good rule of thumb: real publishers don't buy Google ads.

Another trap: listings for faux consumer guides like TopConsumerReviews.com, where overpriced author services companies like Xlibris and Outskirts Press pay for advertising, and misleading "Top 10" lists like this one or this one, which are really just a bunch of pay-per-click affiliate links. (There's a reason why so many of these sites list the same companies.) Be skeptical in general of any resource that claims to list the Top Anything--at best, this will be subjective and incomplete--or that presents itself as a consumer resource (unless you can verify that it is, in fact, a consumer resource).

Most insidious are the websites that purport to match you with appropriate publishers in exchange for information about yourself and your book. To name just a few: SearchForPublishers.com ("Designed specifically for budding authors"), NeedPublishingHelp.com ("We work to connect authors with the right people"), DiscoverPublishers.com ("Have publishers compete for your new book!"), and FindPublishingHelp.com and its UK cousin ("A free service that delivers the best publishing matches to writers and prospective authors").

The true purpose of these sites isn't to provide helpful guidance to writers, but to generate leads for author services companies and vanity publishers, which either pay for listings or buy the information gathered through the forms writers fill out. (FindPublishingHelp.com discloses this fact, kind of, but none of the others do.) That's why they want your phone number and mailing address, and why many of them ask how much you're willing to pay for publication. If you go through the process of filling out the forms, you'll either be promised direct contact from "interested publishers" (read: relentless phone solicitations from author services companies), or given a list of "personalized" recommendations--all of which are pay-to-play.

For instance, here's what you get from DiscoverPublishers.com:


And here are some familiar names, courtesy of FindPublishingHelp.com:


Many of these sites neglect to say who sponsors them, and have anonymized domain registrations. Some can be traced back to lead generation or affiliate marketing companies, such as JAG Offers, but figuring out their provenance can be very difficult.

Unless they're owned by the granddaddy of author services companies, Author Solutions.

Author Solutions is by far the largest sponsor of fake publisher matching sites, all designed to steer writers into the clutches of AS's many "imprints". Here are the ones I've found (so far):
AS does identify itself in tiny print at the bottom of the sites, or in the sites' privacy policies. But these mild disclosures can easily be missed by eager writers, who in any case may not be familiar with AS's reputation for high prices, aggressive solicitation, poor customer service, and junk marketing. (And seriously, who reads privacy policies?)

The internet is an invaluable resource. But it's also a tsunami of misinformation and a shark pit of scammers and opportunists, and to avoid falling victim to schemes and scams, you need to pop already know something about what you're looking for. That's why, if you're completely new to the publishing world, I suggest that you start with an old-fashioned book, and hold off on internet searches until you have enough basic knowledge to filter what you find.

For more suggestions for getting safely started on the publication search, see my updated blog post, Learning the Ropes.

July 12, 2018

Vanity Publisher Alert: Novum Publishing, United P.C. Publisher


Posted by Victoria Strauss for Writer Beware

Novum Publishing is an Austria-based publisher that has expanded into several countries, including the UK and the USA. It also does business as United P.C. Publisher, and is incorporated in Florida as WSB Publishing Inc..

Novum describes itself as the "publisher for new authors," whose purpose is to provide newbies with "a fair chance" in a publishing market that's rigged against them. It touts its service, quality, innovation, and experience. It claims to be a European "market leader".

This is not the whole story, though the inexperienced authors who are Novum's target of choice might be hard-pressed to figure that out.

What Novum goes out of its way to obfuscate is that it is pay-to-play. Its website includes just a single phrase acknowledging this fact. Its brochure is more forthcoming--but only in aid of encouraging writers to believe that because "[n]ew authors are ignored for the most part" by large publishers, and smaller publishers are "inundated with manuscripts," newbies' only chance "is in the form of publishers with cost sharing for the author."

First of all, this isn't true. Finding a publisher is hard, but that doesn't mean you're doomed to pay. Secondly, whether it's "cost-sharing" or "partner-publishing" or some other label meant to imply that your fees are only part of the cost, it's far more likely that what you're being asked to pay has been carefully crafted to cover not just the entire expense, but the publisher's overhead and profit as well.

And Novum's fees are substantial, running from just over $2,000 (for a "pocket-size" book) to more than $8,000 (for a "premium" package with a hardcover book). Novum does promise a full refund once 750 books are sold (not, of course, including copies that authors buy themselves)--but as with most vanity publishers that promise refunds, this number has likely been chosen because it's comfortably above the lifetime sales of the average Novum book.

