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 29, 2016

The Fair Contract Initiative

Posted by Victoria Strauss for Writer Beware

I write a lot about publishing contracts on this blog, and questions about publishing contract terms make up a large portion of my Writer Beware correspondence. Unfair and even outrageous contract terms are a major problem in the publishing industry, whether they stem from a traditionally one-sided relationship that's being challenged by developing technology (Big Publishing) or the plague of ignorance, inexperience, and greed that afflicts the small press world.

Last year, the US-based Authors Guild announced its Fair Contract Initiative, whose goal is "to shine a bright light on the one-sided contract terms that publishers typically offer authors and to spur publishers to offer more equitable deals."
Why do publishers insist on offering their newest partners more than a hundred conditions so dubious that they’ll quickly back down on them if asked? It largely boils down to unequal bargaining power and historic lethargy. Anxious to get their works published, authors may wrongly believe that the contract their editors assure them is “standard” is the only deal available, take it or leave it. And much of that “standard” language has been around for years thanks to institutional inertia; as long as somebody signs an unfair clause that favors the publisher, the firm has no interest in modifying it.
The Authors Guild's primary focus is Big Publishing, but the paragraph above applies to any publisher, large or small, established or inexperienced.

The Guild is advocating eight principles for fairer publishing contracts. Whatever your opinion of the Authors Guild (and I know many writers think it's reactionary and behind the times; I myself can't quite forgive it for its hand in the failed Google Books Settlement), these are important principles with which every writer should be familiar.

- Half of net proceeds is the fair royalty rate for ebooks. Big publishers typically offer 25% of net; small presses may offer 30% or even 40%. That's not enough, says the Authors Guild: it advocates a 50/50 split. (A caveat: there's some inconsistency here--sometimes the Guild says "net proceeds" and sometimes they say "net profits." There's a significant difference, as anyone who has ever seen a net profit royalty clause can attest. My own preference here would be for net income.)

- A publishing contract should not be forever. The "standard" contract in Big Publishing, and many small press contracts also, is life-of-copyright--the author's lifetime plus 70 years. This is unfair, says the Authors Guild: "There’s no good reason why a book should be held hostage by a publisher for the lifetime of the copyright."

Instead, the AG advocates for limited-term contracts (as well as for a limited period in which publishers must either exploit subsidiary rights or give them back) and, just as important, for getting rid of "the entire outmoded concept of 'out of print'" as the standard for when rights reversion should take place.
Instead, the contract should define when book rights are being “inadequately exploited” and therefore available for reversion to the author when the book fails to generate a certain amount of income—say, $250–$500—in a one-year period. Using income as the yardstick, not a specific number of sales, is essential: Publishers might otherwise be able to game the clause by offering one-cent e-books the way they’ve gamed existing clauses by using e-books and print-on-demand..
 - Authors, keep your copyrights. This doesn't need explaining. Requiring authors to surrender copyright is a particular problem in the academic world, but it happens in the trade publishing world, too.

- Delete the non-compete. Many--in fact I would say most--publishing contracts include non-competition clauses that are overly vague, overly sweeping, or both.
Authors are routinely asked to agree not to publish other works that might “directly compete with” the book under contract or “be likely to injure its sale or the merchandising of other rights.” Even more broadly, they may be asked not to “publish or authorize the publication of any material based on the Work or any material in the Work or any other work of such a nature such that it is likely to compete with the Work.”
Clauses like this can bar authors even from self-publishing. If non-compete clauses can't be eliminated entirely, the AG advocates limiting the non-compete period to one year after publication, and, for fiction, specifically excluding prequels, sequels, and characters. (I'd add that it's also a good idea to limit the non-compete to books on the same subject or in the same genre.)

- Option clauses shouldn't hold authors hostage. It's a rare publishing contract that doesn't contain some sort of option clause giving the publisher the right to consider new work from the author. But option clauses can be greedy (I've seen many that give the publisher the right to consider two or three or even four books, or let the publisher pick and choose until they find a book they like) or unduly restrictive (the author can't refuse an offer if one is made--beware "first refusal" clauses--or must give the publisher the right to match any competing offer).

