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.

January 14, 2022

Pink Sand Press: What Can Happen When Your Agent Decides to Become Your Publisher


Posted by Victoria Strauss for Writer Beware®

Last week, several people drew my attention to this article in the Des Moines Register. "Iowa Romance Writer Sues Over Efforts to Have Ghostwriter Take Over Series." 


If your "conflict of interest" radar is screaming right now, it should be. 

Clark's complaint (which you can see here) accuses Grishman et al. of breach of contract, breach of fiduciary duty, and fraudulent concealment, and alleges a variety of malfeasance, including concealing the family connection, and invoking an allegedly non-existent contract clause to justify buying out the final two books in an uncompleted series and hiring a ghostwriter to write them. Clark is seeking to terminate both her RedRock Literary and Pink Sand Press contracts, and to receive an award of "lost profits, damages, costs, and attorney's fees based on Pink Sand's breach". 

As of this writing, Grishman hasn't filed a response to the lawsuit, but he did have this to say to a local reporter:

I will have more to say about the complaint. But first...

SOME BACKGROUND

Marci Clark wears many hats. In addition to being the author of multiple novels under several pen names, including Marci Bolden, she has worked as a freelance writer and as an editor for several small publishers, including Lyrical Press. She's also the owner of Nerdy Kat Book Services, which provides design, consulting, editing, and other services for authors. According to her bio, she has an MS in publishing (keep that in mind as you read on).

David Grishman is a commercial loan officer at Bank of New England and serves on the Select Board of Swampscott, MA, where he resides. He also served for several years as CEO of Waterhouse Press, a publisher founded by successful self-published author Meredith Wild (according to this 2016 New York Times article on the publisher's founding, Grishman is Wild's brother-in-law). Grishman brokered some pretty big book deals at Waterhouse, but sometime between August 20 and September 30 of 2018, he vanished from the company website.

Grishman seems to have set up RedRock Literary* in fairly short order following his departure from Waterhouse: its domain was registered on the last day of October 2018, quickly followed by two Massachusetts business registrations: RedRock Literary Inc., filed in November 2018, and a conversion to RedRock Literary LLC, filed in December 2018. (As pointed out by IP attorney Marc Whipple in a lengthy analysis of Clark's complaint, the conversion to RedRock Literary LLC happened just days after Clark signed an agency contract with RedRock Literary Inc.--which contract doesn't seem to have been amended to acknowledge the change. This, according to Whipple, is "extremely unusual".)  

Beyond the registrations, the lawsuit, and a couple of photos accompanying a trademark application, there's no evidence of RedRock's existence: no website, no social media, no reports of sales. 


Pink Sand Press is somewhat more corporeal, with a website and a Facebook page. That's not to say it's a healthy company. For one thing, it is no longer a functioning corporation: it was involuntarily dissolved on June 30 of this year by order of the MA Secretary of State (Clark's lawsuit has been amended to acknowledge this). Again according to Whipple, that usually happens when a corporation fails to file reports on time.

Apart from the books it has published for Clark, Pink Sand has virtually no track record as a publisher. A search on Amazon turns up two other authors and five other titles--but the status of those titles is unclear. They are nowhere to be seen on the Pink Sand website, they don't appear ever to have been promoted--or even mentioned--on Pink Sand's Facebook page, and four of them--by Jeanne De Vita, writing both as herself and under the pen name Callie Chase-- have either been taken out of print or are listed as out of stock or unavailable everywhere but on Amazon. (Interesting side note: De Vita is or was an editor at Waterhouse Press.)

THE CONTRACTS

Both of the contracts Clark signed--the RedRock agency contract and the Pink Sand publishing contract --are attached to her original complaint

The agency contract looks reasonably standard to me, though it imposes a three-year term that the author can terminate only in the event of breach by the agent--not ideal. It also has an arbitration clause, which could complicate things for Clark's legal effort to be released.

The publishing contract, which covers a whopping 28 titles, is another story. It includes some really terrible clauses, particularly in regard to payment. 

For instance, here are the royalty rates for hardcover publication:
This is seriously nonstandard. Mass market paperback royalties are also substandard, at 5% of wholesale. 

Of course, both of these provisions are moot, since Clause 4(a) of the contract stipulates publication only of "an e-book and trade paperback edition"--but there are big problems with royalties for those formats as well. Ebooks are paid at just 15% of net (even the big publishers typically pay 25% of net, and most small presses pay considerably more). As for trade paper royalties, there is no mention of them in the contract. At all. (!!!)