Novum's contract, which is printed in a tiny font that's a strain to read, is terrible. It demands an exclusive grant of rights (even the much-maligned assisted self-publishing services offered by the Author Solutions imprints have non-exclusive contracts), and claims a huge swath of ancillary rights (I could find zero evidence that Novum is capable of either exploiting or licensing such rights). There's also a "cancellation fee" for early termination (always a warning sign, because publishers can and do abuse such provisions).

The summary page included with Novum's contract indicates that royalties are paid on retail price--but if you read the (very) fine print, it's clear that they're actually paid on net income.  Novum also doesn't have to pay royalties at all until 500 books have sold (as with the refund benchmark, there's probably a good reason why they picked this number).


Also, royalties are issued just once a year--and though the language isn't clear, it looks to me as if authors have to invoice Novum in order to get them.


How many authors will read this miniscule print carefully enough to understand all of this? Certainly some of the unhappy Novum authors I've heard from didn't.

Unlike Novum, United P.C. Publisher (it's not clear to me whether this is a subsidiary or a d.b.a.) claims to provide its services "free of charge." However, in 2013 this claim got United P.C. in trouble with the UK's Advertising Standards Agency (my bolding):
The ASA noted that [United P.C.'s] ad used the terms "publish" and "publishes" and stated that that service would be free of charge. We noted that the complainant reported being asked to pay for corrections, designing the front and back covers and the additional cost of publishing an e-book. We asked United Publisher to comment on that and for details of the proportion of respondents who kept to the free of charge contract and the proportion that chose to pay for additional services, but that information was not forthcoming....Because United Publisher had not supplied information that showed other respondents had not incurred similar costs, we concluded that the claims that United Publisher published books free of charge were misleading.
Online complaints that post-date the ASA's finding suggest that United P.C. hasn't changed its ways.

Novum's moneymaking efforts aren't limited to publishing books. It also publishes anthologies that charge by the page.



 And at one point, it was attempting to sell franchises, at a cost of between €75,000-125,000.


Writer Beware, indeed.

May 9, 2018

Trademark Shenanigans: Weighing In On #Cockygate


Posted by Victoria Strauss for Writer Beware

If you're a writer, and you hang out on Twitter and Facebook, you've probably heard about #cockygate.

If you haven't....An author named Faleena Hopkins has registered two separate trademarks for the word "cocky", which is used in all the titles of her multi-book romance series. One of the trademarks is a design mark (the word "cocky" in a stylized font, as seen above); the other is a word mark (just the word "cocky"). Both refer to “a series of downloadable e-books in the field of romance” and “a series of books in the field of romance.”

That description is significant. Because over the past week, Hopkins has begun threatening other romance writers who use "cocky" in their titles--even where those titles are not part of a series, or the word is not used in a series title--with legal action unless they re-title and re-publish their books.


Hopkins says (according to private messages that have been shared with me) that she's "not after people's livelihoods". She also doesn't think what she's demanding is a big deal, because taking down and re-publishing a book is "very simple. So easy." Of course this is a ridiculous claim--especially where writers have multiple editions on multiple platforms, not to mention financial investments in swag, advertising, websites, and other branding efforts.

There's been plenty of coverage of this bizarre incident. Legal experts have weighed in as well. I spoke with trademark attorney Brad Frazer, who provided me with some clarifying information on a complex and confusing issue.
Note that neither of [Hopkins' trademarks] is, for example, “a trademark on the word ‘COCKY’ as used in book titles.” The registrations cover a book series, and this is made evident if one looks at the 9-page specimen of use she submitted to the Trademark Office to support the registration: http://tsdr.uspto.gov/documentviewer?caseId=sn87604968&docId=ORC20180416120311#docIndex=9&page=1. Note that “Cocky” appears in each of the titles in a manner that connotes that the book is printed as part of the “Cocky”-brand book series. Indeed, without the fact the word is used as part of a book series, it is unlikely Hop Hop Productions [Hopkins' company] could have obtained the registrations.

This is because--and this is critical--in order for a trademark to exist and be registrable and enforceable, it must perform a “source identification function.” Here, Hop Hop was able to convince the Trademark Office that it has, since June of 2016, used the word “Cocky” to indicate the SOURCE of a series of romance books, and thus it was able to get it registered. There likely had to be a series of books for Hop Hop to convince the Trademark Office that the word “Cocky” performed this source identification function—one book with “Cocky” in the title would likely not have been enough to convince the Trademark Office, especially given that Hop Hop has ostensibly used the mark for less than two years. Just like when people see “Harlequin” on a book, they think of Harlequin Enterprises as the SOURCE of that book because “Harlequin” indicates more than just a book title. It indicates the SOURCE. See http://tsdr.uspto.gov/documentviewer?caseId=sn72184920&docId=ORC20081030112630#docIndex=10&page=1.