The AG recommends that option clauses should cover only the author's next work in the same subject or genre, and give the publisher a limited period to make an offer or release the book with no strings attached..

- Publishers' payment and accounting practices need to keep up with the times. Semi-annual royalty payments are standard in Big Publishing, with publishers allowing themselves long lead times in which to pay. The AG advocates for contracts that "specify quarterly payments of income received by the publisher no more than three months in the past." There need to be limits on reserve against return clauses, too: "any fair reserve clause must include limits, both for the dollars that may be withheld (no more than, say, 20% of royalties) and the length of time the clause may remain in force (say, one year)."

Many small presses pay royalties more often than quarterly. But many also account and pay royalties only when income from sales is actually received--which can make it very hard for authors to to tie sales to payments. Small presses also rarely maintain reserves against returns, since most don't distribute to physical bookstores--be wary of a small press contract that does include a reserve clause. And make sure that your contract requires the publisher to provide royalty statements for each payment period, whether or not payment is due. I've seen a number of small press contracts that do not oblige the publisher to provide royalty statements at all.

- End the discount double-cross. The AG calls out "deep discount" clauses, which reduce authors' royalties either by allowing publishers to sell to retailers and wholesalers at gigantic markdowns, or to slash royalty percentages on discounted sales. This is a problem mostly for authors with bigger publishers (some publishers have been caught selling books at steep discounts to subsidiaries, which then turn around and sell them at the regular rate)--but I've seen unfair royalty reduction clauses in small press contracts as well.

- Stop forcing authors to take unlimited financial risks. Warranty and indemnity clauses put writers in financial danger by requiring them to make a series of promises about their work--such as that it doesn't violate any laws--and to accept financial liability if those promises are found to be untrue, or if lawsuits arise from them. But how many writers are legal experts, or can afford to defray huge legal expenses?

The AG identifies elements of fair warranty and indemnity clauses--which will help you identify better ones, but probably won't be of much use if you encounter a bad one, since publishers are rarely willing to negotiate (and, especially in the small press world, may not even understand) these clauses.

January 15, 2016

Profit Engine: The Author Solutions Markup

Posted by Victoria Strauss for Writer Beware

As most of you already know, Penguin Random House dumped Author Solutions at the end of 2015, selling it to a private equity firm for an undisclosed amount. ("A Penguin Random House Company" has already vanished from Author Solutions' logo.)

The sale received quite a bit of media coverage, at least some of which acknowledged AS's troubled reputation--something else that won't be new to you if you're a regular reader of this blog.

One of the areas that I and others have often criticized is AS's huge range of marketing services, which are aggressively pitched to authors who sign up for publishing packages. Most of these services are dubiously useful (email blasts), jawdroppingly expensive (book signings at book fairs), or both (cinema advertising). Basically, they're the equivalent of liquor at a restaurant: relatively inexpensive to deliver, but extremely profitable because of the enormous markup at which they can be sold. (AS executives have actually admitted, in depositions related to class action lawsuits brought against AS, that selling books is not one of the goals of AS's marketing services.)

What's the actual markup, though? How much difference is there between the price for which AS sells a service, and AS's cost to deliver it?

Here's an example. One of my readers drew my attention to this recent ad on Craigslist, in which Author Solutions seeks "freelance coverage writers" to "read self-published books and provide detailed, coherent coverage on the work's potential for film/television/digital adaptation."

The basic pay rate is $110. What does AS charge the idealistic author with Hollywood stars in his or her eyes? $859. Even assuming that pay rates may go higher for some freelancers, and that there's some level of administrative cost involved in getting the coverage from the freelancer to the customer, that's a hell of a markup.

