Writer Beware Blog on (Brief) Temporary Hiatus

Posted by Victoria Strauss for Writer Beware

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! It's also a scary thing, because I work least well when I'm under pressure.

I'm putting the blog on hiatus for the next few weeks, in order to concentrate on the final push. If something really earth-shaking occurs, such as Amazon buying Random Penguin, I'll post about it, but other than that, you won't hear from me again until sometime in August.

I will still be answering email and continuing other Writer Beware activities, so please feel free to contact me: beware [at] sfwa.org.

In the meantime, have a great summer, and thank you so much for your ongoing support.

Penguin and Author Solutions File for Dismissal of Class Action Lawsuit

Posted by Victoria Strauss for Writer Beware

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..

My blog post about the filing, including the full text of the complaint, can be seen here.

Last week, as expected, ASI and Penguin filed a motion to dismiss, labeling authors' complaints "a series of gripes" that would be better served by filing individual suits, and seeking to remove Penguin from the lawsuit. According to Publishers Weekly,

In its motion to dismiss, Penguin attorneys offer a long list of legal and procedural issues for dismissal, as is common practice, and deem the complaint “a misguided attempt to make a federal class action out of a series of gripes.”

The motion also seeks to sever parent company Penguin, noting that “no specific misconduct” by Penguin is alleged. The motion says the case boils down to “alleged typographical and formatting errors and supposed delays in publishing their books,” and some “alleged errors associated with royalty payments owed” on some of the plaintiffs books published under Author Solutions imprints.

The plaintiffs may pursue "individual claims," Penguin attorneys argue, noting that the issues are contract issues "and nothing more," based upon "supposed errors, delays, or underpayments.” The remainder of the complaint and any potential class action, the motion states, should be dismissed.

The full text of the motion to dismiss can be seen here.

Author Concerns and Complaints at Crimson Romance

Posted by Victoria Strauss for Writer Beware

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 pace 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

and to--

price, promote, market, and sell the Work as it deems suitable

and to--

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.

Police Investigate Pay-to-Play Publisher 2 Moon Press

Posted by Victoria Strauss for Writer Beware

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.

An Honor For Writer Beware Co-Founder and Chair, Ann C. Crispin

Posted by Victoria Strauss for Writer Beware

I'm thrilled and extremely proud to announce that my friend and colleague, Writer Beware co-founder and Chair Ann C. Crispin, has been named the 2013 Grandmaster by the International Association of Media Tie-In Writers (IAMTW).

The official announcement is here.

This annual honor, the highest awarded by the IAMTW, is given only to the most accomplished and successful authors in the field (previous Grandmasters include Kevin J. Anderson, Peter David, and Keith DeCandido). Ann's outstanding media tie-in achievements include best-selling novels in numerous franchises, including Star Trek (Yesterday's Son and Sarek, among others), Star Wars (the best-selling Han Solo trilogy), V (the original novelization), and Pirates of the Caribbean (The Price of Freedom).

Ann works in her own worlds as well. She created the acclaimed StarBridge series for young adults (recently brought back into circulation in electronic form), and, for adults, the high fantasy novel Storms of Destiny. She's also a respected writing teacher and workshop leader, many of whose students have gone on to be professionally published--and, of course, a founding member of Writer Beware, where she is a force to be reckoned with (just ask Martha Ivery).

On a personal note...Ann and I began as colleagues, united by our concern about the many scams that victimize writers. But our professional relationship quickly ripened into a close and deep friendship. We're not just fellow warriors in the battle against literary fraud, we're companions, confidantes, and trusted beta readers.We've shared so much over the fifteen years since Writer Beware's founding (holy crap--fifteen years!!), both good and bad, and we know each other inside out. That may sound corny...well, yes, it does sound corny. But it's the truth. I can't possibly be as thrilled as Ann that her accomplishments are being honored in this way--but I'm pretty chuffed!

Many people regard media tie-in writing as the red-headed stepchild of publishing. Not writing in your own universe--that's hackwork! A copout for those too unoriginal to make up their own stories! A half-step up from plagiarism! But having been Ann's beta reader through the entire process of creating The Price of Freedom, I can tell you that tie-in writing is a lot more difficult than most people think. It's challenging, exacting, and requires an incredible degree of discipline. Not everyone is capable of doing it.

Ann addresses this issue in her response to the award.

To be honest, for years I struggled with the prevailing attitude among some s.f. and fantasy writers that writing media tie-ins was the ultimate in degrading hackwork, lower on the authorial totem pole even than writing pornography to eke out a living.

