Filed under: Ebooks, Publishing News
Sydney Somers, a former NCP author, released an alert regarding a New Concepts Publishing release. Somers wrote three chapters of a full length novel that was never released but was contracted by NCP last summer. Today, the three chapters has been converted into a novella and inserted into an anthology with two other authors. Somers neither authorized nor condoned this anthology and has no knowledge of what it contains other than possibly her first three chapters in some form.
The anthology, Howl for Me, is the same title of the book Somers was contracted for this past summer. She urges her readers to “not buy this release assuming it is a finished project of mine.”
I’ve heard of some pretty shoddy publishing actions, but this seriously has to take the cake. Can you imagine how horrible it would be if a publisher took a proposal an author wrote and packaged it into an anthology with no opportunities for rewriting or editing and no information as to how your work is being transformed, but still sold under your name? I’m aghast at the chutzpah of NCP and I wonder how many authors will be eager to work with them again. If I were Somers, I’d be checking my contract for an out clause.
Both Ellen Ashe and Emily Veinglory have written on this subject.
I’m not surprised. I hope Sydney Somers has a good lawyer.
I’m not surprised that NCP is behind this. I hope she has a lawyer too. NCP will not let her out of any agreement if she signed it. They don’t honor the contracts. She’s been pooched unfortunately. Even Ellen’s lawyer got her nothing, but being in Canada I’m sure she had a harder time of it.
I’m really hoping Sydney can get her story back.
The buy page for the book classifies it as a “round robin anthology,” so I’m assuming these other two authors simply continued Somers’ story where she left off. One of the authors has no online presence other than this one book out with NCP. The other has no website, but a large number of books released by NCP.
I’ve heard in the past about NCP’s owners writing large amounts of the publisher’s catalog under a myriad of pseudonyms. Call me a conspiracy theorist, but I wouldn’t be surprised if these two additional authors are NCP’s owners writing in disguise again.
If not, it begs the question: how did NCP get these other two authors on board? What did they tell them, and why did they not think to collaborate with Somers? Not to mention the copyright issues here, aye aye aye.
All around, it’s disturbing. I know some publishers will do a lot of work for an author, but to actually finish her book for her? Well…that’s quite generous!
The other two authors could very well be NCP owners.
I feel so disgusted I could hurl.
NCP’s contract states, “Under no circumstances shall the Publisher make revisions to the manuscript without the approval of Author, via letter or e-mail.”
Calling it a “round robin” is entirely misleading. Assuming that the book is an expansion of Somer’s partial, as it appears to be, it’s a massive copyright violation, as well as a violation of NCP’s own contract. Somer’s work is protected by copyright law the moment it leaves her computer, and other authors have no more right to add to it without permission than they have to write an unauthorized sequel to “Gone With the Wind.”
Having had my own problems with NCP, including them “mistakingly” putting up a book on the Coming Soon page with my title and my name that I had NOT contracted, I can tell you they have the balls to do just about anything. I was able to get my name off the book, but they took the title I had submitted to them and used it on one of their own books. Not illegal I know, but tacky and unprofessional to say the least.
Authors Beware!!!
It’s been pointed out to me that newer versions of NCP’s contract were changed, and it now reads, “If in publisher’s sole opinion the manuscript is not suitable for publishing purposes, then Publisher shall have the option to request Author to perform such changes or rewrites of the manuscript as Publisher deems necessary.” The remaining clause stating that the Publisher could not alter it without the author’s permission has been dropped. Nevertheless, the contract clearly states the publisher may REQUEST changes, not have them done by a different author. Also, the copyright issue remains the same– no one should have the right to expand and drastically alter a partial without the permission of the author.
“If I were Somers, I’d be checking my contract for an out clause.”
Sadly, there isn’t one. Believe me, many of us have tried to get out once we discovered the horror of what being contracted with this publisher-from-hell truly meant. In fact, my lawyer said so many problems could be avoided if there was an “out clause”. But NCP refuses. They won’t even grant a Reversion of Rights after the contract expires!
Authors would be better treated if the owners were the Sopranos.
But if the contract expires, surely rights automatically revert unless you’ve agree otherwise?
This publisher operates like a smash and grab gang. I hope the authors lawyer up soon and take them down.
This really sounds like copyright violation–plus absurdly tacky and underhanded.