Because source identification is necessary to create and register a trademark, in order for there to be trademark INFRINGEMENT, as Hop Hop has apparently alleged in certain cases, the allegedly infringing “thing” must also be performing a source identification function. Thus, not all uses of a word perform a source identification function, and if there is no such use, there likely can be no trademark infringement.

For example, imagine I titled my book, “The Apple Tree and the Pheasant.” Would a consumer realistically believe that Apple Computer was the source of that book? No. Or, imagine I titled my book, “The Harlequin Pleased the King.” Based strictly on that use of the word “harlequin,” would a consumer think that Harlequin Enterprises was the source of my book? No, and thus no trademark infringement.

This is supported by what is called in trademark law the “classic fair use defense.” It is well-settled that you may use a third party’s trademark in the ordinary, English-language sense of the word, and as long as it was not performing a confusing, source-identification function, there is likely no trademark infringement. For example, if I wrote a story about King Neptune and his trident and I titled it, “King Neptune’s Powerful Trident,” if I got sued by the owner of the “Trident” trademark (see http://tsdr.uspto.gov/documentviewer?caseId=sn71653425&docId=ORC20110315095116#docIndex=18&page=1), I would have a very good classic fair use defense in that lawsuit since I am using the word “trident” in its normal, English-language construction (see https://www.merriam-webster.com/dictionary/trident) and NOT TO INDICATE THE SOURCE OF THE BOOK.

Thus, if you have one book and it is titled, for example, “The Gardener was a Cocky Lad,” I invite you to ask: is your use of the word “cocky” performing a source identification function such that people would be confused into thinking that Hop Hop was the source of your book? Is it being used only in a classic fair use sense to describe the gardener in your story as cocky, as defined by Webster? (See https://www.merriam-webster.com/dictionary/cocky)

Now, trademark law is very fact specific, and each case must be decided on its relative merits. There may be some cases in which use of the word “Cocky” in a book title does create a likelihood that a consumer would be confused into believing that Hop Hop was the source of that book. But that is the test. Without that likelihood of consumer confusion, proving trademark infringement is very difficult. But please consider these factors if you receive an allegation of trademark infringement as to your book titles.
Most legal commentary that I've read on l'affaire Cocky seems to agree that Hopkins' trademarks wouldn't stand up to a legal challenge. But authors who receive her threats--which admittedly are scary--may not realize this, or be able to afford legal counsel (at least some authors have already re-titled their books). Also, more concerningly, Hopkins is sending takedown requests to Amazon, which appears to be complying in at least some cases. Once Amazon takes down your book in response to a challenge, getting it reinstated is a nightmare.

Romance Writers of America is gathering information to consult an IP lawyer, and is asking that RWA members who've gotten a threat letter from Hopkins contact Carol Ritter (carol.ritter@rwa.org). Also, a petition has been filed with the US Patent and Trademark Office to cancel Hopkins' word mark (the design mark, with "cocky" in a stylized font, is apparently a copyright violation by Hopkins).
And two lawyers at a prestitious IP law firm have offered to work pro bono on a legal challenge.

Meanwhile, the #cockygate hashtag has been joined by #byefaleena. And Hopkins is taking refuge in that old, old claim of Writers Acting Badly: I'm being bullied!

Let there be ridicule.

UPDATE: RWA has successfully interceded with Amazon, which has agreed not to take down any more books and to reinstate any that were removed.
UPDATE 5/30/18: Hopkins is doubling down: she has filed for preliminary injunctions and temporary restraining orders against Jennifer Watson, Tara Crescent, and Kevin Kneupper, claiming that Watson and Crescent are infringing her trademarks (Crescent is an author who uses "cocky" in some of her titles, and Watson is a member of the Cocky Collective, a satirical group that is producing an anthology called Cocktales: The Cockiest Anthology) and that Kneupper's petition to the USPTO to cancel the "cocky" trademarks is without merit.

The temporary restraining order has been denied. A hearing on June 1 will address the preliminary injunction.

Kneupper has posted the legal documents (in which, among other things, Hopkins claims that it's easy to cause consumer confusion in the romance field because "romance novel series consumers do not exercise a high degree of care", and compares the alleged infringers to "a pack of blood-thirsty wolves") on Twitter.

