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.

June 27, 2014

Start Media Responds to Questions on Purchase of Whiskey Creek Press

Posted by Victoria Strauss for Writer Beware

Shortly after I posted my article about Whiskey Creek Press's purchase by Start Media, and the new contract terms being offered by Start, I received a response from Jarred Weisfeld, President of Start Publishing.

I think it clarifies some of the concerns expressed by WCP authors--including what, for me, was a major question: what will happen to writers with current WCP contracts who don't choose to sign Start's letter of agreement. That, by the way, is information that should have been provided by Whiskey Creek Press in its letter announcing the sale. In my opinion, WCP was seriously remiss in not addressing that issue.

The cut in royalty rates is still going to be hard for authors to swallow (it was a major sticking point when Start took over Night Shade Books). While 25% of net is--regrettably--"standard" for larger houses, it's not typical for small presses.

I also question why, if Start is saying here that rights reversion is automatic for books that fall below the minimum sales threshold, they don't simply include that language in the new contract.
UPDATE, 7/16/14: I incorrectly assumed that Jarred's assurance (below) that "there will be no termination fees in the new Whiskey Creek Agreements" meant that termination fees would be waived for existing Whiskey Creek authors who requested early termination. I provided this interpretation in email to at least one Whiskey Creek author. In fact, I've learned, termination fees will not be waived for existing Whiskey Creek contracts. It's only new contracts, going forward, that won't include them.

My question: who is getting the money, Start or the Womacks? Either way, it seems awfully petty for Start to keep imposing this crappy contract requirement (termination fees suck, and their appearance in a publishing contract is always a red flag).
With permission, I'm reproducing Jarred's email in its entirety below.
We're very excited by the opportunity to develop lasting relationships with Whiskey Creek Press's many talented writers. We have received an overwhelmingly positive response from the authors with whom we've spoken and as we have gotten to know many of these authors, we're impressed with the body of work they've cultivated and their knowledge of their audience. We're looking forward to learning from them and working with them to reach even greater milestones than they have done thus far.

We wanted to address the questions regarding the new terms we have offered WCP's authors to help avoid any confusion.
  • Both the royalty rate and the length of copyright terms we are offering are very common, typically considered "standard" in publishing. Our view toward licensing a work for the term of copyright is that we have an opportunity to continue supporting title sales well beyond what might otherwise happen if the terms were to end after only a few years. As our marketing capabilities continue to grow in scope and complexity, we'll look forward to extending the active life of titles many years beyond their initial release. We're excited to be able to do this with such engaging titles and looking forward to finding innovative ways to market them.
  • For those authors who prefer not to sign on under the new terms, that's absolutely fine and we'll continue to honor the terms of their contract as they already stand. When their license has expired they are free to go elsewhere if they wish. They're also free to exercise their termination clause if they'd like to get out before the end of the license period. (Please be advised there will be no termination fees in the new Whiskey Creek Agreements)
  • Any titles with licenses that expired previously whose authors don't want them to remain with Whiskey Creek Press will likewise be released as per the contract stipulations.
  • If you do not sell the number of copies in our reversion clause you will get your rights back immediately.
  • Please note, we have given authors non-recoupable advances as part of this process. The amount of the advances has varied per author and sales and was a significant amount in aggregate.
We've had great phone calls and emails with some of the authors who had questions about the arrangement going forward. We will continue to engage in this type of dialogue and welcome any concerns any authors may want to bring up to us. We want to make sure all of our authors are happy to be in a partnership that we're excited to begin. We're looking forward to creating a lasting brand and connecting new, engaged audiences with Whiskey Creek Press's authors' dynamic content.

Start Media Buys Whiskey Creek Press, Imposes New Contract Terms

Posted by Victoria Strauss for Writer Beware
Edited to add: Jarred Weisfeld of Start Media has responded to this post, clarifying some of the issues raised below.

