I’ve got a book deadline coming up: July 31. This is a happy thing, in that my book has a home and my editor is waiting for it and in a month I’ll be done!
Archive for the ‘Writer Beware’ Category
In April, the law firm of Giskan Solotaroff Anderson & Stewart filed a class action lawsuit against Author Solutions Inc. and its parent, Penguin Group, on behalf of three plaintiffs, alleging breach of contract, unjust enrichment, various violations of the California Business and Professional Code, and violation of New York General Business Law.
Recent data suggests that the astounding pace of ebook growth is starting to slow as the market begins to mature. However, that hasn’t affected the pac at which trade publishers are establishing digital imprints.
Often viewed as experiments, these digital-only and digital-first imprints may offer less favorable terms than the publisher’s standard contracts, in an effort to shift more of the risk to authors (one example: Random House’s Hydra, Flirt, and Alibi imprints, a controversy that had a happy ending when Random House changed the imprints’ deal terms to make them more author-friendly). Another potential problem: in the rush to take advantage of a burgeoning new market, plans may not be as carefully laid as they should be, and books may be acquired and pushed out too fast.
This seems to have been the case at Crimson Romance, F&W Media’s digital romance imprint.
Some background: Crimson published its first book in June 2012, and has been issuing titles at a brisk pace ever since. Amazon shows nearly 300 to date, published at a rate of as many as 57 releases a month. Over half the titles are available in paperback, via POD.
I’ve seen several Crimson contracts. There are no advances. Books are published within six months of delivery (fast by traditional standards). Royalties are paid on the publisher’s net (a.k.a. “gross amount received”), 30% for ebooks and 10% for print.The grant of rights is life-of-copyright, with a reversion clause that allows authors to request reversion if royalties fall below $250 in each of two consecutive royalty periods (royalty periods are six months). However, this is qualified somewhat by the fact that, as an alternative to simply returning rights, the publisher can choose to “[take] such steps as it is able to accelerate sales” beyond the $250 threshold; if it can manage that within six months of the author’s reversion request, it doesn’t have to revert. In other words, if the publisher can get sales to $251, it gets to keep authors’ rights for at least two more royalty periods.*
Last month, I heard from a few Crimson authors about problems at the imprint. I put out a call for contact, and received a flood of emails.** The issues cited are very consistent, the most frequent being late or missing royalty statements and payments, paltry sales, and hasty and/or inadequate editing (some authors told me that mistakes in proof weren’t corrected before publication; a number of reader reviews on Amazon cite typos and other errors, as does major romance review blog Dear Author). Many of the authors who contacted me also felt that Crimson had done little to market their books, beyond Kindle promotions on Amazon.
Authors’ main beef, however, is Crimson’s ebook subscription service. Launched in July 2012, the service allows readers to pay $12.99 a month and receive unlimited downloads from the entire Crimson catalog. But while the Crimson Romance contract grants the publisher the exclusive right to–
publish, reproduce, and distribute the Work in electronic book and enhanced electronic book format in the English language throughout the world
price, promote, market, and sell the Work as it deems suitable
combine [the Work] with any other material in any publication or product, [in which case] the “Gross Amount Received” shall be pro-rated according to the proportion that the Works bears to the publication or product as a whole
–the subscription service is not mentioned or described anywhere in the contract. Not surprisingly, there’s also no mention of a payment plan.
Many authors felt blindsided when the service was announced, with no contract addendums and no commitments on how they would be compensated. Some also worried about piracy, since F&W has a DRM-free policy; and about reader abuse, since readers could conceivably sign up for one monthly fee, download the entire catalog, and then cancel their subscription. Others feared that Crimson’s efforts to drive readers to the subscription service would discourage purchase of individual titles. Still others questioned whether Crimson had the right to implement the service at all (F&W told me that they feel the language I’ve quoted above covers the service, even though the service is not specifically described).
Authors’ March 31, 2013 royalty statements didn’t include subscription service income, and those who contacted Crimson to ask why discovered that there was still no payment plan in place. Not until April 23 was a payment plan formally announced. Using the contract royalty percentage, Crimson is allocating 30% of subscription income to authors. But instead of pro-rating authors’ share based on the number of downloads, as many authors had expected, payment will be based on the amount of time each book has been available in the service. Crimson justifies this methodology thus (quoting the announcement letter):
Supporting this methodology is the nature of the service itself. It is the full portfolio of titles that drive the subscription revenue, rather than any one individual title. Readers are signing up for the service in order to browse the full selection of books; individual titles that are downloaded are not directly driving the site revenue…
[A]fter reviewing the language in the author contract, it was clear that every title in the program (whether or not it was downloaded) would need to receive compensation simply for being a part of the service.
