Friday, 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.
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  • 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.
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  • 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.
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  • 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.
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  • 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.
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  • 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.

Tuesday, 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, Nick 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, 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.

Thursday, 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:
10. GRANT OF RIGHTS; USE OF SUBMITTED CONTENT:

(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: 
10. GRANT OF RIGHTS; USE OF SUBMITTED CONTENT:

(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.

Wednesday, December 03, 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).

Friday, November 21, 2014

MeGustaEscribir: Author Solutions Inc. Expands Into Spain

Posted by Victoria Strauss for Writer Beware

Today I'm highlighting a post by author and self-publishing expert David Gaughran. Like Writer Beware, David has been following Author Solutions Inc. closely over the past few years, and has written a number of important, in-depth articles about ASI and its operations.

From David's blog:
Penguin Random House is speeding up the international expansion of its vanity press operations, while also seeking to integrate them more closely with the traditional side of the business – hoping to counteract flat growth for Author Solutions at a time when self-publishing is booming.
The expansion is MeGustaEscribir, which ASI will launch next Tuesday. ASI's press release describes MeGustaEscribir as "the supported self-publishing platform of Penguin Random House Grupo Editorial" (Grupo Editorial is PRH's Spanish-language trade subsidiary).

ASI has created other pay-to-play imprints for major publishers--WestBow Press for Thomas Nelson and Archway Publishing for Simon & Schuster, among others--but this is the first time it has created one for its parent company (as most of you probably know, ASI is owned by PRH).

David observes that MeGustaEscribir offers the "mix of crappy publishing packages and ineffective, overpriced marketing services" that's characteristic of all ASI imprints. It also charges a form of reading fee:
Heavily touted on the MeGustaEscribir site is the Recognition Program – where customers will be recommended for review by an editor from Penguin Random House Grupo Editorial (that link is in Spanish, but Google Translate does a mostly reasonable job of getting the gist across).

Here’s the really shocking part. Consideration by a Penguin Random House editor is contingent on writers undergoing an Editorial Evaluation Report by MeGustaEscribir. The only publishing packages which contain this Evaluation Report are priced at 2,899 Euro (approx $3,600) and 3,999 Euro (approx $4,970).
(This actually reminds me of the "Publisher's Choice" program that iUniverse used to offer before it was acquired by ASI. Publisher's Choice promised participants the possibility--though not the certainty--of placement on Barnes and Noble store shelves, but only if they first bought a "Premier Plus" package, including an editorial evaluation, for over $1,000. See Writer Beware co-founder Ann Crispin's 2006 post about this program.)

David goes on to discuss the importance of international expansion for ASI, which appears to be facing flattening sales (that's sales of services to writers, not book sales) in the USA:
Out of the 211,269 self-published titles tracked by Bowker in 2011, Author Solutions imprints accounted for 41,605 books while a (reputable) competitor like CreateSpace registered 57,602 titles.

Fast forward to 2013, and the self-publishing boom has taken full effect – for everyone except Author Solutions. Bowker tracked 458,564 self-published titles which had been assigned ISBNs. Virtually none of that growth went to Author Solutions, despite launching several new imprints, including a high profile vanity press partnership with Simon & Schuster (Archway Publishing).

Author Solutions’ total for 2013, despite the staggering growth in self-publishing during that two year period, was just 45,574 – a barely noticeable increase on 2011’s numbers. For comparison CreateSpace registered 186,926 ISBNs that year, and Smashwords came out of nowhere to register 85,000.
Why has ASI's growth in the USA, long its primary market, slowed down so much? David feels that "a years-long campaign by writers is starting to take effect", and I agree. The number of online complaints and exposes has been mounting; just Google ASI or any of its imprints to see examples.

But more significant, I think, is the huge success of free electronic self-publishing platforms and distributors like KDP, Kobo, and Smashwords, which allow authors to launch themselves into a space where the perennial handicaps of print self-publishing--distribution and price--don't exist. ASI's business model, on the other hand, is inextricably linked to POD. For savvy self-publishers, ASI's services have come to seem not only questionable or costly, but old-fashioned as well.

No wonder ASI is reaching out into new markets. Via its Partridge imprint, ASI is already doing business in India, Africa, and Singapore. MeGustaEscribir expands its presence to Spain. What's next? Japan? China? Stay tuned.

Friday, November 14, 2014

Scam Warnings For Freelancers

Posted by Victoria Strauss for Writer Beware

Identity Theft

This week, freelance writer Heather Boerner (who has published with such well-known venues as The Atlantic and The Washington Post) alerted me to her experience with a scammer.

Heather discovered the scam when she was contacted, out of the blue, by an individual who claimed to have hired her through a freelance jobs bidding website called oDesk. From an article about the scam by one of Heather's colleagues, Paul Raeburn:
[Heather] quickly realized that she had been the victim of identity theft. Somebody--a fake Heather--had gone to Boerner's website, copied her resume, downloaded her photo, linked to her website, and created an oDesk account offering services as a writer....