UPDATE 6/3/18: Thanks to the Authors Guild and RWA, Faleena Hopkins' motion for a preliminary injunction against Tara Crescent and Jennifer Watson has been denied. The judge in the case found that "Hopkins was not likely to succeed on the merits because the word 'cocky' is a common and weak trademark, there was no evidence of actual confusion, and romance readers are sophisticated consumers—meaning that they are not likely to confuse Hopkins’ and Crescent’s books."

Kevin Kneupper has been dismissed as a defendant in the case.

Courtney Milan has posted the transcript of the hearing--it makes for interesting reading.

This doesn't mean the case is over, unfortunately. Discovery must be completed by September 7, and a status conference has been scheduled for September 14. Lawyers for the defendants plan to move to dismiss prior to those dates.

UPDATE 8/1/18: Faleena Hopkins is backing down. From the official statement of Jennifer Watkins and the Cocky Collective:
Jennifer Watson and the Cocky Collective are happy to announce a settlement has been reached in Hop Hop Productions, Inc. v. Kevin Kneupper, Tara Cresent and Jennifer Watson. The plaintiff has surrendered her trademark registrations for COCKY and has withdrawn the lawsuit.
Authors can now use "cocky" in as many titles as they please, without fear of harassment from Hopkins. Good news indeed.

May 3, 2018

Contract Red Flag Alert: Perpetual License for Derivative Rights

Posted by Victoria Strauss for Writer Beware

SFWA's Contracts Committee has recently been seeing a proliferation of contracts from small magazines, and a very few established markets, that license all derivative rights in perpetuity.

This is a red flag for a number of reasons, even if these rights are licensed non-exclusively. A derivative work is defined by copyright law as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." This sort of rights grab is by no means normal; magazines generally only take very limited first publication and archival rights for a limited time. Licensing the right to create derivative works can and mostly likely will interfere with the author's right to exploit their right to create or license derivative works to others.

The risks of signing such contracts can be serious. To give examples of some of the negative impact of these rights grabs.

1) Dramatic rights are compromised, limiting the author's ability to sell works for TV and film use because the author can no longer offer exclusive rights to the story, which means movie or TV producers who want exclusive dramatic rights are not likely to be interested in the work. The best case scenario is that the author may end up having to give the publisher of the magazine a cut of any income.

2) Marketing rights are compromised, in that any marketing deal could be undercut by the publisher, who would also have the ability to market those rights.

3) The ability of the author to publish sequels is compromised. The Publisher could commission sequels to the work from another writer, in competition with the author. Even if the Publisher were required pay a fee to the author for a sequel written by another writer, the existence of such competitive sequels would likely seriously hurt the author's own sequels.

4) The author would have a de facto business partner for the rest of the author's life and beyond for the life of copyright. Whether or not a clueless publisher would even realize what they've acquired or have any idea how to exploit it, the specter would hover over the author's further use of any elements in the original story. In addition, if the publisher files for bankruptcy, any rights the publisher held would likely become part of its assets sold during the bankruptcy process. The author would then end up with a completely unknown business partner.

5) Even with a perfectly drafted contract, which seems unlikely with a publisher who would propose such a contract in the first place, it could easily take years of legal action to unscramble the competing rights.

To the beginning writer, it may seem far-fetched that these rights would ever be worth anything, but a perpetual rights grab can extend far into a writer's career. It literally doesn't end until the copyright on the work expires, and for the US, that is life plus 70 years. Writers should be wary of any perpetual licensing deal, much less one that doesn't limit itself to specific derivative rights. The only rights that a writer should even consider licensing to a publisher are those rights that the publisher has a better chance of exploiting than the author, and only then when the income split is in the author's favor.

Whether these rights grabs stem from ignorance of the business or from greed, we believe they are unconscionable and indefensible. We urge writers to ask that such clauses be removed from contracts before they sign them and to avoid signing contracts with this language.

SFWA Contracts Committee
contracts@SFWA.org

Legal Disclaimer: This contract alert should not be understood to be legal advice. The issues presented by aggressive rights grabs are complex, and if you are concerned about use of your material, you should consult a competent attorney familiar with the business of publishing as well as the law of the applicable jurisdiction for legal advice.

April 25, 2018

Author Complaints Mount at Curiosity Quills Press

Posted by Victoria Strauss for Writer Beware

I first started hearing about Curiosity Quills Press in 2016, because of its unusual early termination fees. Not that early termination fees themselves are unusual (unfortunately): I see them fairly often in contracts I'm asked to evaluate (and they are always a red flag; here's why).

