Happy Holidays From Writer Beware

Because even watchdogs have to rest sometimes, the Writer Beware blog will be taking a break over the holiday season. Unless there's a really juicy publishing story, we'll be on hiatus until the new year. (We'll still be answering email, so if you want to reach us, drop us a line at beware [at] sfwa.org).

Wishing all our wonderful readers and subscribers a happy, healthy, and peaceful holiday season--whatever kind of holidays you celebrate. See you in 2012!

- A. C. Crispin
- Victoria Strauss
- Richard White

Publisher Alert: Arvo Basim Yayin of Turkey

Posted by Victoria Strauss for Writer Beware

A couple of weeks ago, I began hearing from self-published and small press authors who'd been approached over the summer by a Turkish publisher called Arvo Basim Yayin. All reported having been contacted out of the blue by an editor named Hulya Dayan, inquiring about buying Turkish language rights to their books (some examples of Ms. Dayan's emails have been posted on the Kindle boards).

Arvo signed up at least ten writers as a result of these approaches, some with multiple books (those are only the writers whose names I know; according to my sources, there are probably many more). Both royalty-only and licensing-fee-plus-royalties contracts were offered; the licensing fees ranged from hundreds to thousands of dollars, depending on the number of books involved. Publication was supposed to begin in September.

Some of the books have indeed been published. But others have missed multiple publication dates--and it appears that no one, including the authors whose books were published, has been paid.

Authors who've attempted to contact Ms. Dayan about the problems say they've gotten a raft of excuses--financial difficulties, personal and family ill health, religious holidays, trips out of town--along with repeated promises that schedules would be straightened out and monies owed would be forthcoming. As of this writing, none of those promises have been fulfilled. Authors tell me that Ms. Dayan has largely stopped responding to questions and concerns; some haven't heard from her since October.

I emailed Ms Dayan myself two weeks ago to ask for comment. Somewhat to my surprise, I received a quick reply alleging unspecified financial trouble and assuring me that Arvo would soon be paying everyone. When I wrote back to ask for a payment timeline, Ms. Dayan responded again that payments would be made (though again, she didn't say exactly when), and offered yet another excuse for their lateness: Arvo's printing machines had broken down and all the company's resources were going toward repaying a loan for the purchase of new machines.

Missed publication dates, missed payment schedules, books published that have not been paid for, dropped communication, bogus-sounding excuses--what's going on here? Let's take a closer look at Arvo.

Arvo's website lists only six books, but it actually appears to have published sixteen to twenty-three, depending on which online catalog you look at. The majority of these titles--by such authors as F. Scott Fitzgerald, Edith Wharton, Rudyard Kipling, Bram Stoker, and Jacqueline Susann--are from well-known authors of the past, and most--though not all--are in the public domain (I emailed the agent who reps Jacqueline Susann's estate to ask if rights had indeed been sold to Arvo, but to date I've received no response). The seven remaining titles were all acquired as a result of Ms. Dayan's approaches over the summer. All publication dates are in 2011, which makes Arvo a new publisher--always a red flag, since there's a really high attrition rate among new small presses, especially where they're under-capitalized or run by inexperienced people. The situation with Arvo is a good demonstration of why it's wise not to approach a new publisher until it has been issuing books for at least a year.

Arvo's website lists several staff names and email addresses, and the URL is registered to Arvo General Coordinator Volkan Dogan, who also signed the contract I saw. But Hulya Dayan, who gives her title as "Acquiring Editor," is the only Arvo staff member that anyone has reported dealing with. She's also listed as the translator of many of Arvo's books, despite the shaky command of English exhibited in her emails (several Arvo authors have told me that their translators were hired by the company as independent contractors). So Arvo's staff may be quite a bit smaller than its website encourages viewers to assume.