"It's an elaborate scheme. It's really bizarre," said Boerner, who has alerted some of her colleagues..."The guy who notified me of this said he had hired Fake Heather to do some writing. Fake Heather then hired people to do the writing for her [or him]." The person who notified Boerner said he gave Fake Heather $1,000.
Heather isn't the only one who has been victimized in this way. Freelancer Carol Tice encountered the same scam (and possibly, the same scammer). From Raeburn's article:
[Tice] received an email from someone wanting to know if Tice wanted to continue the writing project they were working on. "I assured her that I had never started article writing for her, and certainly wasn’t going to continue," Tice wrote in a blog post. "I didn’t even have any idea what topics she was having articles written about!"

As was the case with Fake Heather, Fake Carol set up a Skype account outside the U.S. (in London), and used Tice's name, photo, and website to connect with clients on a freelancers' website (in this case, Elance).
It's not clear whether this is a new trend in scams, or one person's ripoff scheme. But if you post your resume on bidding sites, it's something to be aware of.

How can you protect yourself? Some suggestions from freelancer Barbara A. Tyler:
♦ I strongly recommend that writers Google themselves on a regular basis. That can provide the first tip-off that someone is pretending to be you.

♦ Pay attention to any emails you get that seem off-kilter for whatever reason and investigate them like Carol did.

♦ From the flip side… if you get work through bidding sites (any bidding site, not just Elance) always, always, always do as much research as you can into the person hiring you.
Free Samples

This is not a new scam--in fact, it's a very old one. But I was reminded of it this week when a freelancer forwarded me this email she received when she responded to an ad:
Thank you for your interest in the Freelance Creative Copywriter role we recently posted. We reviewed lots of responses and based on your background/experience we have decided to move you to the next step in the process.

The next step in the process involves completing the attached assignment. Please read the background information and then put together your copy. We ask that you return your completed assignment to me by Monday, November 10th.

This will help us gauge your writing skills and abilities as it relates to meeting our needs and expectations.
Now, this "next step" may simply have the company's cheap-ass way of auditioning writers naive enough not to know that pro freelancers don't provide free samples (they may agree to write test pieces to see if they're a good fit, but not without compensation). Not precisely a scam, though certainly a scumbag move.

But it may also have been a sleazy outfit's attempt to obtain free content--in which case the writer, having completed the "assignment," would get the brushoff and later on discover that her copy had been used on the company's website or elsewhere online, without attribution. (In fact, this is something that can happen even if you do get paid.)

Wisely, the freelancer decided to blow the company off. It can't be said too often: always carefully research any job you're offered or are solicited for. Google is your friend. And listen to your gut. If something seems off, don't ignore it.

Wednesday, November 12, 2014

Alert: Cookbook Marketing Agency

Posted by Victoria Strauss for Writer Beware


Are you thinking of creating your own cookbook--or have you already created one? Good news: an apparently new venture called Cookbook Marketing Agency is here to help.
Cookbook Marketing Agency (CMA) is a global book marketing agency, publisher and branding consultancy. Along with our partners, we have helped thousands of authors, as well as other publishers increase their book sales potential.
Sounds pretty impressive--if not very specific. That's OK, though, because CMA is ready to offer you a whole menu of assistance, including a promotional plan.
Some benefits you will enjoy as a client of Cookbook Marketing Agency:

1. Prominently displayed at national and international book fairs and shows
2. Featured in a proprietary catalog of authors and titles
3. Ability to have E-book distribution
4. A professionally written and distributed press release of your Cookbook
5. Access to a full staff of experts to aid with the design, editing, and distribution of your Cookbook
And much more!
There's even an affiliate plan, where you can earn 20% of "any revenue generated by your leads."

If you've guessed that none of this is free, you're right. There's a fee attached to every service provided by CMA--including its affiliate plan, which requires would-be affiliates to hand over $20 for "business calling cards." The affiliate plan page, however, is the only place on CMA's website where it's explicitly acknowledged that CMA clients are buying services:
You get paid if the prospective customer buys any of our products — anything from an a la carte marketing or publishing service or a full marketing campaign.
Another acknowledgment that's hard to find: the name of the company that's actually behind CMA. There are hints on CMA's catalog page, where all the listed books are published by a single publisher whose initials may be familiar to readers of this blog. But it's only in CMA's press release that the truth is revealed: CMA is "a publishing imprint of Publish On Demand Global (PODG)."

Why is this a concern?

Well, PODG and its other half, SBPRA (Strategic Book Publishing and Rights Agency), has been on Writer Beware's radar--under a dizzying variety of names--since 2001. Starting as a fee-charging literary agency, it expanded over the years into other agencies, vanity publishers, and marketing services, charging fees all along the way. Writer Beware has received hundreds of complaints. SBPRA/PODG and its owner, Robert Fletcher, recently settled a deceptive business practices lawsuit brought by the Florida Attorney General; among other things, the settlement requires Fletcher to pay $145,000 in court costs and author reparations. (For the full SBPRA/PODG story, including its failed defamation lawsuit against Writer Beware, see our Alert.)

It's always a good idea to know who you're really working with.

Friday, November 07, 2014

Solicitation Alert: LitFire Publishing

Posted by Victoria Strauss for Writer Beware
EDITED 11/11/14 TO ADD: Either as a result of this post or of the accompanying discussion at Absolute Write (which includes a lot more speculation and information about possible LitFire staff names and aliases), changes have begun to appear on the LitFire website. I've therefore appended a bunch of screenshots at the bottom of this post.