What makes CQ's fees unusual is that they're part of an annual event. This is outlined on CQ's website, and also in its contract:


On the surface this may seem like a publisher being flexible and author-friendly--a get-out-of-jail-if-not-exactly-free procedure that authors can follow in a guaranteed and orderly manner. In fact, such provisions often work to the detriment of both authors and publishers--publishers because escape clauses may incentivize early departure, including by authors they'd rather keep; and authors because the costs can be enormous (not to mention unverifiable, if the publisher charges a flat fee or provides no supporting invoices). Plus, publishers can and do abuse termination fees--for instance, by terminating the contracts of writers who've pissed them off and demanding the fee even though termination wasn't the writer's decision.

I have never heard that CQ does anything like that. But, based on documentation I've seen--and also by CQ's own admission in correspondence with me--CQ's termination fees can top $700 per book, which, for authors requesting multiple terminations, may add up to several thousand dollars. Also, because CQ charges the entire production cost back to the author--even though, in most cases, some of that cost has been recovered through book sales--the fees yield not just reimbursement for unrecouped expense, but some degree of profit...especially where the fees compensate cash CQ never actually had to lay out in the first place, such as design and editing work done by CQ's owners, Eugene Teplitsky and Alisa Gus.

I've also gotten complaints about inconsistent editing (there are some public posts about this as well). In general, though, complaints about CQ were few through most of 2016, and many authors reported being happy with the publisher.

In late 2016, however, things started to change. A trickle of reports of additional problems began to appear online: errors introduced into proofs, missed deadlines (CQ's contract includes an elaborate set of deadlines for editing, proofing, cover art, etc.), poor communications, and a lack of marketing support (reportedly a change from CQ's early days when it had an active marketing department).

By 2018, the trickle had become a flood. Authors began reporting not just the troubling issues mentioned above, but a host of others: revisions that never made it into published books, books published with uncorrected errors, typos on the covers of printed books, cover art received just days before the pub date, unanswered emails, book shipping problems, and late royalty payments, with some authors reporting that they hadn't been paid in months. A number of these authors had been with CQ for years and were reluctant to criticize it, but felt compelled to speak out because of the decline they perceived in quality, timeliness, and responsiveness.

Via email, CQ's co-owner and CTO, Eugene Teplitsky, told me that he was aware of the problems, which he attributed to "an overambitious release schedule and small, dedicated, but overloaded team". He says that CQ is working to improve things by hiring a new staff member and scaling back its new releases (based on a search at Amazon, CQ has averaged 73 releases a year for the past few years--a lot for a small press).

Eugene acknowledged the late royalty payments, but denied that they were tardy by more than a few days. When I mentioned that I've seen documented complaints of royalties that were late by months, he responded that "I can only go by what I see in our ledger," and invited authors to reach out to him for resolution. (Several authors who contacted me indicated that they had done this, and were not satisfied with the results.) To make accounting easier, Eugene plans to shift CQ from a monthly (!) royalty payment schedule to a bi-annual one (though I've been told by authors that other CQ promises to re-vamp its contract have yet to come to fruition).

I also asked why, when calculating termination fees, CQ bills authors for their books' entire production cost without factoring in money made on sales. Eugene gave me a couple of responses--most of the authors exercising the escape clause have low sales so production costs "were not even close to being recouped", the chargeback is less than what authors would pay if they commissioned the work themselves (!)--but didn't really address my question.

The potential for a secret profit isn't the only concern here. If an escape clause can make money for a publisher, the publisher may be tempted to encourage its authors to use it. For instance:


The screenshot above is from one of CQ's updates about its mysterious WishKnish project (more on that below). Authors are being told that they will be expected to shoulder a major amount of marketing for this project--and if they aren't happy about that, are being invited to leave. Which, of course, they cannot do without handing over quite a lot of money. Either way, CQ benefits: enthusiastic author-marketers or cash payouts. For authors, the advantages are less clear.

So what is WishKnish? It seems to have begun as an effort by CQ's owners to establish a non-Amazon marketplace for CQ sales, but has morphed into an e-commerce website where sellers of all kinds, including CQ authors, can establish storefronts and make "coin-agnostic" (i.e., cryptocurrency-friendly) sales and purchases (the "knish" is WishKnish's own currency token). There are also social media and crowdfunding components.

If you look through the jargon-heavy website, it's clear this is a major project for CQ's owners--and equally clear that it has nothing to do with publishing. Many of the CQ authors who contacted me fear that the problems they're experiencing are at least partly a result of WishKnish eating up CQ staff time (seven of eight CQ team members--including Eugene and his wife--are also listed as Wishknish team members). Eugene denies that this is the case. While his wife is working full-time on WishKnish, he says, "the vast majority of my time is dedicated to CQ," and CQ staff are not double-timing. They're only listed at WishKnish "because eventually we will be operating both sides of the coin jointly."