Personally, I believe a good story is a good story, no matter what universe it’s written in. I really love being able to put characters from famous universes through their paces, and get inside their heads. I put as much effort into my tie-in books as I do for my original books (though I confess the original books are tougher to write, since you have to make it ALL up), and I was proud of the stories I produced. But I didn’t like getting openly snubbed or patronized sometimes when I was at conventions or writer gatherings.

One time I was talking to my dear friend, Andre Norton, about how I felt about this, and she set me straight. “Ann, you are a STORYTELLER,” she said. “One of the oldest and proudest professions known to the human race. No matter what kind of story you’re telling, be proud of that ability!”

Fortunately, that snotty attitude among the “purist” s.f. and fantasy writers seems much less prevalent today. Earning a living writing is so darned tough these days that whatever type of writing you’re doing, if you can make money doing it, hey, more power to you.

So I’m very proud to be receiving this award, and proud to be a storyteller.

Please join me and Writer Beware in congratulating a wonderful storyteller, caring mentor, fearless activist, and loyal friend: Ann Crispin.

For more info on Ann and her many novels, visit her at her website.

Outrageous French Copyright Grab: ReLIRE Goes Live

Posted by Victoria Strauss for Writer Beware

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:

- The ReLire home page
- The Your Rights page
- The Search page
- The FAQ

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.

Class Action Lawsuit Filed Against Author Solutions Inc.

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, Giskan Solotaroff filed a class action complaint on behalf of three plaintiffs against Author Solutions Inc. and Penguin Group USA (ASI is part of Penguin) in US District Court for the Southern District of New York. Allegations include breach of contract, unjust enrichment, various violations of the California Business and Professional Code, and violation of New York General Business Law.

The full text of the complaint can be seen here.

The complaint highlights issues that will be familiar to anyone who has followed discussion of Author Solutions over the past few years: poor quality products, poor quality customer service, relentless up-selling pressure on authors, particularly for ASI's expensive "marketing" packages, and trouble with accurate payment and royalty reporting.

4. Author Solutions' revenues are estimated at $100 million per year. Of the $100 million Author Solutions earns as revenue, approximately one third of that amount, or $33 million annually, comes from book sales. The rest of its revenue is derived from the services it offers, such as editorial services, formatting and design services, production services, and marketing services ("Services").

5. Despite its impressive profits from book sales, Author Solutions fails at the most basic task of a publisher: paying its authors their earned royalties and providing its authors with accurate sales statements.

6. Author Solutions also fails to take diligent care of its authors' works, making numerous and egregious publisher errors -- errors made by the publisher, not the author. These errors include errors on book covers, in addition to various typographical and formatting errors. In fact, Author Solutions profits from its own mistakes. Aggressive sales techniques ensure that these errors are corrected only for a fee of several hundred dollars. Even though, as a matter of policy, Author Solutions promises to correct publisher errors for free, it rarely does.

7. Most of Author Solutions' earnings are derived from its publishing and marketing Services. These Services, which can cost authors tens of thousands of dollars, likewise fail to deliver what they promise: more book sales and more opportunities for authors.

8. Therefore, even while Defendant Author Solutions prominently markets itself on its website as "[t]he leading indie publishing company in the world," authors often discover, once it is too late, that Author Solutions is not an "indie publisher" at all. It is a printing service that fails to maintain even the most rudimentary standards of book publishing, profiting not for its authors but from them.

In addition to asking the Court to approve class action status, the complaint requests release of publishing rights for the class, and payment by the plaintiffs of restitution, court costs, and compensatory damages in excess of $5 million.

Authors wishing to contact Giskan Solotaroff about the suit can use this online form.

I've blogged about ASI and its questionable practices a good deal over the past few years. For background, here's a selection of my posts:

Pearson Buys Author Solutions (but questions about ASI's business practices remain open--will Pearson address them?)

A Partridge in a Penguin Tree (ASI expands into India).

Archway Publishing: Simon & Schuster Adds a Self-Publishing Division (outsourced to ASI, and it's eye-poppingly expensive).

Fake Jared And His Friends: Author Solutions' Misleading PR Strategies

Democratization or Disinformation? (ASI's misleading "white paper" on independent" publishing).

Posts by others:

Writer and editor Emily Suess is a relentless critic of ASI, and has exposed many of its business practices and collected many complaints from unhappy authors who've used its services.

Mick Rooney of The Independent Publishing Magazine has a long piece on the Giskan Solotaroff investigation and related matters.

Author and blogger David Gaughran deconstructs the ASI empire.