In other words, authors whose books are not downloaded at all are compensated at the same rate as authors whose books have lots of downloads, and books that have been in the service longest get the biggest share, even if recent books are more popular. Additionally, Crimson is apparently not reporting actual download numbers; and since the subscription service earned only modest revenues in its first royalty period, royalties due were tiny, with books published in the last month of the royalty period receiving just $0.42.
Some fed-up authors lodged complaints with Romance Writers of America, which contacted F&W in early May to discuss the complaints and to argue that the third contract clause quoted above (“according to the proportion that the Works bears to the publication or product as a whole”) supports a per-download pro-rata policy, rather than the methodology implemented by F&W. F&W did not agree, leading RWA to deem the interaction “not satisfactory.”
Last week, I contacted F&W for comment on all of this. They acknowledged that they didn’t plan carefully enough for the subscription service, and told me that they are working to answer authors’ concerns in several specific ways:
- Authors who wish to opt out of the subscription service will be allowed to do so at the end of the current royalty period (June 30).
- New contracts will include a description of the subscription service and how authors are compensated for it.
- An additional round of copy editing is being implemented to address authors’–and readers’–concerns about quality.
There’s also a new Executive Editor on board. However, the provisions and the payment methodology of the subscription service will not change.
I appreciate F&W’s willingness to speak with me frankly, and its efforts to address the problem. Of course, time will tell.
But though it’s true that it’s the whole Crimson catalog that drives subscriptions, rather than any individual book, I have to agree with authors about the basic unfairness of the subscription payment plan, which rewards longevity over demand and advantages books with lower numbers over the most popular titles–and, unless the number of subscribers grows at a rapid and continuing pace, all but guarantees diminishing returns as the pool of titles expands. In the long run, this may work to Crimson’s deficit, as the subscription service will surely stand or fall on the depth of its catalog, and there’s currently little incentive for popular authors not to opt out.
I’d love to hear from other Crimson authors about their experiences–either here or in email. I’ve also invited Crimson and F&W staff to stop by and comment.
* I’ve also seen one contract that invalidates the minimum sales threshold entirely if a book is available in print. F&W informed me that this language was part of an initial version of the contract, but was eliminated early on and is not included in current contracts.
** Along with complaints, I received several emails from authors who were happy with their Crimson experience.
Pay to play publisher 2 Moon Press, located in Olivet, Michigan, closed abruptly last month, after having been purchased earlier in 2013 by one of its employees. It leaves a litany of sadly familiar complaints in its wake.
According to local news coverage,
…the [Marshall police] department has received about 25 complaints about 2 Moon Press since May 8. It is currently looking into authors’ claims of unpaid royalties, unfulfilled book orders and breaches of contracts, and is also investigating the current owner’s allegations of fraudulent activity against the former owner, Don Semora.
In return, Semora says that he is “proceeding with legal action against both [the current owner Melinda] Lundy and 2 Moon Press.” He has denied Lundy’s and authors’ allegations.
Established in 2009, 2 Moon Press–which, possibly exaggerating a tad, billed itself as “Michigan’s largest and most trusted book publisher”–charged thousands of dollars to publish. Its website is no longer extant, but examples of its prose stylings can be seen here–an immediate red flag for anyone with a decent grasp of grammar. As of April 2012, it claimed to be working with 283 authors, but per Amazon, it has published only around 215 books to date.
The Marshall Police Department is asking 2 Moon Press authors to contact them at 269-781-2596.
Just over a year ago, I wrote about a new French law that, under the guise of dealing with the pressing issue of orphan works, implements a truly massive rights transfer.
The law empowers the Bibliothèque Nationale de France to create an online database of works published in France before 2001 that are currently out of print (this includes not just works by French writers, but foreign works translated into French). Once a work has been listed in the database for more than six months, the right to digitize it transfers to a collective management organization, which thereafter has near-unlimited power to exploit that right–including granting it to publishers without the author’s permission. The collective management organization will also be responsible for distributing (an unspecified portion of) the proceeds from such grants to rightsholders.
There’s a six-month waiting period between a book’s appearance in the database and the transfer of rights to the collective management organization. To be removed from the database, rightsholders–who are not currently being notified if their works are included–must opt out in writing before the six-month waiting period expires. If they miss that deadline, they lose control of the digital display and sale of their work, and can only demand removal by proving that that they are the sole holder of digital rights.
The database, known as ReLIRE, is now online,with an initial list of 60,000 books. According to a comprehensive post on the program by writer Gillian Spraggs, numerous problems have been noted, including data errors, inclusion of books published after the 2001 cutoff date, and inclusion of books still in print or already available in digital form. Also included are many translated works by foreign authors that are clearly not orphans.
Digital-hungry publishers are already taking advantage of the database. Spraggs writes,
It appears that 10,000 (one in six) of the books in the database have been opted in by the publishers. The ReLIRE website FAQ outlines what a publisher will get out of the arrangement:
‘You will have the possibility of having an exclusive publishing licence for 10 years, implicitly renewable, to exploit the book in digital form, without having to sign a contract with the author or the author’s successors in title for the digital rights.
