Posts Tagged ‘publishing’

  • Introducing Sandal Press and its blog

    0

    It is a fact that a lot of promotional truths fly right over my head. And if I’m going to be a successful writer, I really need to make an immediate priority of think about marketing a little more.

    Enter Sandal Press. As you know, stalwart reader, I am now investing energy into getting my publishing business up and running. And that business is, of course, Sandal Press. What you should know about Sandal Press is the following:

    • It will almost exclusively contain all the fiction I’ve written over the past year and will write for the next, say, three years.
    • It will be updated with links to etailers where good digital books are sold.
    • It also contains a blog.

    Oh yessirree! Sandal Press has had its own blog for a few months now and I’ve been remiss in not mentioning it. I blog there once a week (on Thursdays) about publishing concerns, whereas I blog here once a week (on Fridays) about, well, anything that flits into my brain.

    With that in mind, I’m cutting this week’s post short so I can guide you to the Sandal Press blog, where I’m currently running a series on why otherwise intelligent and rational people decide to self-publish. Because I’ve been getting incredible amounts of spam at that blog, I have limited the comments’ period to 6 days after each post but if you go along now and have a read and would like to weigh in on the latest post, you’ll still be within that window.

    Have a great weekend. I’m talking about samplers next week, so catch you then.

  • Polish print books versus Western print books versus the ebook revolution

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    Last month, we went to Poland for a holiday. In fact, I’m writing up that trip as a small non-fiction book, titled IT’S 10AM, WHY AM I STILL SOBER?, to be released next month. (Ahem) Okay, I’ll get over myself now but the reason I mention it is because, as a writer, of course I was going to include my observations on Polish bookshops. What will be in the book is an abridged version of what I’m setting down now because I don’t think the average reader is really interested in the minutiae of book innards.

    Bookstores appear to still be big business in Poland, although one woman in a bookstore in Sosnowiec (Sauce-no-vee-ets) complained that, since the small chain she worked for had been bought out by Germans, she was forced to give bookshelf space to non-book merchandise, much to her personal dismay.

    The bookstores stock a lot of local works. A lot. By that, I mean a shitload. You can find Nora Roberts, Robert Ludlum and even Jack Vance translated into Polish (I say “even Jack Vance” because when was the last time you saw a Vance paperback still in print?), but the bulk of the offerings are books by Polish writers. Genre fiction, especially fantasy, occupies shelf after shelf and, when you crack open an edition, there are several things that strike you.

    One, the typeface is rather large, as are the margins. The idea of maximising print on a page in order to minimise production costs is one that obviously hasn’t occurred to Polish publishers.

    Two, the paperback size of choice is trade not mass. That is, the larger-format paperbacks. Hardcovers also seem to be popular and there is usually a decent audiobook section tucked away in one corner of the bookshop.

    When was the last time you saw a healthy audiobook section in your bookshop? The media is cassette tape and CDs, which proves that yes indeed, Poland is behind, say, North America in terms of digital books and general book tech. But now we have something that I found rather interesting:

    Three, the quality of the final book trounces your average Western print book. Let’s take one example. There is a current anthology out called “Deszcze Niespokojne”, which roughly translates to “Unsettled (Driving) Rains”. It contains twelve stories of alternate happenings during World War Two. Each story has three pieces of black-and-white artwork associated with it. I’m no art expert, but they look like they were all done in pencil by the same artist. The first piece of artwork takes up one page and encapsulates elements of the story you’re about to read. As you turn the page to begin, there is a second, smaller and different piece, like a drop-cap drawing, if you will. And, at the end of the story, there is a third piece, centred, below the last line.

    There is also the layout. (And, for us digital authors, I note that this print edition has the Table of Contents at the back of the book.) Each individual story has the following layout:

    Right facing page – blank
    (Turn page)
    Left facing page – a bio of the author
    Right facing page – the author’s name again and the name of the story
    (Turn page)
    Left facing page – blank
    Right facing page – full-page illustration of the story
    (Turn page)
    Left facing page – blank
    Right facing page – the story begins a third down the page with its own introductory miniature artwork piece

    So, for this one anthology, we have thirty-six separate and distinct drawings plus what we in the West would consider a criminal waste of six times twelve, or seventy-two, pages devoted to nothing more than sparse formatting and some artwork.

    For the purposes of this post, I put two books side by side: the Polish one I mentioned earlier and another recent anthology, “Engineering Infinity”. Here’s a look at their formats. Note the larger Polish book:

    Here is the interior of ENGINEERING INFINITY, showing the title page. The thing to note is the economical use of space. One story finishes, the other begins on the very next page, with only a paragraph for the author’s bio (I’m not making any kind of recommendation here or singling out this particular author for any reason, I just chose this page at random):

    Here is an interior of DESZCZE NIESPOKOJNE, showing the succession of pages I described above, choosing the first story in the book because I didn’t want to bend the spine while scanning. First, there’s the author bio and the story title:

    Then there’s the blank page and artwork:

    Then there’s yet another blank page (that the author used for a poem fragment) before the start of the story proper (and note the second piece of artwork):

    And there’s a third piece of artwork, roughly the size of the one you see above, at the end of the story. The size of the Polish book is, as I said before, closer to a trade paperback, there is ample white space between and around lines, and the entire anthology clocks in at almost six hundred and forty pages.