Subsidiary rights payments too are hugely, one might almost say rapaciously, substandard, with the publisher keeping 85% and the author getting just 15%. These include foreign language, book club, and numerous other rights that are typically allocated at least 50/50 between author and publisher.  

Other lowlights: an overly lengthy grant term (10 years); no advances for certain of the many backlist titles acquired; a non-competition clause that bars Clark not just from publishing competing works, but from publishing anything until the terms of the contract have been completed; an agency clause that empowers RedRock to increase its commission for subagented rights sales beyond the commission rates stipulated in the agency contract; and a clause that empowers Pink Sand to retain rights for five years to a delivered revision it declines to publish, unless the author can find another publisher willing to hand all the author's earnings over to Pink Sand until advances have been repaid. (Good luck with that.)

It's hard for me to imagine any reputable publisher offering a contract like this, or any reputable literary agent advising a client to sign it. I see some pretty atrocious contracts from inexperienced publishers who don't know any better, but Grishman is not inexperienced. Waterhouse Press is a successful house, and he worked there for years. 

Make of that what you will. Make what you will, also, of the timelines involved. David Grishman incorporated RedRock Literary (for the first time) on November 13. Less than three weeks later, on December 2, he signed Clark as an agency client. Six weeks after that, on January 15, Steven Grishman incorporated Pink Sand Press. Clark's publishing agreement was signed just eight days later, on January 23. 

The whole thing has the feeling of a rush to pin something down.

THE COMPLAINT

Here are Clark's principal allegations, with my comments. (I'm not a lawyer, but I have Thoughts.)

Allegation 1. It was not revealed to Clark that Pink Sand was owned by Grishman's father until after she signed the contract. Instead, she alleges that she was told that the company was "a startup company that would be owned by Grishman and Matthew Bernard, Grishman's friend." 

It's possible to imagine a situation in which the alleged statement by Grishman was not misrepresentation--at least, at the time it was made. Suppose, for instance, that the described joint ownership really was the plan in December, when Clark signed the agency contract--but later those plans fell through and Grishman turned to Dad instead.

Even in this hypothetical, though, everything would have changed on January 15, when Pink Sand's business registration was filed in Steven's name. In terms of conflict of interest, there's not a lot of difference between your agent owning your publisher, and his father owning your publisher while your agent just works there--but at a minimum, Clark should have been informed. It sure seems like there was ample time for that to happen before January 23, when Clark signed the Pink Sand contract. 

Allegation 2. Pink Sand did not file copyright "applications" (presumably what's meant here is registrations) for any of Clark's works, as the publishing agreement required it to do.

I checked the public copyright catalog, and of the nineteen Marci Bolden books published by Pink Sand, sixteen are indeed registered. 


I can't see any pattern that would explain the three that aren't registered, although they are the only standalone titles. They're also the only titles available solely as ebooks (the rest are available in a variety of formats). Weird.

Allegation 3. In March 2020, after a fourth novel in one of Clark's series was delayed by extensive developmental editing, Clark alleges that Grishman informed her that the publisher would be buying out the final two volumes in an uncompleted series and hiring a ghostwriter to create them, claiming that "she had no choice because of a clause in the Publishing Agreement that allowed Pink Sand to use a ghostwriter to finish the series that would be published under Clark's name." 

Clark alleges that there is no such clause. I agree. I've read the contract several times, and I can find no wording that's even remotely similar to what Clark alleges Grishman told her. If this allegation is true, it would constitute some serious gaslighting.

Allegation 4. In February 2021, Clark and Pink Sand executed an amendment to the original contract that "expressly changed the Publishing Agreement to only require Clark to submit manuscripts for copy editing, not developmental editing." Clark alleges that Pink Sand breached this when it "insisted on conducting developmental edits before accepting Clark's manuscripts for publication."

Here's the amendment:

This doesn't seem to me to be as unambiguous as the complaint alleges. Yes, "developmental" is crossed out and "copy" is substituted--but only in connection with establishing a delivery date. There is no wording that explicitly excludes developmental (or any other kind) of editing. Maybe the intent was to exclude it, but to me (and again, I'm not a lawyer), the actual wording leaves something of a loophole that could enable Pink Sand to argue that it wasn't in breach: for instance, it could claim that when the works were received for copy editing, it was realized that they needed developmental editing, so Pink Sand went ahead and did that since it wasn't specifically prohibited from doing so.