Arvo offers two kinds of contracts: a royalties-only contract, and a contract offering a licensing fee for the first 1,000 copies plus 8% royalties for additional printings. I've seen licensing fee contract, which is very short--just three wide-spaced pages--and it's an obviously unprofessional document. Among other things, it has been written by someone with a less-than-perfect command of English, which may account for some very confusing and ambiguous language--such as the clause covering the term of the contract, which could be interpreted to mean either that Arvo has the right to produce and sell the book for five years, or that it has five years to bring the book to market. In addition, there are no provisions for rights reversion, no indication as to whether the rights grant is exclusive or non-exclusive, nothing to address copyright, no translation warranty, and although a publication month is established, there is no mention of a publication year. 

(Authors: this is why you may not want to act as your own literary agent. Just because a contract is short and seems simple doesn't mean it's author-friendly. Unless you're very familiar with publishing contract terminology, it's difficult to recognize nonstandard clauses--and even more difficult to recognize what clauses may be missing. To her credit, Ms. Dayan appears to have been open to negotiation, and some of the authors I spoke with were able to alter the contract to make it more standard. But others signed the contracts pretty much as they were written.)

So is Arvo a scam that targeted writers with promises of money it never intended to pay? Is it a well-intentioned, if not very professional, small press that has fallen on hard times? Or is it an under-capitalized, poorly-planned, under-staffed amateur endeavor that was doomed from the start? There's no way to know for sure. But since Arvo has been so active in recruiting via the Internet, authors need to be aware that this is a publisher that appears to have serious difficulty fulfilling its contractual promises.

Beware of foreign publishers bearing gifts.

(For more information on the complicated world of foreign rights, see this interesting article, which covers the issues involved in selling rights overseas and offers a good overview of the value a literary agency can bring to such transactions.)

D Publishing: Dymocks' New Self-Pub Service

Posted by Victoria Strauss for Writer Beware

Last week, Dymocks, an Australian bookselling chain, announced the launch of D Publishing, a electronic and POD self-publishing service.

Like Amazon and Barnes and Noble, Dymocks is a major book vendor. Unlike Amazon and Barnes and Noble, it doesn't have its own ereading device--so D Publishing does not resemble the free, direct-to-device self-pub services offered by Amazon and B&N. Instead, it's more like the middleman self-pub services provided by AuthorHouse and its ilk. For a fee of $499 to $699, you can publish a print book, an ebook, or both (all prices are in Australian dollars). Additional charges for cover creation and setup bring the price as high as $997.

The pricing isn't horrible, by middleman self-pub standards (you can pay much more for a basic package from some services). But there are certainly better deals out there--especially since the only distribution you get is through Dymocks' catalog, Dymocks online, and Google eBooks. Even AuthorHouse et al. do better than that.

But the real problem with D Publishing is its contract, which authors must sign if they want access to an ISBN and what limited distribution Dymocks offers (you can also use D Publishing as a formatter or a printer, in which case the contract isn't required).

With very rare exceptions, self-publishing services' author contracts are nonexclusive, terminable at will, encumber only primary publishing rights, and make no claim on subsidiary rights.

Dymocks' contract, by contrast, is exclusive (all the bolding below is mine):

The scope of the Licence granted to D Publishing is as follows:

(1) sole and exclusive licence to distribution of the Work through the Core Distribution Channels identified from time to time on the Rate Card and Nominated Secondary Distribution Channels;

You cannot terminate the contract unless there is a breach, or unless Dymocks fails to publish:

Either party may by one month’s notice in writing to the other party terminate this Agreement without prejudice to any claims outstanding or any sub-licences properly granted in the event of a breach by the other party of a material term of this Agreement that has not been remedied within 28 days of receiving notice of the breach...

The Author may terminate this Agreement if D Publishing has not published the Work within 28 days of being requested to do so by notice in writing from the Author.

Dymocks, by contrast, can terminate at any time:

D Publishing may, at its discretion and at any time, terminate this Agreement for convenience on giving 30 days’ notice in writing to the Author.

