The Business Rusch: A Good Offense
After last week’s blog post, I became scared to open my e-mail. Not because I got hate mail—far from it. I got a lot of positive mail. But I also got a lot of sad stories about the scams out there, mostly from people who watched friends succumb.
There have always been scams that suck in wannabe writers. Terrible contracts for professional writers have existed since the dawn of publishing.
I wrote blogs over the summer about deal breakers in traditional publishing contracts, then last week wrote about scams that can suck in writers who want to e-publish but are afraid to do the work themselves. I also wrote about royalty statements that were inaccurate.
The emails I got in response to all of those posts have me quivering in my boots. Literally.
The rise of epublishing, the DYI atmosphere, and the anything-goes corporate shenanigans have led to a perfect storm of awfulness for the unwary writer.
Let me share just a few choice quotes from the e-mails I got over the summer.
From a savvy writer:
A major series imprint, owned by a top-six publisher, sent me an out-of-print letter for a book, which triggered a rights reversion. Then, a few weeks later, came another letter, basically saying, “Sorry for any misunderstanding, but when we said out of print, we didn’t mean that rights reverted because we want to see what we can do electronically.”
I immediately sent off a letter pointing out how they were completely mistaken and couldn’t retroactively change a contract clause….Then I added the official notice that I was taking the rights back….
Fortunately, the writer here didn’t fall for this trick and reminded the company that they had to abide by the contract terms. The writer became proactive and made sure that the rights reverted, going after the publisher continually until the matter got settled.
Then, I got something from a New York Times bestseller who, in the middle of a contract negotiation, was promised 10 and 12.5% royalties on a mass market paperback as a deal sweetener in a contract negotiation. The publisher added this sweetener in lieu of better terms elsewhere in the contract, terms the writer had asked for and the publisher refused. The writer then discovered through another source that the publisher never planned to publish a mass market edition of the book.
In other words, the sweetener became sour. The great royalty rate was only added to get the writer to sign on, not because the publisher ever planned to publish that kind of book. If the writer had been a little less savvy, he would have lost some other positive contract terms by believing that this one was important.
Not illegal or even unusual these days, but still, bad enough to make the writer feel cheated in the midst of negotiating a new contract. Dumb on the publisher’s part, but only because the publisher got caught.
And speaking of negotiation, here’s something I mentioned last week. A lawyer wrote to me about a book contract negotiation (with an unnamed client and publisher—although the lawyer had permission to tell me this) in which the lawyer requested “the addition of a small phrase to a boilerplate clause: Publisher shall provide a true and accurate report of royalties….”
The publisher’s attorney struck out the addition, with no explanation.
Here’s what the lawyer wrote to me:
“True and accurate” is one of the most standard modifiers in business contracts of all sorts. Whenever one party is giving an accounting to another, it obligates itself to provide a true and accurate accounting, whether it’s dollars received by a fast-food franchise or customer support calls answered in Bangalore…I was amazed at the implications behind the unwillingness to represent that the royalty statements would be true and accurate.
A writer then wrote to me about an agent, fired two years ago, who had a meltdown over the phone with both the writer and an editor. The agent, who had received money in payment for a contract several months before, accused the writer and the editor of colluding to avoid paying any payments to the agent, including the payment that the agent had already received and passed on to the client.
The stories I’ve received lately of agent meltdowns like that one show that the financial pressure on agents is getting to them. Writers’ incomes are down, so agent income—which is 15% of their writers’ incomes—is down as well. Financial stress isn’t pretty, and probably led to the above meltdown, and all the others I’ve heard about.
Those of you who indie publish aren’t immune to this stuff, as I pointed out last week. Many of you wrote me and asked me if the company I wrote about last week was… and then you’d fill in the blank.
The most surprising letter I got, though, was a form sent to a bunch of aspiring writers, offering a flat fee for fiction.
Here are three paragraphs from that letter. The misspellings and grammatical errors are not mine, but in the body of the letter itself:
Knowing [how hard it is to get published], my partners and me decided to give writers like you a fighting chance to bring their work to a much bigger audience—and pay you for it. It is a small fee for all the rights to your story, based on a brief and clear contract we worked out the next morning. We offer you 250.00$ (US) for all the rights to your story, [story title removed].
Why do we want all the rights? Well, our group does not want to loose too much sleep on legal stuff concerning the jungle of laws in the copyright field. So we can do anything to publish your work anywhere it fits, to apply slight changes in words and style where necessary (as any publishing company would do) and to have our hands free to apply any means of marketing our group finds suitable. That includes your name. We will choose a suitable pen name for every publication we launch that fits the genre of your work (again as any publishing company would do either). To cut it short, we want to avoid EACH AND ANY legal hassle concerning copyright. And to keep the whole procedure simple—we do all this in our free time.
