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October 22, 2021

A Critical Look at Scribd's Audiobook Reprint Contracts


Posted by Victoria Strauss for Writer Beware®

This week I became aware that Scribd is engaging in a major push to acquire audiobook and ebook rights for already-published books, thanks to this post from Isobel Starling. 

Starling's email exchange with a Scribd representative raised some concerns:

There are definitely some questions here. Fortunately, I was able to get hold of several copies of the contract Scribd is offering for these deals. You can see it here. (I've redacted the author's name and other identifying information, and omitted the signature page. The contracts I saw were identical.)

Salient details:

- It's explicitly a reprint contract. Scribd is looking for backlist books.

- Per Clause 3, the grant of rights is exclusive, and includes worldwide rights in all languages for audiobooks and ebooks distributed on the Scribd platform. For distribution outside the Scribd platform, English-language rights are excluded for ebooks only (this appears to be intended to allow authors to keep any current ebook editions in publication--but it's complicated. See below).

- The grant term is 7 years (Clause 7), and includes distribution and marketing on the Scribd platform (Scribd is an all-you-can-eat subscription service) and outside the Scribd platform via retail channels (Clause 3. Again, though, see below).

- Per Clause 5, payment for distribution on Scribd is a flat fee (between $500 and $1,000 per book in the contracts I saw; the contracts were for multiple books). Unlike some other subscription services, or reading/writing platforms like Webnovel and Radish, Scribd doesn't pay for reader/listener interaction, so for your ebook and audiobook presence on the Scribd platform, the flat fee is all you get.

- Also per Clause 5, payment for distribution outside the Scribd platform is 25% of "Scribd's net proceeds" (not defined) once production costs have been recouped by such proceeds. This kind of back-end payment arrangement would be inappropriate for previously unpublished work, but it isn't unusual for reprint publishers that acquire backlist books; Open Road Media does something similar, for instance. 

Things to consider if you're offered one of these contracts:

- The grant of rights is pretty sweeping: worldwide rights in all languages. There's some limitation, in that English-language rights are excluded for ebooks (though apparently only if they're distributed outside of the Scribd platform; see my next point, below), and the contract doesn't allow Scribd to sublicense rights to others. But there's nothing in the contract to give you any say in or oversight of any translations that might be made, so you are ceding some control here. 

Of course, you have no guarantee there will actually be translations: the Scribd representative who responded to Isobel Starling only said that Scribd "has hopes" of doing translations at some point. So that's an unknown.

- The grant of rights is complicated and kind of confusing and also possibly internally contradictory. Here it is:


One way to read this is that Clause 3.2, which excludes English-language rights, is qualified by Clause 3.3, which claims rights to "all languages" for distribution on the Scribd platform, and Clause 3.4, which also excludes English but applies only to distribution beyond Scribd and only to ebooks. In other words, the English-language exclusion applies only where ebooks are distributed outside of the Scribd platform.

Another way to read this is that Clause 3.2, which excludes English from the all-languages grant of rights without specifying format --just "the Works"--is contradicted by Clause 3.1, which claims audio rights in all languages, and also by Clause 3.3, which claims the same for distribution on Scribd and also doesn't distinguish between formats.

Maybe I'm getting too deep in the weeds here, but this is the kind of thing that gives agents, and contract nerds like me, migraine headaches.

- How do you feel about not getting paid for readers' and listeners' interaction with not just one, but potentially two editions of your book? Other subscription services do provide such payment (though they may not accompany it with a flat fee or advance). If your work becomes popular on Scribd's platform, that's potentially a lot of lost income over the course of seven years. This is definitely an area where Scribd could reap the lion's share of benefit, and has the potential to devalue your rights.

The writers who contacted me to share their contracts told me that they are happy with their deals, which were for books they'd published long ago and were no longer promoting, or that provided them with an audio version they wouldn't have been able to afford to produce themselves. But while money upfront is tempting, whether a flat fee is adequate compensation is definitely something to consider.

- For distribution via retailers, you do get royalties--but how likely is it that Scribd will distribute outside its own platform? Scribd can and does distribute wide: in addition to the reprint contracts with individual authors, I saw a recent audio rights contract between Scribd and a small press (English-language rights only, with a higher royalty percentage). The small press confirmed to me that the audiobooks are being sold on Audible and elsewhere, and that it is receiving payments. 