Lawyer, definitely required asap.
Question. Do most e-authors have agents? If not, why not? If so, an agent should and would jump right on this.
Nope. Because e-pubs (all but possibly EC, maybe Samhain, I dunno) don’t offer advances, so there’s no money for an agent to make. Plus sales of ebooks are so small compared to NY sales, they’d be hard pressed to make much off 15% of the royalties either.
Not if there’s an in perpetuity clause in there. Then they own it basically forever. (At least, that’s my understanding. I’m not a lawyer, though.)
My heart goes out to Ms. Somers. As the others have already said, lawyer-time.
A successful copyright violation suit against them might be enough to put them out of business for good. Those things can be incredibly expensive to lose, particularly if there’s willful violation involved, which appears to be the case here.
I have been trying for a while to regain the rights to a book sold to them in 2004. I know the contract is out and would appreciate getting the work back to revamp and resell. The book is worthy but has run its limit and is simply just another title on their list. I believe that is their main concern. I plan to hound them until I get what I own.
I get the no advance, but agents don’t just make their cut on advances. Also get not big sales (though I continually hear from some e-authors that e-book outsell print, and/or they make more money than print). 15% of not much is not much.
Still, it seems there’s a desperate need for good e-agents, or a department within an agency that specializes in e-book authors. So many of these horror stories wouldn’t happen if the author had good representation. Maybe better rep, better contracts would begin to generate higher sales.
It just feels hateful to see so many people getting shafted or taken advantage of.
Another question. I know e and print don’t have the same set up or culture. But I wonder why so many e-authors spread their work among so many e-houses? I often hear one say they work with three or four or even more houses. Why not build a reputation, relationship and a body of work with one or two of the e-publishers who are known to be more solid and ethical?
I understand the lack of advance and the smaller sales as part of the motivation for this, but in the long run focusing on career with a specific house, or two, would build a more solid foundation. It seems to me this would hold as true for e and for print.
Jaw dropping.
There can’t be any question of whether or not they violated copyright. Unless she authorized the book to be written as a round robin, then it was her work, her piece to end as she saw fit. Them taking her beginning and pasting a different ending on counts as changing the work around.
That’s copyright violation, right?
Man, I’d be furious-and I’d already be on the phone with my lawyer.
I agree, Nora, but right now most agents simply don’t seem to be interested in handling e-book deals. At any rate, the problem in this particular case doesn’t appear to be the contract, but the fact that NCP is not abiding by the contract. There is nothing I can see in the contract that permits them to hugely expand a partial without an author’s permission. And, of course, as Shiloh points out, it’s a violation of copyright law, too.
I notice both Ms. Ashe and Ms. Somers are from Canada, which may make legal proceedings more difficult.
Makes one wonder if NCP counts on that.
Nora, I can’t answer your question completely, but I know that editors with a lot of these publishers tend to move around and retire at quite a high rate, and that might lead to authors following them, or being less enamoured with the press after that. I know if my wonderful editor at Samhain left, I’d be tempted to follow her to a new press.
Also, a lot of the epresses have very specific requirements - Loose ID, for example, likes a pretty high level of erotic content, while Samhain’s happy if the romance is there. An author in the m/m and erotica genres needs to shop around if they write varied styles and so on. And it also seems to be the case that a lot of epublished authors have a rather high production rate (because they can sell shorter stories to the epresses) so they might need to spread their stuff around because publication schedules fill up.
Jackie, from the little I’ve seen of epublisher contracts, a perpetuity clause would be very unusual. Most only want rights for 1-2 years (Samhain ask for 7 which is damn long in the epublishing world.) There’s often a clause that the contract is deemed to extend past the term unless specifically terminated by the author, but the publisher can’t refuse that. And in any event, NCP are operating by standards no publisher I’ve ever heard of uses - other than scam companies.
I’m not sure it would be a copyright infringement. Somers says that the book was contracted which seems to me that her part of the contract was to tender her distribution rights for the book. NCP, though, would have contractual duties to perform under the contract and it seems like it should not include publishing an unfinished work of an author.
“I notice both Ms. Ashe and Ms. Somers are from Canada, which may make legal proceedings more difficult.”
From what I have seen these last few months Madris DePasture is equally belligerent to ANY author who stands up for themselves.From this point of view they are an equal opportunity publishing house.
