Wednesday, August 18, 2010

Avenging Writer from Twitter: Tips 1-4 Made clearer

Good morning.  I hope you dreamed well.  I'm going to take on my other role today, as book avenger.  I tried to do it on Twitter, but what I have to say is just too complex.  And so, today's post will be an expansion of what I tried to do yesterday in Twitter.  My goal is to help you.

Long ago a student asked about the safety of her ms with a publisher. I laughed.  I shouldn't have.  So much of the publishing industry is based on trust that in fact it is very easy for a publisher to scroop a writer.

The publishing world is built on the publisher's awareness that the writer has to trust the publisher. The publisher reports to you how many copies of your book that sold or were returned, and how can you ask for proof of this? You can't. It would require an audit every six months, and that would be something no publisher would put up with, no matter how good you are as a writer. Because of this awareness that the Writer has to trust the Publisher/Agent regarding this most fundamental point, it is easy to get into the mindset that you have to trust your publisher or agent on every matter.  And that is how you get scrooped.

I've been scrooped by one of my publishers consistently for the last ten years, and off and on for fifteen years before that.  Many extraordinarily perfidious things were done, and some really stupid things as well, and I had no idea until 2009, when a tax slip they issued to me and to the government did not match my royalty sums.  I had eight books with this publisher, to whom I'd sold world rights, and that meant sixteen royalty statements each year.  The sum total at the bottom of each royalty statement is what is added together to tell the publisher what amount they'd paid the writer for the publishing year, and that is what they use to provide the tax slip.  Because of the car accident with its long recovery, I now had time to add up the sums at the bottom of each royalty statement.  Those sixteen numbers did not add up to the tax slip.  And so then I started really looking at each of those sixteen royalty statements.  The royalty statements for 2009 were a dog's breakfast of errors, some perfidious and some impossible to understand.  So, then I took one set of royalty statements (for one book) over the lifetime of the book (20 years), and the number and kinds of "errors" were incredible.  How could I have let this happen?

The biggest error was that I had never checked even one royalty statement for even one year. I was busy writing and earning a living as a writer (which means doing things that leave no time or energy for writing).  I got my royalty statements and my cheques each royalty period, and deposited the money, then shoved the papers into a file folder.

I have had many publishers, which I tell you to protect myself regarding what I will have to say here and in later posts.  In the USA my work was published by Atheneum, Scribners, Macmillan, and others, all under the Margaret K. McElderry Imprint, as well as by Dell Laurel-Leaf, Viking, Gale, and Literary Guild. In Canada my work was published by Coteau, Viking-Penguin, Overlea House, Groundwood Books, Tree Frog Press, House of Anansi Books, and Oberon Press.  I won't go into my foreign publications since I was not the primary signatory of those contracts.  Foreign publications deserve a whole post of their own, anyway.

Now let's start at the real beginning.  You've never been published (or you have, but you're like I was: too busy, or too lazy to do more than deposit your cheques).  A publisher accepts your new (or first ) book. Sooner or later a contract will come to you.  It will be the publisher's standard contract. You're scared to make a single change in the contract, because you're afraid it will make the publisher mad at you and withdraw the offer to publish.

I suppose it is a risk.  On my first real publication, I had never been published in the USA, and when  the contract came, I asked for changes that had been recommended by my lawyer (who was really a friend doing me a favour).  He didn't suggest any of the things I'm going to be suggesting to you from time to time in this blog, because he wasn't a writer with 25 years of experience of being scrooped.  Despite my lack of "history", the publisher made the changes and didn't withdraw the offer to publish.  She was annoyed, yes, I admit it, but she made the changes to the contract.

The more books you have published, or the more you've sold, or the more awards you've received, the more likely it is that your publisher will accept a change you want in the contract. But this publisher was Margaret K. McElderry, pretty much the best there is, and I was nobody, and she still accepted my changes to the contract. Be brave, and see what happens.

Advice #1: Read the very first paragraph in the contract.  It will say something like "You permit the publisher to publish the book [ ---title---] and to license others to publish....  etc. 