According to the Scribd representative, though, wide distribution for this new rights acquisition push may not be a given. And if you look closely at the grant of rights above, you'll see that while it covers distribution of ebooks outside of Scribd, nothing at all is mentioned about distribution of audiobooks outside of Scribd. Remember, too, that this is an exclusive grant of rights. Are you prepared for the possibility that your audiobook will be available only on Scribd, and therefore only to Scribd subscribers?

- Royalties for wide distribution are paid only after production costs are recouped. As noted above, this isn't an unusual arrangement for reprint publishers. But the contract doesn't say anything about what those costs might include...narration and design, obviously, but what else? Ask for a breakdown, or at least an estimate, and be wary if that request is refused.

- Such royalties are paid on "net proceeds", but the contract doesn't define what those are. Purchase price less discounts? Purchase price less discounts less other expenses? This would be good to know.

- Clause 2.d. makes clear that Scribd doesn't need to consult you on production decisions. It also empowers Scribd to "make corrections to errors in the existing text." Hopefully this would just be on the level of copy editing, but I would want to know more about what kind of corrections and why.

- There are no freebies. The contract doesn't mention author copies.

- There's some confusion in the language of the Term clause.

First it's said that the contract will "commence upon the Effective Date" (the date the contract is signed) and continue for an "initial term" of 7 years. But according to the last sentence, the grant of rights will continue for 7 years "from date of first publication by Scribd". So what's the actual date on which the term of the grant of rights starts to run: contract signing or first publication?

- There's an arbitration clause (Clause 14). Be aware that when you sign a contract with an arbitration clause, you are waiving your right to go to court to settle disputes. 

To sum up: 

This doesn't strike me as a five-alarm "Writer Beware--run away!" situation. Scribd is not some sketchy startup (unlike many of the reading/writing apps that are also aggressively snapping up backlist books) and it is paying real money. But the lack of compensation for reader/listener interaction on the Scribd platform, which potentially devalues authors' rights, the uncertainties around translations and wide distribution, and the ambiguities in some of the contract language do suggest that careful consideration and caution are in order. 

I'll be interested to hear from other writers who have signed or who've been offered contracts by Scribd. Please contact me (in confidence). 

October 15, 2021

Contest Alert: Bardsy's "The Short and Long of It" NaNoWriMo Prep Contest


Posted by Victoria Strauss for Writer Beware®

Yes, folks, it's another of my posts about problematic writing contest rules.

I do a lot of these, and the issues are often pretty similar from post to post. But because writing contests are so popular, and poor rules language is so common, it never hurts to blast another warning out there.

Bardsy offers products and resources intended to help writers "Optimize Your Writing Process", including writing tools, templates, video courses, automated tips and prompts, and something called the "Bardsy Method". Bardsy members can publish their stories to the Bardsy Library, where they can be accessed and read by other members, or submit to Bardsy anthologies for possible publication. All of this is accessible for a monthly membership fee of $12.99.

Right now, Bardsy is running a "NoNoWriMo Prep Contest" called "The Short and Long of It". Writers can enter unpublished short stories of between 1,200 and 3,000 words. The winner will get a cash prize of $299, plus a free six-month Bardsy Elite membership (Elite membership normally involves an invite from Bardsy and a higher monthly membership fee). An unspecified number of finalists will receive a  50% discount on regular Bardsy memberships for six months (a prize, in other words, that they will have to pay to take advantage of). There's no entry fee. Notably, there's also no guarantee of publication--even though Bardsy does claim publishing rights.

And that's where the problem arises. Specifically, in the Additional Rules section of the contest guidelines:
 

There are several issues here. First, simply by submitting to this contest, you're granting publishing rights to Bardsy--whether or not you win or are declared a finalist.

This isn't unusual: many contests include such language as a convenience, because it spares them from having to contract individually with winners or anyone else they choose to publish. But once those decisions are made and the contest ends, there's no reason to retain non-winners' rights. If there's a sweeping grant of rights like this, it should be balanced by language ensuring that the grant expires at a certain point--sooner rather than later. Unfortunately, many contests don't bother, and Bardsy is no exception.

