Category Archives: Publishing

…And then I became a writer.

When people talk about finances, business models, marketing, and spreadsheets, all I here is, “blah, blah, blah…” That’s how I’ve been most of my life. I can discuss calculus with more energy than I can muster up for anything related to business. I had to stop and recognize that becoming an author meant I was going into business. I had to make a shift in my way of thinking, especially regarding the works I would self-publish.

We’ve talked about the business side before, but I’m going to say it again, one of the best places to learn about that aspect of writing is Superstars Writing Seminars. Check it out. Beyond that, as I went through the process of putting together my short story anthology, The Black Side, I realized forming my own publishing company was probably a good idea. Jace Sanders addressed this in his post, “My friend said to get an LLC”, but I’m not going to talk about reasons to form publishing companies or types of companies. Instead, let’s talk about some of the business decisions that might need to be considered in conjunction with forming a company.

Money: Where does it come from and where does it go? Trees, right? I’m still wishing for one of those, but in the meantime, I had to decide if I needed a separate bank account for my business. Depending on the type of business you organize, it may be a necessity, but what if it’s not? After spending time talking with a bank manager, I realized I had a few options. There were multiple types of accounts to choose from and I’m glad I didn’t jump on the first one they suggested to me. I took the time to talk with them, fully understand the pros and cons for each one and the possible tax implications, and then I made an informed decision based on my current needs. In a few years, those needs might change, and that’s something to keep in mind, too.

But it didn’t end with the bank. After getting my account, checks, etc. , I still needed to get everything in place on Amazon, Paypal and any other service related to my business. I’m still in the process of deciding whether to get the Flint app for payment services or the traditional Square. Maybe that can be a future discussion.

Thanks to Heidi Berthiaume and her excellent advice on how to run a Kickstarter, at least I had money with which to publish my first novel and to make the whole process possible. I can’t wait to get her upcoming book on the subject. Money doesn’t bring happiness, but it helps make a business.

Privacy: You know the part of the copyright page where it says the publishing company and then the ADDRESS? That’s not the only place where you might want to have contact information, but you might not want it to be your home address. This is where a PO Box can come in handy. The postal service offers small boxes for very reasonable fees that won’t cost you more than a night out to dinner. Not everyone takes this option, but I think it’s worth it. When I send out the rewards for my Kickstarter, that’s the return address my supporters will see, further allowing me to separate my personal life, from my business life.

Perception: I don’t think forming a publishing company really changes anyone’s perception of the self-published writer. For those of us familiar with traditional versus self-publishing, it doesn’t take much investigation to recognize whether a writer went through an outside publishing company or formed their own. But registering my company name with the state, the bank account, PO Box, getting an EIN, and all of the other things involved, changed my self-perception, reminding me that I must treat this venture for what it is, a business. I must market, I must work, and I must be professional in order to make it profitable. I also developed a business logo that has personal meaning. Each time I put that on the cover of a book, I’m reminded again, that I’m not only an author, I’m a businesswoman.

So, as you contemplate whether or not to take self-publishing to the level of forming your own publishing company, I hope this gives you some information to consider in your pros and cons.

*As has been stated in previous posts, by other blog contributors, this is not legal advice.

Reversion Clauses – or when do I get my story back?

March 18, 2014

Nancy

Business Nancy Greene Publishing The Writing Life 4 Comments

There are four critical provisions in your contact: the granting clause, the payment clause, the indemnification clause and the reversion clause. All four provisions work together to set out what you’ve given up (granting and indemnification clauses), what you get in return (the payment clause) and when you get your stuff back (the reversion clause). I’m only going to talk about the last one today but keep in mind that whether a reversion clause is unreasonable depends in large part on what you’ve given away and what you received for it.

What’s the issue?

Your work has value. After all, that’s why a publisher wants it. The value of the work is why you get paid. In return for letting the publisher print your work (and, hopefully from the publisher’s prospective, earn more money off it than they pay you) you give the publisher an exclusive right to use your words anyway that falls into the grant of rights. Start to see the problem?

