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My Response to Entangled Publishing’s Threats

Yesterday I received an email from Liz Pelletier, the publisher at Entangled Publishing, whose contract I reviewed in an earlier post. Ordinarily I wouldn’t share an email without the other party’s consent, but considering what Ms. Pelletier has to say, and its connection to my review of Entangled’s contract, I’ve made an exception. Here’s the email in its entirety:

Dear Mr. Mehalic:

Since you state in your own words on your own blog that you are aware that the contract you had previously posted was never used by Entangled, you have twenty-fours to remove your latest reposting of the contract from your website. Given this false attribution, your dissection of its contents as relates to Entangled are also false and therefore libelous and must be removed as well. Yes, libelous. I have an attorney and know what it means, and since you are using your blog to drum up new clients for your new legal endeavor, one can attribute intent with the hope to profit from your posts. If you ask me nicely and with a public apology of your previous post, I’m happy to provide you with a copy of our real contract. I have no fear of you, but lies for the shock factor simply because you need clients is shameful, Mr. Mehalic. I do hope you treat your clients with more honesty and ethics than you’ve shown thus far.

Please do not bother replying to this email as our earlier emails were a waste of my time. I’ll have my assistant simply check your site tomorrow and forward the information to our attorney should you not retract your statements. If you do however post an apology, I’ll have her send a copy of our real contract immediately.

Sincerely,

Liz Pelletier, Publisher
Entangled Publishing, LLC
http://www.EntangledPublishing.com

I’m not sure where to begin. In this post from last month, I explained that Ms. Pelletier had emailed me after my review of Entangled’s contract had been published at Pitch University, and informed me that the contract I had reviewed was six months old and had never been used. As I noted in my post and as I informed Ms. Pelletier, I didn’t know either of those things when I published my review, and they aren’t apparent from the contract. So contrary to Ms. Pelletier’s first statement, I never stated that I was aware that the contract I posted was never used by Entangled — she told me that.

In that same post, I explained that I had invited Ms. Pelletier to provide me with Entangled’s current contract and/or post a comment about my review, so that we could have a discussion, but she chose to do neither. In fact, I’ve extended that invitation to her at least twice. But all I’ve heard from her in response is the email quoted above.

So here’s my question: why play games? If Ms. Pelletier is as troubled by my earlier post as she claims to be, then why not send me Entangled’s current contract and ask (she doesn’t even have to ask nicely) that I review it and publish my review? Or why not post a comment pointing out what she disagrees with in my review? Those would seem to be more effective ways for her to accomplish her goal of correcting my supposed misstatements about Entangled’s contract than the approach she’s chosen.

I don’t do well with ultimatums (who does, really?), so for the record (and Ms. Pelletier’s edification), I’m not going to ask her — nicely or otherwise — for Entangled’s current contract, nor am I going to apologize for or retract my earlier post. I stand by what I wrote.

Do You Need Representation with an Indie Publisher?

Thanks to recently published author and Massachusetts lawyer Pete Morin, I read an interesting post from Kristine Kathryn Rusch, whose recent experiences with two editors prompted her to identify the advantages and disadvantages of the traditional publishing/agent model and those of the indie publishing model.

I mostly agree with her analysis, but disagree with her implicit assumption that having an agent or at least some representation is mutually exclusive with going to an indie publisher. There may not be room for an agent’s ongoing representation — and, as she notes, the 15% commission — with an indie publisher that isn’t going to pay any advance, but my experience, as illustrated by some of the contracts I’ve reviewed in earlier posts, is that a writer still needs the benefit of an agent or lawyer to review an indie publisher’s contract and provide some advice about its provisions.

Ms. Rusch comes down ultimately on the side of indie publishing, which is a choice that a lot of writers are making now. However, if a writer, or even a published author, goes the indie publishing route without consulting an agent or lawyer about his or her rights and responsibilities under the contract, the writer is not helping his or her career.

Here’s my bottom line to writers: don’t let your desire (also known as desperation) to be published overwhelm your judgment about whether a deal is good for your career. And if you’re not sure whether the deal is good for your career, then you’ve just answered the question of whether you need help from an agent or lawyer.

Guest Blogging at Pitch University

Check out my post at Pitch University about legal considerations for self-published authors.

My sincere thanks to Diane Holmes, the Chief Pitch U Alchemist, who does a great job in providing so much valuable information for aspiring and published authors.