    The recommended retail price of ENGINEERING INFINITY is US$8.00 (if you shop Amazon and live in the States). I paid US$11.07 for it (after a 20% discount) at The Book Depository. The retail price of DESZCZE NIESPOKOJNE is US$12.00 which, when you think about it, is not a bad deal at all.

    I mention these prices because USians have an unrealistic picture of what paperbacks cost. They assume that, just because they pay US$8 for an average paperback, everybody else in the world pays the same amount. That’s not true.

    The takeaway point from this is, Poland produces a superior print product at a price point that nearly matches or is a little cheaper than what the rest of the English-reading world pays. I’m sure they’re not aware of it, but it was pretty obvious to me. To go back to my recollections:

    Other novels and anthologies I perused also had that same attention to detail that drew my eye in the first place: size, formatting, with an extra “fillip” of aesthetics (with the exception of a series of mass paperback-sized “classics” by such luminaries as Robert Louis Stevenson and Jane Austen). You get the impression that buying a book in Poland is something significant. Yes of course, there are the words, but there is also great care lavished on the way the words are presented. My personal opinion is that the average Pole would look with horror on the USD7.99 paperbacks that cram Wal-Mart shelves. As anyone who’s involved in the publishing world will also attest, the Poles have an unbeatable reputation for cover art. This was as true during the days of the Soviet bloc as it is now. Their enthusiasm for literature cannot be underestimated.

    And that’s why I wonder whether the Kindle phenomenon that’s sweeping North America and the United Kingdom…may not gain as much traction in European countries where there’s a different mindset at play.

    Okay, and now we come to the digital part of this post.

    Books are incredibly popular throughout Poland. The Czech Republic boasts the highest book-reading population per capita in entire Europe. Moreover, the books these people read are different to what you and I are used to. Individual artwork, two-tone printing, border flourishes. And that’s just for the fiction!

    It’s obvious that the philosophy that led to the printing of paperbacks in the Anglo world is completely different to the philosophy that led to paperback printing in Poland. And that tells me that the two sets of people perceive “value” in different ways.

    The Anglo reader — faced with a rather utilitarian, monocolour typeface on cheap paper — sees value in the words themselves. Does it matter, then, how the words are presented? Probably not.

    The Polish reader — faced with oodles of white space, custom drawings, two-colour border flourishes on good paper — sees value in the entire package. Does it matter, then, how the words are presented? Yeah, it probably does.

    I’m not making any surefire predictions here. If ebooks are priced less than print books, then of course there’s going to be an uptake of ebooks across Europe. However, we have to realise that we’re also dealing with a population of a different mindset. They are as interested in the packaging as the words themselves. I translate this to mean:

    There is a lesson there for digital authors and that’s to make our ebooks as interesting as possible. Ebooks don’t have the costs associated with multi-colour printing, so we can afford to let our imaginations soar.

    I’ve taken this tack, particularly with the PDF version of THE CHECK YOUR LUCK AGENCY (not the Smashwords version, but the one appearing at XinXii and AllRomanceeBooks), adding the kind of flourishes that I saw in Polish print books. The feedback has been very positive. It’s like showing the reader that we care to present our words in a way that puts them first, that tries to give them an experience they’ll find enjoyable beyond the text itself. There is certainly an extra investment of time involved in doing this, but that investment dwarfs the cost of doing the same thing in print.

  • We need distributor diversity in self-publishing

    2

    Last week, ripping on Charles Tan’s post, I related my experience of self-publishing through Amazon and the fact that I can’t even download (or even buy) a copy of my own book to check the formatting.

    This is not to say that I’m against self-publishing. I’m not. I’m still convinced that, after getting several agent reactions to the tune of “love the writing, can’t sell the story”, self-publishing WAR GAMES was the only principled way I had of getting the novel to readers. I also feel that self-publishing is the best option for an urban fantasy series featuring mostly non-Anglo characters set in the non-Anglo environment of south-east Asia (The CHECK YOUR LUCK series).

    What I am against is one playing field for Anglo readers and publishers, and another playing field for everyone else. And I am particularly leery of Amazon, with which I have a love-hate relationship.

    I have no doubt that if we were to pin the digital book revolution on one factor, it would be the Kindle. Despite very serviceable ebook readers being around for years prior to that, there was something about the Kindle that spoke to consumers and boom!, the phenomenal rise in ebook sales began. Was it the device itself? The timing? The advertising? All three, plus other factors I don’t even know about? Possibly. The end result was that Amazon and Kindle ended up holding immense power in this new world.