And who knows, if your story appears to be a smashing success—we will certainly get back to you and help you with your future project on real professional terms if you like!
Heck, for all I know, the letter that this correspondent received was a test of the waters, just to see how stupid writers can be.
And believe me, writers who have big dreams can fall for just about anything. Most people can, given the right pitch and the right scam.
I got a lot of other letters this week, mostly from people who feel put upon, sad and angry at all of these scammers and unethical businesses out there.
What can we do? One writer e-mailed me. We’re little guys and they’re big guys, and it seems everyone is out to get us.
Naw. Everyone just wants to make a lot of money off you. That’s all. And they don’t want you to make any money at all, if they can help it.
The question that writer asked is a good one, though. In the face of scams on the e-publishing side, and tough one-sided corporate publishing contracts on the traditional side, what’s a writer to do?
Oh, you folks will hate my answer. And those of you who are regular readers of this blog already know it.
The only writers who will survive this increasingly tough environment will have to know business.
And by survive, I mean the writers who will have an actual lifelong career in the business, not someone who’ll publish one or two or three novels and disappear. But someone who will make a good living at writing (middle class and above) for decades.
The first thing a writer needs is a good bullshit meter. If something sounds too good to be true, then it probably is. So rather than say yes right away, investigate. There are tools for investigation, everything from Google to the Better Business Bureau to credit reporting agencies.
Before you sign a contract with anyone, make sure that person has no legal complaints against them. If they handle money, make sure they are bonded and insured, and have good credit themselves. Make sure their business is on the up-and-up.
That’s what you’d do if you hire a contractor to work on your house. You should do no less to when you hire an e-publishing service or an agent or anyone else you might work with.
But there’s much more to business than a good bullshit meter and Google.
You need an education. In writing, that means you need to understand what you own, what you license, and what you sell. Don’t trust me to tell you. I gloss over this every time because the subject is too big to handle in a single blog post.
You need to read The Copyright Handbook and more importantly, you need to understand it. I mention this at least once a month, and once a month, a few of you order the book through the link provided. Good for you.
The next step is to read it. And then reread it. And get the updated copy when a new one comes out. You don’t have to read the thing in one sitting. Read it in bits and pieces, see if you understand it, and if you don’t find out more about that topic from the multitude of legal sites that exist on the web. Someone might put the topic in a language you understand.
The next step in your education is learning how to negotiate. I know, I know, you don’t want to learn that. You think you’re bad at it. But you’re not. The key is knowing what you want, knowing what you’ll compromise on, and knowing what you’d never ever ever accept. You might have to write that stuff down so that you remember it in a conversation.
You’ll also need to know your strengths and weaknesses. Most of us do not do well under relentless verbal pressure, so hide behind e-mail if you have to. Some of us do better in person. If that’s you, make sure you do your negotiations one on one.
Knowledge of copyright and the ability to negotiate will get you past a dozen traps like the ones we’re talking about in these blogs. You’ll understand why that ungrammatical scam artist wanted “all rights” to avoid “legal stuff concerning the jungle of laws in the copyright field.” That’s a pretty honest sentence, truth be told. Giving that ungrammatical scam artist all rights will help him avoid all kinds of legal stuff, especially stuff from you if you sign on with him and then change your mind.
There will come a time when your understanding of copyright and your ability to negotiate the best deal for yourself won’t be enough. Before that occurs, prepare a team to help you out.
That team will include business-savvy friends from non-publishing businesses who will ask you things like, Why does this so-called publisher want so much for so little? Or will say things like Gosh, I’d never agree to that in my business. Those conversations should be little wake-up calls for you.
Part of your team will get assembled at continuing education classes, either online or in person, as you keep up with the trends in the industry. You might end up with an artist who’ll design your covers or a copy editor from the local newspaper to make sure that your character has the same first name throughout your novel (all for a flat fee, of course).
I know, I know. Most of you are afraid of lawyers. Most of you are afraid to pay anyone for any service. That’s how so many writers go with someone who’ll take a percentage of the payment for various deals. That’s what agents do, right? But agents are 20th century phenomenon who are having trouble surviving in the 21st. There’s no need for agents any longer.
And those percentage-only e-publishing services, the ones that do everything for you from designing your cover to formatting your book? Those services? The ones who get your money first and then pay you whatever percentage of “net” that you’ve agreed to?
Run away from them.
Pay flat fees instead.
Also in my e-mail, I received the names of a number of flat-fee companies. I haven’t vetted them, so I won’t share them with you. But before I wrote this paragraph, I did a search for “flat fee” and “e-publishing” and got dozens of hits. You can do the same thing. You can ask other writer friends for recommendations of flat fee companies.