No?

Okay, let’s look at it this way. I was recently shopping a story to some E-publishers. Before submitting, I checked out the contract terms as stated on the webpage. Buried in the mumbo-jumbo about submission guidelines and other facts was this gem: “Length of grant of publishing rights: Life of copyright.” What the heck?

A copyright lasts your life and another 70 years (in the US and UK. There some other countries which the copyright only lasts 50 years after your death, but it’s still a darned long time.). If you signed a contract with this “reversion” clause your publisher OWNS YOUR STORY for your life, the life of your kids, and a good chunk of your grandchildren’s life. The publisher can do whatever it wants with your story until it has no commercial value (i.e. is in the public domain) and, most likely, not pay you a penny more.

Now do you see the problem?

You might shake your head and say that “well, that was an e-publisher, the traditional houses aren’t like that.” Oh yes, they can be. If you let them. Publishers of all kinds are trying to grab as many of your right as possible, keep them for as long as possible and return as few of them to you as possible. This doesn’t make the publishers “evil.” It just means they are better at looking out for their businesses interests than most writers are. After all, they make money off the stories other people write. Of course, the publisher wants to keep those words for as long as possible.

“But wait!” you say. “Isn’t there something about my getting the rights back if the work goes out of print?”

Most contracts will have a provision that says something along those lines but the words really matter. Ambiguity is not your friend. Reversion clauses often have no definitions or meaningless ones. I’ll just highlight a few terms that MUST be clearly defined. If “out of print” isn’t explicitly defined the publisher can, and likely will, win on the argument that because your book is available on a “print on demand” basis, whether or not any copies are actually sold, the work isn’t “out of print” and the publisher still owns it.

What does “sales” mean? Can the publisher “sell” 1,000 free copies and meet the “Sales” threshold, if your contract even has one? Courts will read an undefined word consistent with its dictionary definition or its “plain meaning” as it is ordinarily used. If “sales” isn’t defined a court will likely rule that giving away free copies is a “sale” as the “plain meaning” of “sale” includes the “transfer of something to the ownership or use of somebody else.” In other words, no money or anything else of value has to change hands for a “sale” to occur. So, many of the new “reversion” clauses won’t let you get your book back until either the copyright expires, or you pay an attorney a lot of money to argue about your contract and rights. Either way, this is a lose-lose situation for the writer.

The “New Normal” of contracts is that if you aren’t careful you may never get your book back, or worse, you might pay the publisher far more than it every paid you to get your story back.

Hand in glove with the “new” non-reversion clauses are “buy back” provisions. Under these provisions you can “early terminate” the contract for a fee. One of the more egregious of these clauses I’ve seen recently was part of a horrible contract where the writer gave up all rights to her story (which was supposed to be put in an anthology) for 7 years for no advance – just a small royalty percentage. The publisher was going to reprint the story as a stand alone arguably under the same payment terms – 7.5% of the price sold. In order to get the story back before the 7 years expired the writer had to pay the publisher a predetermined amount. Given the sales-to-date this meant the writer had to pay the publisher more than 18 times what she received from the sale to get her rights back. Does this sound wrong to you? It should.

Also keep in mind that many established writers are making LOTS of money self-publishing or reselling their back list – books once in print with a publisher that have reverted to the writer. Publishers know this. For obvious reasons, publishers would prefer to keep the bulk of that money too. With a “life of copyright” grant the income from reissuing those older books would go to your publisher if the publisher even felt like reissuing your work.

What should you ask for in a reversion clause?

1. A reasonable term for the publisher to recoup its expenses and make a profit off you. This is going to vary from an e-book only, to paperback, to hardcover publishers. Hardcover publishers have more legitimate expenses in publishing your book than an e-book publisher does. Generally, the more rights you give a publisher the shorter you want the contract’s term to be. Three years is probably reasonable for an e-book only publisher. Seven to ten years may be reasonable for a print publisher.