I don't know how comforting--or convincing--CQ authors will find this.

The complaints I've received and seen leave me in no doubt that there are serious problems at CQ. It's also clear that Eugene is aware of the complaints, and his responses to me indicate a willingness to address them--but he and authors aren't completely in agreement on the nature of the problems (for instance, on the late royalties issue), and I'm skeptical that WishKnish is as minimal a distraction as he claims. I'm also--as I have been since 2016--concerned about what I consider to be the exploitative nature of one of CQ's core business practices, the escape clause and early termination fees.

I hope CQ can turn things around. In the meantime, writers who are thinking of submitting to CQ need to carefully consider the issues outlined above.

April 13, 2018

Publishers Weekly Includes Two Vanity Publishers in its List of Fast-Growing Independent Presses

Posted by Victoria Strauss for Writer Beware

Once again, Publishers Weekly's annual overview of fast-growing independent publishers features not only innovative indies, but publishers whose business model is largely built on author fees: Morgan James Publishing and Austin Macauley. Seriously, PW? Why do you  keep doing this?

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Billing itself as "The Entrepreneurial Publisher", Morgan James Publishing requires its authors "to commit to purchasing, during the life of the agreement, up to 2,500 copies [of their book] at print cost plus $2." (Reports Writer Beware has received indicate that writers are asked for a "deposit" of up to $5,000 on contract signing; we've also had reports that additional fees may be due for editing and PR.)

To make this sizeable outlay of cash seem more palatable, MJP falsely claims on its "compare" page that "Many major houses require authors to purchase 5,000 copies, or more, of the book upon its release", and that even with self-publishing, "[the a]uthor is expected to purchase however many copies required to sell to the general public." (It also--again falsely--suggests that "old school traditional publishers" take possession of authors' copyrights.)

Despite all of the above, MJP declares that "No Publishing Fee [is] charged, hidden or otherwise."

MJP has made PW's fast-growing indie publisher list several times in addition to this year, including 20162015, 20142013, and 2008 (when another pay-to-play publisher, Greenleaf Book Group, was also featured). Of all those articles, only the 2016 one mentions MJP's book huge purchase requirement.

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I've written before about Austin Macauley--and I'm not the only one: others have called AM out on its business model as well.

AM bills itself as a "hybrid" publisher*, and does reveal on its website that it offers "contributory" contracts. However, it presents itself as an "innovative independent trade publisher" and states that "we look at every new manuscript with a view to offering a traditional mainstream publishing deal." This certainly encourages authors to believe that they have a good chance of a traditional offer. But Writer Beware has heard from just four authors who were offered contracts they didn't have to pay for, while we've gotten 60+ reports from authors who received fee-based offers. Obviously this represents just a fraction of those who've submitted to AM; still, the proportion of non-fee to fee-based offers certainly suggests that the bulk of AM's business is fee-based.

Fees in AM contracts Writer Beware has seen range from £1,275 to £7,700 (the heading of fee disclosure section is "Advances," except that this is an "advance" the author has to pay the publisher). In my (non-legal; I'm not a lawyer) opinion, the AM contracts I've reviewed are substandard; there's no stated term for the grant of rights, and discontinuance of publication is "entirely at the discretion of the publisher." In effect, this is a life-of-copyright grant, with completely inadequate provisions for rights reversion. (I've written before about the vital importance of having a good rights reversion clause in a life-of-copyright contract.)

I've also viewed a number of AM's acceptance letters. There are differences, depending on the rationale for offering "contributory" contracts (new author, can't take the risk; previously published author, not successful enough) but other than that it's clearly cut-and-paste, with whole passages used verbatim in multiple letters.

You can see manymanymanymany manymanyauthor reports of Austin Macauley's fees online. AM is on Writer Beware's Thumbs Down Publishers List, and the Alliance of Independent Authors gives AM a red-flag advisory. Glassdoor.com features multiple one-star reviews from current and former AM staff with headlines like "Exploitative and Irrational" and "Not a Real Publisher." Also check out AM's extremely professional response (snark) to my blog post about it, in which it claims that I should be disbelieved because I'm a liar and a bully, and also because "Writer Beware are [sic] part of an organisation littered with racism, sexism and child molestation."