In effect, this is a life-of-copyright contract--for a self-publishing service. And, not content with exclusively locking up your primary publishing rights for an inordinately long period of time, the contract makes a sweeping claim on subsidiary rights as well:

The Author grants to D Publishing a licence...to exercise, including by way of sub-licence, all rights in the Work other than its first volume and electronic publication rights (Subsidiary Rights). Without limiting the preceding, Subsidiary Rights include:

(a) anthology and quotation rights
(b) condensation e.g. magazines, newspapers and ezines
(c) radio and TV straight reading
(d) sound recording
(e) reprint under sub licence
(f) adaptation in other media, including but not limited to internet, apps or other software, collectively, ‘Licence’.

These terms would be a problem if you encountered them in the contract of any small publisher. From a self-publishing service, they are truly awful. And they're just the start. Dymocks can also change the terms of the contract at will. It reserves the right to publish tie-in editions, if a film or other media adaptation is made. The royalty structure is confusing (and, from the looks of it, actual royalties will be low). The payment terms for subsidiary rights sales aren't adequately defined. Royalties are paid and accounted only twice a year. And there's a confidentiality clause that could preclude authors from sharing sales information.

Believe it or not, this is an amended contract. D Publishing withdrew its original contract in response to criticism from the Australian literary community--such as this, from Steve Rossiter of the Australian Literature Review, and this, from contracts expert Alex Adsett. However, according to Rossiter,

The substantive change to the agreement is negligible. The major change has been to bury key details in less direct language and disperse that key information piecemeal across more clauses. This may make key details less obvious to inexperienced authors until they have accepted the agreement but doesn't address the problems.

Will Dymocks heed the continuing criticism and make real changes? Steve Rossiter reports that Michael Allara of D Publishing has promised to release another amended contract in the coming days. Until then, I think that authors would be wise to avoid D Publishing.

EDITED 12/21/11 TO ADD: The D Publishing contract has been taken down (hopefully in preparation for a new and better one), but a PDF of the version I was commenting on above is available here.

EDITED 1/10/12 TO ADD: D Publishing has overhauled and re-posted its publishing agreement. Changes include making the grant of subsidiary rights non-exclusive, and making the contract term 10 years (still much too long--plus, the contract renews automatically unless the author remembers to cancel). Most of the terms I've objected to--including the exclusive grant of primary publishing rights and the confusing royalty structure--remain.

Steve Rossiter agrees that the changes don't go far enough.

Pearson Education Extends Scope of Permissions Licenses

Posted by Victoria Strauss for Writer Beware

Writer Beware has learned that Pearson Education, a major education services company (and the parent company of trade publisher Penguin), is currently requesting vastly extended licenses for copyrighted text and images that it has received permission from rightsholders to include in its print textbooks and other publications.

The original licenses were limited by language, territory, and/or format. Here's an actual example: North American English rights only, for a first printing of 5,000 copies.

Pearson's extension request expands that limited scope to include pretty much everything, everywhere. Here's the exact language:

We are now requesting Extended rights for your selection(s) to include the following: All Languages, World Rights, Print Versions and Non-Print Media, Subsequent Editions, Derivative Versions, Disability Accessible Version and Promotional Use.

There's no doubt that this expanded language reflects the growing importance of digital publishing, with its proliferation of non-print formats and erosion of traditional territorial rights. But it's also alarmingly vague, and enormously expands not just the scope, but potentially the duration of the permission license.

My source for this information, an agent at a well-known agency, told me that when she contacted the third-party service that is handling the extension requests, she was told that she wasn't the first agent to call with concerns about the expanded language. She and the author have decided to deny the extension.

"My concern," she says, "is for authors without representation--that they would just sign [the extension] and not truly understand the repercussions."