2. Clear language as to when and how you get your rights back. Again, ambiguity is not your friend.

3. A definition of “out of print” that sets a sales threshold for e-book publishers, and excludes e-books (for traditional publishers), and print on demand copies and audio books for all publishers.

4. A definition of “sales” that excludes the transfer of your work for no monetary consideration and has a specific number threshold.

5. A renewal clause so the publisher can keep using your Work if it is selling and has to pay you a set amount (an additional royalty) for renewing the contract.

6. If there is a “buy-out” provision, a purchase price that takes into account the publisher’s actual costs, potential lost profits and what it paid you. The reality is if your book is selling well with Publisher X you are unlikely to want your rights back. These provisions come into play when you disagree with what your publisher is doing with your work or the work simply isn’t selling.

7. You don’t want a lengthy notice provision. If you opt to take your rights back, you should get them almost immediately upon notice. This keeps the process from being drawn out and keeps a vengeful publisher from trashing your work – bad cover, bad press – while you wait to get it back.

8. The term “Notice” needs to be defined. The Notice of your intent to take your rights back and the actual return of those rights should not be dependent on the publisher’s actions. Let’s say your reversion clause says you get your rights back 30 days after you notify the publisher: what happens if the publisher doesn’t pick up that certified letter or respond to your email? You might be stuck. “Notice” may mean “actual notice” and you may have to show that the publisher actually received your letter or email. All ambiguity does here is open the door to litigation or an extortion attempt by your publisher who now wants you to buy back not just your rights but also all the copies of your book in the warehouse. If you think I’m exaggerating check out Doranna Durgin‘s post on Writer Beware at http://accrispin.blogspot.com/2011/10/guest-blog-post-fitzhenry-and-whiteside.html

9. A provision that automatically reverts your rights if your publisher files bankruptcy, has an involuntary bankruptcy filed against it, has a receiver appointed or makes an assignment for the benefit of creditors. If any of these things happen your publisher has or is likely going out of business. You don’t want to be caught up in lengthy and expensive litigation to reclaim your rights from a Bankruptcy Trustee or receiver. The likely result if you are pulled into the bankruptcy or receivership is that you will have to buy your story back to help pay off your publisher’s creditors. Again, getting enmeshed in a legal fight is something you want to avoid happening.

What’s the solution?

While a new writer won’t often have the clout to get everything he should in a reversion clause educated writers will push the publishers to stop overreaching. You MUST know what your contract says and how it affects you. Consult with an Intellectual Property (IP) lawyer. This is a very technical and niche area of the law. Your agent likely doesn’t have the knowledge he needs to advise you. The average family law or traffic lawyer does not have the knowledge to advise you. I’ve been practicing business law for nearly 20 years and I still check with an IP lawyer. Consult with a lawyer. Yes, we charge a lot. An IP lawyer may cost you $500 an hour or more. But, the alternative is potentially giving away thousands, if not millions of dollars, over your writing career. The expense of a lawyer is worth the investment.

But the most important solution –

Don’t accept bad contracts.

Don’t accept ambiguous contracts.

Don’t accept “reversion” clauses that don’t actually give you the rights back to your work.

Here’s the secret – Shh – You don’t need traditional publishers as much as they need you. You can self-publish. Publishers need writers to give them content. See, the power has shifted. We can still get our stories to an audience without a publisher. The publisher can’t operate without writers. Don’t get me wrong. I want to be traditionally published. I understand the finances that drive Publishers (e- and traditional) to ask for the provisions they do. But that doesn’t mean I have to accept all proposed terms.

Sometimes walking away is the best thing you can do for yourself, your story and your career.

The bottom line?

Know when and how you get your rights back. If this isn’t clear, hire an attorney to help you understand. If the contact still isn’t clear or acceptable renegotiate it. If you can’t get reasonable terms you may want to walk away.

