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.

December 23, 2014

Happy Holidays

Posted by Victoria Strauss for Writer Beware

The Writer Beware blog will be on holiday hiatus for the next two weeks. I will still be answering email, though, so if you have a question, feel free to contact me at the email address in the sidebar.

Many, many thanks to our readers, followers, and fans--and especially to all the writers who contact us to let us know about their writing and publishing experiences, good and bad. You are why we do this.

See you in 2015.

December 19, 2014

Evaluating Publishing Contracts: Six Ways You May Be Sabotaging Yourself

Posted by Victoria Strauss for Writer Beware

As I've followed the discussion (for instance, here, here, and here) over the past couple of days about literary ezine The Toast's demand that writers surrender copyright (the demand was first reported by me, and The Toast has since announced that it's eliminating the demand from its contracts), I've been struck by the number of comments from writers who seem to think that a bad contract clause is not so very awful if (pick one) the publication is great; the people who run it are great; the bad contract clause is not always enforced. (See especially the comments thread on The Toast's post about the controversy.)

That's all very well. But (and I'm speaking generally here, not in particular about The Toast) this is exactly how writers get screwed: by making assumptions about a publisher's intentions, by letting their emotions overrule their business sense, and by forgetting that, in the author-publisher relationship, the publishing contract is the bottom line.

Here are some suggestions for changing those damaging ways of thinking.

  • Don't assume that every single word of your contract won't apply to you at some point. You may think "Oh, that will never happen" (for instance, the publisher's right to refuse to publish your manuscript if it thinks that changes in the market may reduce your sales). Or the publisher may tell you "We never do that" (for instance, edit at will without consulting you). But if your contract says it can happen, it may well happen--and if it does happen, can you live with it? That's the question you need to ask yourself when evaluating a contract.
  • Don't mistake "nice" or "responsive" or "professional" or even "crazy about my work" for "author-friendly." Remember, the lovely, enthusiastic editors you deal with when you submit your work probably didn't create the contract (they may not even be fully aware of its provisions). It's a sad truth of the industry that wonderful publishers can have shitty contracts. Don't let your warm fuzzy feelings push aside your business sense.
  • Don't make assumptions about what contract language means. If you don't understand the meaning of a clause, or aren't sure about its implications, don't guess. Get advice from someone qualified to provide it.
  • Don't rely on your publisher's assurance that objectionable contract language won't be enforced. Your publisher may be telling the truth--at least, up to the point that they give you the assurance. But even if they aren't just trying to get you to shut up and sign, circumstances may alter (what if management changes? What if the publisher sells itself?) and internal policies may shift. Promises that contradict contract language offer you absolutely no protection or guarantees (especially if your contract contains a clause like this one). Never forget that by signing a contract, you are giving your publisher the full legal right to enforce it.
  • Don't accept your publisher's claim that contract language means something different from what you think it means. This is a response you may receive if you attempt to negotiate changes, or bring a troublesome clause to your publisher's attention. Your publisher may be correct: the misinterpretation may be yours. But your publisher may also be unscrupulous or ignorant (many small presses don't properly understand their own contract language). If your publisher's explanation doesn't sound right, don't just take their word for it. Get a second opinion.
  • Don't let your publisher convince you that asking questions is a bad thing. Dodgy or incompetent publishers don't like pro-active authors, and may try to blow them off by claiming that asking questions is unprofessional, or ungrateful, or something similarly bogus. But asking questions is your right. Walk away from a publisher that won't let you exercise it.

No contract is perfect. You should always be able to do at least some negotiation--but even under the most favorable circumstances, you'll probably be giving something up. You may even decide to swallow an objectionable clause because of a great opportunity (I don't know of any writer, including me, who hasn't made this decision on occasion). But if you do decide to sign a contract with unfavorable language, do so in full understanding of the possible consequences. Not in ignorance, or assumption, or fear of annoying the publisher by being too inquisitive.

I'll close with an excellent tweet from author and editor Jane Friedman (if you aren't following her, you should be):

Words to live by.

December 16, 2014

Rights Grab: Transferring Copyright

Posted by Victoria Strauss for Writer Beware

EDITED 12/17/14 TO ADD: The Toast has announced that it will change its contract terms. See the end of this post.

The Toast is an online literary magazine that publishes stories, articles, artwork, reviews, and more. Launched in mid-2013, it's associated with some respected names and apparently draws a sizeable audience.

It also offers, in Writer Beware's opinion, a very problematic agreement for freelancers.

Contributors to The Toast are paid a flat, one-time fee of $50 on publication. No further compensation is due, even if The Toast re-publishes the contribution. The Toast also reserves the right to edit at will.