Second, the grant is royalty free, which means that if Bardsy makes use of your story beyond hosting it on its website, you will not get paid (more on that below). I don't think I need to editorialize on why this isn't optimal.

Third, the grant is perpetual, which means it won't expire for the life of copyright, and non-exclusive, which means you could publish elsewhere. But there's a catch. Any grant of rights, even a non-exclusive one, removes your ability to grant exclusive or first rights to anyone else. You will only be able to publish the story on a non-exclusive basis. This takes quite a few publication options off the table. Submitting to magazines? Original anthologies? Not unless they accept reprints. Remember, too, that this is a contest for an unpublished short story, with no guarantee of publication even if you win. Potentially, you've given up your ability to grant first or exclusive rights on an unpublished story that will remain unpublished--at least, by Bardsy.

Finally...see the second sentence of the paragraph? In addition to making explicit that Bardsy is claiming rights it may not use, it ensures that if Bardsy does publish or otherwise exploit your story, it doesn't have to attach your name: "Bardsy will have the right...to include or omit reference to the author." Your story could be published without your name, or even under someone else's name.

The right of attribution--to be named as the author--is a component of moral rights, which the US doesn't really recognize. Even so, this is, in effect, a waiver of moral rights.

All in all, if you're thinking of entering this contest, there are some serious issues to consider. But wait--there's more.

The contest isn't an isolated example of author-unfriendly legalese. Here's the grant of rights included in Bardsy's general user terms, to which you agree simply by using the various Bardsy services--including writing and story-creation tools and templates that are not downloadable and can only be accessed by logging into Bardsy:


Here, the waiver of moral rights is explicit (see the last sentence).

Also, while the language granting a royalty-free license to "use, copy, modify, etc." is fairly standard for sites that, like Bardsy, display user content (it's not intended to sneakily grab your rights, but to enable the site to broadcast and display that content), the paragraph goes beyond that basic set of permissions by giving Bardsy the power to sublicense your content to "partners" for publication and other uses, and "to profit from such uses of your Content". Not only can Bardsy freely sublicense your work to third parties without seeking your permission or approval, it can potentially make money from doing so... while you, having agreed that any use of your work will be royalty-free, get nothing--perhaps not even, since you've waived your moral rights, credit as the author.

How likely is any of this to happen? Maybe not very. However, if you agree to something that could happen, you should never assume it won't happen. Bardsy does market itself as a program for homeschoolers for $8.99 a month--a program that looks like regular Bardsy, just re-packaged with different promotional verbiage and a lower monthly fee.

There's also the principle of the thing: why be so greedy? Especially, why deprive writers, who your service supposedly is designed to uplift and empower, of the right to have their names published with their writing? That, at least, is not a theoretical concern. In the one example of a Bardsy anthology I could find (apparently published only on the Bardsy website), writers are credited only with their first names and last initials, as if they were in some writerly 12-step program.

Always, always take the time to read--and be sure you understand--the fine print of contest rules and website Terms and Conditions. If ever you're confused as to the meaning of contest legalese, or want to report language you think is author-unfriendly, please contact Writer Beware.

October 1, 2021

Another Reason to Just Say No to That Offer to Re-Publish Your Self-Pubbed Book


Posted by Victoria Strauss for Writer Beware®

One of the identifying markers for the scores of publishing/marketing/fake literary agency scams that are super-aggressively soliciting self-published and small press writers these days is an offer to re-publish or "re-brand" your book.

The offers--which always come out of the blue, by phone or email, from companies you never heard of--vary. Your book isn't priced competitively, and we can do better. We want to represent you to traditional publishers, but first you have to re-publish or "re-license" your book to escape the self-pub "stigma". We'll pitch you to brick-and-mortar booksellers, but you have to have "book insurance" or "return insurance" that your current publishing platform can't provide. 