I could go on--AS's genre-specific advertising packages, for instance, some of which are marked up more than 300%, or its Trifecta Review service, which offers three pay-to-play reviews for well over double what you'd shell out if you bought them on your own--but you get the picture. Author and blogger David Gaughran has also looked into the huge profit AS makes from its marketing services.

Now that AS has been sold, might its new owner (which hasn't as yet made any statements about its intentions for AS, apart from continued expansion) take a hard look at these practices? We can hope, but I fear there won't be a lot of incentive to tamper with such a major profit engine.

January 13, 2016

Freelance Mills, Cyberbullying, and Plagiarism, Oh My!

Posted by Victoria Strauss for Writer Beware

This post has been updated.

If you're a regular reader here, you'll know that I love the strange and twisted stuff that happens (mostly) at the outer fringes of the publishing and writing worlds. Today, three head-shaking examples.

International Association of Professional Writers and Editors

Gosh, isn't that an impressive name for an organization? It certainly impressed the person who wrote to me to ask about the IAPWE's reputation.

Of course, professional is as professional does, and the person wouldn't have contacted me if they didn't feel at least a little uneasy. And red flags do fly at the IAPWE's website, from the cheesy-looking logo to the lack of substantive information about the organization and its members, to the dime-a-dozen advice blog posts, to the fact that its fancy-sounding New York City address is actually a UPS store. (UPDATE: IAPWE's address has changed--it's now apparently operating out of an apartment building in Albany, NY.) The organization also seems to be very new--its domain was registered only in September 2015 (which makes it a little odd that its first blog post is dated May 2015).

Another question: is IAPWE an organization "dedicated to bringing the most updated, legitimate and vetted writing and editing job opportunities to its members", as its About page claims, or is it a writing and editing services provider, as this Craigslist ad suggests?



And then there's this: a scam alert from an outfit called Translator-Scammers.com, a purported watchdog group that claims IAPWE is "One more monumental scam from the same operators behind the infamous Real Translator Jobs / Real Writing Jobs scamming ring." Whoa, that sounds bad! But wait--here's an entire blog devoted to alleging that Translator-Scammers is itself running a scam, contacting freelancers and demanding a fee of $50 to "verify" them and, if they don't pay up, listing them in a "scammers directory."

Whatever. Scam or no scam, there are enough red flags just on IAPWE's website to prompt serious caution.

UPDATE:  IAPWE appears to have been caught using random people's faces on its staff page (the page is no longer on the website). Oops.

Check out IAPWE's identical plug-in-the-name recommendation letters for members.

I'm not the only one who thinks IAPWE is sketchy. See this discussion on Reddit. Commenters report, among other things, applying for editor jobs on Craigslist, only to get a response from Mike Townsend (listed on the vanished IAPWE staff page as Content Coordinator) advising them that the job wasn't available but IAPWE was hiring. Hmmm.

UPDATE 12/4/16: I've suspected for some time that IAPWE has been encouraging members to visit this post and plant positive comments. My suspicions were recently confirmed when a single negative comment immediately prompted a deluge of responses from angry IAPWEers accusing the commenter of self-promotion, bias, lying, and more. What are the odds that one comment on a year-old blog post would evoke such defensiveness, unless someone were watching? Plus, all the defenders either couldn't be found on a Google search, or else had suspiciously similar websites and very vague qualifications. Needless to say, I haven't approved any of their comments.

Authors Behaving Badly--Again

Writers behave badly all the time--trashing-talking rivals, whining in public, savaging colleagues with pseudonymous reviews, even suing reviewers. But this is one of the most convoluted tales of authorial malfeasance that I've ever heard.

Last week, authors Steve Mosby and Jeremy Duns alleged in blog posts that fellow novelist Stephen Leather--a bestselling crime and thriller writer--cyberstalked them via blogs and websites set up to disparage them and tarnish their reputations, after they voiced criticism of Leather's admitted practice of using fake identities to promote his books. Mosby's post is here. Duns's much longer article, replete with links and screenshots, is here.