In early June, Debra Womack, owner of Whiskey Creek Press, announced in a letter to authors that the publisher was in the process of being acquired by Start Media (a company that has recently acquired two other small presses, Night Shade Books and Salvo Press).
As part of the acquisition process, Start is asking all current WCP authors to agree to and sign an offer of new terms as follows on page two below. We are offering you the non-refundable sum of $1 and other good and valuable consideration, payable to you if and when the sale of the company to Start is completed (expected to be by the end of June 2014). Upon closing you will also receive a payment from WCP of current royalties and/or advances or any other sums owing to you by WCP for sales up through and including April 30, 2014.
Writer Beware has received a few reports about WCP over the years: a setup fee for taking books to print (a policy that was apparently discontinued some time ago), and a $500 fee for early termination of its 3-year contract (always a red flag, since such fees don't benefit either writers or publishers, and can be used abusively). Per the discussion at this anti-WCP blog, some authors have also apparently had recent trouble with substandard editing, missing royalty payments/statements, and poor communications by the company.

Even so, WCP seemed relatively stable. So the abrupt announcement of a sale--with no explanation as to why--came as a major shock to authors. So did the terms offered by Start Media.

WCP's contract includes this clause:
If the Publisher sells its assets to another publisher who does or plans to market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement.
In direct contradiction to this, however, the letter of agreement Start Media is asking authors to sign imposes some substantially different terms. WCP's contract term is 3 years from publication; Start Media's is life-of-copyright. WCP's ebook royalties are 35% of the net download price; Start Media's are 25% of net ("all monies actually received"). There's also a troubling gap between April 30, when WCP ceases to pay royalties, and July 1, when Start Media's new royalty rate kicks in. What happens to books sold in May and June?

Understandably, WCP authors are upset and angry. Many are refusing to sign--despite the fact that no explanation has been provided, either by Womack/WCP or Start Media, of what will happen to their rights if they don't. (I've contacted Ms. Womack to ask this question; I haven't heard back yet, but if I do I'll update this post.)

One of the things WCP authors are most concerned about is Start's life-of-copyright grant term. I've heard from authors worrying that Start is asking them to actually transfer their copyright, and from others outraged that Start will hold their rights until 70 years after their deaths.

I do understand that life-of-copyright sounds scary. But it is also the subject of a lot of misunderstanding. Contrary to what many people seem to believe, life-of-copyright grants are extremely common in the publishing world, particularly for larger publishers, though small presses use them as well. I don't consider them ideal for small press or digital-only contracts--a limited term of 3 to 7 years is preferable--but, leaving all other issues aside, Start Media isn't out of the mainstream in asking for a life-of-copyright grant term.

The intent of life-of-copyright contracts isn't to seize authors' rights (no transfer of copyright is involved, unless that's specifically stated) or to hold them in a death-grip until long after authors are dead (how likely is it that a single publisher will even be in existence 70 years after you kick the bucket?). Rather, life-of-copyright is intended to enable the publisher to to continue publishing for as long as a work sells in decent numbers. Once sales diminish--as, for most books, they inevitably do a few years after publication--the contract should be terminated and the work taken "out of print".

In the old days of print only, publishers had a strong incentive to take books out of print and off the market, because they didn't want the expense of holding boxes of non-selling books in their warehouses. Nowadays, though, books don't need to have physical existence in order to be available for sale--so it's actually in publishers' interest to keep them available indefinitely. If a publisher has a deep backlist, they can make money even from books that sell only a handful of copies.

To prevent this, a good life-of-copyright contract should ensure that the author can demand--and receive--termination of his or her contract once sales fall below a specific minimum (for instance, fewer than 50 copies sold in the previous 12 consecutive months). With such language, a life-of-copyright contract is acceptable. Without it, a life-of-copyright contract is a "beware."

Here is Start's reversion language.
2• Revision [sic] of rights: If the Work shall be declared out-of-print, or sell fewer than twenty five (25) copies in all formats in any calendar year, or the Publisher shall have stopped selling the Work in all formats, including reprints or editions licensed to other publishers in the United States and if, within six (6) months of a request by the Author the Publisher fails to inform the Author in writing of a plan to reprint, repackage, do a new edition, or license an edition to another publisher in the United States, then this Agreement can be terminated by the Author in writing. After receipt of the termination letter, Publisher shall have an additional two (2) weeks to reconsider its options (a total of 6 months and two weeks) and notify the Author of its decision. If the Publisher still fails to inform the Author of an intention to keep the Work in print in the United States, all rights shall revert to the Author, subject to any grant of rights made by the Publisher prior to the termination date, and any third party licenses will remain in effect for the duration of its contract and Publisher shall be entitled to collect its royalties.
So there is a minimum sales threshold, below which authors can demand reversion. However, this is qualified by two things: the publisher's ability to slap a new cover on the book (or something similar) and call it a "repackage"; and, more problematic, its ability to "reconsider its options" once it has received a termination request. In effect, whether to honor the 25 copy minimum sales threshold is left entirely to the publisher's discretion. Authors, therefore, can't count on low sales triggering reversion.