I’ve put a column up about this elsewhere.
I’m a colleague of Sydney’s, at Samhain and at the late unlamented Triskelion, and she writes a damn fine book. I can only imagine her distress and fury after finding this out. So it isn’t even safe to send NCP a partial. Probably the best thing she can do at this stage is to make her opinion public and broadcast the fact that she neither knew about or condoned this anthology and will not be promoting it.
Agents - many EC authors have an agent, as do some at Samhain, and it’s not just the ones who are also contracted in New York. I’ve been “between agents” for 3 years now, and I really should get my finger out and get it sorted. It’s rare that an author at one of the smaller epub houses has an agent. I have left it because many of the agents I’ve talked with haven’t a clue about the demands and the requirements of the e-published author, and frankly, wouldn’t be able to represent me adequately. But with so many new agents popping up, many of them much savvier than they used to be, I should be looking around, I guess.
More than one reason. One is habit. In the “bad old days” when there were no market leaders and publishers popped up and closed down all the time, it was like hedging your bets. At least if Publisher A closed, you’d still have books with Publisher B. And at the beginning of your career, it’s all about getting your name out there and building a backlist. Backlists are vital for a good income for the e-published author. I took a huge hit when 12 of my books went down with Triskelion, and this year, I’ve been starting again.
Another reason is specialisation. Some e-publishers only publish a certain type of book, for instance, Changeling offer only hot novellas, and an author might want to spread her wings and write a sweet full-length book.
And then there is the slots available. New authors to a company are at the bottom of the release queue, and they don’t get the publishing opportunities the established authors do. Only to be expected. When a publisher is smaller, it can only release so many books a week, so if an author wants more books out, she has to go to other publishers. I was taught early on in my writing career that I should create a “brand” for myself, so readers would look for my books, wherever they were published. But I don’t have the resources or the expertise of the bigger e-pubs, so I am reliant on them and their reputation. So yes, now the e-publishing industry has a history and the larger companies are much more stable, and also expanding the books they take, then it does make sense to go to one of those first and work with them to build a reputation and a name. I would always advise an aspiring e-published author to go to the best (in terms of sales and reputation) first, before considering the smaller companies, but some of the smaller companies can be very good indeed.
Betty, have you thought about sending them a DMCA takedown notice? If someone posts copyright-infringing work on her web site and doesn’t remove it promptly after she and her Internet provider are officially notified, I believe the provider is required under the law to pull the plug on the web site or at least the sections that contain the infringing material. I’m not a lawyer, of course, but I’ve seen a few web sites get yanked over copyright violations. If someone like NCP was still trying to sell my work after the contract expired or if they had done to me what they’ve apparently done to Somers, I would certainly be exploring my options under DMCA.
I did a traceroute to newconceptspublishing.com, and it looks like they’re hosted through EarthLink. EarthLink’s info on how to file a DMCA notice is here.
~At any rate, the problem in this particular case doesn’t appear to be the contract, but the fact that NCP is not abiding by the contract. ~
Absolutely. It just sent my mind off in that other avenue.
This seems so clearly a violation of contract. I hate when this sort of thing happens to a colleague. Both burns my ass and makes me sick.
Why oh why do people still buy from this publisher? I don’t get that part at all. In order to order ebooks, one has to have some kind of internet/online savy and how could they possibly miss seeing on various blogs what a dishonest, corrupt, vile publisher this one is?
Still, it seems there’s a desperate need for good e-agents, or a department within an agency that specializes in e-book authors. So many of these horror stories wouldn’t happen if the author had good representation. Maybe better rep, better contracts would begin to generate higher sales.
It just feels hateful to see so many people getting shafted or taken advantage of.
It IS hateful. Sadly, I think the percentage of e-authors who actually have someone qualified look at their contract is very small. I’m not sure why this is, but even coming from the publisher side, it’s something that’s frustrated me. Because, I’m sorry to put this so bluntly, but I find many authors don’t think before they sign, letting their excitement/emotion get the best of them, thinking it doesn’t matter what they sign away to an epublisher (yikes!) and then, often not understanding their rights at all when something ugly happens or when they want out and blaming the publisher for not giving them an out. If your contract ties you into a relationship with someone and you cannot get out of it, that is not the other parties’ fault. In business, once the contract is signed, neither party is obligated to let the other out of the contract just to show good faith or be nice.