    My own first niggling doubts about the Wonderfulness of Amazon was sparked then when I discovered that, not only wouldn’t Amazon publish in that international standard of EPUB, but it wouldn’t even publish in Mobi, despite the fact that it bought Mobipocket. No, the Kindle would read “Kindle format” books, its own Mobi-deviant standard.

    That first decision was a clear indication of the direction of Amazon. They weren’t here to join or expand the market; they were here to completely overwhelm and dominate it. And that’s okay for a business to aspire to, but don’t go imputing any kind of selfless motives to them that they don’t have. They are a business and everything that they do leads directly to their business. Not yours. Theirs.

    Remember the “disappearance” of pro-homosexuality books and books tagged with the “erotica” label? The automatic price-adjusting? The agency argument with the disappearance of the “Buy Now” buttons on all Harper Macmillan books? The walled-in mentality to readers outside the reach of its franchise that I mentioned last week, despite the fact that I specified “No Geographic Restrictions” when I published my books. How naïve was I?

    The fact of the matter is, with just a couple of keystrokes (“a glitch in the software”…yeah right), Amazon can make entire categories of books appear and disappear in seconds. Now that scares the hell out of me.

    I know people like Joe Konrath have done very well via Kindle and best of luck to him, Locke, Hocking and the others, but I’m not Joe Konrath. In one old blog post, Konrath describes how helpful Amazon Support have been to him and how he talks to A Real Person when he has issues about something. As I said, I’m no Konrath. When I have an issue (and, to my reckoning, it’s a Damned Big One), all I get are occasional emails that say nothing at all from a low-cost Support service based in India. Go me!

    I’m not saying this to disparage Konrath, who has worked long and hard for his success. All I am saying is that each self-publisher must find their own path, their own way of making things work. And, since I’m not Konrath, I’m more for democratisation of venues than monopolisation.

    You see, here’s my dilemma. Amazon have now moved into the publishing arena themselves by setting up imprints left, right and centre. They’ve choked off Lightning Source, a distributor they’ve dealt with quite amiably for years, even after buying the competition, CreateSpace. And they wouldn’t hesitate to shut down those self-publishers who have only, say, sold less than an arbitrary number of books. Why do I say that? Because, by choking distribution and opening imprints, Amazon is turning into one of those legacy/traditional publishers we love to hate (except with greater control of the end-to-end business process) and the time will come when they view all the little self-publishers milling around their feet in the same way that the Big Six do. As ants to be crushed with nary a thought. Annoying little critters who, none the less, are eating into Amazon Imprint’s bottom line. Put yourself in their shoes. And be honest. What would you do if you wanted to dominate the entire business?

    (Maybe that’s all Kindle was ever meant to be?  A long-term loss-leading strategy for Amazon to be The Biggest, Perhaps The Only, publishing house/distributor in the entire world!)

    So where am I leading with this? Diversification. Of course I distribute through Amazon; I’d be a fool not to. But you’d better believe that I’m also distributing through other channels as well. As a corollary, the idea that there are self-publishers out there who only use Amazon is incredible to me. Why do that to yourself? Why give Amazon the opportunity to completely shut you down at some point in the future via a software “glitch”? For the same reason, as a reader, I refuse to buy a Kindle (or an iPad). I don’t like the idea that one business has that much control over what I have access to. Maybe, as a consumer, I may be able to let it slide. (Not me, but obviously a sizeable portion of the tech-savvy population.) But, as a producer, there’s a word for letting such control slip from my hands and it’s STUPIDITY.

    But back to digital distributors. I don’t like Smashwords so much because that’s another venue where I have to give up control and rely on their Meatgrinder software. I do like XinXii, which is why I’ve now priced my books there at the same price as Amazon (a reverse of the Amazon price-matching strategy if you will) and I’m prepared to eat the VAT surcharge because I’m betting the time will come when that VAT will disappear, and I want a loyal cadre of readers at XinXii when that time comes.

    If you’re a self-publisher, don’t blindly follow what other people say. (Even me!) It’s your business and you have to weigh each decision carefully. You can change your mind — of course you can, that’s the beauty of being your own publisher! — but you have to make decisions based on your own circumstances. And nobody knows those better than you do. Not Hocking, not Konrath, not me.

    (A related issue to all this is the move of Amazon into Europe. I have a take on this that I’ll share next week. Needless to say, it bucks the trend.)

  • Self-publishing from the Third World

    9

    Earlier this week, the indefatigable Charles Tan had a post up entitled “Publishing Favors the West”. I started replying to him but it got so long I thought I’d turn it into a separate post on this blog.

    Charles starts off with a blunt question:

    First, there’s the “Big Six” publishers. Guess where they’re based and who their primary audience is?

    He talks about the issue that the flow of books is one-way; that is, away from the developed world towards the underdeveloped. (Not that the underdeveloped/developed divide is even true any more. As far as infrastructure goes, I’d much rather live in Malaysia than the United States. For a start, the roads are better. But, for simplicity, let’s stick to cliches for the moment.)

