Thursday, September 16, 2010

This is a real reader's real problem with being paid for his work.

I'm re-posting here this comment that came in a bit earlier, because it was a bit hidden in the contest posts, and I'd really like everyone to read it and think about what has happened to this person.  I'll just take out his last name to try to keep him "everyman".  His second question (which I've taken out for now) I'll get to another day.


My name is Michael and while looking for some writer support groups I came across your profile on Windows Live. Your profile mentions that part of your life’s work is helping writers avoid bad publishing behavior. Unfortunately, I have already started down the path of bad publishing choices. I had a short story called “XXXXX” that was part of the now defunct Amazon Shorts downloadable offerings. Although I know people who downloaded my work, I never received any compensation

This is a very serious problem, though fortunately for Michael's sake it seems, so far, to affect him only with regard to one short story.  Not that that makes it unimportant in any way, just, "whew", think if it had been a whole novel!

I am not a lawyer, and laws of different countries vary.  However, most civilized countries in the world have signed the same International Copyright Agreement, which means the publishers of Canada, USA, Britain, and all others that I know of whose people speak English as you do, have to follow their country's signed agreements with other countries.  These agreements are limited, but they do help keep a publisher under control, and in this case, Michael, Amazon is your publisher.  When I answer questions on contracts and copyrights and dealing with publishers or stores that publish, please be aware that I speak from my own experiences only.  This will protect both me and you.  I do not want to be sued by anyone, and you don't want to take my words as Absolute Truth.  They will be as close to the truth as I know, and will reflect what I now realize is a pretty vast set of experiences with trouble that I've encountered, and that's all I can do. 

Before I can answer you, Michael, I would need to know a few things.  First, did you ever get a written contract in the mail that you had to sign?  I would imagine it didn't work like that, but I'd like to be sure.  Places like an online store that publishes other peoples' original work usually get your permission and give your their offer by means of a "Membership Agreement" of some sort that is published on their site online.  You're supposed to click on the Agreement to open it, and then, read it very carefully, and make sure you click on any links within the agreement to read them very carefully as well.  The best procedure is always to print out that agreement, then go back to the online one and print out every single linked document, and if there are links within those links, continue printing until you have in your hand a completely exposed set of clauses in what would be called a contract, in any normal world.  Once it's in print, where you can scrawl things and put question marks in and so on, it's a really good idea to read that "contract" at least half a dozen times, looking for problem areas.  I can tell you about dozens of problem areas that might crop up, but I don't want to get into that until I know how you and Amazon came to agree to Amazon's publishing your story.  If you clicked "I Agree," whether or not you read what you were agreeing to, you are committed to everything that was in Amazon's online Agreement.  It's a very unfair way of negotiating a contract, since it's a "Take it or Leave it" proposition that is being offered to you.  Sometimes, though, it really is better to leave it.
This clicking "I Agree" to let Amazon publish your work isn't like downloading something from say, Microsoft, where you have to agree to their pages and pages of legal terms in order to get what you know you want and you've heard is pretty safe so you think it is probably not going to fry your hard drive.  Most people, faced with these kinds of "Do you agree ?" buttons, do not read the online agreement.  Most people just click on "I agree".  We know we shouldn't. But we do it anyway.  And, let's face it, it gets to be a habit. 

In this case, you are not dealing with a download that could simply ruin your computer.  (And I mean that word "simply").  By agreeing with one click to a document that deals with the publication of your writing, you could, for example, lose possession of your own story for the rest of your life. Because the Shorts program came to an end, I think we can get you back any previously doubtful ownership of your story.  But whether we can get you fair payment for the downloads that Amazon did of your work is entirely dependent on the agreement you have with them.  And so it's really important for me to know some things:
(1) Did you print out your Agreement with Amazon, with all links printed too?
(2) Do you still have that Agreement, if so?
(3) Did you, instead, click on "I Agree" after maybe just reading it online, without printing it?  If so, did you make notes or do you have an excellent memory of what you read?
(4) Finally, if this is indeed a button click agreement, did you just click on "I Agree" without reading or printing what you were agreeing to?
(5) If you got a written contract, which means 1-4 above don't apply, did you keep it?

Please write back with the answers to these questions, and if you have anything written down, could you have it handy to answer my next questions, after you write back? 