And before anyone jumps to wild conclusions and accuses me of something, I’m not speaking of any situation in particular but in generalities and I’m not defending unethical or inappropriate actions by a publisher in any way, shape or form because it makes me sick to see it–it gives us all a bad name and gives epublishing a bad name and loving epublishing the way I do…it disheartens me–I’m simply speaking of contract terms here because Nora raised the point and I wanted to address it. Bottom line is this–know what you’re getting into before you sign it and know that not every clause is negotiable. Only you can decide what you want to live with and your strongest position comes from the willingness to say no and walk away before the contract is signed, just as the publisher will.
An author doesn’t need an agent in order to have someone look over a contract. I think it should be considered an investment in an author’s career, just like promo, to pay someone like a literary attorney (not your attorney down the road, but someone who understands contracts and publishing contracts in particular) to look at and advise you on your contract with each new publisher. If you don’t have an agent who can handle these things for you, then this is an excellent way to protect your career, your books and your money.
However, each time I say this, there are any number of authors who come to tell me that their circumstances are different/special/outstanding and that they can’t do this for whatever reason. But even so, I’m going to keep saying it, in forums, blogs and in workshops–you must know what you’re signing and be sure that you can live with it no matter what happens.
At any rate, the problem in this particular case doesn’t appear to be the contract, but the fact that NCP is not abiding by the contract. There is nothing I can see in the contract that permits them to hugely expand a partial without an author’s permission.
I normally try not to directly comment on any particular publishing situation, but I just hope that authors from both within the epublishing community and coming from outside can remember that this is not something that most publishers could even think of doing. It’s not normal business practice for most of us and not something I can even still wrap my mind around.
I think it must be getting increasingly difficult for some people not to paint us all with the same brush when things like this come along.
“There’s often a clause that the contract is deemed to extend past the term unless specifically terminated by the author, but the publisher can’t refuse that.”
Yes and no. A year ago I requested the rights back on one of my books at the end of its contract, and was told by the author liaison that it was being returned to me. Eventually (I’ve had personal problems and haven’t been on top of business as I should be) I noticed it was still being sold through various vendors, and was still up on the NCP site, albeit with the buy button disabled. When I contacted NCP, they informed me the rights had in fact never been returned to me. I still haven’t gotten a clarification from them as to whether they consider it returned to me as of this year or not, but it’s still up on their site. I’ve been trying to clarify this situation since April.
Similarly, I have another book, a novella in an anthology, that was issued in print. NCP’s contract allows them to sell print remainders after the contract ends, which is fine. I’m willing to buy up a reasonable amount of remainders, but this book has, I’m told, “hundreds” of print copies remaining, so it’s not feasible for me to buy them up. When I wrote the author liaison for clarification, I was told NCP would retain the print rights until EVERY print copy was sold, thus making it extremely difficult for me to resell my novella (because most publishers want all rights). This could conceivably mean that NCP would hold onto the print rights forever. That is not what my contract reads, and I have contacted the author liaison and stated that I disagree with that interpretation, but a week later I’ve received no reply.
Everyone should listen to everything my BFF in MD Angela just said. Then do it. I’ll be even more blunt:
You New Author or Hopeful Author are NOT special. Your circumstances are NOT different, and there is NO reason you can’t invest in your career in order to protect your work. None. Maybe there will be some cases where that investment didn’t pay off–and something intensely crappy (such as what’s happened to SS) happens anyway. But you’ll have done the right thing, the smart and professional thing. And will have both legs to stand on when the crap comes down.
Amen Nora. And may the New Author have eyes to SEE and ears to LISTEN to those of us who have suffered the Shit-Storm and lived to tell the tale.
Maybe there will be some cases where that investment didn’t pay off–and something intensely crappy (such as what’s happened to SS) happens anyway.
To continue the mutual love, thank you for making this point. I should have in my original comment. You can do everything right and still have something horrible happen (because really, what could you possibly do to protect yourself from something like this particular case?), but still, it’s important to take the steps that you can to protect yourself from the start.
Nora, Angela, getting a lawyer to look over every contract is a lovely idea - but if you only reasonably expect to earn a couple of hundred dollars from a story/novella, you’ll spend more on lawyer’s fees than you get back in royalties.