    Charles talks about how the size of the North American market naturally lends itself to economies of scale, something that can’t be taken for granted in a lot of other countries:

    If you’re wondering why local [Filipino, but also s-e Asian --kaz] publishers don’t have Advanced Reader Copies or ARCs, it’s because they can’t afford to do a separate print run.

    There’s public perception:

    Import books get their own diverse shelf categorization: Fiction, Non-Fiction, Romance, Horror, Science Fiction, etc. Local books get one shelf….

    It’s true here in Malaysia too. We have a “Local writers” category that, in addition, is never at the front of the store. Fancy that. And we sure don’t have an Amazon with all that wonderful free shipping, gift wrapping, streaming video, and so on. Book Depository comes close but, while I love them to bits, they just don’t have the range of stuff that Amazon has.

    Charles goes on to talk about ebooks and you really should go read his essay because it’s chock-full of home truths, but let me diverge at this point and talk about Amazon and my experiences with them as a self-publisher.

    Together with hubby, J, we are running our own little publishing house called Sandal Press. And because I want to get my books in front of the widest audience possible, of course I’m going to sell them through Amazon. Here are the problems:

    – Because I’m not in an “Amazon” country, I cannot install the Kindle tools that are available to content creators in countries where Amazon exists. When I pointed out that it was ridiculous inviting non-Western content providers to publish on Kindle but refusing to give them utilities available to their Western counterparts, the India-based Support team told me they’d “pass along” my suggestion to the Marketing team. Gee thanks.

    – I’m not even allowed to download the Kindle reading app for my PC!

    – I can’t see my own books after they’re published. This is not so bad for my Sandal Press books because I can get sideways access to the pages via my KDP Administrative panel but, for my books that are not published by Sandal, Amazon behaves as if they — and I — don’t even exist.

    Charles’ essay bites especially deep because I’ve just finished uploading a book by my alter-ego Cara d’Bastian. Yes, the first book in The Check Your Luck series, The Check Your Luck Agency, is finally up and being processed. But do you know the kicker?

    I won’t know what it looks like.

    I know I passed through clean clean code (having been an ex-programmer) that’s been validated by every HTML engine I can find, but the fuzzy preview tells me that the first letter of each chapter (which I coded as an image, with its corresponding text character as an alternative display) isn’t appearing!

    It’s driving me completely batshit because I can’t check to see if it’s my problem or the previewer software’s problem. And I can’t take a post-conversion copy and pass it along to an American friend to check because Amazon doesn’t allow any content provider to download a free Kindle copy of their own book.

    Am I pissed? You bet I am. The deck is stacked so much against any person of initiative who happens to reside outside the Holy Western countries, that I’m completely wrung out — mentally and physically — whenever I hit the “Save and Continue” button.

    Uploading to Amazon is nerve-wracking because it’s like baking a calzone for the first time. You’ve followed the recipe exactly, you’ve listened to all the advice available, the thing looks good when it comes out of the oven, but you can’t tell how it actually tastes because the calzone is for someone else. All you can do is guess and when it’s your own professionalism at stake, that is a terrible terrible thing.

    Charles finishes with:

    [W]ill eBooks be the great equalizer? They could be. Just not in the ecosystem of Apple or Amazon….

    Damn straight. Apple is as much a restrictive closed-garden environment as Amazon is. I watch every day for news of successful competitors to these two arrogant behemoths, which is why I also publish with Kobo (they’re not without their own problems though), Smashwords and XinXii. (And don’t get me started with those poxy bastards at Nook, who even — amazingly — make Amazon seem tolerable at times.) With recent news in mind, I’m hopeful that Apple will repeat its history and disappear down the drain. Hopefully, this will open up the field a bit. I’m waiting.

  • Killer clauses – a summary and some thoughts

    2

    Just to recap, the past six weeks have been taken up with looking at nefarious publisher clauses in an admittedly limited pool of contracts. I briefly touched on:

    Length of rights
    Right of first refusal
    Subsidiary rights
    Out of print & bankruptcy
    Auditing
    and even some Kooky bits.

    Now, to the summary.

    In the great self-publishing debate, I often read advice to the effect that (a) you shouldn’t self-publish because you demean your own writing, and (b) if your writing was any good, it will find a traditional publishing home eventually anyway.

    The problem is when your story does find a traditional publishing home but that home is owned by toxic and dysfunctional people. Under such circumstances, would it really have been better to have signed with AC-Pub than to go my own way? With full knowledge that, not only would my story be locked up ad infinitum, but my career (and my estate) would be hobbled as well? Is there any other industry in the world that thinks it has the right to say to me, “I will employ you on a variable wage that may be pennies per quarter, but you can never ever use your expertise again for any other employer in the world for as long as you live”??? It beggars belief, doesn’t it? Yet that’s exactly what traditional publisher, Acme Coyote Publishing, expected me to swallow.