Talk to you again soon, I hope.


At 17 September, 2010 , Blogger M Pax said...

There is so much to look out for in this business. Thanks for the information.

At 17 September, 2010 , Blogger Mike said...


Your post has sent me rummaging through old computer files wondering "Just what the heck did I agree to?" This brings up what should be a rather obvious, yet unheeded on my part, good practice. Print your writing contracts out and know where you keep them!

As it turns out, I did have it stored electronically. It was one that I actually had to sign and send in.

I've never been overly concerned about the loss of payment in this particular case because I know the downloads cost people 50 cents and so I figure I, at most, missed out on around 10 dollars or maybe just enough cash to buy one of the fancier gum packs in the grocery isle.

Still, this is an excellent opportunity for me to better understand just what the heck these kinds of contracts promise.

Here's the compensation clause:

"Compensation. As full and exclusive consideration for the rights granted by you and your performance hereunder, will pay you with respect to each Work: (a) a sum equal to forty percent (40%) of: (i) the Net Receipts for sales transactions relating to Audio Digital Exploitations and any Translations, and (ii) the Gross Receipts for sales transactions relating to all other Digital Exploitations, in each case occurring prior to the effective date of any Rights Usage Notice for that Work; and (b) a sum equal to twenty percent (20%) of: (i) the Net Receipts for sales transactions relating to Audio Digital Exploitations and any Translations, and (ii) the Gross Receipts for sales transactions relating to all other Digital Exploitations, in each case occurring after the effective date of any Rights Usage Notice for that Work. “Audio Digital Exploitations” means any Digital Exploitations that are created by or for Amazon in digital formats that may be listened to through the use of websites, software or devices. “Gross Receipts” means monies paid to and actually received by us from the sale of Digital Exploitations. “Net Receipts” means monies paid to and actually received by us from the sale of Digital Exploitations, net of any direct, out-of-pocket costs incurred by us in creating and distributing such Digital Exploitations. "

It sounds like I was suppose to get 40% of the net profit, but apparently they are under no obligation to tell me how many times my story was downloaded and I have no way of knowing what net profit they made off of it.

Again, I don't think this is something worth too much hassle trying to collect on, but I think it is a good learning point.

At 17 September, 2010 , Blogger Mike said...

Part 2

More important to me is the exclusivity clause. Do I have the right to sell the work in question again? I believe I do.

"Exclusivity. With respect to each Work, during the Restricted Period (as defined below), and thereafter until the effective date of any Rights Usage Notice for that Work (as defined below), you will not exploit or authorize any third party to exploit any rights in that Work, including any Digital Exploitation, print publication, motion picture, television, radio or live stage rights. After the Restricted Period, you will be entitled at your option and in your sole discretion to exploit and authorize third parties to exploit any rights in that Work, subject to the rights granted to us in Section 2 above, so long as you have given us written notice of your intention to do so at least thirty (30) days prior to the effective date of that notice (any such notice, a “Rights Usage Notice”). For the avoidance of doubt, nothing herein will prohibit you at any time from engaging in discussions and preparations with respect to the exploitation of such rights with third parties, so long as you comply with the foregoing restrictions. “Restricted Period” means, as to any Work, the period from the execution of this letter until the earlier to occur of: (a) six (6) months from the date a Digital Exploitation based on such Work is first offered to end-users through a Permitted Property, and (b) nine (9) months from the date on which you delivered the Work to us pursuant to Section 4."

The contract was signed in 2007, so I'm well past the 9 month period. But do I really have to send them a written notice of my intent to do so? What should such a written notice look like?

I have a habit, as I suspect many writers do, of viewing my past work with a rather hyper-critical eye so I've let this issue lie for some time due to the lessened value of the work in my own eyes. But I think there are very important things for me to learn and I deeply appreciate any advice that you can offer.

At 18 September, 2010 , Blogger Welwyn-on-books said...

Hi all you good writers:

Whatever kind of contract you have, whether the mailed, signed kind as this one is, or the click "I Accept" kind, it is above all things, primarily important for you to know how long the buyers of your literary work can play out the rights they're buying from you, the writer. So I'll basically concentrate here on the issue of Michael's getting his rights back, and hopefully in his next post he will have something for me that he has found in his contract that deals with how Amazon was supposed to have accounted for sales and how they were supposed to pay him: when and how much.