Recognition by PW will give AM a serious PR boost, doubtless drawing in many more unsuspecting authors. Predictably, AM is already making hay with it. But given the very large amount of online information to counter Austin Macauley's sunny claims about itself, PW clearly didn't do its due diligence in including AM on its annual list.

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* In part to counter the wide abuse of the term "hybrid publisher" (which is extensively employed by vanity publishers in an attempt to sanitize their business practices), The Independent Book Publishers Association recently issued a set of professional standards for hybrid publishers. While these standards are urgently needed in the Wild West world of independent presses, they also illustrate how easily a dishonest vanity publisher can present itself as a legitimate hybrid just by making public claims about its business model. 

March 21, 2018

Two Solicitation Bewares: Aimee Ann / Red Headed Book Lover Blog; Book Writing Inc.


Posted by Victoria Strauss for Writer Beware

I've gotten a number of reports of solicitation by the individuals/outfits below. Both are services you might want to avoid.

AIMEE ANN / RED HEADED BOOK LOVER BLOG

Back in December, I posted a warning about this blogger on Writer Beware's Facebook page. But she appears to be soliciting again, so I'm doing a wider warning here.

A woman calling herself Aimee Ann has been emailing authors, offering reviews on her blog, The Red Headed Book Lover Blog. Here's a sample email, with the recipient's information redacted:


If you've ever pitched book bloggers in hopes of a review, you know how much competition there is. It can be hard even to get a response. So you might find it refreshing for a book blogger to approach you. Note, however, how Aimee doesn't mention the title of the author's book, or indeed any specifics at all. That's because this isn't a personal approach from someone who is genuinely interested in the author's work, but a form letter that's being blasted out, spamlike, to large numbers of people.

Why is Aimee spreading such a wide net? Because she is running a pay-to-play scheme. Authors who respond to her solicitation discover that they must pay $75 for a review. (One author told me that when they protested, Aimee told them that she just forgot to mention it.) The existence of the fee (though not the amount) is revealed in the Terms and Conditions section of Aimee's blog--but how many authors are going to read the Terms and Conditions?

It's debatable whether paid reviews are worth the money--even when provided by professional venues like Kirkus--let alone whether it's worth paying a fee to some random amateur. And Aimee is definitely an amateur. Her rambling reviews are poorly written and mostly chronicle her personal reactions (with lots of exclamation points). Some are so generic that you wonder if Aimee actually read the book (shades of Harriet Klausner). Don't be impressed by the hundreds of comments sported by some of Aimee's reviews--she quadruples or quintuples the actual count by responding multiple times to each outside comment.

Aimee's latest enterprise is Book Editing. What qualifies her to do this, you might ask? According to Aimee, "I have experience with working with numerous publishers both in England and America, as well as this I have a degree in Classical Studies and Psychology which I like to think gives me a certain literary flair!" Note, again, the lack of specifics. Aside from how hard these claims are to believe if you've actually read Aimee's reviews, it's easy to sound impressive when you don't name any names.

Authors, don't pay for book reviews. Even if the reviewer is competent.

BOOK WRITING INC.

In February, a local chapter of Sisters in Crime received this solicitation:


SinC isn't alone; individual writers are being targeted also. (Here's what you can expect if you respond.)

Apart from the spam solicitation (reputable firms don't do this), the most obvious clue that Book Writing Inc. might not be the best investment is the mangled English that's apparent everywhere on its website--on this page, for instance:


Or this one:


Looks like these "top ghostwriters" need to invest in their own services. Another warning sign: the Terms and Conditions, which make it clear that getting a refund for late or substandard work will be an uphill battle.

But wait, there's more! A bit of digging reveals that Book Writing Inc. is just one head of a writer-fleecing hydra. Heads 2, 3, and 4: My Book in 28 Days, Ghostwriting LLC, and Ghost Writing. These sister sites--all of which are at least as English-challenged as Book Writing Inc.--look different, and promise somewhat different things, but they offer the same kinds of services, and--whoops!--their Terms and Conditions include identicaldistinctively-written content. They've also made a few goofs in the proofing process. From My Book in 28 Days:


And from Ghostwriting LLC:


Although there's some similarity here to the predatory Philippines-based Author Solutions spinoffs I wrote about in January, I don't think that Book Writing Inc and its brethren are Author Solutions copycats.

Domain registration information leads to a number of other websites that are not writing- and publishing-related, but hawk unrelated services: logo design, website building, tax and accounting, video animation, and Wikipedia page creation. Altogether, there are at least 30 websites in this complex, linked not just by domain registration info, but by the English-language errors that are present on almost all of them, and by shared content and design. Whoever is running this scheme is casting a wide net, and not just for writers.