These aren't ideal provisions, but they're not uncommon. What is uncommon: contributors must hand over copyright and waive all moral rights (including the right of attribution). Here's the relevant language (my bolding):
The Contributor hereby acknowledges and agrees that the Work, including any drawings, images, sounds, video recordings, or other data embedded in the work and including adaptations or derivative works based on the Work is the sole and exclusive property of the Toast and the Toast has all rights under existing United States’ copyright law and all reproduction and republication rights. In the event that any portion of the Work is not copyrightable, The Contributor hereby irrevocably assigns any and all ownership of the Work’s intellectual property rights, including but not limited to: patents, trademarks, design rights, database rights, trade secrets, moral rights, and other proprietary rights and ll rights of an equivalent nature anywhere in the world to the Toast. The Contributor further acknowledges and agrees that the rights being granted to the Toast include the right to own and register all copyrights in the Work. The Contributor hereby irrevocably assigns all the above described rights herein to the Toast and agrees to execute such additional documents as may be requested by the Toast to evidence the Toast's ownership of said rights in the Work. The Contributor further hereby waives any "moral rights" claims she may have with respect to the Work.
Nowhere on The Toast's website, or in its submission guidelines, is the copyright transfer mentioned.

I'm guessing that you've probably never heard of The Toast (I hadn't), or considered submitting there, so you may be thinking that this post has no relevance to you. But it does, in a broader sense--because outside of the academic world, copyright transfer demands are not the norm for magazines and journals, online or off. If you encounter them, you should be wary.

Be sure to read every word of any contract or agreement you're offered, and make certain you understand them. If you have any doubt about the meaning of terms and clauses, don't make assumptions--seek advice. The language of copyright transfer is not always completely clear, or, as with the clause above, it may be buried in a welter of verbiage.

More on copyright transfer, from this blog:

The difference between rights and copyright

Copyright transfer in HBO's Game of Thrones Compendium 

Copyright transfer language buried in a website's Terms of Use

Copyright transfer as part of writing competition entry

An example of how vague and opaque copyright transfer language can be

Why a "temporary" copyright transfer is no better than a permanent one 

EDITED TO ADD: As I mentioned above, I'd never heard of The Toast before, so I was not aware that it is (at least, based on the attention this post has received) a Pretty Big Deal in the literary world. If I'd known this, I would have reached out to its publisher, Nicholas Pavich, for comment. I didn't--but others have. If there's a response, I'll amend this post to reflect it.

EDITED TO ADD: In a blog post today from co-founder Mallory Ortberg, The Toast has announced that it is changing its contract terms for writers (and hopefully artists as well, though that's not mentioned):
So, with that said, we’re changing our contracts to ask only for First North American Rights (so rights revert to the writer after 6 months), as well as online serial rights so that we can retain the work on our sites in perpetuity. We’re also writing into the contract the promise that we will revert rights in the case of a book deal, so that what we’ve always done in practice will be spelled out in writing.
I think it's great that, despite the rights grab in its contract, The Toast has in practice reverted rights upon request. However, in that case, why have a rights grab at all?

In any event, "in practice" is a very nebulous concept when contract language says something different. It's far better--and safer--for practice and contract language to match. Kudos to The Toast for responding to criticism and taking that step.

UPDATE, 6/8/15: Publisher Nicholas Pavich has left The Toast, "apparently...over some vague but certainly bad blood between him and its co-founders, Mallory Ortberg and Nicole Cliffe," according to Jezebel.

December 11, 2014

Alert: Questionable Terms of Use in HBO's Game of Thrones Compendium

Posted by Victoria Strauss for Writer Beware

UPDATE 12/18/14: HBO has changed its terms of use to partially address the concerns below. See the addendum at the bottom of this post.

If you're an artist and a Game of Thrones fan, you may have heard that HBO is inviting contributions to "the ultimate compendium to Game of Thrones."

What exactly is the Compendium? According to the FAQ:
The Game of Thrones Compendium will be the world’s first collaborative, crowd-sourced compendium. The end result will be a printed and bound edition. Every entry chosen for inclusion in the printed book will receive a copy with their name listed as an author.
Entry is open to anyone over 18 in the USA, UK, Canada, and Brazil. A wide variety of content is eligible: "anything from story analysis, arts and crafts, original artwork, costume or jewelry design, music – anything that extends the Game of Thrones experience." There's a rigorous selection process, conducted by "[l]uminaries from the fields of journalism, food, art, craft, fantasy and fashion". Only a small number of submissions will make it into the printed book.

Sounds pretty cool, doesn't it? So why is the Compendium being featured on Writer Beware?

Well, for a start, the lack of meaningful compensation for artists. Assembling content for free via crowdsourcing, and paying with contributor copies, is something you'd expect from small presses, tiny ezines, and one-off anthologies--not a huge corporation like HBO that, moreover, is likely to realize some serious revenue from this project. Could HBO not crack open its bank accounts to provide a few dollars for the people who are going to help it make all that money?