A few weeks ago, I began hearing from writers who'd been solicited, out of the blue, by a company called LitFire Publishing. In some cases by phone, in others by email, a LitFire "consultant" claimed to have received or seen information about the writers' books (or even to have read them), and wanted to offer a wonderful marketing opportunity--for, of course, a four-figure fee.

Here's how LitFire describes itself and its services (also see the screenshot at the bottom of this post):
Founded in 2008, LitFire allows authors to skip the hassles of traditional publishing. The company started out as a publisher of digital books. With hundreds of published titles and more than 50 publishing partners, we have learned how to succeed and soar in the eBook market. In 2014, LitFire expanded its horizon by offering self-publishing. Today, we offer all the services you would expect from a traditional publishing house – from editorial to design to promotion. Our goal is to help independent authors and self-publishers bring their book production and marketing goals to fruition.
In other words, LitFire is one of those outfits that offers publishing packages, but makes much of its profit from hawking adjunct services such as marketing.

Cold-call solicitations, hard-sell sales tactics (writers report receiving repeated phone calls and emails), expensive publishing packages with silly names, absurdly overpriced "marketing" services: are you detecting more than a whiff of Author Solutions, the much-criticized self-publishing service conglomerate that owns AuthorHouse, iUniverse, Xlibris, and Trafford, among others?

In fact, at least four of LitFire's "consultants"--Portia Peterson, Tori Mesh, KC Normanns, and Mark Advent (also see the screenshots at the bottom of this post)--are or were employees of Author Solutions imprints. And LitFire's publishing agreement bears many similarities to an older AuthorHouse agreement (from 2012; the most recent agreement, which is much more complicated, was revised in 2014). Compare, for instance, AuthorHouse's Clause 18, Termination by Service Provider, to the last paragraph of LitFire's Clause 14, Refunds and Work Termination.

But there are reasons other than possible Author Solutions connections to be wary of this company.

- False or conflicting claims. Of the "hundreds of published titles" and "more than 50 publishing partners" claimed in LitFire's description of itself, there is no trace.

Eight books appear on Litfire's website, only one of which seems actually to have been published by LitFire. That one shows up on Amazon, along with just two others. A few more surface with a websearch (interestingly, these also show up--with different ISBNs--as having been published by Author Solutions imprints). All in all, that's seven titles. Total.

LitFire also appears to be confused about how long it's been in business. Its website claims a 2008 founding date, but its URL was only registered in June of this year. On the other hand, according to one of its email communications, it's been around for 8 years, which would push its founding date back to 2006.

- Illiterate written materials. Most of LitFire's website, while it won't win any prizes for business communication, doesn't read too badly. But the LitFire correspondence I've seen...yikes. For example, this email from "Senior Publishing and Marketing Consultant" Tori Mesh:


The most charitable thing I can say is that it reads as if it were written by someone for whom English is not a first language. Tori's resume includes a current or former stint at AuthorHouse UK; we do know that a big portion of Author Solutions business is outsourced to the Philippines, and that Philippine staff use American or British-sounding aliases, presumably to make it seem as if they actually work at AS headquarters in Bloomington, Indiana, but actually resulting in some very odd-sounding names. (See, for instance, this recent Author Solutions marketing pitch.)

Also check out this blog post on, er, craft, from Jill Bennett, LitFire's Book Marketing Specialist. Here's a sample (also see the screenshot at the bottom of this post):
When can one’s writing writhen out a reader’s metaphysical standpoint?

How about this: Somebody wrote a book saying that the laws the world is following today: spiritual, political, logical are but a rehash of the Primo genial world that the Primo genial human beings have cleaved to and everything everyone believed in that world turned out to be flawed and destructive, thereby the First Apocalypse. He doesn’t claim himself a Messiah or a prophet or whatnot but proves his evidences authentic, like the codex of that first world, every inch of it intact.

I did not make that up.

- Plagiarism. A solicitation email from "Senior Marketing and Publishing Consultant" Mark Advent (formerly of Trafford) is a peculiar mix of the kinds of ESL mistakes found in Tori Mesh's email and relatively fluent passages. There's a reason for this: Mark has borrowed the good bits from others, without bothering with attribution.


The red-boxed passage is from an article by marketing expert Penny C. Sansevieri (see the last paragraph). The blue-boxed passage has been filched from speaker and consultant Al Lautenslager.

Tsk, tsk.

So what is LitFire? Despite the many Author Solutions connections and similarities, I don't suspect that LitFire actually has anything to do with Author Solutions itself. AS is a big company, and it has no need to be coy about what it does. If LitFire were a new AS imprint, we'd know it. I think it's far more likely that LitFire is an Author Solutions clone, created by former or current AS workers in hopes of siphoning off a share of their employer's business.

Either way, one thing is clear. If you hear from LitFire, just say no.

SCREENSHOTS

LitFire's description of itself:

Portia Peterson:

Tori Mesh:

KC Normanns:

Mark Advent:

Jill Bennett:

Jill's illiterate blog post:

Wednesday, October 29, 2014

Kindle Scout: The Pros and Cons of Amazon's New Crowdsourced Publishing Program

Posted by Victoria Strauss for Writer Beware

Yesterday, Amazon's brand-new crowdsourced publishing program, Kindle Scout, opened for voting by the public.The concept is pretty simple:
Kindle Scout is reader-powered publishing for new, never-before-published books. It’s a place where readers help decide if a book gets published. Selected books will be published by Kindle Press and receive 5-year renewable terms, a $1,500 advance, 50% eBook royalty rate, easy rights reversions and featured Amazon marketing.
Authors can submit their full manuscripts of 50,000 words or more (including cover art, various metadata items, and an author photo), about 5,000 words of which are posted on the Kindle Scout website for a 30-day "campaign". Readers can then browse books and nominate their favorites. If a manuscript they've voted for gets published, they receive a free ebook.