Allegation 5. In May 2021, Clark and Grishman agreed on a September 24 submission date for an unnamed manuscript. But in August, Clark alleges that she was told her submission was late; and on September 15--at which point, remember, the ms. wasn't actually due yet--Pink Sand informed her that she was in default and her royalties would be withheld "until the parties came to an agreement to end negotiations and terminate the Publishing Agreement." (Clark did not turn in the manuscript.)

The complaint doesn't include any documentation of this claim. But once again, the timelines are interesting. Pink Sand was dissolved as a corporation on June 30. According to Clark's complaint and the Pink Sand contract, September 15--the day she alleges that she was prematurely told she was in default--was also the day royalties were due. 

Hmmmm.

FINAL THOUGHTS

There is much here that it is impossible to know right now. The only documentation provided to address the many allegations in Clark's complaint is the two contracts, and as of this writing, the Grishmans have not yet filed a response to tell their side of the story. 

There are situations in which agents or agencies that double as publishers can avoid major conflicts of interest--primarily by maintaining a wall between the agenting and publishing sides of their business (agency clients are never offered publishing, other than possibly for represented backlist works that are out of print; and publishing clients are never eligible for agenting). There's a whole section on the Literary Agents page of the Writer Beware website that addresses this issue.

Clark's situation, though, seems like a textbook case of unavoided conflict of interest. Even had the Pink Sand contract been perfectly fair, Grishman, as Clark's agent, could not adequately represent Clark's interests when presenting it to her, because as a Pink Sand employee, he was also representing the publisher's interest in having her sign it. This is why the AAR prohibits members from representing both buyer and seller in a single transaction.

Of course, the Pink Sand contract is not fair. One of the things I find most peculiar about the whole mess is that Clark was not a publishing neophyte when she signed it. She'd published several books, worked as an editor for other small presses, and had an MS in publishing from the University of Houston. Wouldn't those terrible royalty clauses--at the very least--have rung some warning bells?

I'm not casting blame. But this is one of the things that makes me think that there's a lot more to the story than is currently apparent.

Stay tuned.

* David Grishman's RedRock Literary Inc should not be confused with Renata Kazprzak's UK-based Red Rock Literary Agency.

January 7, 2022

The Best of Writer Beware: 2021 in Review




Ah, 2021. The year that was supposed to deliver us from the pandemic, and instead delivered...well. You know.

At least one expectation didn't change: scammers gonna scam. Writer Beware was ready. Below are highlights of a busy year of scam hunting, scheme exposing, contract analyzing, and just plain crazy stuff.

IT CAME FROM OVERSEAS

I know I'm kind of a broken record here, because I've written so many posts about them...but the tsunami of publishing/marketing/fake literary agency scams out of the Philippines really is one of the realest and most present dangers for self- and small press-published writers, who are almost exclusively these scammers' target.

This was one of the more elaborate of the Philippines-based scam efforts: the creation of a large roster of fictitious literary agents, complete with fake resumes and/or websites. The "agents" are fronts for referrals to paid services.

Scammers are increasingly using the names of top publishers and their staffs to make false claims and offers. Here's one especially brazen effort: the supposedly Big 5 publisher-sponsored sale of "tickets" that buy a "letter of endorsement" by "commissioned literary agents". Needless to say, this is not how publishing works.

2020 was all about scammers impersonating reputable literary agents. 2021 ushered in a wave of film studio and production company impersonations. Major studios like Universal, smaller companies like Roth/Kirshenbaum and Bluegrass Films, and producers like Todd Phillips and David Ellison were all impersonated by scammers looking to trick writers into paying thousands of dollars for a screenplay.

This triple-barreled scammer has not just impersonated major publishers, but falsely claimed an alliance with the Authors Guild...which did not take that lie lying down. The person claiming to be the CEO of these ventures is unusually visible and flamboyant on social media (most of the people connected with Philippines-based scams go to great lengths to hide their identities).

BUT WAIT...THERE'S MORE!

From fake agent photos and bios, to unverifiable details about its background, to zero internet presence beyond a hasty website, this fee-charging agency was much less than it appeared. There are useful tips here for vetting an agency by analyzing its website.