The Fine Print of Amazon's New KDP Select Program

Posted by Victoria Strauss for Writer Beware

Almost since Amazon's controversial Kindle Owners' Lending Library--which allows Amazon Prime members to borrow selected ebooks for free--debuted, there have been rumors that Amazon was inviting KDP self-publishers to participate.

Amazon has just unveiled KDP Select, which allows self-publishers to "Distribute books through the Kindle Owners' Lending Library and reach the growing number of US Amazon Prime members." Authors will receive not just exposure, but payment, through a special fund established by Amazon. $500,000 is available in December, and "at least" $6 million in 2012. (See Amazon's detailed FAQ.)

The enrollment term for KDP Select is just 90 days, but enrollment renews automatically unless you opt out (and you can opt out at any time). During each 90-day term, you can promote your book to Amazon customers as free for up to 5 days; during those free days, however, your book won't be available in the Lending Library.

Payment is calculated according to a complicated formula:

Your share will be calculated as the number of times that the Digital Book has been borrowed during the month as a percentage of the number of times all KDP Digital Books have been borrowed, multiplied by the fund amount we establish for that month...For example, if the fund for a particular month is $500,000, your Digital Book is borrowed 1,500 times, and all participating Digital Books are cumulatively borrowed 100,000 times, your Digital Book will earn $7,500 ($500,000 x 1,500/100,000 = $7,500).

It sounds lucrative, but it should be remembered that this is only an example; KDP Select is too new for anyone to predict what the actual borrowing rates will be (according to Publishers Lunch, 129 titles are currently enrolled, from top KDP authors). Also, Amazon appears to have complete discretion in establishing the amount of the monthly fund, and in deciding on "the criteria for determining which borrowing events qualify for this calculation."

Also important to consider, if you're thinking of participating: you must be willing to distribute your work exclusively on the Kindle. Here is the relevant language:

1 Exclusivity. When you include a Digital Book in KDP Select, you give us the exclusive right to sell and distribute your Digital Book in digital format while your book is in KDP Select. During this period of exclusivity, you cannot sell or distribute, or give anyone else the right to sell or distribute, your Digital Book (or content that is reasonably likely to compete commercially with your Digital Book, diminish its value, or be confused with it), in digital format in any territory where you have rights.

This is a grant of rights and a non-competition clause all in one, and authors need to think carefully before agreeing to it. Contrary to what many authors seem to believe, the regular KDP program does encumber rights, and gives Amazon considerable control over intellectual property (see this comment from me on an earlier blog post for an analysis)--but it does so non-exclusively and imposes no burden on other works. KDP Select goes much farther: it makes Amazon, in effect, your publisher while your book is included in the program, and potentially has an impact on other work you are or are planning to publish. (See this post from Passive Voice for a detailed analysis of the dangers of non-competition clauses.)

Other things to note: if you opt out of KDP Select, your book remains subject to the Terms and Conditions until your current 90-day term expires. And if you violate the Terms and Conditions, there are consequences:

we will not owe you Royalties for that Digital Book earned through the Kindle Owners’ Lending Library Program, and we may offset any of those Royalties that were previously paid against future Royalties, or require you to remit them to us. We may also withhold your Royalty payments on all your Digital Books for a period of up to 90 days while we investigate. This doesn’t limit other remedies we have, such as prohibiting your future participation in KDP Select or KDP generally.

As always, read and be sure you understand the fine print.

Guest Blog Post: A Blast From the Past--Thieving "Literary Agent" Uwe Luserke Re-Surfaces

Posted by Victoria Strauss for Writer Beware

Every time I look at Writer Beware's bulging file drawers, and wonder whether I should get rid of files for agents and publishers that have gone silent (or at least consign them to the basement), I'm reminded of why it's important to keep old information handy. The bad guys may disappear--but, as this week's guest blog post by former SFWA President Michael Capobianco demonstrates, you never know when they're going to pop up again.

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by Michael Capobianco

Even before the creation of Writer Beware, Ann Crispin was on the watch for literary malefactors.