Things authors should note:
  • Amazon provides no editing, copy editing, proofreading, or cover art/illustration. Your book will be published exactly as you submit it.
  • Submissions are exclusive for 45 days from the date you submit your manuscript. No shopping your ms. elsewhere during that time.
  • Submitted manuscripts must meet content and eligiblity guidelines. Currently, only Romance, Mystery and Thriller, and SF/Fantasy are eligible.
  • Crowdsourcing? Not so much. Authors are encouraged to mobilize their networks for voting (which kind of undermines the notion that manuscripts will rise to the top on merit--a perennial problem of crowdsourced ventures, along with the potential for gaming the system). Mere vote numbers, however, don't determine what gets published. Per the FAQ, "Nominations give us an idea of which books readers think are great; the rest is up to the Kindle Scout team who then reviews books for potential publication."
  • If you're attracted by the promise of "featured Amazon marketing", here's what it actually consists of: "Kindle Press books will be enrolled and earn royalties for participation in the Kindle Owners' Lending Library and Kindle Unlimited as well as be eligible for targeted email campaigns and promotions." Key word here: "eligible." In other words, no promises. 
  • If you're not selected for publication, you must request removal of your work from the Kindle Scout site. Otherwise, your campaign page will remain online.
  • By submitting, you agree in advance to the terms of the Kindle Press publishing agreement. These terms are not negotiable. So before you submit, be sure you're comfortable with them. (If Amazon chooses not to publish your ms., you're automatically released).

So, what about that publishing agreement?

Overall, it's decent. The grant of rights (for ebook and audio editions only--though see below) is exclusive and worldwide, and renews every five years--but you can request reversion at the end of any five-year term if you've earned less than $25,000 in royalties during the term, or at any time after your two-year publication anniversary if you've earned less than $500 in the previous 12 months. Royalties are 50% of net for ebooks and 25% of net for audiobooks, paid within 60 days of the end of the month. And of course, there's the $1,500 advance.

Things authors should note:
  • The grant of rights is a bit more sweeping than it appears:
    • The grant of rights includes translation rights. If these are exercised by Amazon, your royalty drops to 20% of net. (On the plus side, if Amazon has not exercised or licensed these rights within two years, you can request that they be reverted.)
    • Amazon can license to third parties any of the rights you've granted. You get 75% of net proceeds for foreign-language books licensed to third parties, and 50% of net proceeds for any other format.
    • The grant of rights allows Amazon not just to publish and/or license ebooks and audiobooks, but to "create condensed, adapted, abridged, interactive and enhanced editions of your Work, and include your Work in anthology or omnibus editions."
  • For "subscription or other blended fee programs" (for instance, Kindle Unlimited), net revenue "will be determined in accordance with the standard revenue allocation methods for that program." So be sure you're aware of what those are.
  • Amazon "may" register copyright for you, but is not required to do so.
  • As always, Amazon maintains complete discretion and control, and can make decisions and changes without telling you. "You acknowledge that we have no obligation to publish, market, distribute or offer for sale your Work, or continue publishing, marketing, distributing or selling your Work after we have started doing so. We may stop publishing your Work and cease further exploitation of the rights granted in this Agreement at any time in our sole discretion without notice to you." (my emphasis) These are not sentences you'll find in a typical publishing contract.

So should authors rush to submit their unpublished novels?

On the plus side, there's the advance (money up front is nice), the possibility of subrights sales, the promotional boost that published books will receive from the selection process--at least while the program is new--and whatever promotions Amazon may (not necessarily will--see above) undertake for individual books. Amazon's on-site promotions (as distinct from its email promotions, which can be spammy; you haven't lived until you've gotten an Amazon email promotion for your own book) are incredibly powerful, and can have a huge impact on sales numbers--though that effect doesn't necessarily last past the promotion itself. It's possible, also, that gaining a toehold in Amazon's publishing ecosystem could eventually open the door to one of Amazon Publishing's traditional imprints--for some authors, at least.

On the other hand, Kindle Scout seems to occupy an uneasy middle ground between publishing and self-publishing, embracing characteristics of both while offering the benefits of neither. As with a traditional publisher, you must agree to an exclusive contract that takes control of certain of your rights--but you don't get the editing, proofing, artwork, or any of the other financial investments that a traditional publisher would provide. As with self-publishing, your book is published exactly as you submit it, with no developmental input or support--but you don't have control of pricing and you receive a smaller percentage of sales proceeds than you would with KDP.

For Amazon, Kindle Scout is super-low risk publishing with the potential for substantial yield--not just from books that prove popular but from the influx of new users to its website. For authors, it's the usual dilemma: does what you may gain outweigh what you don't get, and what you must give up?

As always, don't rush in. Read and understand the Kindle Scout publishing agreement, and be sure you're comfortable with the other conditions to which you're agreeing by submitting your manuscript. Be realistic in your expectations--not just of the possibility of publication, but of what might result if you're selected.

