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 31, 2018

De Montfort Literature: Career Jumpstart or Literary Sweatshop?


Posted by Victoria Strauss for Writer Beware

I was planning on writing about De Montfort Literature myself, but Alliance of Independent Authors watchdog John Doppler beat me to it, with this excellent warning post.

Started by hedge fund manager Jonathan de Montfort  (I have some questions here; see the update below), DML promises to help writers kick-start their careers by paying them an annual salary of £24,000, plus royalties, to write novels that will be published under the DML brand. DML also promises to provide a pension and "all computer equipment and software necessary." As with Inkitt, there's an algorithm. It also looks like the company wants to create its own proprietary e-reader software (a risky move, unless you're Amazon).

What must writers agree to in return? Not much. Just surrender copyright (per its FAQ, DML claims copyright not just to novels, but to ideas--despite the fact that copyright does not cover ideas)*, write only for DML, accept net profit royalties (always a huge red flag), and give up their day jobs (yes, you read that right). Early versions of the DML FAQ described a punitive non-compete provision barring authors from writing for other publishers for two years after leaving DML; that appears to have been re-thought, however, and is no longer mentioned on the website.

*(John Doppler has updated his post with new information provided by Mr. de Montfort, including the claim that "Technically, the author retains ownership of the copyright, but licenses the content and all rights, subrights, and options exclusively to DML..." However, as of this writing, DML's FAQ clearly states that DML takes ownership of copyright.)


To even have a chance of joining this venture, writers must submit to a mysterious application process involving multiple NDAs and a "psychometric test." (Interested writers are well-advised to carefully read DML's Privacy Policy, which among other things discusses what the company can do with the psychometric data.) Per DML's Twitter feed, response has been overwhelming. This seems to have resulted in multiple delays (the delays were confirmed to me by a participating writer).

I don't doubt that there are good intentions here. And any beginning writer (and even many established ones) can appreciate the appeal of a steady salary to practice their craft. But there are also obvious problems, as noted above--and even beyond those, as John Doppler points out, hedge fund experience does not equal publishing experience:
Jonathan De Montfort, the individual behind this venture, is a successful hedge fund manager who credits his firm’s success to “a mathematical system based partly on the Fibonacci sequence”. He claims this system has successfully predicted financial markets, the 2008 crash, and Brexit, and other events, and now believes it can be applied to literature. “I have taken what I know about hedge fund management and applied it to literature,” reads a quote on the company’s website.

However, De Montfort’s experience with publishing appears to be extremely limited; his first novel, Turner is scheduled to be published on August 31st of this year.

In a June 1 interview with The Guardian, De Montfort’s view of publishing becomes more apparent. He says, “The traditional publishing models for fiction writers are littered with obstacles. Securing a literary agent is a lottery, and self-publishing is costly and time-consuming.” DML’s website positions their approach as a “new, alternative route to the traditional agents and publishers” which will “make being a novelist a valid career choice…”

The thousands of career authors who are earning a living wage from their “invalid career choice” may take exception to those comments.
Lack of experience and untested concept aside, could De Montfort Literature succeed? Could it maintain good and ethical working relationships, establish excellent distribution and marketing networks, and parlay a stable of books and authors into a profitable business for all concerned? It's certainly possible. But writers need to also consider less rosy scenarios, one of which Doppler lays out as follows:
1. The author passes DML’s screening and is accepted into the program.
2. The author quits their day job to pursue their passion, writing.
3. The author collects a steady paycheck.
4. DML’s algorithms decide that steamy vampire detective thrillers have high profit potential.
5. DML assigns the author a steamy vampire detective thriller project very loosely based on the author’s original historical romance idea.
6. DML requires six steamy vampire detective novels per year. Writer’s block is not allowed.
7. The author has an idea for a fascinating book on a topic that has captivated their interest. DML declines to pursue the project. The idea now belongs to DML, and the writer is prohibited from authoring similar works.
8. Although the author is entitled to 50% of the steamy vampire net profits, DML claims that marketing, production, and salaries have resulted in a net loss.
9. The author quits in disgust… or DML informs the author that they are no longer needed and dismisses them.
10. DML retains the rights to use the author’s name, branding, ideas, and books.
11. The author is prohibited from writing or publishing anything for two years.
12. Meanwhile, DML markets a series of horrendous steamy vampire detective thriller under the author’s name, ghostwritten by an overworked amateur.
13. When the author asks DML to stop, the company invites the author to buy back the rights to their intellectual property for $20,000.00.
Doppler notes that further information from Mr. de Montfort qualifies some of these projections: for instance, the algorithms will be used only for writer selection, not to choose book genres. Still, I can't resist proposing my own alternate scenario: DML disappears without ever putting out a single book other than de Montfort's own.