You can ask a flat-fee company for references, for heaven’s sake. And remember, search engines will let you know who is satisfied with a company…and who isn’t.
Find a company that you pay up front, and that helps you put the books on the various sites so when the company is done formatting your book, you get all of the money from your published book directly. No middleman.
Yes, this means you’ll pay some money out of pocket. Just like any person who starts a small business would. You pay for services, but you don’t pay a percentage. That’s like hiring a guy to remodel your kitchen and then letting him eat supper with you every night from that moment on. Nope. Don’t do it. Pay for the service and move on.
Surely you can save enough money to invest in your writing business up front, to avoid scammers.
Also, know the difference between a distributor and a publisher. Companies like Amazon, Barnes and Noble, Smashwords, Kobo, and the like will take a percentage of the price that the customer paid for a book. That percentage is for distribution. If you don’t like to pay for distribution, then offer the book for sale on your website. You’ll get full price.
But realize that everyone who distributes books, from bookstores to Ingram’s to Smashwords charges just a little for their services. Sometimes they pay up front and sometimes they pay after the sales get made.
For small businesses, like those owned by most writers, the payments come after the sales.
The neat thing about all e-book distributors is that they record sales in real time. You can log onto Barnes and Noble’s Pubit site tonight and see how many e-books you sold today. You can keep track of that yourself, and make sure they pay you for them within the prescribed number of days.
This is tremendously different from the days of affidavit returns in which companies would sign a legal document swearing that they had sold 20% of the books you sent them and then destroyed 80% without having to prove it except by affidavit (trust us, we signed a legal document). Things have changed.
It’s time for writers to change too.
You don’t like the idea of learning business? Oh, well. Maybe you really don’t want to be a professional writer.
And then you’ll end up in a bar at a writer’s conference, complaining to wannabe writers about how tough the publishing profession is, and telling them how impossible it is to make a living at it.
I’ll be honest with you: I fully expect to find New York Times bestsellers in those bars ten years from now, bitching that there isn’t any money in publishing. So many of the folks who are defending the horrible practices of traditional publishers have signed contracts that will guarantee a significant loss of income over the next few years.
This has already happened to many naïve but successful artists in the music business in the past two decades; I fully expect the same thing to happen in publishing.
So the best defense is a good offense, just like it always was.
The best thing you can do is guard your work, learn how the business works, realize what you want out of it and go after that. Learn to say no. Learn to say, let me investigate this—and then investigate it. If you don’t like the terms, ask if they can be changed. If they can’t be changed, say no.
Opportunities are everywhere. That’s why scam artists are running toward publishing these days. There’s money to be made. Traditional publishers have also realized just how easy it is to rip off writers. Writers don’t think of themselves as partners in the publishing industry, so why should publishers treat them that way? From a publisher’s point of view, coddling the writer no longer makes sense. It’s better to take everything and apologize later. Or to say, You signed the contract. Try and sue me now.
No one will defend your business if you don’t. No one will fight for your business if you don’t. No one will believe in your business if you don’t.
So it’s time for you to do two things.
First, you must believe that your writing is a business even if you haven’t sold anything yet. After all, a retail store calls itself a retail store before the first customer walks in the door. Be businesslike from the moment you decide to become a writer.
Second, don’t expect anyone to take care of you. Learn how to take care of yourself. Sometimes that means hiring help on the best terms for you. And sometimes it means saying no in the face of all kinds of pressure to say yes.
The writers who learn business will have careers ten and twenty years from now. The writers who believe they are artists and don’t need to think about that business thing will vanish.
There was a short period of time when writers who had no business sense could survive in publishing. It lasted about fifty years. It died with the new century.
You need to accept that. If you want to be a professional writer, then you need to learn the profession. You need to understand finances, and copyright, and business management. You also need to know how to tell a good story.
Sounds hard, doesn’t it?
Of course, it’s hard. You’re stepping into an international profession. Why do you expect it to be easy?
Don’t fall for all the bad deals that are proliferating out there. Protect yourself. Educate yourself. Stand up for yourself.
If you do those three things, you’ll succeed for years to come.
I’ve made my living as a writer for more than thirty years now. One of the reasons I’ve been successful for so long is time management. I’ve learned what parts of my business are profitable and what parts aren’t.
I make the bulk of my living writing fiction. This blog is partly for the love, partly because I’m paying forward for all of the help I’ve received, and partly because I’d be studying this stuff anyway, so I might as well share.
My problem is that writing these blogs takes time away from the fiction, so I determined from the beginning that the blog must pay for itself.
That’s why I have a donation button at the bottom of each blog post, and why I ask you to leave a tip on the way out.
“The Business Rusch: “A Good Offense,” copyright © 2012 by Kristine Kathryn Rusch.