Of even more concern are the Terms of Use, to which anyone submitting work--not just finalists chosen for the Compendium--must agree. Here's the relevant language:

(a) HBO will consider any Submissions and/or anything you contribute to this Service as available for its use free of any obligations to you. You understand that your Submissions may be published on the Service, on other websites, on advertising and promotions, and may be selected for the compendium book. Submissions will not be treated as confidential.

You understand that the Submissions are considered non-confidential and non-proprietary communications, and therefore others may view your Submissions without your knowledge.

(b) Subject to the provisions of any additional terms, by posting or uploading a Submission to this Service and/or providing any communication or material to HBO, you automatically and irrevocably:

(i) grant and assign to HBO a royalty-free, transferable, sublicenseable, non-exclusive, unrestricted license in the Submission throughout the world in perpetuity including, without limitation, all copyright, together with all consents (if any) necessary to use, reproduce, display, perform, modify, make derivatives of, translate, reformat, distribute, or publish for advertising and promotional purposes, including to be used on the Service and associated websites, by HBO and/or by any person authorized by HBO, by any means and in all media now known or hereafter devised, in whole or in part, without payment or other reference to you or any other person.

(ii) waive all moral rights in the Submission which may be available to you in any part of the world and confirm that no such rights have been asserted;

(iii) understand and agree that by submitting concepts, ideas, slogans, trade dress, logos or other branding you hereby disclaim any trademark rights in such Submissions.

(iv) appoint HBO as your agent with full power to enter into any document and/or do any act HBO may consider appropriate to confirm the grant and assignment, consent and waiver set out above;
Boiling all this down: HBO is claiming all rights in perpetuity to use for any purpose whatsoever without any obligation to pay or otherwise compensate for that use--and, since artists are required to waive moral rights, HBO doesn't even have to identify or credit the artist.

This is not really surprising, given that GoT is a media franchise. Even if you're not doing work-for-hire, if you're officially using elements of a media franchise (as distinct from non-official use such as fanfic or fan art), you will generally be expected to hand over copyright to the franchise owner. And indeed, Clause 10.b.i. requires artists to "grant and assign to HBO...without limitation, all copyright."

But while this is understandable for actual contributors to the Compendium, there's no need to demand it of everyone else. And HBO is indeed demanding it. Instead of doing what many other contests of this sort do, and letting the grant of rights expire upon rejection for artists who aren't selected, HBO is requiring the very same perpetual rights grant from everyone who submits, regardless of whether their submission is actually used. That is the very definition of a rights grab.

There's also an odd discrepancy. In Clause 10.b.i.--the same clause that demands the copyright assignment--the grant of rights is described as "non-exclusive." This would suggest that artists retain ownership of their work. But they if they've assigned copyright, they can't retain ownership--so what is "non-exclusive" doing in this clause? This makes no sense to me, and I fear it will mislead artists who skim through the Terms of Use.

As of this writing, the Compendium is six days away from opening for submissions. I would frankly not encourage anyone to submit under the terms that are being offered. HBO could easily have served its copyright interests as a franchise owner while being fairer to artists: allowing the grant of rights to expire upon rejection, paying artists chosen for inclusion. Instead, it's keeping everything for itself, as ruthless and greedy as any character in the show.

Shame on you, HBO.

UPDATE, 12/18/14: HBO has altered its Terms of Use to address some of the concerns expressed above. Here's the new language of Clause 10: 

(a) You understand that your Submissions may be published on the Service and Submissions will not be treated as confidential.

(b) Subject to the provisions of any additional terms, by posting or uploading a Submission to this Service and/or providing any communication or material to HBO, you automatically and irrevocably:

(i) grant and assign to HBO a royalty-free, transferable, sublicenseable, non-exclusive, license in the Submission throughout the world to use, reproduce, display, perform, modify, reformat, distribute, or publish on the Service and to display at live events and in social media to showcase the Service.

(ii) waive all moral rights in the Submission which may be available to you in any part of the world and confirm that no such rights have been asserted;

(iii) warrant that you are the owner of the Submission and entitled to enter into this Agreement; and

(iv) confirm that no such Submission will be subject to any obligation, of confidence or otherwise, to you or any other person and that HBO shall not be liable for any use or disclosure of such Submission.

(c) Subject to the terms and conditions of this Agreement, HBO hereby grants you a non-transferable, non-exclusive and limited license to use the names, images, characters, trademarks, logos, and other indicia of the HBO series “Game of Thrones,” (collectively, “GoT Materials”) solely in connection with the creation of a Submission for the Service. You shall not make any commercial use of this license or use the GoT Materials in conjunction with any third party trademarks, logos, names or other indicia.
What's better: This is now a true non-exclusive grant of rights--HBO no longer claims copyright on submissions. Artists now retain ownership of their work--although that's complicated by 10.c., which prohibits any commercial use of that work.