What does this mean?  It means the publisher can sell to other publishers the right to publish your book.  And not just to foreign publishers.  Say your publisher's distributor is too lazy or busy to talk up your book in libraries or schools themselves.  Or, say the libraries and schools read reviews of your book when it first came out and bought the book for their collections.  Say it's ten years later.  The book has circulated many times, which means it's fallen into the bathtub, the back's been broken on it, pages have fallen out or are in danger of falling out.  Some schools and libraries would buy new copies.  Others would try to get their original copies rebound.  There are publishers out there who have developed contacts with certain libraries and schools to rebind either the old version of the book or will provide rebound copies of brand-new editions of your book in a stronger format.  But your publisher or agent has to sell them the right to do this. 

If in your contract somewhere after that first clause you do not ask for (a) a copy of every agreement or contract your publisher or agent makes with licensees of every form and (b) an accounting of continuing payments made by the licensee to the Publisher/Agent and (c) a percentage of the lump sum payments and any continuing payments to the publisher or agent, you will lose, and lose, and lose.  You should also ask for two copies (minimum) of each book as it appears after the license is exercised. 

There might be a clause in the Royalties section of your publisher's standard contract which could be taken to apply to licensees. (Royalties always refer to payments for sales of your publisher's own edition of the book.  So if the publisher is going to sell its own edition of the book to other publishers, that would be a licensee, and should be covered in the Royalties section).  Read your contract very, very carefully, and if you think you have found a clause that could refer to licensees, (whether it's under the Royalties section or not) mark it up like crazy to take care of (a), (b) and (c) in italics above.  Make sure you have something like this in your own words: "If the Publisher /Agent sells copies of the Publisher's own edition of the book to licensees or other publishers for rebinding or any other purpose, then the Publisher/Agent will provide the Author a copy of the agreement made with said licensee/publisher, as well as [ -- two--] copies of any edition produced by such licensees/publishers,  as well as [70% - 85 % -- depending on what your Subsidiary Rights Section allows for sales to foreign language publishers] of any lump sum and continuing payments paid by the licensees to the Publisher/Agent.  Then you initial the changes you've made, and send the contract back to your Publisher/Agent without a signature on the last page and ask politely that your Publisher/Agent initial your changes.   

Obviously if there is no Agent you don't have to include the word Agent in the contract.  If there is an Agent, make sure the Agent gets this licensee clause into the contract.  Anyone can call himself/herself an Agent.  Not all Agents know anything about things like this. 

I know about things like this because I didn't have this stuff in my contract, and so I lost all sales income for 48 different licensees forever.  And these licensees do not just sell to schools and libraries.  They often sell new copies of their edition of your book in online stores.  Sometimes, as I have found, you will discover your legitimate book on which you get royalties competing in the same market with a licensee's edition of your book for which you don't get royalties (if you haven't done what I suggested above).  It's a truly miserable situation. 

It is up to you to police your contract.  Don't expect your Agent to do it, if you have one. Set aside a day every month to do an internet search on your name as it appears as Author on your book(s), and also do a search for the title of your book(s).  Check the ISBN of every reference you find. 

An ISBN is a unique identifier for every book in the world.  There are now two forms: the old 10-digit form and the new 13-digit form.  Your publisher will have its own identifier within  the ISBN.  That is, a book might have ISBN 1-55050-170-6 or ISBN 978-1-55050-170-4 (it doesn't matter where the hyphens are or even if they are there at all).  In the 10 digit form the publisher's identifier is the five digits after the first and in the 13-digit form it is the five digits after the first four digits.   Every book published by this publisher will have those five digits in that order within the ISBN for the book.  If you see a different publisher's ISBN than your original publisher's, and you haven't been paid for the book (either lump sum or continuing payments or both) you should query your publisher immediately and point out the "error" in your Royalty Statement or online, and ask politely for your money. 

Your contract is there to back you up.  Never rely on a publisher's agreement in an email or over the phone or in person.  It must be in your contract.
It took me more than a quarter century to learn how badly the most prestigious publisher in my country had scrooped me over the years.  Don't let it happen to you.
My wonderful husband has just attached an air conditioner on wheels to my new office window.  I'm like a kid with a new toy.  So why don't we all raise a glass of red wine (health experts agree that it is uniquely good for you in moderation)  to each other, and try to remember that there are only a few people in the world who will hurt you if they can.  Most of them will do all they can to help you, for no reason at all, or just because it's the right thing to do. 
Bon soir, my friends,
Welwyn / Book Avenger


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