    Interestingly, when I queried a more innocuous contract clause (as a test, to do with royalty levels), this is the response I got from the publisher:

    I’m sorry that the terms of the contract now appear inequitable to you. It also concerns me that you interpret the terms to reflect an opportunity for [Acme Coyote Publisher] to take advantage of the author.

    Whoo hoo! Like that? “Now appear inequitable to you”? “Concerns me that you interpret”? Remember that this was the first time I had the final contract in my hands. (Yes, a draft one had been forwarded to me earlier, but I take little notice of them as they are not legally binding. I prefer to save my focus for the final contract…you know, the one I will sign and be bound to.)

    After this paragraph, while conceding the point on royalties, AC-Pub goes on to say:

    If you would prefer…[to modify some royalty terms]…we can do that. Otherwise I think you might want to explore the opportunities with another publisher.

    Now, if AC-Pub could tell me to piss off when I hadn’t even broached the topics of length of rights, subsidiary rights, right of first refusal, and so on, could you imagine what they would have said once I itemised, clause by clause, exactly what was concerning me? Would have signing with them really have been more beneficial than going my own way?

    And that reminds of a different publisher. I had been promised the final contract…and promised…and promised. In the end, the contract was two months late in getting to me. Remember that. Two months late. I took one week to go through the contract and respond with my concerns. And do you know what? In a subsequent editorial meeting, I was named as being the person responsible for holding up that entire month of releases. (I had a friend at that meeting, which is rarely/never the case.) It was not the publisher’s fault for being inefficient. Oh no, stalwart reader, it was mine for daring to take a week to read through a 16-page small-type contract. Live and learn.

    Publishers take advantage of authors because they can. Because they know that each and every author who submits to them is looking for validation of their work. Sometimes you can use it to get something out of them as well (shorter rights periods, more recognition, higher royalties), but when you hit the situation where none of those apply, then you have the choice of sticking with them—for the chance to see your book on a bookshelf somewhere—or walking away.

    I won’t kid you, it’s a tough tough decision. I’m happy I made mine my way. The question stands, what would you do?

  • Killer clauses – the Kooky Bits

    1

    If you’re enjoying this little series, bear in mind that it’s from a very very limited pool of only half a dozen or so contracts. Should you wish to be educated more on the wily traps in contract clauses, I can’t recommend The Passive Voice highly enough. His blog is incredibly informative and knowledgeable and I’m only scratching the surface of what he manages to produce week after week. To top it off, he was actually a lawyer, so he would know waaaay more about the legal ramifications of clauses than I would. Please do add him to your reader.

    So, coming back to ME, I previously blogged about:

    Length of rights
    Right of first refusal
    Subsidiary rights
    Out of print & bankruptcy
    Auditing

    of Acme Coyote Publishing (et al.), the house that originally extended a contract for War Games and that I subsequently walked away from. Today, in the penultimate in this current series, I hit the kooky bits. This is good because contract reading requires many iterations and a high level of focus, so a chance to laugh out loud in the midst of this is always appreciated. Behold the Kooky Clause:

    Author agrees that during the course of this Agreement or at any time thereafter, Author shall not disparage Acme Coyote Publishing, its employees, volunteers, or anyone associated with it in any manner whatsoever to anyone whatsoever. The parties acknowledge and agree that their respective remedy at law for any actual or threatened breach of this provision would be inadequate and that each party shall be entitled to specific performance or injunctive relief, or both, in addition to any damages otherwise recoverable in law. [Oh and in case you didn't get it from the first sentence...] This clause shall survive the termination of this Agreement.

    Now firstly, what the hell is “injunctive relief”? And how come AC-Pub is already saying that all this is waaaaay outside any legal purview BUT that they’ll go for legal relief in any case? Or, are they saying that if I dare–dare!–say something negative about “Frozen Fluids” path to publication with AC-Pub, they’ll come over to my house and spraypaint the walls a lurid green?

    And, considering that the Agreement is designed to carry on until Earth itself is consumed by the Sun, how exactly can this clause “survive the termination of this Agreement”???

    But, as amused as I was, this clause was unfortunately part of a very legal document. And, putting all the clauses together, all it did was reinforce the idea that I really didn’t want to deal with AC-Pub at all.

    Now, at this point in this series, you might be thinking that Acme Coyote Publishing is one of those loony digital houses that open and shut in a matter of a couple of months/years, but AC-Pub is a traditional (print) small press. Y’know, one of the supposed Good Guys. They have a very good reputation, have excellent editors (which is why I subbed to them in the first place) and their books have won major awards. So what’s the deal? Was I given the Bottom-of-the-Barrel contract because this would be my first book with them? Or is this standard for all their authors? And, if this was their boilerplate contract, what does that say about the desperation of their authors that they would allow themselves to be tied down to such a degree? It boggles the mind.