As you say, Michael, this is a rather smaller issue financially than you probably need to worry about, but it might not have been if they'd sold your story to a movie producer.

I could get very technical here and everyone reading this would pass out from exhaustion or boredom, and so what I'm going to do is try to say it as the layman sees it.

Basically, they buy your story (signed contract) for 9 months after you deliver it as long as they don't get a chance to sell it to some major operator, in which case they only own it for six months, but they retain the rights to income for what they sold as laid out in the (so far unknown to us Section 2).

HOWEVER: if you don't ever give them 30 days written notice that you are calling back your story to your sole ownership, they can keep it and sell all the rights you gave them in Section 2 forever, or until you do send them notice.

And if you do give them 30 days written notice now, it for sure is past both the 6 month and 9 month time period (plus one month in each case for your notice). And so you've given them something like about 3 plus YEARS to try to sell your work in another market even though the Shorts program is defunct, and it isn't illegal because you didn't give them notice

It's not illegal. It's only unfair.

Am I scaring you yet? I think you should be scared, not so much because I think they will have sold it to a third party. The chances are, they won't have been able to, but not because they didn't try. It seems to me the Short program per se is too cost ineffective to have been their real goal here; especially since they sent you that written signed contract.********* It's all just too clean for one small downloading type set of events. What they hope is that some big producer flying somewhere with his electronic reader downloads a bunch of shorts and is taken by yours and wants to do something with it. It's not a bad idea, really. It's just horrible to people who don't understand about net and gross and don't read their contracts with a fine-toothed magnifying glass. (mixed metaphor)

********* Something just hit me. You said you had to sign the contract and send it in but you also said you kept the copy on your computer. So you're not telling me, are you, that you didn't keep a photocopy in paper form of the contract, signed by both you and them?????****************

Goollllllieees. I'm going to have to wait for your answer to carry on here.

At 18 September, 2010 , Blogger Mike said...

I likely did keep the signed contract... somewhere. It may lie in some forgotten envelope amid the mass of books, notes, and scribbled sketches that I appear to enjoy surrounding myself with. (As I noted in my 1st post, keeping these important documents in an easily found safe place has been an important lesson.) But I'm not sure what advantage finding my copy of the signed contract does me. I know they have a signed copy (unless they have misfiled it along with the entire Shorts program) and I know exactly what that signed copy says. For better or worse I'm bound by it now.

I think I would like to work on getting out the 30 day notice to them that would revert the rights of the story to me.

Along with the contract I also have a copy of the Amazon Shorts Welcome kit. I have the office address of the two guys that ran it. I have their e-mails. Heck, I have their phone numbers... that is if they are still working for Amazon.

So do I need to send them a registered letter (so that I have proof that it was sent) stating that I am given them notice?

At 19 September, 2010 , Blogger Welwyn-on-books said...

If you live in the USA a registered letter giving them the 30 days notice is fine. Or if you have a cheaper form of "courier" type service through the USPS that will give you a tracking number and (for a fee) will let you require a signature. If you live outside the USA, you will have to investigate what your country's postal service can do for you to send the letter relatively cheaply across borders and still give you proof that Amazon received your notice when they did, plus a signature. The courier was the most expensive option, but in some countries it is the only one.

Or, wait, I just thought of something. You can fax them your notice unless they specify otherwise in their contract with you. A fax is a legal document if it is signed by you. Usually a fax also prints out a document saying what date and time the fax was received. So that would be the cheapest option of all, of sending your notice and receiving proof that it got there. Sorry I didn't think of that sooner. If you don't have a fax machine, most copy places will fax documents for you for a reasonable fee.

Email is not considered a legal document.

The thing is to follow any method that Amazon has asked for from you on its contract. It's good that you kept all that contact information. Even if a person has moved on, their position is still likely there.

Mike, regarding your keeping or not keeping the signed contract, I think you did amazingly well in dealing with this first important sale to an online organization as big as Amazon. The only reason I mentioned it is because I've actually seen people not get paid *big* amounts of money (e.g. for TV adaptation.) In that case you would need *their* signature on your contract to sue.

So do you want me to stop talking about your contract now? Let me know, okay?

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