If you hit even close to the big time, sure. Get that lawyer. Though if you don’t live in the same country as your publisher, finding one that can deal with all the ramifications of sorting out a dispute across national boundaries could be a tad difficult.
But if you can’t afford a lawyer, then you can at least ask more experienced authors to look over the contract and see if they spot any problems. The response of the publisher to questions over the contract should also tell you how they handle problems as well.
Hanging around the more intelligent blogs and using Google with intent should be a basic survival tactic as well.
You don’t need them to look at every contract, particularly if most contracts are standardized. It would likely cost around $500 for someone to look at the K. It could be negotiated before hand. Yes, the royalties aren’t likely to earn that out but it’s a step toward protecting yourself. As an author, you are a small business. Would a small business company go about conducting itself in this manner?
Ann, I have to disagree unless the writer is looking at this as a hobby and doesn’t care about protecting the work or building a career. It may initially cost more than you earn to protect the work, to make sure you’re not signing something you shouldn’t, but again, long run, not only worth it, but essential.
Other, more experienced authors may be able to help a little. But authors aren’t agents or lawyers.
I don’t know the number of contracts I’ve signed over the years–and I couldn’t explain a single one of them fully. I’d be very hesitant to advise another writer on the terms of her contract.
Yes. Absolutely. You MUST know what you are signing. It is imperative.
I have a former friend who runs a a small press. She emailed me about a year ago asking me what First North American Rights meant. I about lost my head at this point, because she had people sign a contract which she herself didn’t understand.
I urged her to get a lawyer. “No, it’s too expensive.”
So I spent two hours going over the contract and explaining what is typically put in there and why. And again said, “Get a lawyer.” Her reaction? “It’s too complicated.”
“It’s not complicated, it’s precise.”
“I’ll have to edit all the legalese out.”
The legalese is there for a reason! It protects the publisher, it protects the author, aaaarrrgh.
I CANNOT stress this enough: if you don’t have an agent, get a lawyer. Pay the fee. Don’t be a dufus.
Jane, I honestly don’t know what it would cost for me sitting in Brisbane, Australia, to ask someone versed in American contract law, to look over a contract. It could be as little as you say, it could be a lot more. As you point out, it’s the kind of thing that a small business should do. But with many epubbed authors earning small sums, and spreading themselves across publishers as Nora noted, I’m just saying that the cost:profit ratio really could be a prohibiting factor.
Small businesses generally don’t have to go to a specialised lawyer to handle their contracts. The cost is going to be less. Still, it’s astonishing how many small and one-person business don’t even operate with written contracts, let alone have a lawyer check them over.
I’ve put a column up about this elsewhere.
I’m a colleague of Sydney’s, at Samhain and at the late unlamented Triskelion, and she writes a damn fine book. I can only imagine her distress and fury after finding this out. So it isn’t even safe to send NCP a partial. Probably the best thing she can do at this stage is to make her opinion public and broadcast the fact that she neither knew about or condoned this anthology and will not be promoting it.
Agents - many EC authors have an agent, as do some at Samhain, and it’s not just the ones who are also contracted in New York. I’ve been “between agents” for 3 years now, and I really should get my finger out and get it sorted. It’s rare that an author at one of the smaller epub houses has an agent. I have left it because many of the agents I’ve talked with haven’t a clue about the demands and the requirements of the e-published author, and frankly, wouldn’t be able to represent me adequately. But with so many new agents popping up, many of them much savvier than they used to be, I should be looking around, I guess.
Jane actually said what I was going to. I didn’t suggest a lawyer for every contract, nor would I as I’m in the perfect position to understand why that wouldn’t be financially feasible. But I don’t think blogs, Google or another author are a substitute for a professional. And really, what do I have to gain by telling you that? One would think, as I’m on the publisher side of things, that I’d be all for people signing a contract without a thought. So maybe the fact that someone on the opposite side of the table is saying this should be a head’s up to just how important it is.
The response of the publisher to questions over the contract should also tell you how they handle problems as well.
I both agree and disagree with this. Because again, if you don’t understand the clauses you’re asking about, if you don’t understand what you’re negotiating, and the publisher says “no, that clause isn’t negotiable” what does that tell you about how they handle problems? Certainly how they respond is telling (not the response itself, but the manner of the response) but a response in the negative isn’t in itself an indication of future dealings, so it’s important to clarify that.