    There were other clauses in the contract that I didn’t like. (No, really!) They included royalty levels and so on. But I didn’t want to get into that with this series. All I wanted to do was point out the really bad bad clauses in the hope that you’ll know what to look for when it’s time for you to get a contract from a traditional small press with a solid reputation. And no, I’m not kidding with that one.

    Next week, I wrap up.

  • Killer clauses – Auditing

    0

    Wow, this series of posts is proving to be more popular than any two years of my blog put together! (And John, I’ll be doing another post on Malaysia soon.) So far in this series, I have tackled:

    Length of rights
    Right of first refusal
    Subsidiary rights
    Out of print & bankruptcy

    I hadn’t originally planned to include anything on auditing but was struck by Mags’ comment on the Length of Rights post. Mags said:

    What happens if you do not receive any money or sales figures but know your book is selling? Does that give you an option to get out of the contract early?

    In a nutshell, no, although I wonder whether Mags should be approaching a lawyer. If she has evidence of sales and no royalties forthcoming, I’m sure a good lawyer will be able to work with that. However, let’s see if we can distill some general points from a situation like this.

    It occurs to me that the publishers that behave in this way (selling but not paying) have the worst contracts. I don’t know why that is. A correlation between being bastard people and creating bastard contracts perhaps? Your guess is as good as mine.

    As I replied to Mags, some contracts have clauses that say that if you haven’t been paid for a certain amount of time, you have the right to take back your work, however this is by no means universal. What is more universal is an auditing clause that normally gives you the right to audit the Publisher’s books once a year. Something like this:

    The Author may, with sixty (60) days [sic] written notice but not more than once a year, assign and designate a certified public accountant to examine the Publisher’s records as they relate to the Work. Such examination shall be at the Author’s expense unless errors are found in excess of ten percent (10%) of royalties in the Author’s favor, then Publisher shall pay amounts owing for the Work and the reasonable cost of the audit.

    That’s not a bad deal. I quite like this one, which doesn’t have such an annual limitation:

    The Publisher shall keep professional, comprehensive and complete records of all dealings of any nature, disposal or transfer in respect of the Work. The Publisher shall co-operate fully with the Author in any audit and assist in providing such information as the Author may request to establish whether there are any errors or omissions and to fully audit the accounts.

    A couple of contracts I’ve seen (including the notorious one from AC-Pub) doesn’t even have a specific audit clause, content to lump such issues together in the general Disputes clause. But my favourite comes from a big big women’s fiction publisher. The clause is quite long so let me summarise the legalese:

    Author shall have the right, upon reasonable notice and during usual business hours but not more than once each year, to have the books and records of Publisher examined at the place where the same are regularly maintained insofar as they relate to the Work, by a certified and independent public accountant. [okay so far] Such examination shall be at the expense of Author unless the net of all errors found aggregate to mroe than five percent (5%) of the total sum accrued to Author and are to Author’s disadvantage, in which case the reasonable expense of such examination shall be payable by Publisher. [there's that fluffy word "reasonable" again, but that's mighty decent of them, nonetheless] … No such examination shall be made by Author’s accountant upon a contingent fee basis.

    Whoa, Nelly! So Big Women’s Publisher is telling me under what conditions I can hire an accountant that **I’m** paying for???? They put this last sentence in, of course, to circumvent all those freelance auditors out there who make a living from finding publisher errors, charging only a percentage of what they find. Still, arrogant much on behalf of the publisher? It gets worse though.

    As a condition precedent to the exercise by Author of this right…Author’s…accountant shall execute an agreement, in a form acceptable to Publisher, to the effect that any information obtained as a result of such examination shall be held strictly confidential and shall not be revealed to any third party other than Author or Author’s representative, without Publisher’s prior written consent, [and, in case that wasn't clear] which consent may be withheld in [sic] Publisher’s sole discretion. Author also agrees to hold all information and statements provided to Author or Author’s accountant in strictest confidence…

    This is the problem with writers. As a general rule, they don’t like to help each other. They see every other author out there as a potential rival for readership and the editors’ and publisher’s largesse. Clauses like this don’t help because they enable such ultimately self-defeating behaviour. What it’s saying is that if I find that Big Pub is swindling me, I cannot tell anyone else about it without Big Pub’s written consent. This is not a slam-dunk for the publisher because, if I was caught in this situation, my first avenue of recourse would be to consult an IP lawyer and find out if the clause is even enforceable. (Remember that: Publishers knowingly put in clauses that are not enforceable by law. They depend on your ignorance–and, quite frankly, your desperation–as an author to go along with them.)

    The thing that saddens me about this clause is that a lot of authors will read it and actually sigh with relief. As long as they are all right, that’s all that matters. The publisher won’t let them tell anyone else, so it’s not really their fault if their fellow authors get shafted, right?

    That’s a tad depressing (and one I’ve had personal experience of) so next week, some humour as we hit the kooky bits with AC-Pub, who escaped the blade in this particular episode.

  • Killer clauses – Out of Print & Bankruptcy

    1

    In the previous three episodes, I blogged about:

    Length of rights
    Right of first refusal
    Subsidiary rights

    Let’s talk out-of-print.