Mosby's and Duns's stories have garnered quite a bit of media coverage. As of this writing, Leather hasn't responded, but his publisher, Hachette, has issued a statement condemning "harassment and intimidation of any kind."

This story has particular resonance for me, since I've been the target of similar cyberbullying campaigns. Here's just one example (fake books with scurrilous versions of my own book titles). What the hell, here's another.

ParaDon Books, Spammer and Plagiarizer

A long post today from author and blogger David Gaughran details how ParaDon--via its satellite website, IndieWriterSupport.com--plagiarized text from one of his books in order to hawk a product and get a commission through affiliate links.

ParaDon is a prolific spammer--I should know, it's on my block list. It's been the focus of an expose at Indies Unlimited (essentially, it's a 419 scam), and is the subject of a long discussion thread at Absolute Write, which details, among other things, how it attempted to impersonate Amazon.

UPDATE: Here's another, extremely detailed expose of ParaDon Books Publishing, which charts the shenanigans of ParaDon's owner, Korede Abayomi, from 2011 to the present.

January 8, 2016

Best of Writer Beware: 2015 in Review

Posted by Victoria Strauss for Writer Beware

2015 was not my best blogging year, by a long shot! My mother's deteriorating health sidelined me for much of the second half of the year (and will probably sideline me again in 2016--after bouncing back surprisingly well from broken ribs this summer, my mom had a small stroke in December, which has messed up her vision and made her very weak).

Still, I do have some posts to highlight. Read on.

JANUARY

- Two Red-Flag Sentences in Publishing Contracts: Does that publishing contract you just received state that promotion is "at the publisher's discretion", or that the publisher doesn't guarantee that your book will sell? Be warned: this may be advance rationalization for zero promotion and tiny sales.

FEBRUARY

- Editing Clauses in Publishing Contracts: How to Protect Yourself: A bad editing clause can really come back to bite you, especially if your publisher doesn't employ qualified editors. This post discusses what to watch out for, and highlights some contract language that should ring warning bells.

- Who's Running Your Writing Group? Why You Should Be Careful: A writing group can be a terrific resource for peer feedback and support. But what if the writing group is run by a pay-to-play publisher? This post discusses why this growing trend may pose a conflict of interest.

MARCH

- Manuscript Pitch Websites: Do Literary Agents Use Them? Such sites purport to provide a submissions shortcut, allowing writers to post manuscript pitches for agents to peruse, instead of going through the tedious and uncertain query process. But do agents really use manuscript pitch sites? I asked some agents, and their answers may (or may not) surprise you.

- Author Solutions Losing Market Share As Production Numbers Fall: The much-maligned Author Solutions presents itself as a leader in the self-publishing services space. But according to a recent industry report, AS saw major production declines in 2012 and 2013. Is AS's POD-centric approach--not to mention its high fees and dubious marketing services--going the way of the dodo?

APRIL

- Warning: Raider Publishing International: Yet another warning about this predatory publisher, which has taken thousands of dollars from authors for services never delivered. (Raider is on Writer Beware's Thumbs Down Publishers List.)

- The Strange and Twisted Tale of Peter Senese, Serial Con-Man: For sheer weirdness, you can't beat the saga of Senese, for whom literary scams were only the tip of the iceberg.

JUNE

- Awards Profiteers: How Writers Can Recognize and Avoid ThemThe boom in small press and self-publishing has fueled a parallel boom in deceptive writing awards and contests, whose aim isn't to honor writers, but to make money for the award or contest sponsor. This post highlights the warning signs of a profiteering award, and names some of the worst offenders.

AUGUST

- Beware Social Media Snake OilFrom guest blogger Chris Syme, a great post on how to separate worthwhile social media strategies from pointless ones, along with warnings about some common social media scams.

- Want to Become a Better Writer? Stop Writing: Another terrific guest post, this one from Barbara Baig, who explains how the path to productive writing may sometimes be, paradoxically, to put your writing on hold for a while.