Even if there were no other issues, this makes Start's agreement a "beware," as far as I'm concerned.

Unfortunately this analysis is largely moot, since WCP authors' deadline for signing up with Start was June 23 (I wish I'd written about this sooner, but I've been out of the loop for much of June, as you can tell from the absence of posts here, and only heard about the WCP sale this week). I'll be interested to hear from WCP authors--both those who signed up with Start and those who didn't--either in the comments here or via email.


As a side note, WCP's recent contracts include this ominous clause:
XVI. Defamation. Should the Author, or Author’s agent, defame Whiskey Creek Press, Publisher has the expressed right to remedy the matter in a court of law. The Publisher also has the right to terminate this agreement, in part or in full, if defamation is proven. The Author will be responsible for full payment of damages and customary legal fees as a result of legal action stemming from defamation. This does not apply to any issue between Authors.
Writers, where you see a clause like this in a publishing contract--and I've seen a few--it all but guarantees that complaints about the publisher exist.

June 6, 2014

A Visit to BEA 2014's UPublishU

 Posted by Michael Capobianco for Writer Beware

For the last several years, as part of an effort to include self-published and “indie” authors, the annual BookExpo America has included a program called UPublishU.

While attending something like this is not something I’d ordinarily be interested in, scammers of various stripes have used BEA to add a veneer of legitimacy to their services, and this program appeared ripe for this sort of thing. So Victoria and I decided that I would sign up and attend as many of the programs as possible. The cost ($115 before a certain date, $215 after) seemed a little high, but it was all in the interest of Writer Beware.

I also figured if uPublishU turned out to be everything it promised, I might pick up a few interesting tips and tidbits. I am the de facto publisher of A.C. Crispin’s StarBridge books, and recently went through the process of publishing her last book, Time Horse, so I think I probably am in the demographic they are trying to reach.

I got there a little late, and the location and lack of signage concerning UpublishU made me even later. It was tucked into a far corner of the cavernous Javits Center, and I swear that it was almost as if the Powers That Be at BEA were trying to hide it. I finally found it after following directions to “go through the Food Court.”

Unfortunately, I missed most of the first panels, so I had time to make a circuit of the closely packed tables housing the “sponsors” of the event. Most I didn’t recognize, although some--Nook, Kobo, Lulu--I was familiar with. I noticed Mark Coker at the Smashwords table, but he was running off to speak, so I didn’t get a chance to talk to him then. Notably missing was Amazon.

It’s easy to make fun of the names of many of these companies: Nook, Vook, Bookbaby , Bibliocrunch, Pubslush, and my favorite, Bublish. (Why not Publicious? Xook? Booklish? Boopuck? I could go on, but probably you get the idea.)

There were three tracks of programming, but none of the titles seemed all that intriguing. I picked the program items that seemed most specific. What I got, for the most part, was sponsors doing subtle and not-so-subtle advertising for their products. Example: a gentleman from Bowker strongly suggesting that authors should purchase their ISBN’s directly from Bowker or else they wouldn’t have complete control over their metadata. Not mentioning, of course, how buying a few ISBN’s at a time is extremely uneconomical. I can’t say for sure that the panels I didn’t attend were as uninformative as the ones I did, but I think it’s safe to say that no one was revealing any secret handshakes or other ways to get rich quick as an indie author.