More than one reason. One is habit. In the “bad old days” when there were no market leaders and publishers popped up and closed down all the time, it was like hedging your bets. At least if Publisher A closed, you’d still have books with Publisher B. And at the beginning of your career, it’s all about getting your name out there and building a backlist. Backlists are vital for a good income for the e-published author. I took a huge hit when 12 of my books went down with Triskelion, and this year, I’ve been starting again.
Another reason is specialisation. Some e-publishers only publish a certain type of book, for instance, Changeling offer only hot novellas, and an author might want to spread her wings and write a sweet full-length book.
And then there is the slots available. New authors to a company are at the bottom of the release queue, and they don’t get the publishing opportunities the established authors do. Only to be expected. When a publisher is smaller, it can only release so many books a week, so if an author wants more books out, she has to go to other publishers. I was taught early on in my writing career that I should create a “brand” for myself, so readers would look for my books, wherever they were published. But I don’t have the resources or the expertise of the bigger e-pubs, so I am reliant on them and their reputation. So yes, now the e-publishing industry has a history and the larger companies are much more stable, and also expanding the books they take, then it does make sense to go to one of those first and work with them to build a reputation and a name. I would always advise an aspiring e-published author to go to the best (in terms of sales and reputation) first, before considering the smaller companies, but some of the smaller companies can be very good indeed.
You know what would be nice? It will never happen for obvious reasons, but a side by side review of a “typical” contract from several publishers would be awesome. Obviously, contracts are confidential and this will never take place, but if we at least could pull a typical one apart in public, it would do a bunch of authors a huge load of good.
More than one reason. One is habit. In the “bad old days” when there were no market leaders and publishers popped up and closed down all the time, it was like hedging your bets. At least if Publisher A closed, you’d still have books with Publisher B. And at the beginning of your career, it’s all about getting your name out there and building a backlist. Backlists are vital for a good income for the e-published author. I took a huge hit when 12 of my books went down with Triskelion, and this year, I’ve been starting again.
Another reason is specialisation. Some e-publishers only publish a certain type of book, for instance, Changeling offer only hot novellas, and an author might want to spread her wings and write a sweet full-length book.
And then there is the slots available. New authors to a company are at the bottom of the release queue, and they don’t get the publishing opportunities the established authors do. Only to be expected. When a publisher is smaller, it can only release so many books a week, so if an author wants more books out, she has to go to other publishers. I was taught early on in my writing career that I should create a “brand” for myself, so readers would look for my books, wherever they were published. But I don’t have the resources or the expertise of the bigger e-pubs, so I am reliant on them and their reputation. So yes, now the e-publishing industry has a history and the larger companies are much more stable, and also expanding the books they take, then it does make sense to go to one of those first and work with them to build a reputation and a name. I would always advise an aspiring e-published author to go to the best (in terms of sales and reputation) first, before considering the smaller companies, but some of the smaller companies can be very good indeed.
When I signed my first contract and pre-agent, I had a lawyer/agent look at it and it cost around 150.00. Expensive? That depends on the POV. But for me, I found the peace of mind worth it.
I sincerely hope some authors will listen to what’s being said here by a respected editor, a lawyer and a writer who’s been in the business for over 25 years.
You have to pay to play. If you won’t, don’t be surprised if the rules aren’t what you thought they were, and you get your ass kicked.
I know that some claim to use Dan Poytner’s contract (did I spell that right). Maybe I should buy it and take a look at it. I think its $9 or something.
“I can only imagine her distress and fury after finding this out. So it isn’t even safe to send NCP a partial.”
It isn’t safe to CONTRACT with them on a partial. I have an incomplete partial under contract with them too, and I sent them a firm note last night telling them they did not have my permission to do this with it. However, NCP has stated they are no longer contracting on partials, so this, at least, is something no one should have to worry about, except those of us who already have contracted partials with the company.
The trouble is, sometimes a contract isn’t saying what you think it is. Take the Triskelion bankruptcy. Now whatever the problems the company had, once they put the business in the hands of the receivers, it was a whole new ballgame.
A ballgame with people who didn’t know the rules. At first, the receivers thought they had the authors’ copyrights, and we all got letters to that effect, and that they proposed to sell the copyrights as part of the company assets.