Sofia [the collecting society] will contact the authors or the successors in title to pay them, in accordance with the terms set out in the publishing contracts’…
Two points that the FAQ discreetly avoids spelling out are:
1. The legislation specifically charges the collecting society with developing contractual relationships that will ensure the greatest possible availability of the works…This puts prospective publishers in a very strong negotiating position and more or less guarantees that the contracts agreed will be bargain-basement deals with very low royalty rates, regardless of the market value of the work.
2. Certain administration costs that in a normal publishing arrangement would be borne by the publisher will instead be borne by the collecting society, which will take them out of royalties (so all or part of them will be taken from the authors’ share of any income). These include the cost of contacting authors and estates.
For authors, Spraggs says, it is “a ripoff deal.”
Writers’ groups in the US are taking notice of this threat to copyright. The Science Fiction and Fantasy Writers of America has sent the letter below (reproduced with permission) to members, a number of whom have already found their works included in ReLIRE.
Dear SFWA Members,
As many of you already know, the ReLire program currently underway in France has scanned many books it considers to be “orphan works” in order to make them available through a public database. This database has already been found to contain many titles that are clearly not orphan works or in the public domain, including a number by prominent SF and fantasy authors. A more detailed explanation of the program is available here.
As this is a program of the Bibliotheque Nationale Francaise (French National Library), the Board is currently discussing options for applying pressure to the French government to prevent further works by SFWA members from being scanned and made available through this program, and we invite any members who have connections with the United States Trade Representative or any relevant branch of the U.S. Government to contact us. For the moment, however, we are informing all members of the issue and making them aware of the process involved in finding out whether a work is included and how to request that it be removed from the database.
All parts of the ReLire website and database are available only in French. The Society of Authors has produced translations of four key pages:
Here is a direct link to the advanced search page. The search fields are Titre( Title), Auteur (Author), Editeur (Editor) and Date d’edition (Publication date). If you are aware of any works of yours that have ever been published in French, you are strongly advised to search under all of the first three fields, as the entries in the database have been found to have many typos. Please notify SFWA of any of your works that are found in the database, as that will be valuable information in our efforts to protest the program.
If you do find any novels, stories or any other works belonging to you in the database you may request to have them removed. Please note that at this time it appears as though you will need either a French identification card (only available to residents of France) or a valid passport to make the application. We are awaiting clarification on the question of whether any other forms of identification will be accepted.
Thanks to Aliette de Bodard, Lawrence Schimel, Michael Capobianco and Jim Fiscus for their help in researching and co-ordinating SFWA’s response.
If any of your works have been published in French, and you find them included in ReLIRE, see this step-by-step manual for applying to have the work removed. For many other helpful resources and links, as well as some of the writing/publishing community’s reaction to ReLIRE, see Gillian Spraggs’s blog post, French Copyright Grab: the Machine Creaks into Action.
Spraggs writes that a group of French authors are planning to challenge the new law on constitutional grounds. She concludes by urging all writers to protest ReLIRE:
Whether or not you find that any of the books on the list are by you, or contain works by you, make a complaint to your government about the ReLIRE project, and talk to any author societies to which you belong.
The Berne Convention says: ‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.’ (9.1) This can only be overriden ‘in certain special cases’ and ‘provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. (9.2) The Convention says of all the rights that are guaranteed under it: ‘The enjoyment and the exercise of these rights shall not be subject to any formality‘. (5.2)
By compelling foreign authors, in order to prevent their works’ being co-opted into collective management, to search for them on a database and request their removal, the French government has imposed an illegal formality on their exclusive exercise of the right of reproduction.
The ReLIRE scheme is in no sense a ‘special case’ within the meaning of Article 9.2. By intervening in such an outrageous manner in the fast-developing market for digital rights it interferes with the normal exploitation of the works and most unreasonably prejudices the legitimate interests of the authors.
Posted by Victoria Strauss for Writer Beware
In March, I wrote about New York law firm Giskan Solotaroff Anderson & Stewart LLP, which had opened an investigation of Author Solutions Inc. (ASI).
Well, now the other shoe has dropped. On April 26…
I’m still following the news (and answering email), so I can at least share with you the publishing stories that caught my eye over the past week or so.
Over the past few weeks I’ve gotten a number of questions and alerts about author-unfriendly Terms and Conditions at Autharium, a new epublishing startup. So I thought I’d check into it myself.
For Those of You Who Are Wondering Why Someone Might Want to Launch a Class Action Lawsuit Against PublishAmerica
Here is an example of the sort of solicitation PublishAmerica authors receive daily (if not more often).
Yesterday afternoon, I had a cordial conversation with Allison Dobson, Director of Digital Imprints at Random House, about the the recent controversy over deal terms at Hydra, Alibi, Loveswept, and Flirt.