Turner is DML's first (and so far only) publication. With a release date of August 31, it will provide an interesting test case for DML's marketing, distribution, and sales strategies (that it is initially being released only in print, and currently appears to be available only on UK retailers' websites, are not encouraging signs). If you're thinking of applying to become a DML writer, I'd suggest you consider holding off until Turner has been out for a while, and you can assess its performance.

UPDATE 9/7/18: I've been doing a bit of research into Mr. de Montfort and his investment firm, De Montfort Capital (DMC). What I'm finding is...odd.

The firm's current website states that the company was founded in 2013. And indeed, DMC's web domain was registered in that year. However, from 2013 through at least early 2018, DMC's website was basically a placeholder, complete with non-working links and fake Latin text fillers (not to mention typos). Here it is in January 2018, courtesy of the Wayback Machine:


Three team members are listed: Jonathan de Montfort, James Turner, and Richard de Montfort. It's worth noting that Jonathan de Montfort's middle name is Richard.

DMC's business address at that time--145-157 St John Street, London--was a virtual office address sold by Companies Made Simple. Companies Made Simple also sells company formation services.


DMC's website was re-vamped sometime after March 2018 to provide a more stylish and fully functional (if curiously bare) web presence. Its business address also changed, to 20-22 Wenlock Road, London--really just a cosmetic shift, because that's the new address of the very same Companies Made Simple, which moved to the new digs in early 2015.

Co-working space is available for rent at the Wenlock Street address, so DMC's address may not be completely virtual. Even if it were, there's nothing wrong with that. But it's not what you'd expect of a successful hedge fund company--nor is the long period of time following the company's founding date during which DMC's web presence was a mere placeholder.

DMC's filing history, available at Companies House, makes for interesting reading. It's classed as a micro-company (as of 30 April 2017, its total net assets were under £10,000). Through 29 April 2018, its SIC code (Standard Industrial Classification, used in the UK for classifying industries) was 82990, or "other business support service activities n.e.c.", which includes a range of activities, such as meter reading and repossession services, that aren't typical of hedge funds.

Then, on 15 May 2018, just a few days after the launch of De Montfort Literature, DMC added three new SIC codes: 47610 (retail sale of books in specialised stores); 58110 (book publishing); and 64303 (activities of venture and development capital companies).

That an investment firm founded in 2013 should only classify itself as such in May 2018 seems (to put it mildly) rather peculiar. There's also very little on DMC's website, or findable online, to support its claim of success--no investment history, no fund descriptions, no staff names (at least on the website's current version) or bios other than Mr. de Montfort's own. The only investment that's actually named (besides DML) is Minds.com, a cryptocurrency-focused social media network that describes itself as "an open-source and decentralized platform for internet freedom" and has attracted some buzz as a potential Facebook competitor.

Around the same time he incorporated De Montfort Literature, de Montfort established two additional companies: De Montfort Media and De Montfort Technology.

There may be important information that I've missed, or that isn't publicly available, that casts a different light on all of the above. As of now, though, something about these De Montfort ventures isn't adding up for me. If nothing else, it's another reason to be cautious about De Montfort Literature.

August 21, 2018

Contest Caution: The Short Story Project's My Best Story Competition


Posted by Victoria Strauss for Writer Beware

This post has been updated.

There's another big-money writing competition in town: The Short Story Project's My Best Story contest.

The Short Story Project (TSSP) offers customized lists of curated short stories for download, in text and audio form. Right now, the stories on the site are a mix of in-copyright and public domain works; TSSP also appears to be planning to allow writers to submit stories directly, with perks such as a "professional review" tied to the number of reads. Stories can be accessed for free; there are also subscription plans that ensure an ad-free reading experience.