And please--don't spam your entire social network with requests for votes.

UPDATE, 10/30/14: Amazon's right to ebooks and audiobooks is exclusive, but I've been asked whether the Kindle Scout publishing agreement would allow authors to self-publish in print. The answer would appear to be "yes". Here's the relevant language (my emphasis): "All rights not expressly granted to us in this Agreement (including the right to publish print editions) are reserved for your sole use and disposition."

Also, here's author Benjamin Sobieck's first impressions of his Kindle Scout campaign. He makes some interesting observations.

UPDATE, 12/3/14: Just four weeks after Kindle Scout officially launched, the first books have been selected for publication. That seems incredibly fast. I wish Amazon were more transparent about stats, so we could know how many books were submitted to the program and how many readers participated.

Thursday, October 23, 2014

How Not to Change Your Business Model: The Latest on Permuted Press

Posted by Victoria Strauss for Writer Beware

This is a very long post. If you're already familiar with the issues involved, scroll down to the third section and read from there.

Last week, social media lit up with news that Permuted Press, a well-regarded small publisher of horror fiction, was going digital-first, and also suspending new title releases until 2015.

In an email sent to authors, Permuted Press's President, Michael L. Wilson, touted PP's success in 2014, along with a huge increase in its release schedule: from 20-25 books per year to over 100 so far in 2014. However,
While we’re thrilled at the response to the “new” Permuted Press, our staff has been burning the candle at both ends pulling it all together. Everyone here is upbeat about the results, but to be totally honest - we’re exhausted.

In order for us to operate at our optimum and to be able to build upon the successes we’ve already seen, we need to make a few adjustments to our original plans. So, we’re writing to inform you of some important changes that are taking place right away.

1: We will be ceasing the production of print-on-demand books. Exceptions may be made for top sellers or for works we subjectively choose. Our data revealed that 41.65% of our production team’s time is spent making print on demand versions of our books, but those products account for only 7.41% of our income. This disproportionate figure revealed the need to make prompt changes to our previous policy.

2: We are pausing the release of most new titles until early 2015. This will grant us the time necessary to increase margin in our production schedule. This will have a positive effect on our promotional efforts and enable us to better serve our authors.
PP authors--and outside observers--reacted with shock and anger. News coverage was equally uncomplimentary. The Horror Writers Association, concerned that PP was suspending print publication without reverting print rights, and also about reports (by me, among others) that PP was demanding fees from authors who wanted to get out of their contracts, referred the matter to their Grievance Committee.

PP did have its defenders, and some of the news coverage was criticized as biased and inaccurate. But for most commenters, PP was a scummy outfit that got greedy with acquisitions, wound up in over its head, and, by suspending print publishing but retaining print rights, wanted to have its cake and eat it too.

*********

I first became aware of Permuted Press in 2006, when I served as a judge for the World Fantasy Awards. They submitted several books for consideration, all of which were attractively-produced and well-edited. Unlike many small presses, they'd managed to gain real-world presence in physical bookstores, and had achieved significant sales success with some of their titles. In 2009, they inked a co-licensing deal with Simon & Schuster.

In 2013, PP was sold. Under new management, acquisition ramped up, with a ginormous increase in the company's release schedule. PP also launched Permuted Platinum, intended to increase its brick-and-mortar presence with distribution through Ingram Publisher Services, and established Permuted Pictures, a film development arm.

Probably due to the jump in acquisitions, I heard from a number of authors in 2013 and early 2014 who wanted me to comment on their contracts. I had serious concerns, which I discussed last spring at Absolute Write. Problems included:
  • A life-of-copyright grant term without adequate provision for reversion (books were said to be "in print" as long as they were "available from the publisher or licensee in any edition"). Reversion in a life-of-copyright contract should always be tied to specific sales minimums.
  • An overly sweeping Option clause ("any full-length work of fiction based substantially on subject matter, material, characters or incidents in the Work") that gave the publisher first refusal right on any sequels, prequels, successor works, or even, possibly, works in the same genre.
  • Royalty rates potentially substantially reduced by "special discount sales"--defined as any print books sold at a discount of more than 40% (most online retailers demand a much bigger discount), in which case royalties dropped to just 5% of net.
  • Substandard ebook royalties (20% of net, poor even for a big publisher, seriously bad for a small press) and subrights splits (30% of net).
  • An excessively long publication window (four years).
Unlike many small presses that have author-unfriendly contracts, PP wasn't some fly-by-night outfit run by delusional amateurs. Even so--and months before any other negative information surfaced--that contract was enough for me to counsel serious caution.

**********

When the shit hit the fan last week, I reached out to PP with a couple of questions.
I'm wondering if Permuted Press is planning to revert print rights to authors whose contracts include a grant of print rights but whose books are now going to be e-only; and if Permuted will be changing its future contracts to reflect this change in publishing policy (for instance, offering e-only contracts, or contracts that revert print rights after a period of time if the publisher doesn't use them).
I quickly heard back from PP President Michael Wilson.
Our recent decision to go to an "e-first" model was based on an analysis of sales for print on demand titles that we were issuing. We found the time and effort that went in to producing those printed versions was disproportionate to the amount they were earning in sales. So, our shift in policy went from a book getting an automatic print on demand version, to one where the books sales must first warrant us doing that print edition.