Erm, no. We wrote back and showed them the bit in the contract that said we the authors retained the copyright to our books, and then they said oh, then we’ll sell the contracts. Which they were entitled to do, but in the Triskelion contract there was a clause giving the author the right to withdraw their book, giving 6 weeks’ notice. After that, the publisher had the right to sell the copies they had, ie. the print copies, but not the electronic ones. If the contracts had sold to a company we didn’t like, we would all have invoked that clause.
And there was a clause in the contract that said that if the company went bankrupt, the rights automatically reverted to us. Again, erm no. The bankruptcy court was federal, so it ‘trumped’ the state laws the contract was drawn up under and it claimed the right to freeze the contracts as assets. They could have kept us going for years, lawyers or no lawyers. Yes, we consulted lawyers and they said this time the bankruptcy court was within their rights.
Most author contracts are specific. I know mine aren’t like anyone else’s because I’ve negotiated certain clauses, even at the same publisher that can be the case. So I’d add, if you get a lawyer, get one who knows what s/he is doing. Not all lawyers are equal or have the same specialisms.
Speaking as a Brit, it always struck me that the US is a bit lawyer-happy. In the UK, employing a lawyer is the last resort. It seems to be the first in the US. And very often, the only winner is the lawyer.
But then, Dickens was British and “Bleak House” shows what devastation lawyers can wreak, given their heads.
Neither do I, but I’m saying that at the very least, you can use those to educate yourself about the potential problems. I agree completely a properly experienced lawyer is your best bet - I’m just saying that they’re not that easy to find if you don’t live in the States. If I was looking at an advance over $1000, it would be worth chasing around Australia to find one. That’s me personally.
Absolutely. I was really thinking of reports (about NCP, in fact, I think) of abusive, insulting responses to quite ordinary queries about contract points, and wondering why the hell the authors didn’t bail at that point. If the reply is evasive, or abusive, or the publisher doesn’t even understand what the contract clause means, that should be a huge red flag.
Ilona, you can start with EPIC’s model contract:
http://www.epicauthors.com/contract.html
They also list a number of red and yellow flag issues for contracts.
EPIC are effing useless though, so I’m putting this out here with no comment on the worth of their advice.
Here is where the miracle of the internet comes to play. Most contracts contain a forum selection clause whereby the contract dictates the legal jurisdiction (i.e. State of Ohio) where any disputes must be litigated or if not the place of litigation, what forum’s law will be applied so that if you sued in New York, the New York state court would apply Ohio law. That’s generally enforceable. So you troll on the internet to find a good lawyer in that forum (State) and email them!
I agree completely a properly experienced lawyer is your best bet - I’m just saying that they’re not that easy to find if you don’t live in the States. If I was looking at an advance over $1000, it would be worth chasing around Australia to find one.
I know of at least one literary attorney who has experience with epublishing contracts who lives in Maryland but has looked at contracts for authors from all over. The attorney who looks at your contract doesn’t need to be where you live. Looking over your contract and advising you can be done via email, and the contract is going to be the same, whether you live in Timbuktu or Small Town, USA.
Don’t many cities have Legal Aid? Or perhaps a local bar association? Here, the local bar association keeps a list of attorneys that handle such-and-such, and they refer people who call their office to one of the attorneys.
Most attorneys I know certainly offer the first consultation for free.
And I’d like to jump in on the agents and e-publishers. When I worked in submissions for a now-defunct publisher, we received TONS of queries from agents. Almost every agent on the Writer Beware list.
I bet a literary lawyer in the States would work with an author outside by e-mail, phone, snail mail over a contract with an American publisher.
That would be a good avenue to tap other authors about. What lawyer they used, what the basic fee was, and how satisfied they were/weren’t.
Ann,
I’m on my first cup of coffee, so it might be just me, but where is the clause specifying how much time the publisher has to publish the work and and that if they fail to publish it, the rights revert to the author?
I wouldn’t sign this.
Okay, Jane and Angela mostly beat me to it. Consider my last post a reinforcement of theirs.
~ Almost every agent on the Writer Beware list.~
Wow.
Wow, I didn’t know that. Good advice, thank you. (This is the first time anyone’s ever mentioned this to me, and I’ve had dozens of conversations with authors about contracts, including apparently clued up ones. Exposing the limitations of my advice immediately!)