Disclaimer:

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. No attorney-client relationship has been created. Legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional advice.

Dispelling the Myths, Part Two

March 14, 2014

Evan Braun

Business Evan Braun Guest Posts Marketing Publishing Self-Awareness The Writing Life 1 Comment

A interview post with Jen Greyson.

Yesterday, I posted the first of my two sit-down posts with author Jen Greyson, author of Lightning Rider and Shadow Boxer. Her publishing story began a couple of years ago upon selling her first novel to a publisher—and not just any publisher, but The Writer’s Coffee Shop, the company behind Fifty Shades of Grey. Here’s the interview’s conclusion.

EB: What kind of marketing went into your book’s release?

JR: Press release and a blog tour, social media on launch day. I devoted a ton of time into finding bloggers to review/tour for this book, so both sides worked pretty hard on this launch. I also did a big launch party and the publisher sent me bookmarks and fliers for advertising.

EB: What were your biggest turnoffs in the traditional publishing experience?

JR: In a nutshell, I gave up a lot and got very little in return. I bought into the myth of traditional publishing (though I’m not sure if I can even call this a “traditional” deal, because they were basically a small-press). I figured once I had a contract I’d ‘made it’ and everything would be a piece of cake from there. Boy, was I wrong. I still had to devote a ton of time and energy into sales. As I did the math, it became obvious very early on that I could do the same amount of work as an indie and make a lot more money. (This was a royalty-only deal.)

At the time I released Lightning Rider, NA (new adult) was really gaining traction and the publisher didn’t know how to market NA (or fantasy) because they’d never had one. They were really open to my suggestions, and that was great, but I’d chosen them because I thought they had some marketing “secret.” In the end, I picked a publisher that was a bad fit for my book, but I wanted to be published so badly that I overlooked a lot of red flags.

EB: After the release, how were your sales?

JR: Sales were nowhere near the Fifty Shades numbers I’d hoped for! 🙂 That ended up working in my favor, though, because of a clause I negotiated that specified that if I didn’t sell a certain number of books within the first six months, the contract could be terminated.

EB: Did you take any “missteps” along the way that you would caution other writers about?

JR: Don’t be so eager to get published in the short-term that you overlook the long-term. One book is nothing in terms of a writer’s career. (I’m hoping for another thirty-five years!) It was really hard for me to be unbiased about the deal, and if I’m truly honest, I don’t think anyone could have talked me out of signing with them. I wanted to be published. And because of that craving/desire/crippling need, I wasn’t as smart as I should have been. I wasn’t realistic about what a first book by a first-time author was going to do. I believed I was the exception to the rule.

EB: After having pursued traditional publishing, what are you doing now? How has the experience influenced your career path?

JR: Right now, I’m self-pubbing all my titles, and that’s probably the plan for 2014. Interestingly, the workload hasn’t changed, but my royalty checks have! And because I’m trying to expose myself to readers in a genre dominated by indies (NA), I need to be able to drop titles every three months. I can’t afford to wait eighteen months for a traditional deal—not right now, and not with my NA titles.

I’m definitely not opposed to doing a traditional deal in the future, but now that I’m out from under the myth of traditional publishing I think I can make a much more educated decision. I also have a better understanding of what goes into getting each book into readers’ hands, and I know how to budget and value my own time in the equation.

My path isn’t necessarily what’s right for anyone else. Writers need to do their homework. Talk to other authors who’ve been there, seek counsel, be smart. And in the wise, wise words of James Owen: “Never, ever, sacrifice what you want the most, for what you want the most at that moment.”

Guest Bio:
From the moment she decided on a degree in Equestrian Studies, Jen Greyson’s life has been one unscripted adventure after another. Leaving the cowboy state of Wyoming to train show horses in France, Switzerland, and Germany, she’s lived life without much of a plan, but always a book in her suitcase. Now a wife and mom to two young boys, she relies on her adventurous, passionate characters to be the risk-takers. Jen also writes university courses and corporate training material when she’s not enjoying the wilds of the west via wakeboard or snowmobile.