Was there encouragement and congratulations for those who were smart enough to “become their own CEO?” Yes, more than a little. This culminated with the keynote speaker, publicist and consultant Cyndi Ratzlaff, whose presentation was titled, appropriately, “Brand YOU: Creating a Rock Star Personal Brand for You and Your Books.” Unfortunately, this presentation was also lunch, so I listened for nearly an hour to a rah-rah speech that boiled down to “be on lots of social media services,” “post a lot,” and “be yourself, only better.” I did eventually leave after I had finished my ham sandwich, potato chips, and cookie, even though the presentation wasn’t quite over; so there might have been something else more valuable at the end (but I doubt it.) Ms. Ratzlaff’s presentation left me feeling that the UPublishU organizers had exceptionally low opinions of the authors who had signed up.

So were there any shady businesses there? I missed it the first and second time around, but eventually I realized that Archway Publishing was, in fact, one of the many “imprints” of Author Solutions. Interestingly, Archway’s rep, Keith Ogorek, recognized my name and I recognized his, since he had interacted with Victoria and me a number of years ago. Keith is Senior Vice President, Marketing for Author Solutions. CrossBooks, another imprint associated with Author Solutions, also had a table.

Fortunately, the Alliance of Independent Authors also had a table, and they were debuting a valuable guidebook titled Choosing a Self-Publishing Service. (Disclaimer: Victoria wrote the Introduction for the book.) We’re discussing hosting a SFWA/Writer Beware table at UPublishU next year. There’s no question that it’s needed.

Toward the end of the day, BookCon, another program of BEA that allowed readers to attend panels of their favorite authors, overwhelmed the space devoted to UPublishU. The hallway was packed with BookCon attendees, which at times made it difficult to even get to the exhibitor tables. Although there were certainly some good services represented there, it was probably just as well.

June 4, 2014

Bait-and-Switch for Self-Published Authors

Posted by Victoria Strauss for Writer Beware

Recently I heard from a self-published author (let's call her Author) who received an alarming email from a reader--or at least, someone claiming to be a reader (let's call her FauxReader).

FauxReader said she loved Author's book, but was distressed by the large number of errors in it--wrong tenses, mis-spelled words, and grammatical mistakes on nearly every page. Not only did this make reading less pleasurable, FauxReader was worried that it might result in bad reviews.

Author was shocked. She works with an editor, and carefully prepares her manuscripts. She didn't think it could be formatting glitches, because those wouldn't insert mis-spellings and grammar snafus. All she could guess was that she'd uploaded the wrong file.

When Author asked FauxReader where she'd purchased the book, and to provide a few examples of the mistakes, FauxReader became cagy. She did eventually offer a retailer's name, and also identified a few typos--but nothing like the major errors with which, she'd claimed, Author's book was riddled.

By this time, Author was suspicious. She did some research--and to make a long story short, discovered that FauxReader had recently hung out a shingle as a freelance editor, apparently undeterred by the fact that she had zero qualifications. Author was being set up; if she'd continued interacting with FauxReader, she probably would have received an offer to fix the "errors"--for a fee, of course.

This is at least the fourth (and most brazen) bait-and-switch scheme targeting self-publishers that I've heard about in the past couple of years. They all seem to operate similarly: the author gets an out-of-the-blue contact from someone claiming to have found text mistakes, or cover art problems, or even metadata deficiencies. The mistakes and problems may or may not be real. The person presents as a Good Samaritan, just trying to help the author out--but always, in the end, there's an offer of a fix for money.

That's one of the "beware" issues here. The other, of course, is the problem of unqualified service providers. Unskilled and less-skilled editors may seem appealing because they're often cheap compared to pricey skilled professionals, but they haven't the skills to do the job and may actually make things worse.

This isn't a new problem: Writer Beware has been receiving complaints about unqualified editors (both freelance and, unfortunately, employed by small presses) for almost as long as we've been in existence. But the boom in self-publishing has really given it legs. Scammers, con artists, and predators go where the opportunity is--and right now, there is huge opportunity in self-publishing. From small-time operators like FauxReader trying to rip off one author at a time, to big corporations peddling dreams that relieve thousands of authors of cash (*cough* Author Solutions *cough*), the danger is everywhere.

Self-published authors, you are the new frontier in literary schemes, scams, and cons. Be careful out there. Verify credentials, don't settle for unskilled service providers even if they're cheaper or you like them personally, and beware out-of-the-blue solicitations.

For another reason to be careful, see my post on self-styled book publicist Kerry Jacobson.
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