NYT Bestselling Author Opts for Self Publishing

Monday’s Huffington Post had an article entitled “Why Big Authors Are Walking Away from Big Deals to Self Publish,” which is actually a post from  author Joe Konrath’s blog, A Newbie’s Guide to Publishing. If you follow Konrath’s blog at all, you know that he now sells his books exclusively as e-books, and generates sales that have increased consistently. 

Konrath’s latest post features his conversation (via Google Docs) with fellow author Barry Eisler, who has apparently turned down a $500,000 two-book deal from St. Martin’s Press in order to self-publish.

Here is Eisler’s view of traditional publishers:

Think candles vs. electric lights. There are still people making a living today selling candles, and that’s because there’s nothing like candlelight — but what matters is that the advent of the electric light changed the candle business into a niche. Originally, candlemakers were in the lighting business; today, they’re in the candlelight business. The latter is tiny by comparison to the former. Similarly, today publishers are in the book business; tomorrow, they’ll be in the paper book business. The difference is the difference between a mass market and a niche.

Konrath points out two differences between e-publishing and traditional publishing or, as he refers to them, virtual shelves and physical shelves:

First, a virtual shelf is infinite. In a bookstore, they have a limited amount of space. Often, my books are crammed spine out, in section — and I’m lucky if they have a copy of each that are in print. Many times they only have a few, and sometimes none at all. But a virtual shelf, like Amazon or Smashwords, carries all my titles, all the time. And I don’t have to compete with a NYT bestseller who has 400 copies of their latest hit on the shelf, while I only have one copy of mine. We each take up one virtual space per title.

Second, virtual shelf life is forever. In a bookstore, you have anywhere from a few weeks to a few months to sell your title, and then it gets returned. This is a big waste of money, and no incentive at all for the bookseller to move the book.

But ebooks are forever. Once they’re live, they will sell for decades. Someday, long after I’m gone, my grandchildren will be getting my royalties.

Currently, my novel The List is the #15 bestseller on all of Amazon. I wrote that book 12 years ago, and it was rejected by every major NY publisher. I self-published it on Amazon two years ago, and it has sold over 35,000 copies.

Konrath and Eisler’s conversation is worth reading, even if it is long — 13,000 words. But bear a couple of things in mind as you read their comments about the decline of traditional publishing and the corresponding rise of e-publishing. First, both Konrath and Eisler have written several books, which have been published by traditional publishers and provided them with a platform for their e-publishing efforts. Their name recognition and popularity guarantee — to the extent possible — that their e-publishing efforts will succeed. So neither one is trying e-publishing as an unpublished author.

Now, there’s no doubt that e-publishing appeals to a lot of unpublished authors because it avoids much of the delay, frustration, and anxiety associated with traditional publishing. But the reality is that many unpublished authors will have negligible e-sales. So what will they do then? My guess is that some of them will decide to try traditional publishing, some because they don’t have another avenue to try and others because they want the support (financial, not emotional) that traditional publishers provide to the authors whose works they publish.

Obviously, authors like Konrath and Eisler — or even those who have sold far fewer books — are in a better position to take advantage of their success through traditional publishing when they decide to e-publish. For others, though, e-publishing may not be the magic bullet they need for their careers.

Fortuitously, as I was writing this post, up-and-coming romance author E. C. Smith, who writes E. C.’s Ramblings,  made me aware of an excellent interview that Robin Sullivan, who blogs at Write to Publish, conducted last week with Julianne McLean. With no disrespect to Eisler or Konrath, I think most authors will relate more to McLean, who describes the success she’s had with traditional publishing and e-publishing, and, more importantly for those considering e-publishing, explains how she created demand for her e-books.

Guest Blogging at Murders and Mysteries

I’m guest blogging tomorrow at Lindsay Downs‘ blog, Murders and Mysteries. I’m going to talk about legal issues associated with self-publishing.

Come visit and ask a question or leave a comment. Hope to see you there.

To Publish with a Vanity Press or Not to Publish with a Vanity Press: That Is the Question

I came across a question on the Internet that is a horror story in the making: a children’s book writer asked for the names of reliable publishers in a certain geographic area who would publish her book for little to no money.

Fortunately, a couple of commenters explained that it shouldn’t cost her anything to publish her book and recommended that she hire an agent, who would submit her manuscript to publishers (and hopefully sell it to one of them), who would then pay her, not the other way around. The commenters further explained that only “vanity publishers” would charge her to publish her manuscript and that for several reasons she should stay away from them.