That scenario may partially answer your question. When a book performs well in ebook format, we will move that book to print. Therefore, we wouldn't want to give up the print rights. In fact, with the expansion of our print on demand distribution by moving to LightningSource from Createspace, the titles that do "graduate" in to print will now have more opportunity for retail placement than before.
I actually understand PP's business decision. For many small presses, as for many self-publishers, print is typically a low-selling format. PP would be far from the only small press to adopt a digital-first business model.

However, I think the switch has been poorly handled. For one thing, the messaging has been confusing. In the email sent to authors, "ceasing the production" and "exceptions may be made" does not really convey the "e-first" policy that Michael describes above (forcing Michael to subsequently send out a clarifying email). Also, authors at PP's September convention in Nashville were apparently told about the switch but asked not to discuss it publicly, resulting in even more anger from non-attending authors who felt they'd been unfairly kept in the dark.

Damage could also have been limited if the digital-first policy had been implemented only for new contracts going forward, rather than imposed on all pending releases. For already-contracted authors who'd been expecting their books to appear in print, PP's abrupt change in business model has been devastating (including for one author who had taken extensive print pre-orders). Alternatively, rather than unilaterally holding on to print rights, PP could have agreed to revert them after a reasonable period of time if they didn't plan on using them.

To date, much of the discussion and anger has been focused on the issues surrounding the elimination of print, along with the inept messaging. But what worries me as much, or possibly even more, is the apparent lack of planning and forethought that led PP, under its new ownership, to acquire such a glut of titles and release them so fast that they apparently couldn't manage the workload--resulting ultimately not just in a change in business model, but in the suspension of its publishing program. Whatever spin a publisher attempts to put on something like this, it is never a good sign.

And then there's the contract--which, as I've noted, is reason all on its own to think twice about signing up with PP.

The Horror Writers Association is concerned about all of this as well, and has been in dialog with Michael Wilson over the past few days. I've been given permission to share this announcement, which HWA President Rocky Wood plans to make shortly:
The Horror Writers Association has held detailed discussions with Permuted Press over the last week, regarding their decision to stop publishing POD editions of books by many of their contracted authors; claims that some authors were required to pay compensation to revert their rights where they objected to the halt on publishing POD editions; and clauses in their boilerplate contract that HWA finds unconscionable.

Permuted have advised that they have agreed the reversion of rights to all authors requesting reversion; and that the reversion has been agreed to with no compensation excepting repayment of advances.

On the issue of the boilerplate contract Permuted have made very significant concessions to the HWA over most disputed clauses. Permuted have asked for another two weeks to finalise a draft to be submitted to the HWA for further feedback or approval. Permuted's business model and contracts are in the final analysis their own, so it may be that HWA will advise its members only to sign a Permuted contract if certain boilerplate clauses are removed or amended. In the meantime HWA maintains its advice that our members should not sign the current boilerplate.
Proposed changes to the contract include limiting the option language; shortening the four-year publication window; a possible switch from life-of-copyright to a 10-year grant term (in my opinion, still considerably too long); and a new reversion clause tying reversion to minimum sales within four consecutive royalty periods. Also, in email to me, Michael has indicated that PP is willing to consider my suggestion that PP revert print rights on request if they haven't used them within, say, 12 months of publication.

I've independently confirmed what the HWA statement says about reversion fees. Although some authors were originally asked to reimburse editing and artwork, PP has reversed that decision.

I hope to have a chance to review the new contract when it's presented to HWA.

************

So what's the final word? 
 
HWA's announcement indicates that some good has come out of all the uproar. By listening to critics and being open to change, PP has gone some way toward demonstrating that it's not the greedy, sleazy outfit some of its detractors have claimed. Having seen way too much of the bullheadedness and belligerence that infests the small press world, I think PP deserves major props for that.

However, even with an ideal contract, it's hard to predict anything about PP's future until it resumes publishing next year. And while I hope very much that PP will start publishing again, I remain concerned about the planning problems and the overambitious vision that precipitated this crisis.

Only time will tell. In the meantime, for authors seeking publication, I think wait-and-see is the best approach.

Friday, October 10, 2014

How Not to Register Copyright

Posted by Victoria Strauss for Writer Beware

A few years ago, I wrote a post on the difference between copyright (literally, the right to copy or reproduce, ownership of which guarantees authors control over their intellectual property) and rights (the bundle of rights contained within copyright, which authors can grant or license to others or exploit on their own).

This week, that post received a (likely spammed) anonymous comment:
Copyright protects works of original authorship such as text, artwork, photographs, sound recordings, screenplays, music, lyrics, etc. You can register more than one work under one copyright registration. Such as a collection of books, songs, photographs, etc. If you need to protect your work you will want to register it for copyright. Visit http://copyrightregistry-online-form.com/ and fill out the form on the site. Your work will be registered same day! In addition, there are representatives available day and night as well as a live chat box right on the website.
There's more than a whiff of ripoff here, so I decided to accept the challenge. The link led me to Copyright Registry Online, which promises that
Your U.S. Copyright will be registered in a matter of minutes through our online form submission processing, 256 Bit Encrypted SSL Secure Server. You will receive your copyright documentation in an e-mail and by first class USPS government mail.
Well, gee, that sounds nifty (or it might if you didn't know you can easily accomplish the same thing through the US Copyright Office's eCO service). The catch? As if you couldn't guess: the fee. Copyright Registry Online wants you to pay $135 for something that you can do on your own for just $35. If you want to splurge, you can add $25 for "Priority Rush Processing" (completely meaningless, since registration isn't valid until received by the US Copyright Office, which offers no "rush" option) plus $30 for a "Membership Reward Program," which--wow!--grants you a 15% discount on "further copyright submissions."