Back in 1997, when I was serving my first term as SFWA President, SF writer Dave Smeds filed a complaint with SFWA's Grievance Committee (GriefCom for short), reporting that he'd found one of his short stories published in German, but hadn't received any payment or even been notified of the sale by his German literary agent, Uwe Luserke.

Consulting with GriefCom's Foreign Rights Chair Charles Sheffield, it soon became clear that Dave's complaint was the tip of the iceberg. There was an enormous problem with rights sales to German and other European publishers, affecting many SFWA members, including Andre Norton, Robert Jordan, and Terry Pratchett. Short stories and novels were being sold to European publishers, but authors weren’t receiving royalties; in many cases, writers weren't even aware that the sales had been made. (Here's a typical complaint.)

The common link in all these missing payments and stealth sales: Uwe Luserke. Many of the affected authors were represented by Luserke--but many others had never heard of him.

How could such a thing happen? It’s probably difficult today to understand how remote Europe seemed in those days of the early Internet. In addition to the language barrier, communication took place primarily via paper mail. Phone calls were prohibitively expensive, so there was simply not that much contact between the average American author and foreign publishers. Add to that authors’ general inhibition about contacting publishers directly, and you had a situation that was ripe for exploitation.

SFWA began working to connect the dots. In response to a call for information in the SFWA Forum, more and more SFWA members began to come forward with complaints. Dave Smeds, who had taken over as Chair of the Foreign Reprints Committee, did admirable work in collecting and disseminating information. Ann, who at the time was serving as SFWA's Eastern Regional Director--and who was herself affected by the scandal, through her collaborations with Andre Norton--met with representatives of Amber, the Polish publisher that had brought out Polish editions of Norton's Witch World books. Amber showed Ann documents proving that they had paid Luserke--payments that were never passed on to Norton.

SFWA also contacted the major German publisher of science fiction, Wilhelm Heyne Verlag, and began action against Luserke in the German courts. Ultimately, Wolfgang Jeschke of Heyne provided SFWA with a list of more than 100 stories that Heyne had purchased from Luserke. Robert Jordan supplemented this with a list of novels sold by Luserke to Heyne, including one by SFWA founder Damon Knight.

In some cases, especially early in his career, Luserke had been making appropriate payments to authors, but it appeared that he had mostly stopped after about 1990. While the problems with Heyne and Amber were fully corroborated, Luserke was also doing business in then-Czechoslovakia, Romania, and other European countries, and the extent of his thefts was never fully discovered. SFWA’s efforts to bring him to justice in Germany were impeded by the distances involved, and the case was dropped after my term as President was over.

Why go into all this now? Over the last few years a shadow has been growing in the East. We’ve heard various reports that Luserke is again asking writers and artists if they need representation. (Here's one recent example. Here's another.) Writer Beware has received a handful of questions about Luserke from writers who've been approached by him. And it was just discovered, as part of SFWA’s Estates Project, that Luserke is listed as the agent of the estate of one well-regarded author.

Luserke has an active Facebook page.

It seems clear that Luserke is active again--even if only sporadically. Given how few reminders of his perfidy survive on the Internet, I and Writer Beware feel it's important for writers and artist to be aware of his history of financial and intellectual property theft. Anyone who is currently doing business with Uwe Luserke, or considering making him their agent, should most certainly beware.

Michael Capobianco is the author of one solo science fiction novel, Burster (Bantam 1990), and co-author, with William Barton, of the controversial hardcore SF book Iris (Doubleday 1990, Bantam paperback 1991, Avon Eos 1999), Alpha Centauri (Avon, 1997), and the critically acclaimed near-future novel Fellow Traveler (Bantam, 1991). Capobianco served as President of Science Fiction and Fantasy Writers of America (SFWA) from 1996-1998 and 2007-2008. He received the Service to SFWA Award in 2004 and is currently on SFWA's Board of Advisors.