So what about the competition? 20 writers can win prizes ranging from $125 (for 10th place) to $5,000 (for the grand prize winner). Included is SmartEdit software and publication on TSSP for the top five writers. Competition judges are not only named, but have genuine credentials (this is one of the more important ways of distinguishing a fake contest from a real one). Word limit is 2,500, entry fee is a not-unreasonable $17, and the deadline for submissions is September 30.

So far, so good. As always, though, the devil is in the fine print--in particular, the fine print regarding intellectual property rights. Though TSSP makes it all sound very simple--
--its Terms and Conditions tell a different story [UPDATE: the T&C have been amended. See below].


Merely by entering the competition, writers are granting sweeping publication and commercialization rights not just to TSSP, but to anyone associated with it who obtains a copy of the writer's story "in connection with Sponsor's business."

It's not uncommon for competitions to require writers to grant various rights upon submitting, as a kind of shortcut to ensure that the sponsor will have those rights already in hand when winners are chosen. But such a grant should be temporary, and should always be balanced by language ensuring that rights are released back to entrants if they don't win.

TSSP's T&C do not include any such language. Not only that, they extend the grant of rights to unidentified third parties working "on Sponsor's behalf." In other words, whether or not you win, TSSP and unknown people associated with it retain publishing rights to your entry in perpetuity, and can do pretty much anything they want with it without payment or even notice to you. Yes, the grant is non-exclusive, which means that you can publish elsewhere--but since entering this competition is in effect a grant of first rights to TSSP, you will only ever be able to sell your story as a reprint.

In addition, entrants must agree to a sweeping indemnification clause whose language suggests they will have no recourse for improper use of their stories (such as intellectual property theft):


Resolving claims might be difficult in any case--at least for US- and UK-based writers--given that the contest is governed by the laws of Israel, and any disputes must be resolved there. (As is increasingly common these days in T&Cs, the guidelines also bar class action lawsuits.)

Less than two weeks ago, I wrote about a different competition whose T&Cs also failed to release entrants from a grant of rights required on entry. This is a fairly common issue with competitions that include a grant of rights in their guidelines, and I think in many cases it's just carelessness (or, sometimes, ignorance) on the part of the sponsor--a failure to consider consequences, rather than because the competition is greedy or shady. But--assuming the competition actually isn't greedy or shady--there really is no excuse for it, given how easy it is to fix, simply by adding language terminating the grants of non-winners immediately upon announcement of competition results.

Yet another demonstration of why writers must pay careful attention to the fine print of competition guidelines, and make sure they understand what they may be giving up by entering.

UPDATE: TSSP is soliciting entries via Messenger, offering 50% discounts on the entry fee.



UPDATE 8/27/18: Last week, TSSP's founder, Iftach Alony, offered to answer some questions from Writer Beware. His responses are below.

Iftach says that he will amend the License to Entry clause of TSSP's contest guidelines to clarify that the grant of rights is digital only, and will add language releasing the rights of non-winners 6 months after the competition ends. He has assured me that both these changes will be retroactive for writers who've already entered the competition.

The 6-month lag time in releasing rights, presumably, will enable TSSP to publish deserving stories other than those chosen as winners. However, TSSP's grant of rights is explicitly "free of charge"--so if you submit to this competition, be aware that you are consenting to possibly being published without payment.

In responding to my question about payment, Iftach points to the free perks TSSP's writers receive (such as audio recordings and translations), as well as the exposure they'll gain by appearing on TSSP, as "assets" that offset the lack of payment. However, those free perks are not available initially or to everyone. And I would remind authors that "writing for exposure" is only of value if you can confirm that there really is exposure.

I remain concerned about TSSP's indemnification language. And I'm not satisfied by Iftach's response to my question about why TSSP's License to Entry clause extends authors' grant of rights to unnamed third parties. He claims that this is "a common clause in...rights agreements." That's not my impression at all. (Hopefully someone knowledgeable will correct me if I'm wrong.)

I'll keep an eye on TSSP's competition guidelines and update this post when they're amended.