Dispelling the Myths, Part One

March 13, 2014

Evan Braun

Business Evan Braun Guest Posts Marketing Publishing Superstars Writing Seminars No Comments

A interview post with Jen Greyson.

I think it’s safe to assume most authors would jump at the chance to work with the publisher behind Fifty Shades of Grey, one of the most successful book titles of the past few years. For author Jen Greyson, this was the dream scenario—and it came true! I had an opportunity recently to sit down and ask Jen a few questions about her experience working with the publisher. Read on, and come back tomorrow to hear the rest of the story.

EB: First of all, Jen, could tell us about your first book?

JG: Lightning Rider is about Evy Rivera, the first female time traveler, but she has no idea that she comes from a long line of lightning riders—travelers who use lightning to cross dimensional chess boards and affect history. In fact, none of her living family knows. Their mentors lost them about six decades ago, but they haven’t been looking for a girl… because there’s never been one. Evy’s a badass, complete with lightning bullwhips and an attitude to match. Her first historical alteration takes her back to ancient Spain where her fate tangles with a Roman warrior set on conquering northern Spain. Together they must work to defeat a legendary man in order for Spain to fall. The Roman teaches her how to handle her lightning and there’s more electricity between the two of them than any of her weapons. Her mentors don’t always tell her the truth and Evy has to figure out the hidden agendas before she unmakes the wrong history. (The sequel, Shadow Boxer, is also available.)

EB: How did you attract the attention of your publisher?

JR: After E.L. James landed her seven figure deal with Random House for Fifty Shades, I went looking for the publisher that made it happen. I found the tiny Australian house, The Writer’s Coffee Shop, and send my manuscript in. They loved it and I was really excited to learn the marketing techniques they used to make Fifty Shades a household name.

EB: Talk about the initial contract you received from them, and your initial reaction to it.

JR: The initial contract was surprisingly simple and didn’t have a lot of the clauses I’d heard horror stories about. They asked things that I didn’t agree with and because I’d attended a Superstars Writing Seminar and read a lot of Kris Rusch’s blog, I knew that I could push back on the terms that needed adjusting. But I was also willing to give up some things in order to gain their marketing team.

EB: What did you do next?

JR: I consulted with my mentors about several of the terms and they suggested some new ones to include. I already had a list from reading How to Be Your Own Literary Agent and Kris’s blogs/books, but knew that the negotiation process was critical and I needed to ask for everything I wanted in the first swing to begin the back and forth. Because they were an Australian house, their paperback prices were super high, so we did an ebook only deal. The negotiations were all handled via email with some back and forth. In the end, I was happy with the final terms and it was a fair negotiation with lots of back and forth.

EB: How difficult overall was it to negotiate these clauses? A lot of people believe that first-time authors have no leverage and therefore can’t negotiate much of any significance. How does your experience stack up against that?

JR: I was under that myth too! And honestly, had I not gone to Superstars just a few months before, I’d have signed the original contract. I had my eyes opened at that seminar and really understood the positioning I had and was then in a mental place that I treated it like any other negotiation/business deal I’d have done in the non-publishing world.

In my experience, I was able to ask for what I wanted, and for the most part, got everything I asked for. The publishers were willing to negotiate nearly all the points I wanted. There were also a few that I had to willingly give up, so it was a typical business transaction where each side met in the middle.

I was working with a very small boutique/indie publisher. I would imagine every publisher handles things differently, so my experience may differ vastly from what someone might find with a different house.

Even with this publisher, the negotiations for book two did not go as smoothly, and I ultimately did not accept their second contract because I didn’t feel the terms where acceptable. We negotiated for a couple months and couldn’t come to an agreement… so even with the same author, same publisher, the experiences were vastly different.

Come back tomorrow for the interview’s conclusion.