What's not better: The grant of rights still applies to all submissions--not just those that are chosen for the Compendium. Artists must still waive moral rights--and since those include the right of attribution, this means that HBO can use your submission without crediting you. And there's still no payment for artists.

December 3, 2014

Don't Do This: Wrong Ways to Try and Escape Your Deadbeat Publisher

Posted by Victoria Strauss for Writer Beware

The other day, I received this email:
Dear Writer Beware,

A couple of years ago, I published my mystery novel with [insert name of well-known deadbeat publisher here]. My contract won't expire for several more years, but I'm very unhappy with [deadbeat publisher] and would like to get out from under it. Can I change my title and publish on Amazon and hope [deadbeat publisher] won't see it?
I often receive such questions from authors who've tried and failed to get their rights back from their scammy or incompetent publishers, and are desperate to publish their books somewhere else. Can I change my title? Or the names of all the characters? Move the setting to a different country? Alter 10% of the book and legally make it a new work? Would my deadbeat publisher notice? Would it sue me?

In many cases, the answer to those last two questions is "very likely not." The odds that an author mill pumping out hundreds of books a year with minimal staff and attention would realize you'd re-published your work, or that an amateur small press struggling to stay afloat would have the resources to bring legal action against you, are probably pretty slim.

There's still a risk, though. And even if there weren't, these are still the wrong ways to escape a bad contract or a bad publisher. Here's why.

1. Traditional publishers want exclusive publishing rights, and their contracts require you to warrant that you are fully empowered to grant them. But if you're already contracted to another publisher, you cannot grant exclusive rights to someone else (regardless of any revision you may do--see #3 below). A new publisher won't want your book under those conditions--and signing a new publishing contract without disclosing that your rights are already encumbered would constitute fraud.

What if your old publisher was some super-obscure micropress that barely even managed to get your book on Amazon? Or went out of business without ever publishing? You may be able to make a convincing argument that your rights have returned to you if you can definitively show that your old publisher is out of business. Don't try and fool a new publisher, though--it's better to tell the truth and try to work things out than to lie and hope you won't be discovered. The Internet is forever: if your book was ever on sale, there's a record of it somewhere. A new publisher will not be pleased to learn that you haven't been completely candid.

(As a corollary, if your publisher has gone into bankruptcy or insolvency, do not assume that your rights have automatically reverted, regardless of what your contract says. Publishing contracts are assets that can be sold to pay creditors, and for that reason, courts don't generally honor bankruptcy and insolvency clauses.)

2. Unlike traditional publishers, self-publishing platforms only want non-exclusive rights. But they, too, require you to warrant that you are fully empowered to grant those rights--and if you're bound to an exclusive publishing contract, you can't do that.

 For instance, here's the relevant language from Kindle Direct Publishing Terms of Service (my bolding):
5.8 Representations, Warranties and Indemnities. You represent and warrant that: (a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement; (b) prior to you or your designee's delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement; (c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights.
And here's Smashwords (again, my bolding):
9a. By submitting Your Work to Smashwords for publication, You, the Author or the Author you represent (if you are an Agent or Publisher) author’s Publisher or Agent or Distributor, warrant and represent that the work is complete and the author:

• is the only author of the Work;
• is the sole owner of the rights herein granted;
has not assigned, pledged, or encumbered such rights or have not entered into any agreement which would conflict with the rights granted to Smashwords herein; and agrees not to do any of the aforementioned without first unpublishing the work at Smashwords
• has full right, power, and authority to enter into this Agreement and to grant the rights granted herein.
Just about any self-publishing platform--whether reputable or not--has similar terms. What happens if you breach them? Potentially, oblivion. All self-publishing platforms reserve the right to terminate your account and/or remove your work from sale if you breach your warranties (or any of their guidelines).

Don't assume they won't find out. Amazon, for instance, scours KDP for plagiarism; I've heard from authors whose legitimately re-published backlist works were removed from sale because anti-plagiarism algorithms tagged the original versions.

3. The "change 10% and legally make it a new work" thing is a common trope, but it is a myth. Ditto for changing all the characters'  names, or moving the book to a new setting. There's no legal standard for how much, or how little, of a book you can alter or revise to transform it sufficiently to create a new copyright.

Bottom line: there are no shortcuts or workarounds to rights reversion--and reverting rights is essential if you want to get out from under a deadbeat publisher and give your book new life somewhere else.

I've written some posts that may help:

How to request rights reversion from your publisher.

Getting out of your book contract (maybe).

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