As for why you, as an author, should stay away from vanity publishers, let me discuss some provisions from a contract that an author asked me to review. The publisher, which I won’t name here, is located in West Virginia, but I have no reason to think its contract is significantly different than what publishers in other locations would use

Perhaps most importantly, the contract is not limited to a finite period of time, so it is in effect until the parties agree that it is not. Obviously, the publisher has no incentive to agree to limit the duration of the contract, which puts the author at a disadvantage from the beginning of the relationship.

In addition, the contract specifies that it’s a partnership publishing agreement, whereby the author agrees to make two equal payments for the costs of publishing her book. (I will discuss these costs later in this post). The first payment is due when the contract is signed and the second is due when the publisher presents the author with a laser proof of her manuscript for final approval.

These payments can be made by wire transfer, cash or check, but not credit card. (I don’t know why the publisher doesn’t accept credit cards, except that a credit card enables a cardholder to challenge a transaction, which the other payment methods do not. On the other hand, a credit card company’s fee, which is a percentage of the transaction, would eat into what the publisher receives.)

The publisher is responsible for processing wholesale and retail order fulfillments, the costs of which are to be divided between the author and the publisher and deducted when books are paid for by the vendor or the customer.

The contract provides that 50 percent of sales on “any and all peripheral products that will be spin-offs from the Work referred” are paid to the publisher, although “peripheral products that will be spin-offs” is not defined. As with order fulfillment, the cost of the peripheral products is divided equally between the author and the publisher. This is another red flag: because “peripheral products” is not defined, it can be interpreted to include anything the publisher claims (such as subsidiary, electronic, dramatic, audio, etc.) and thus entitles the publisher to half of all proceeds.

Here’s what the publisher is charging to publish a 32-page children’s picture book with a suggested retail price of $16.95:

1,000 copies = $7,375.00
1,500 copies = $8,205.00
2,000 copies = $9,420.00

Finally, the publisher specifies 22 “Additional Publisher Services” included at no additional cost to the author. Rather than summarize them, I’ll list them and you can judge for yourself how valuable these “services” are:

1. to produce the manuscript and cover into camera-ready form for printing;
2. to obtain the services of an acceptable printing company;
3. to oversee the printing of the book and to arrange delivery;
4. to provide ISBN – International Standard Book Number;
5. to provide Library of Congress number
6. to provide Barcode;
7. to provide one laser proof of final output for author corrections;
8. to provide storage;
9. to provide press releases;
10. to provide flyers for direct mail piece to Author’s address list;
11. to provide miscellaneous items such as posters, bookmarks for book signings;
12. to arrange author signings at various events when possible, invitation to attend book fairs and festivals and appear in the [publisher’s] booth;
13. to include Work in the [publisher’s] Catalog
14. to provide bookkeeping services and quarterly updates and quarterly payments if payments are due;
15. to submit the Work to Waldenbooks, Ingram Book Distributors, Baker & Taylor Distributors, Borders, Books A Million, Midwest Library Service, Barnes & Noble, and other wholesale and retail outlets for their consideration to add to their inventories;
16. to provide exposure on the [publisher’s] websites;
17. to list on Amazon. com;
18. to provide workshop and school show materials if requested;
19. to provide major media with review copies upon release;
20. to provide Author Agent for scheduling appearances if requested;
21. to provide marketing and advertising for Author’s School Show Program; and
22. to provide estimate to Author for subsequent reprints as negotiated at the time necessary or required.

Very few, if any, of these publisher “services” are something that an author couldn’t do for herself. In other words, the publisher provides very little value by offering these services. You will also notice that several of the services have what my contracts professor in law school called “weasel words,” meaning words or phrases that are vague or ambiguous or that qualify the publisher’s obligation to perform. The publisher can rely on phrases such as “when possible” or “if requested,” if the author claims that the publisher did not perform as required under the contract.

The issues that the contract does not cover are significant and include what happens if the publisher files bankruptcy; subsidiary rights; how royalties are calculated and paid; and responsibility for cover art and title, including retaining any necessary artists or illustrators. I’ll discuss these items in a future post.

The reality is that a lot of writers, particularly those who have been writing for a while and are beginning to doubt whether they’ll ever be published, are easy marks for unscrupulous publishers, because of their desperation to be in print.

But if you’re a writer and a publisher wants money from you to publish your book, you may be better off to self-publish your manuscript, especially in an e-book format. You’ll pay less money upfront and retain more control over your book and your career.