Dec 9 2011
Anita Clenney has filed her answer (PDF) to the Sourcebooks complaint. In it, she asserts four points:
1) Inclusion of 8 pages of advertisements without permission and/or payment constitutes a material breach. Clenney argues that the industry standard is a) defined by the actions of two or more of the big 6 and that the industry standard is for inclusion of a provision regarding advertisement.
Unfortunately for Sourcebooks, its understanding of actual publishing industry practice as to the placement of advertisements in books is incorrect. Therefore, Sourcebooks does not actually adhere to the industry standard by having unilaterally placed advertisements for its authors’ books in Awaken the Highland Warrior without having first obtained Clenney’s consent and agreeing to compensate her.
As other, larger publishers’ contracts reflect, the placement of advertisements, whether for the book’s author or others, is a matter of negotiation, and the publisher’s right to do so is agreed upon and set forth in the contract.
In support of this, she provides excerpts of four contracts
- Berkley contract: “‘industry standard’ as used herein shall mean the ebook royalty rate that is routinely paid by at least two (2) majory publishers”
- S&S contract: Consistent with Clenney’s interpretation
- Macmillan contract: ”advertisements other than for books may not be printed without consent.”
- Harlequin contract: No third party advertising.
This looks to be the weakest part of Clenney’s claim. From speaking with those in the industry, it is not common practice to provide compensation for after matter.
2) Sourcebooks has a pattern and practice of breaching contracts. I’m not sure what the purpose of this part of the petition other than to respond to the Sourcebooks’ inclusion of Book Cents’ business in its complaint. Book Cents’ business and Sourcebooks actions toward other authors is not relevant to whether Sourcebooks breached its contract with Anita Clenney. Of interest was the complaints made to RWA which were not followed up on. I confirmed that RWA will not investigate a claim unless it is made by a member of good standing and who is having a dispute with the publisher. Thus a complaint made by an agent will not be investigate.
This part of the answer is on pages 16 through 20 and recounts three troublesome issues that Sourcebooks has had with other authors.
3) Non payment of royalties / no receipt of royalty statements. Clenney alleges she has not received payment of royalties or even a royalty statement since the publication of her book in 2011. Sourcebooks asserts that royalty statements have been sent but delivery has been refused.
4) Violation of privacy. The complaint filed by Sourcebooks included the contract as an exhibit. The contract included the address and social security number of Clenney. According to the Federal Rules of Civil Procedure this information should have been redacted. Clenney has filed a countersuit on the basis of this inappropriate dissemination of the social security number under the Illinois Consumer Fraud and Deceptive Business Practices Act and the Illinois Personal Information Protection Act. I’m not familiar with those acts and whether they give rise to a private cause of action but it could be the most serious part of Clenney’s answer and counterclaim.
Sourcebooks will now need to respond with its own answer.
Reviews of Agony/Ecstasy are rolling in. Dawn Crowne at Romantic Times is conducting a riff off of the DABWAHA by pitting the stories against each other. Fun.
- From Harriet Klausner: ”Though the characters mostly relate in trysts, most are surprisingly much more developed than normally seen in a short story collection. Readers will enjoy this entertaining erotic collection that includes a variety of sub-genres”
- From Reader Ridley: ”It’s like most anthologies: some great stories, some terrible ones.”
- From Reader Mandi (Smexy Books): ”I was hesitant to read this, because I’m not huge on anthologies to begin with and I thought 21 very short stories would not be for me. But I was pleasantly surprised by how much I enjoyed them. Many are edgy and all are erotic.”
- From Readers MinnChica and Has_Bookpushers, Parts 1 and Parts 2: Some they loved, some not so much.
- From Reader Jan: “Agony/Ecstasy edited by Jane Litte is a WONDERFUL surprise. Even though it’s a book of BDSM erotica, the stories are well-written and thought-provoking.”
The next big self published author is Darcy Chan, a lawyer, who wrote one book five years ago that was rejected by a dozen houses and 100 literary agents. She tabled the book but decided to self publish her novel earlier this year. She bought banner ads, a couple of reviews (one from Kirkus), spending about $1000 for promotions. Source: Wall Street Journal
Then, at the end of June, “The Mill River Recluse” got a mention on a site called Ereader News Today, which posts tips for Kindle readers. Over the next two days, it sold another 600 copies. Ms. Chan realized she might be able to drive sales herself. She spent about $1,000 on marketing, buying banner ads on websites and blogs devoted to Kindle readers and a promotional spot on goodreads.com, a book-recommendation site with more than six million members.
She has sold over 400,000 copies and made around $130,000 before taxes. Chan wants to find a domestic publisher but most domestic publishers are concerned that with 400,000 copies sold the audience left for her work is limited. She has had several foreign offers, movie offers, and audible book offers but waits for the Big 6 to come calling.
Despite the similarities in several passages between Lenore Hart’s “The Raven’s Bride” published by St. Martin’s Press and The Very Young Mrs. Poe written by Cothburn O’Neal and published in 1956, SMP is standing by its author. The smoking gun, according to others, is that Hart copies and incorporates made up facts about Poe’s wife that originally appeared in O’Neal’s fictional work. O’Neal passed away which probably lends itself well to Hart and SMP’s defense. SMP argues that the author came up with the same made up facts on her own. Source: NY Times blog
In April 2011, when these allegations first came to our attention, Ms. Hart supplied a detailed response, which cited her research into biographical and historical sources, and explained why her novel and Cothburn O’Neal’s “The Very Young Mrs. Poe” contain certain details of place, description and incident. As Ms. Hart explained in her response, of course two novels about the same historical figure necessarily reliant on the same limited historical record will have similarities. We have reviewed that response and remain satisfied with Ms. Hart’s explanation.
On Tuesday, the Seattle Times reported that a blogger was slapped with a $2.5 million judgment in a defamation suit. Bloggers everywhere became concerned because the blogger attempted to use the media shield law to protect herself and the court rejected the defense. The blogger had several websites that she used to target one financial investment firm. She wrote many articles about that company and the founder, changing the online search results. The court found that all but one blog post was opinion. The one blog post that the court found factual included some pointed fraud allegations.
The blogger represented herself (which is always a mistake) and said that the accusation was true and that the information had been leaked to her. She did not want to reveal the leaker and tried to protect herself using the media shield law.
The court rejected this and other bloggers focused on this passage by the court:
… although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law
Forbes, a business friendly site, noted that there were additional points the court noted:
Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”
The Oregon media shield law does not include blogs specifically and Forbes suggests that needs to be revised.