Is Book Publishing Fair?

Anyone who has been around young children has heard their cry of protest, “That’s not fair,” when some sort of consequence is meted out for misbehavior.

In reality, what is being objected to is fairness, as consequences were spelled out ahead of time and known to all.

Parent: “One more word about this and you will go to bed without dinner.”
Child: “Word.”
Parent: “OK, to your room you go…no dinner.”
Child: “That’s not fair!”

We can insert Jesus’ parable of the vineyard workers here.

Book publishing in the developed world is actually quite fair. But so many people view it as unfair. From the seemingly random and often callous manner in which proposals are handled by agents and editors to the contracts put forth by publishers, cries of unfair tactics and policies can be heard from authors, author groups and people who quit publishing altogether.

I certainly don’t mean to insinuate everything is perfect or the publishing industry is devoid of poor behavior and policies.

I’ve had any number of new authors from developing countries send me a proposal for their book. When I ask why they haven’t tried to publish in their own country first, their reaction can be summed up with an “Are you kidding?” type statement, alluding to a fact the book industry in their country is in such disarray or impossible to penetrate, western publishers, despite our imperfections, are an infinitely better first option no matter where you live on earth.

Most people attach the unfair label to something that didn’t go their way because we all want to be an exception to whatever rules exist.

That’s the perfect world. We get what we want.

There are comparisons in so many walks of life.

  • In a legal case, if you win, the court is fair and just. If you lose, no justice done and the verdict was a travesty. The whole system is corrupt.
  • In sports, when you win, life is good. If you loose, the referees are all incompetent and everything is rigged against you.
  • If you get the job, they made a right decision. If you didn’t get hired, it’s an uneven playing field filled with unfair practices.
  • In politics, if your candidate wins, you feel like society is moving in the right direction. If the other candidate wins, society is spiraling down to Armageddon.
  • The sign says, “Construction Zone, 25 MPH, Fines doubled” and you get angry when you get a double price ticket for going 35 mph.
  • You sign an agreement before attending a Christian college agreeing you will not engage in certain prohibited activities. Fair or unfair when you ignore it and are expelled?

The cries of “unfair” really come from the fact everyone despises not having things go their way. Rejection and failure to meet expectations of yourself or others raises anger and defensiveness from anyone. It’s understandable.

If an agent puts forth a process for submitting proposals and you choose to ignore the process entirely, is it fair or unfair when your proposal is declined?

If you signed a publishing contract and you turn in a manuscript months late without notifying the publisher beforehand, is it fair or unfair when a publisher invokes a contractual right to require repayment of advances?

Similarly, publishers who agree to do something in a contract and then don’t follow through, is it fair or unfair when the author withdraws from the agreement?

If an agent stops performing for an author, is it unfair when we are fired?

Publishing is actually quite fair. If your book sells well, you make more money than if it didn’t. If your first book meets or exceeds expectations, you will get another contract. If not, no next contract.

If you try to self-publish and have no constituency to tell about your book, it won’t sell well. If you do, it will.

It’s a performance industry. The system worked.

Sure, some people have nightmare stories, but for the most part, they are exceptions.

The book publishing industry says this to authors:

  1. Be a qualified and credible professional writer
  2. Make commitments and keep them
  3. Help to market your book
  4. Play well with others
  5. Write great

If an author writes with marginal quality, has no solid platform, doesn’t play well with others or follow through on commitments, is an editor or agent being fair or unfair for declining them?

Conversely, authors want from publishers:

  1. Good contract terms
  2. Editorial partnership
  3. Professional staff
  4. Collaborative spirit
  5. Keep commitments

When publishers violate one or more of these, authors don’t feel very good about the process.

When one party doesn’t uphold their side of the relationship, it becomes unfair and unpleasant.

You might disagree with all this based on personal experience and I know with hundreds of thousands of books published every year in the US alone there are some sad stories of unjust treatment, from publisher-to-author and visa versa.

For most, contracts are fulfilled, commitments are kept and fairness reigns.

But knowing this matters little when you don’t win.

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Publishing Acronyms

After being in an industry for a while there is a natural tendency to speak in code. Acronyms flow freely and can be a foreign language to those new to the conversation. Below is an attempt to spell out some of the more common acronyms in the publishing industry and …

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Zip It Mr. Galilei

Did you ever tell someone, “Don’t feel that way” and not get the best reaction? In the same vein is “Don’t be that way.” Honestly, I could never figure that one out. Feels like a philosophical conundrum of the highest order. Telling someone not to be. Four hundred years ago …

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Defusing Contract Landmines

by Steve Laube

During the last six months we have run into some landmines buried within some small press contracts. In each case it was the author’s relationship with the publisher that helped land the offer, and so we proceeded to review the paperwork in order to protect the author’s interests.