A fake conference promises a hefty appearance fee--but first you've got to send money for "equipment". And Goodreads trolls are targeting writers with demands for money to head off fake one-star reviews.

A pair of dodgy new ventures from two individuals whose previous businesses screwed writers over in a major way.

CONTRACT MATTERS

Although not common, this is something to watch for, especially in small press contracts. While there aren't any definitive legal rulings to disallow such claims, there aren't any to support them either--and, just as important, there's no obvious benefit for publishers in refusing to allow writers to re-publish the final edited version of a book whose rights they've reverted.

The number of reading/writing apps and platforms like Wattpad, Webnovel, and Radish has exploded over the past couple of years, and many are aggressively soliciting for content. Unfortunately, contracts can be seriously author-unfriendly. The contract offered by ByteDance's Fizzo is no exception.

Another reading/writing app, another terrible contract that, among other things, imposes punitive word count requirements.

Scribd is engaging in a major push to acquire audiobook and ebook rights for already-published books. The contract it's offering has some issues that require careful consideration, including what could be very limited compensation, depending on how popular your book turns out to be.

ADVICE YOU CAN USE

Overly sweeping--and unnecessary--rights grants are a common feature of contest rules. One contest's inclusion of such language, why the language is problematic--and how it was changed for the better.

These out-of-the-blue offers are almost always from fraudulent companies that want to get you in the door so they can pressure you to buy additional, costly "services." Many simply stop responding once writers get suspicious and start asking questions, or shut down without notice when complaints start accumulating...leaving authors high and dry.

SAVE YOUR MONEY

In the few countries with an official registration process, there's no legal substitute. Nevertheless, there are many fake and exploitative "registration" services that claim to offer a shortcut or an alternative. Here's one that apparently got so many credit card chargebacks from unhappy writers that it adopted an...unusual response.

Beware of bookstores calling out of the blue to sell you shelf space. They may be owned by a predatory publishing service that wants to sell you other stuff as well (of course, they won't tell you that).

Vanity publishing as education? New Degree Press is the publishing arm of a university course in which students are coached to produce a book. NDP presents as a publisher, but it functions like an assisted self-publishing service. Fees are crowdfunded but they're hefty, and students often wind up out of pocket.

PUBLISHERS IN--OR GIVING--TROUBLE

Author complaints are a familiar litany: publication delays, late or missing royalty statements and payments, unpaid staff, poor editing and production. And, in one case, a book purchase requirement that's not revealed on the company website.

Multiple author complaints include missing and inaccurate royalty statements (in some cases going back years), missing royalty payments (even where there were thousands of sales), failure to respond to reversion requests on contract expiration, and more. As sometimes happens, these were problems of very long standing that suddenly acquired critical mass.

Late royalty payments, missed editing and other deadlines, poor communication, books ordered and never received, and major gaslighting by the company's owner. City Limits suffered a mass staff exodus shortly after I published this post, and closed its doors for good a few weeks later--leaving writers and staff unpaid.

All three of these publishers are the subject of author complaints of non-payment, and all three illustrate the risks of signing with publishers that are basically one-person operations: a single personal problem, family illness, or other mishap can derail the entire operation.

BAD MOUSE

Disney has acquired many publishers and imprints over the years, along with their intellectual property. In many cases, however, Disney is taking the position that, while they've acquired these publishers' contracts, they have not acquired the obligations the contracts stipulate...such as paying royalties and providing royalty statements.

In 2021, SFWA and other professional writers' organizations established the #DisneyMustPay Joint Task Force to advocate for affected authors. My blog post takes a look at the situation as of September 2021: some progress, but much work still to do.


AND FINALLY, A SALUTE TO THE CRAZY

When was the last time you got a snail mail get-rich-quick solicitation? This one from Monica Main promises the opportunity to be a co-writer with a best-selling author in a "James Patterson kind of writing 'empire'"...you just have to watch a bunch of videos and sign an NDA! What I didn't expect as I looked into this scheme: the best-selling author is real. Monica Main is a convicted felon who was prosecuted by the Feds for commodity trading fraud. And the trademark applications are...interesting.

Come for the lawsuit threats, stay for the insults. My encounter with highly volatile editor/author coach Christina Kaye, who is the focus of multiple client and staff complaints. She clearly didn't expect that I'd publish the threat- and expletive-laden emails she sent in an effort to get me to back off. Oops.
 
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