Copyright Registry Online will also file an infringement claim (a.k.a. a DMCA takedown notice) for you. All you have to do is hand over $99.50. Never mind that you can send a DMCA notice all on your own, for free. Here's how.

I've written before about faux copyright registration services--the kind that "register" you with their own websites, and give you a seal or some other trumped-up certification that's essentially useless for any legal purpose. Unlike these fake services, with Copyright Registry Online and outfits like it you might actually wind up with a genuine copyright registration--but you'd be paying a ridiculous fee to a third party to do what you can easily accomplish yourself for a fraction of the cost.

As with any other writer-targeted scheme, these "services" rely on authors' ignorance and inexperience. Here, therefore, are some resources for learning more about copyright and related issues.

- Writer Beware's Copyright page includes info on copyright, links to resources, and debunking of common copyright myths.

- My blog post on Rights and Copyright untangles the difference between the two, and suggests how to protect yourself when seeking publication.

- The US Copyright Office's Copyright Basics circular provides a lot of information, including how to register your copyright. The USA is unusual in that it has an official registration process (most countries don't) and makes registration a pre-requisite for legal action. Once upon a time, when publishing was just print and grant territories meant something, there really was no need to register in the USA if you weren't publishing there. These days, however, publishing--and especially self-publishing--is global, so it's probably a good idea to register US copyright, even if you yourself are not US-based.

- eCO, the US Copyright Office's online registration service.

- Schedule of fees for registration with the US Copyright Office.

- Copyright registration is important for published work. However (and contrary to much popular belief), there's no need to register copyright for unpublished work. Despite writers' fears (and recent alarming plagiarism incidents), theft is highly unlikely at the submission stage. It's not until a work is exposed to a wide audience (i.e., published) that you need to worry.

- A helpful explanation of the DMCA takedown notice, and how to file one.

- Sample DMCA takedown notices, from the Plagiarism Today blog.

- From the Popehat blog, things to consider before sending a DMCA notice (often, contacting the infringer directly works just as well).

Wednesday, October 01, 2014

How to Request Rights Reversion From Your Publisher

Posted by Victoria Strauss for Writer Beware

Partly in connection with the controversy surrounding troubled publisher Ellora's Cave, I've been getting questions about how to go about requesting rights reversion from one's publisher.

There's no official format for a rights reversion request, and if you do a websearch on "rights reversion request" you can find various pieces of advice from authors and others. Here's the procedure I'd suggest. (Note that I'm not a lawyer, so this is not legal advice.)

First of all, if you have a competent agent, ask your agent to handle it. Especially if you're with a larger publisher, your agent is more likely to know exactly whom to contact, and in a better position to push for a response.

If you don't have an agent, or if your agent is not very competent or not very responsive:

1. Look through your contract to find the rights reversion or termination language. Sometimes this is a separate clause; sometimes it's included in other clauses. See if there are stipulations for when and how you can request your rights back. For example, a book may become eligible for rights reversion once sales numbers or sales income fall below a stated minimum.

The ideal reversion language is precise ("Fewer than 100 copies sold in the previous 12 consecutive months") and makes reversion automatic on request, once stipulations are fulfilled. Unfortunately, reversion language is often far from ideal. Your contract may impose a blackout period (you can't request reversion until X amount of time after your pub date), a waiting period after the reversion request (the publisher has X number of months to comply, during which time your book remains on sale), or provide the publisher with an escape mechanism (it doesn't have to revert if it publishes or licenses a new edition within 6 months of your request).

Worse, your contract may not include any objective standards for termination and reversion, leaving the decision entirely to the publisher's discretion; or it may include antiquated standards ("The book shall not be considered out of print as long as it is available for sale through the regular channels of the book trade"--meaningful in the days when books were physical objects only and print runs could be exhausted, but useless for today's digital reality).

It's also possible that your contract may not include any reversion language at all. This is often the case with limited-term contracts, so if your contract is one of those, you may just have to wait things out. Unfortunately, I've also seen life-of-copyright contracts with no reversion language. This is a big red flag: a life-of copyright contract should always be balanced with precise reversion language.

2. Begin your reversion request by stating your name, the title(s) of your book(s), your pub date(s), and your contract signing date(s). I don't think there's any need to create separate requests if you're requesting reversion on more than one book; but there are those who disagree.

3. If you do meet your contract's reversion stipulations, indicate how you do ("Between August 1, 2013 and July 31, 2014, Title X sold 98 copies") and state that per the provisions of your contract, you're requesting that your rights be reverted to you. If the contract provides a specific procedure for making the reversion request, follow this exactly.

4. If you don't meet your contract's reversion stipulations, if reversion is at the publisher's discretion, or if your contract has no reversion language, simply request that the publisher terminate the contract and return your rights to you. If there's an objective reason you can cite--low sales, for instance, or your own inability to promote the book--do so, even if those reasons are not mentioned in the contract as a condition of reversion.