NOVEMBER

- Arbitration Clauses in Book Contracts: Signing Away Your Rights: Arbitration clauses are increasingly common in publishing contracts, as well as in the Terms of Use of some major self-publishing platforms. Many authors don't understand their implications--including the way they restrict the right to legal redress.

DECEMBER

- Author Solutions Sold to Private Equity FirmI actually put this post online just this week, but the sale happened in December, which makes it 2015 news. Just over three years after Author Solutions was purchased by Pearson Education and folded into the Penguin Group, Penguin Random House has unloaded it, selling it to the Najafi Companies for an undisclosed amount (probably much less than the $116 million Pearson paid). Will Najafi take steps to address AS's deplorable reputation? I'm not holding my breath, but you never know.

January 5, 2016

Author Solutions Sold to Private Equity Firm

Posted by Victoria Strauss for Writer Beware

I was working on my usual year-end roundup post, when I spotted this, in PW:
Penguin Random House has sold its Author Solutions division to an affiliate of the Najafi Companies, a private investment firm that at one point owned Bookspan and made an offer to buy several hundred Borders outlets after the chain filed for Chapter 11. 
The terms of the deal, which closed on December 31, have not been disclosed.

Quoted in PW, AS's CEO, Andrew Phillips, promises that "day-to-day operations will not change following the sale." Phillips also says that he's "excited to be part of a company where Author Solutions will be more of a focus," which I find interesting: has PRH been letting AS languish, or will the sale simply make AS a bigger cog in a smaller wheel?

The sale isn't as random as it might appear. The Najafi Companies have been involved in book- and publishing-related ventures before; also, Najafi CEO Jahm Najafi, along with several family members, apparently used AS services to publish their own books. Plus, in 2013 AS's former CEO Kevin Weiss became CEO of (now-bankrupt) SkyMall, which at the time was owned by Najafi.

Andrew Phillips alludes to AS's future plans for growth, which include international expansion and partnerships with publishers. Although AS was expanding vigorously via these avenues prior to its 2012 sale to Penguin's then-parent company, Pearson, since the sale it has done little beyond cloning its Partridge service and launching a self-pub division of PRH's Spanish-language trade subsidiary.

Elsewhere, it has lost ground. In 2014 it closed two imprints--Harlequin's DellArte Press, which at the time of its demise had published just 16 titles, and LifeWay's Crossbooks--and lost its partnership with Writer's Digest and F&W Media, for which it had created Abbott Press. In 2015, it lost another long-standing partnership with the Authors Guild. And its market share began to shrink--at least through 2013, when a report by Bowker showed major production declines across all AS imprints.

At the time of AS's acquisition by Pearson--for what I thought was a surprisingly low price, given AS's then-dominant position in the self-publishing services world--I wondered whether AS was really a good investment, with its old-fashioned POD-centric production model, not to mention its large fees and dreadful reputation. Just over three years later, AS finds itself with a new owner. You do the math.

As for AS's reputation, it's as bad as ever, and problems still plague its many imprints: poor customer service, problems with payment, deceptive advertising, high-priced services (particularly marketing services). Will the Najafi Companies take steps to address all of this? Or will they, like PRH, simply reap the profits and look the other way?

Only time will tell. In the meantime, AS needs to change its logo...

UPDATE: More coverage of the sale, from Mick Rooney at The Independent Publishing Magazine. "In a sense Author Solutions has now come full circle, back under private ownership, but with nothing like the foothold it once had in the self-publishing sector."

UPDATE: Frequent AS critic David Gaughran weighs in, pointing out that though PRH no longer owns AS, AS still runs four imprints for it: the three Partridges and MeGustaEscribir. Also, David says, "we must remember that Author Solutions isn’t closing down; it will continue to operate under a new owner – one which has announced no plans to reform the worst abuses, and which instead signaled its intent to continue the aggressive international expansion that was the hallmark of Penguin Random House’s ownership."
 
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