------------------------------

WRITER BEWARE: In emails to me, and in a comment on my post, you've repeatedly stated that TSSP is asking writers to grant only digital rights. But the current language of your contest guidelines' License to Entry clause does not limit the grant of rights to digital only; in fact the word "digital" doesn't appear at all. Can you address this discrepancy?

IFTACH ALONY: TSSP, does not deal with any kind of printed literature, it's one of the project essentials, encouraging "digital literature". I guess that it was so obvious to us, that we didn't pay enough attention. We will correct it, making it clear that the rights to the wining stories are only for the non-exclusive digital rights.

WB: Can you explain why you retain the rights of all writers who enter your contest? Why do you choose not to release those rights back to non-winners?

IA: Our intention is to publish all stories which we find suitable for our UGC platform. This can only be done if we have the writers permission/rights. TSSP has no interest in keeping the rights to non-winners, and we will correct the wording to make it clear that non-winners rights are released. I must admit that we were mostly thinking of how to enable writers to publish and expose their works, enabling TSSP to publish the stories.

WB: Might you be willing to add a clause to your competition guidelines releasing the rights of non-winners once the winners have been chosen?

IA: As mentioned in the previous answer - rights of non-winners will be released. We will keep, for a limited period of 6 months, the writers permission to publish his work on the TSSP UGC platform.

WB: Your License to Entry clause extends the grant of rights to "any person obtaining a copy of the [contest] Entry on Sponsor’s behalf." Can you give me an idea of who those third parties might be, and why you feel it's necessary for them to have a claim on entrants' rights?

IA: I'm not a lawyer, and as I understand, this is a normal and acceptable clause which is part of any agreement TSSP made while purchasing the rights to publish a story, and as far as I understand, it is a common clause in most of the right agreements, especially while dealing with one story.

WB: In an email to me, you mentioned that fair payment for writers is one of TSSP's goals. I wholeheartedly agree! However, the License to Entry clause explicitly states that contest entrants are granting rights "free of charge" in perpetuity. How does this square with your goal of fair payment?

IA: I think that you are missing a main point here, the resources which are invested in publishing a story on TSSP platform - translating to the different languages, recording by a professional narrator, adjusting to the platform technical requirements, creating the image, etc. etc. all those investments are also the writers assets, as he can use them for free!! To be more precise: a) TSSP gives the writer free access and use of the translation and recording. This is worth much more than the story rights, for a very acclaimed writer or a contest winner. b) Publishing the story on the TSSP platform is exposing the work to hundreds of thousands of readers! This gives the writer a unique opportunity to get acquainted by audiences that it would have otherwise been almost impossible to, not to mention the costs it would occur . We strongly think that for a writer, this overall exposure, audio and translation are assets which can be easily measured.

You have partly quoted what I wrote to you – I mentioned that TSSP is in the midst of developing an algorithm that will enable the writer to be part of TSSP revenues.

Generally stating, I don't understand your point – as a writer, I think that having exposure in TSSP ONE story out of a collection, in whatever terms, can be deemed only as a benefit.

WB: Is there anything else you'd like to add?

IA: The Short Story Project's mission is firstly to encourage reading and breaking the language barrier. As I am passionate for short stories, I decided to be active in this, genre. One of TSSP missions is to encourage short literature, making it vibrant and essential. I believe that there is no art as literature, and specifically short story literature, to discover human conditions.

If any further clarifications are needed, do not hesitate approaching me.

Thank You,

Iftach Alony
Founder,
The Short Story Project

UPDATE 9/3/18: As promised, TSSP has amended its Terms & Conditions. Here's the new License to Entry clause:


The grant of rights has been limited to contest winners, and also to publication, reproduction, etc. by "digital means only" (which, it has to be noted, would not rule out print, contrary to what's claimed the comment below from a TSSP staffer).

This is definitely an improvement. However, two of the issues I discuss above have not been addressed: the grant of rights is still extended to "any person obtaining a copy of the Entry on Sponsor's behalf", and the language of indemnification clause, which potentially deprives authors of recourse in the event of intellectual property theft, has not been changed. For me, that's still enough to make this contest a "caution."

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.


--------------------------------

* 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.
 
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