    For a number of digital publishers, this is a no-brainer. You’re given a specific amount of time and your rights come up at the end of that period. But what happens when a digital publisher also has print releases? With a lot of them, the rights term covers both ebooks and pbooks. Sweet.

    For a publisher who is moving from print to digital or has print progenitors, however, they can’t seem to let go of that out-of-print (OOP) definition, even for their ebooks. So, for a publisher like that, their OOP definition may look like this:

    (b) For the purposes of this agreement the Work shall be considered to be “in print” if:

    (i) it is available for sale in an electronic format which generates aggregate sales of at least fifty (50) units in the four (4) consecutive accounting periods immediately preceding the Author’s request for reversion of rights; or

    (ii) it is available for sale in a physical print edition which generates aggregate sales of at least one hundred (100) units in the four (4) consecutive accounting periods immediately preceding the Author’s request for reversion of rights.

    The problem with going digital with such publishers is that, in the third quarter, just as you’ve totalled the sales and are getting ready to shoot off that letter asking for your rights back, they can have a “Retro Special!“, with every old ebook title being sold for 50% off! Readers soooo like bargains and what are you going to say? “Don’t buy my book!”?

    If the publisher pulls this stunt once a year (they probably have it diarised), you’re screwed.

    Speaking of screwed, we come to my favourite, Acme Coyote Publishing. Perpetuity folks. Go back to the first in this series where:

    …The terms of the contract will remain in effect as long as the work is made available for sale in any form…

    And, as we know from the dreaded Section 1A, that includes “Print, hard cover and soft cover (of large or small format), electronic, digital, and audio versions.” I’m surprised they didn’t include TV and movie in that, but maybe they were just happy to rest on their laurels. (Yes, I know that’s covered in subsidiary rights, I’m just trying to make a joke here.)

    Under such circumstances, it’s no wonder that AC-Pub reminds you that:

    The parties agree that these terms shall be binding on and inure to the benefit of the heirs, executors, administrators and assignees of both parties for all copyrights, all revisions and abridgements and of all proceeds therefrom…

    If you’re a desperate author with your genitalia tied to AC-Pub, you’d be hoping for bankruptcy right about now, even though the Publisher is in no position to say this:

    Upon the occurrence of any affirmative act of insolvency, or in the event that Publisher goes out of business, or in the event of a filing of a petition for bankruptcy against or on behalf of Publisher (either voluntary or involuntary), any and all rights conveyed to Publisher herein shall immediately revert to Author and this Agreement shall be terminated.

    In actuality, once a company files for bankruptcy, the rights become part of the assets of the company to be disposed of as a court decides. It’s out of the hands of the Publisher completely, which makes me wonder why the bastards keep putting it in there. And that clause, with minor variations of wording, is in Every. One. Of. My. Contracts. Regardless of publisher.

    Just in case you’re thinking that, in this one instance, AC-Pub is behaving just like everyone else, they would like to remind you that:

    However, a bona fide sale of the company to a third party shall not constitute a liquidation and shall not be cause for termination under this paragraph.

    What this means is that if AC-Pub know they’re heading for the wazoo, they can carve off part of their business, sell it to, oh I don’t know, a new company they’ve just set up before filing and you’re still chained to them, baby. No negotiation of a new contract included. Mmm mmmm. Delish.

    Next week, how about auditing the publisher?

    POSTSCRIPT: It seems a bit inane to put this down but I’ve got to Cover My Ass here. You should know that I am not a lawyer or solicitor or attorney or whatever you call them in North America. This series of posts just highlights my personal musings as a lowly, ignorant author and should not be construed as legal advice of any kind.

  • Killer clauses – Subsidiary Rights

    4

    In the previous two episodes, I blogged about:

    Length of rights
    Right of first refusal

    from various publishers I’ve dealt with. Not an extensive list, but entertaining enough.

    Subsidiary rights are rights that fall out of the original (usually) print rights. These are things like book club editions, serialisations, reprints, movies, television deals, and so on.

    Some publishers don’t have Subsidiary Rights clauses at all, so if I bump into Spielberg one night, I’m free to offer him one of those stories and rake in the millions, baby! Yeah, right.

    Others are a bit coy, but generally the majority of the cut belongs to the author. Paraphrasing another publisher’s contract, this is their split:

    Motion Picture – 70% Author / 30% Publisher
    Dramatic Stage Play Adaptation & Performance – 70 / 30
    Television – 70 / 30
    Radio – 70 / 30

    You may wonder if the above publisher even deserves thirty percent for something YOU slogged over but, hey, it’s a livable compromise. Until we come to our good pals at AC-Pub who have to take it one step further and rub it in at the same time. This is their clause under “Subsidiary rights”:

    Publisher shall have the exclusive, worldwide right, at Publisher’s option, to sell or license the rights in the Work indicated below upon such terms as the Publisher deems advisable to domestic or foreign accounts. Author retains no right of approval for such sales to commence or cease. [did you like that sentence? rofl] The proceeds received by Publisher from the sale or license of such rights shall be divided between Author and Publisher 50/50 respectively.