ALWAYS be wary of out-of-the-blue solicitations.

March 9, 2018

Scam Down Under: Love of Books Brisbane / Julie "Jules" McGregor


Posted by Victoria Strauss for Writer Beware

It's a familiar story.

Entrepreneur sets up publishing company. Publishing company charges fees, but it's not a vanity publisher--certainly not! Authors are just investing in their own success.

But...oh dear. Authors receive proofs riddled with errors and finished books so badly produced they are unsalable. Some receive no books at all. Refunds, if promised, never show up; court judgments, if levied, are never paid. The entrepreneur gets aggressive with authors who complain, or simply doesn't respond to emails and phone calls. Finally the business collapses and disappears, or the owner sells it or transfers it to a third party who refuses responsibility for previous mistakes. Authors are left high and dry.

How often have I written about this?

Well, here's another example: Julie McGregor's Australia-based publishing services company, Love of Books Brisbane, a.k.a. Books Publishing Services Australia. According to this article in the The Sydney Morning Herald, McGregor has reportedly defrauded multiple clients to the tune of four and even five figures. From the article:
Disaffected clients claim they handed over sums ranging from $2000 to $12,000 since 2013 and as recently as late 2016 to entities including Love of Books Brisbane and Books Publishing Services Australia. The projects have ranged from historical research and commercial fiction to travel guides.

Another complainant is a Queensland debut novelist who unsuccessfully claimed a partial refund when the deadline for her fantasy fiction "was exceeded, my manuscript edited with no permission or tracking to show where the edits took place, no finished product and then I had to pay someone else to edit it again from scratch".

The writer says she is still owed $4000 and has not heard a word from McGregor since she was promised the refund in August 2016. At that time, she was not advised that McGregor was a bankrupt.
And that's not all.
McGregor...dealt exclusively with a Melbourne high school whose parents spent $10,000 to produce a cookbook as a Christmas fundraiser in 2016.

The school, which does not want to be named, paid a $4000 deposit raised from local sponsors plus a further $6000 to McGregor's business, Love of Books Brisbane, to print 1000 copies of recipe favourites.

To date the fundraisers say they have not received a single copy of the book, which was to have been delivered four weeks after the supply of artwork and content in September 2016.
Several of McGregor's authors have won judgments from the Queensland Civil Claims Tribunal, although only one author appears to have been paid (and only partially).

Publishing isn't McGregor's only fraud. In November 2017, she was convicted of an elaborate scheme to extract money from local businesses.
[A] Southport magistrates court convicted [McGregor] of three counts of dishonestly gaining thousands of dollars from three restaurants using fraudulent credit cards. She was handed a nine-month suspended sentence for what the prosecution said was a "calculated, fraudulent activity, not once but three times".

Acting magistrate Gary Finger described McGregor as "certainly naive to say the least" for her role in the complex fraud, in which she booked restaurant functions on fraudulent credit cards and then persuaded the restaurant owners to pay for non-existent florists and limousine services. A sobbing McGregor was told she would face jail time if she came before the courts again.
In 2016, McGregor transferred the Love of Books website and client list to Ian Lewis, who is currently operating the business under his own business number and a slightly different name: Love of Books Australia-Wide. According to McGregor, this change was spurred not by thousands of dollars owed to multiple authors, but by "high continuous bullying in many forms...lasting over 3 years by a sacked employee and his associates, along with the take over of the businesses clients and personal details by a greedy commercial operator in conjunction." (You can read a much longer and even more self-serving version of this screed here.) According to The Sydney Morning Herald, Lewis has disclaimed responsibility for reimbursing McGregor's clients.

Although Writer Beware never received complaints or reports about McGregor's company, I did have my own encounter with her. In 2015, she sent me an email with the angry (and mis-spelled) subject line: URGETN ATTENTION REQUESTED.


I always give attention when asked, especially when it is URGETN.


McGregor responded:


Well, that wasn't super-helpful, but I did what she suggested, and typed her name and URL into Google to see what I could see. Turns out that she was indeed mentioned on my blog...but not because anyone had defamed her. I thought it would be good to let her know what I'd discovered.


I wasn't surprised when I didn't get a reply.

Here's McGregor's comment that produced the websearch result:


UPDATE 3/11/18: Wow, that was fast. I got home last night from an event to find two emails threatening me with legal action: one from McGregor, and the other from Ian Lewis--purportedly, at least. Verbal clues suggest that both emails were written by the same person responsible for the posts on this blog devoted to extending McGregor's claims that she, in fact, is the victim.
 
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