Then why is where the NCP authors live an issue? Because bringing suit from outside the USA is more difficult?
Ilona, I have no idea. I only put that link up to give you some idea of what a typical epub contract is supposed to look like, according to EPIC. I know from experience that in reality, that means very little.
~Because bringing suit from outside the USA is more difficult?~
That was my take. I have no idea if it’s true. But I wonder if already having a relationship with a U.S. literary attorney would clear some of the obstacles if they exist.
I’m not sure where the NCP authors live should be an issue. They would have the right to avail themselves of the courts to litigate a claim against NCP. Alot of these contracts also have arbitration clauses which require all contractual disputes to be resolved through binding arbitration (a different forum that a court and not a full trial, a limitation of rights in essence).
Ann,
I call shenanigans! :P
If I sign a contract, it better tell me that the publisher has an x amount of years to get my work to the public and if they fail to do so, they better pay me a kill fee.
This EPIC contract seems to be slanted heavily toward making sure the Publisher can just wash their hands of the whole thing very quickly.
I’m not a lawyer, but heck, even I can spot holes in it.
Having shared the cover of a legitimate Samhain antho with Sydney, I know she’s a talented, awesome lady and I hope she makes them cry. And no doubt to add insult to injury, they list her last on the cover?
I can’t believe they haven’t taken it down yet.
I once got a very scathing letter from an author because our contract didn’t match exactly what EPIC’s did. Very scathing. I only mention this because I think it’s easy for people to look at that and say “this is exactly how it’s supposed to be”. I think this should be a case of author beware.
I have a hard time seeing why an author wouldn’t just self publish rather than signing that contract.
Nora, I’m one of the epubbed authors who has been with a number of companies. When I started, Samhain didn’t exist, and I wasn’t writing erotic romance (EC level stuff). I started with Triskelion, and we all know enough about that one. (BTW, I had a lawyer read my contracts–as someone said. That did help me get out when it was clear I needed to.) I published with Loose ID, fine company, but their focus has changed. I wrote two books for EC, but I’m increasingly uncomfortable writing ever hot, hot, hotter stuff. There are many reasons folks move around a lot–some good ones, some not.
I think small press writers are very wary of putting all their eggs into one basket, given issues like NCP. Fortunately, this doesn’t go for a few solid companies. But too many new writers jump at the “they took me!” start-up epublisher and then wonder why they got burnt. It is reflecting badly on everyone. Shame.
Angela,
That contract is ridiculous. “Author Warrantees. Author warrants that s/he is the author and sole owner of the Work or has been assigned the rights delineated above; that it is original and contains no matter unlawful in its content, nor does it violate the rights of any third party; that the Work is not in the public domain. Author also warrants that these rights are owned or controlled by him without encumbrance and that Author has full power to grant the listed rights to Publisher.”
First Warranties is misspelled. Second, what does that unlawful in its content even mean? You can interpret it whichever way you want to, because the way it’s phrased just makes no sense.
The more I read it, the more confused by it I get.
Ilona, one contract I’ve signed with a highly regarded epress includes an author warranty that “the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party;”
And the contract I have with my print publisher has an indemnity clause against “any violation by the author or any of the Author’s agents of any law, statue, ordinance, ruling or regulation”
Which is the same thing effectively as the EPIC clause, and just as vague. I see this as a catchall protection against things like paedophilic or terrorist material, and that kind of thing. I’m not delighted by the phrasing, but it seems to be standard, since I signed similar contracts when I did a bit of academic publishing a while ago. It’s almost meaningless because it’s impossible to guarantee a piece of writing hasn’t broken a law *somewhere*. I write gay romance - want to guess how many countries that would be flat out illegal in?
Just to reinforce something said up-thread. If you use a lawyer, get a lawyer who specialises in literary contracts. Do *not* just use your family lawyer for this, because there are a lot of innocent-looking clauses in literary contracts that have very specific meanings within the industry — and a general practice lawyer who isn’t familiar with them is liable to happily sign off on things that no experienced agent or IP lawyer would touch with a bargepole.
And research an agent before paying them money. There are a lot of “agents” out there who are either clueless or outright scam artists, and they heavily outnumber the people who are competent and honest.
Ambiguity in the contract makes it more difficult to enforce. I actually see that clause as also extending to copyright infringement.