    Riiiiiggghhhhttt. All they did was publish a book I wrote, but they’re still entitled to fifty percent of the spin-off take AND I have no say whatsoever in any discussions associated with my book. Such an ethical mob. Next week, how about some out-of-print considerations and praying for bankruptcy (for them, not me)?

  • Killer clauses – The Right of First Refusal

    3

    Last time, I had a look at different publishers’ period of rights. This time, I tackle the Right of First Refusal. I have signed contracts with this clause in but it’s usually pretty straightforward. Like this:

    In the event that the Author writes a sequel to the Work which uses an identical central theme and/or characters as the Work, the Publisher retains a right of first refusal for the sequel. If the Publisher does not accept first publication of the sequel within 90 days of its submission, this would be deemed a refusal by the Publisher and the Author will be free to publish the sequel with a third party publisher without encumbrance.

    The first time I read that clause I underlined the words “sequel”, “identical central theme and/or characters” and “within 90 days”. Not everyone likes this clause. I don’t mind it, as long as I have my writing planned out for the next 1-2 years (which I do). I also know that the particular publisher that has this clause only holds rights for a few years (less than five) and that I can broach this clause with the publisher at a later date, should I so wish. Because of these two combined conditions, I am happy to sign this clause with this publisher. However, I would not sign this clause with a publisher that holds my works for, say, more than three or four years. (That’s my own personal set of conditions; yours may vary.)

    And, of course, there are publishers who don’t have this clause at all, bless ‘em.

    Moving right along, Acme Coyote Publishing was a different kettle of fish again. Their Right of First Refusal clause went something like this (I’ll underline the interesting bits):

    Acme Coyote Publishing reserves the right of first refusal as to all subsequent similarly-themed novels/novellas greater than 15,000 words by the Author, including but not limited to sequels, revision, or republication of the Work, as long as the contract remains in effect. During such time, Author shall not seek offers from nor negotiate with others for any similarly-themed novel until first offering said work to Publisher.

    The length of the contract, in this particular case, was not 2 or 4 years but as long as they had a single digital, electronic or audio copy for sale. You’re cringing, aren’t you? But it gets worse. (And this is from a bona fide contract.)

    After submission of said manuscript, Publisher shall have forty-five (45) days to determine whether to publish the said next work; if Publisher wishes to publish the work, the Parties shall negotiate in good faith regarding the terms of the publishing agreement. If the Parties are unable to reach agreement within sixty (60) days of Publisher’s stated wish to publish said work, then Author shall be free to offer the said manuscript to others, but only on terms more favorable than those offered by Publisher. Author shall notify Publisher in writing of such offer, including all particulars, within seven days of the receipt of said offer, and Publisher shall have seven (7) days to match said offer of any other publisher and if matched, then Author shall be obligated to accept Publisher’s offer.

    What this long clause, that I’ve broken up into two, says is that if AC-Pub buys the rights to, say, a steampunk novel I’ve written, then they’ve locked up every other steampunk novel or novella I will ever write for the rest of my life. I’ll just pause here and let you think about that for a moment. And not only that. They have 45 days to review the next book + 60 days to drag out a stalled negotiation (total of 105 days). You have 7 days to get them the counter-offer, after which they have 7 days to match the offer. And, if they match it, you have to publish with them.

    Is there a way out of it? Sure!

    (a) The Author may be released from the obligations set forth under this Section, upon mutual agreement by the parties subject to the following: The Publisher shall be entitled to recover from the proceeds of the sale of Authors Works 100% of the cost of editing and production, exclusive of marketing and promotional costs, of all Works published or to be published, prior to further royalty payment commencing on the date of said agreement.

    Wow, what a wily clause. I’m not entirely sure, but I think they’re saying that I can get around this whole Refusal lock-up if I pay all of the costs of editing and production for a story that hasn’t been published yet! Essentially, I will be paying them off so I can hawk my steampunk novel to someone else. Hmmm, that sounds ethical. Not.

    Believe it or not, it gets worse. They go on to say:

    A proposal for a work does not constitute a manuscript. If Publisher declines a proposal, the right of first refusal extends to the manuscript outlined in the proposal should Author chose [sic] to write it.

    Wow. So, I forward a proposal to them along the lines of Romance Amongst the Hydraulics During The Ice Age. AC-Pub turns it down, but the idea doesn’t go away. I really want to write this novel, which I subsequently call “Frozen Fluids”. Well, AC-Pub still has the right of first refusal on “Frozen Fluids” even though they thought my proposal was a heap of crap.

    Ay carumba! If you’re getting the impression of the door of a steel cage closing inexorably on you while you’re inside, you’d be pretty much where I was when I read that clause.

    Next week, subsidiary rights.

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