Of course, you must pay for these purported benefits. For simple re-publishing, the price tag can be relatively small (though only to get you in the door so you can be pressured to buy expensive marketing and book-to-screen services). For a larger fee, strategies to supposedly improve your book's appeal may be included in the offer: editing, re-formatting, a brand-new cover design (these may or may not be competently delivered: as many writers learn to their regret, their re-published books often contain more errors than the originals did). For even more money, a bouquet of marketing strategies may be added: video trailers, press releases, email blasts, social media advertising, internet radio interviews, book reviews (these offers are the most lucrative for scammers, since the so-called marketing is junk: cheap to provide, sold at a huge markup, and ineffective for book promotion even if adequately performed, which often it is not).

Deceptive promises, huge expenses, substandard quality, opening yourself up to aggressive sales pressure, not to mention the always-present possibility that the scammer will simply take your money and run: any one of these is reason enough to trash that email or block that phone call from the persistent "senior marketing consultant" or "executive literary agent" who is trying to sell you on re-publication. 

But there's another reason to just say no--and it could impact more than your bank account.

Suppose your book gets re-published, but you realize you aren't receiving royalties or royalty reports. Or there are errors that need to be corrected, or services you paid for that aren't being delivered, or you have concerns about quality. Suppose, when you start asking questions, your re-publisher stops responding. Suppose you discover that the email address you've been using no longer works, and the phone number you've been calling has been shut off. Suppose you look for your re-publisher online, and find that its website has disappeared. 

These are common situations. Re-publishing scammers routinely ghost writers they decide are inconvenient (or tapped out financially), and frequently shut down under one name as complaints accumulate, only to start up under another. Meanwhile, your book is still for sale all over the internet. 

Suppose, then, you decide to terminate your service agreement or publishing contract, get your rights back, and have your book removed from sale. Maybe there's language in the agreement or contract that lets you cancel--but how do you cancel if phone numbers are dead and all your emails bounce? Maybe there's no provision for termination by the author, something you didn't worry about at the time because you didn't think there would be an issue...but that means you can't go to retailers like Amazon with the argument that your copyright is being infringed because the company ignored your contractually-guaranteed right to terminate. 

Or maybe you never had a contract to begin with. Maybe your sales rep from the company that originally re-published your book moved to a new company and took you with them, claiming that a new contract wasn't needed even though your re-re-published book now carries the new company's name. (This really happened). 

What do you do? 

I'm increasingly hearing from writers who are in these situations. Ignored, ghosted, or contractually screwed, their work is for sale, but beyond their control. There's no clear way for them to get their books unpublished and out of their re-publisher's clutches. 

Some authors have told me they've managed, with much time and effort, to wrangle takedowns from Amazon. More often, though, they're informed that only the publisher can terminate a title listing: a Catch-22 if your re-publisher won't respond or has vanished without a trace. Other writers have tried to figure out who their re-publisher is using for fulfillment and go directly to that company--but it's not always possible to find this information, and the fulfiller may not be receptive in any case. Either way, begging Amazon or Ingram to deliver what your re-publisher won't is not something any writer should be forced to do.

Of course, all of these problems and do happen with real publishers. You know that if you're a regular reader of this blog. But several factors make the re-publication scams uniquely dangerous: 
  • Their overseas location (their purported US and Canadian business addresses and registrations are just for show), which insulates them from legal and law enforcement action from writers in other countries. 
  • Their elusiveness, with most actively concealing the identities of their principals and operating in their home country under entirely different names. For instance, PageTurner Press and Media, which aggressively solicits authors for re-publication and "re-branding", does business overseas as Innocentrix Philippines and presents itself as an outsourcing service. Bridgebooks, also located in the Philippines, claims to be an advertising and marketing firm, and solicits writers as four supposedly US-based companies: Chapters Media & Advertising, PaperBytes Marketing Solutions, Blueprint Press, and Quantum Discovery. 
  • Their flexibility: with trained staff in place and an established (read: endlessly duplicatable) business model, they can close down one business name and start a new one the same day.
  • Their willingness to lie, not just about the quality, benefit, and scope of their services, but about who they are: falsely claiming major publisher or movie connections, appropriating the names of legit but defunct companies, impersonating real publishers and agents.
Bottom line: if you succumb to an unasked-for pitch from a company you never heard of to re-publish or re-brand your book, you stand to lose much more than money. Writer beware, indeed.
 
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