5. DO: be polite, businesslike, and succinct.

6. DON'T: mention the problems the publisher may be having, the problems you've had with the publisher, problems other authors have had, online chatter, news coverage, lawsuits, or anything else negative. As much as you may be tempted to vent your anger, resentment, or fear, rubbing the publisher's nose in its own mistakes amd failures will alienate it, and might cause it to decide to punish you by refusing your request or just refusing to respond. Again: keep it professional and businesslike.

7. Request that the publisher provide you with a reversion letter. Certain contract provisions (such as the author's warranties) and any outstanding third-party licenses will survive contract termination. Also, publishers typically claim copyright on cover art and on a book's interior format (i.e., you couldn't just re-publish a scanned version of the book), and the right to sell off any printed copies that exist at the time of reversion (with royalties going to you as usual). Some publishers are starting to claim copyright on metadata (which they define not just as ISBNs and catalog data, but back cover copy and advertising copy).

I've also seen publishers claim copyright on editing (which means they'd revert rights only to the originally-submitted manuscript). This is ridiculous and unprofessional. For one thing, it provides no benefit to the publisher--what difference does it make if an author re-publishes the final version of a book from which the publisher has already received the first-rights benefit? For another, if edits are eligible for copyright at all, copyright would belong to the editor, not the publisher. If you find a copyright claim on editing in a publishing contract, consider it a red flag. If the publisher makes this claim without a contractual basis--as some publishers do--feel free to ignore it.

To give you an idea of what an official reversion letter looks like, here's a screenshot of one of mine.



8. If the publisher registered your copyright, ask for the original certificate of copyright. Smaller publishers often don't register authors' copyrights--again, check your contract, and double-check by searching on your book at the US Copyright Office's Copyright Catalog.

9. Send the request by email and, if you have the publisher's physical address, by snail mail, return receipt requested.

Hopefully your publisher will comply with your reversion request. But there are many ways in which a publisher can stall or dodge, from claiming that your records are wrong to simply not responding. If that happens, there's not much you can do, apart from being persistent, or deciding to take legal action--though that's an expensive option.

One last thing: a publisher should not put a price on rights reversion. Charging a fee for reversion or contract termination is a nasty way for a publisher to make a quick buck as a writer goes out the door. A termination fee in a publishing contract is a red flag (for more on why, see my blog post). And attempting to levy a fee that's not included in the contract is truly disgraceful.

Friday, September 26, 2014

A Hand in Your Pocket: Monetizing the Business of Writing

Posted by Victoria Strauss for Writer Beware

There is a natural law in writing and publishing (as elsewhere): where need and desire are greatest, moneymaking enterprises follow.

Vanity publishers are an easy (and long-standing) example of this law, presenting themselves as a way around the bottleneck of traditional publishing--as long as the writer is willing to "invest" in his/her work. Ditto for literary agent "middleman" services, in which an individual or company offers to "represent" writers to agents, supposedly to increase their chances of snagging a super-busy agent's attention.

More recently, there's the huge variety of services that have sprung up around self-publishing--some worthwhile, some distinctly not. In some cases, these are new services, addressing (or purporting to address) needs created by new technology. In others, they're an attempt to monetize what was formerly free.

I've one of each to talk about today.

First up: Kickstarter (and other crowdfunding platforms) promotion services. I've encountered two of these in the past couple of weeks--both soliciting authors with spam-style approaches--and I'm sure there are more.

KickstartMyAds.com "specializes in launching targeted Facebook promotions to drive the most lucrative crowd to your live crowdfunding campaign." Packages range from $199 to $450. Crowdfundbuzz.com offers to create press releases, social media campaigns, and more, all "designed to help any crowdfunding project get more visibility to radically increase the chances of reaching a crowdfunding goal." Costs are between $149 and $349.

Now, I'm not saying that these services are disreputable or dishonest. Both offer success stories, and apart from the solicitations, I'm not aware of any complaints. But it's interesting to see the ripple effect of successful technology. Crowdfunding has become so popular, and the crowdfunding sphere so competitive, that it has spawned opportunities for monetization via ancillary services promising to help authors stand out from the crowd. Worth the money? Open question. But if you decide yes", it's yet another expense to add to your crowdfunding budget.

Second up: paid beta readers. Yes, you read that right. A writerly function that by its very definition is non-professional, and thus not fee-based, is being extensively monetized. I'm not addressing competence or honesty in this post, so I don't want to call out any particular individual(s), but if you Google "beta reading service" you'll see what I mean (and here's a link to one that seems more spammish than the rest). Sample costs: $1.05 per page, $0.003 per word (with a $10 minimum), $55 for a book of more than 250 pages, $199 for an entire manuscript.

In actual fact, what these services are selling is not really beta reading, but a paid critique. Nothing wrong with that, as long as the provider is competent (a whole other question). But associating a term that already has an established meaning with a moneymaking service is going to confuse a lot of people. Evidence of this: the two writers who've contacted me in the past month asking me to suggest a good and not too expensive "beta reading service".

If you want to buy a critique, buy a critique (but check the critiquer's credentials first). If you want a beta reader, find someone who won't ask you to haul out your credit card.

Writers, there is a second natural law in writing and publishing: through changing paradigms, through shifting technology, through opportunity and roadblocks, there will always be someone waiting to put a hand into your pocket.