In one case the small publisher was very grateful for our negotiations and contract changes. They plan to change their contract for all authors in the future. We were glad to help our client form that new partnership.

In two cases the publisher said they could not afford to hire a lawyer to review our requested changes to the contract and thus were unwilling to negotiate. We recommended the author walk away both times.

In yet another case the publisher wouldn’t negotiate and said, in essence, “take it or leave it.” We walked away. Our client terminated their relationship with us and signed the deal on their own.

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L is for Libel

by Steve Laube

 To libel someone is to injure a person’s reputation via the written word (slander is for the spoken word). I wrote recently about Indemnification but only touched on this topic. Let’s try to unpack it a little further today.

First, be aware that the laws that define defamation vary from state to state, however there are some commonly accepted guidelines. Anyone can claim to have been “defamed,” but to prove it they usually have to show that the written statement is all four of the following: 1) published 2) false 3) injurious 4) unprivileged.

The first is obvious. Posting something on Twitter or Facebook is “published.” And yet two weeks ago a Federal judge ruled that a blogger has the same defamation protection as a journalist. (Read the article here.)

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I is for Indemnification

by Steve Laube

Publishing is not without risks. Plagiarism, fraud, and libel by an author are real possibilities. Thus within a book contract is a legal clause called indemnification inserted to protect the publisher from your antics.

The indemnification clause, in essence, says that if someone sues your publisher because of your book, claiming something like libel (defamation) or plagiarism etc., your publisher can make you pay the fees to compensate for their losses. This is to “indemnify” which is defined as “to compensate (someone) for harm or loss.” Bottom line: The publisher has the right to hire its own attorneys (at the author’s expense) to defend against these claims.

Doesn’t sound like a happy clause does it? But you can understand why it is there. This clause and the Warranty clause are notoriously difficult to negotiate. (The Warranty clause is where the things the author guarantees or warrants are listed; i.e. the book is original, it is not libelous in content, etc. This clause will be more fully covered by me at another time) The language has been written by the publisher’s attorneys and are usually set in stone.

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D is for Dispute Resolution

by Steve Laube

Pray that it never happens to you. But if there is a situation where you find yourself in a legal battle with your publisher regarding your book contract there are terms that will dictate how that disagreement is handled.

Here is one version from an old contract:

Any claim or dispute arising from or related to this Agreement shall be settled by mediation and, if necessary, legally binding arbitration in accordance with the rules of a mutually agreed upon alternative dispute resolution service. Judgment upon an arbitration decision may be entered in any court otherwise having jurisdiction. The parties agree that these methods shall be the sole remedy for any controversy or claim arising out of this Agreement and expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision.

Regardless of the place of its physical execution, this contract shall be interpreted under the laws of the State of XXXXXXXXXX and of the United States of America.

If you read this carefully you’ll see it lays out the rules that keeps a dispute out of the court system and forces the two parties to use binding arbitration instead.

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C is for non-Compete

by Steve Laube

Both Tamela and Karen wanted “C” to stand for coffee or chocolate since both seen to be must-haves for any writer. Instead I’m going to fudge a little (pun intended) and write about the “non-Compete” clause in your contract. This clause has become the latest playground for negotiations.

Here is a simple version of a non-compete clause:

The Author will not publish or authorize the publication of any other work which would adversely affect the sale of the Work without the Publisher’s prior written consent.

Seems fairly innocuous, and it is. This publisher is basically saying “don’t write another book similar to this one.”

Take a look at this language from another publisher’s contract:

Author will neither publish nor authorize the publication anywhere of any Competing Work, including any Competing Work co-written by Author, in any form equivalent to a Physical Version, Digital Version, or in any form hereafter devised. A “Competing Work” shall be any work on the same or similar topic contained in the Work, treated in the same manner and depth, and directed to the same audience.

Imagine you have written a book about anger in the workplace and then later want to write about anger as a parent for a different publisher. Are those “competing” works? Would the second adversely affect the sale of the first?

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Do Some Plots Break Their Contracts?

In 1995 I watched the movie Cold Comfort Farm. A British comedy, the story was not without charm, though I wouldn’t recommend this parody of literature for everyone. Early on, Aunt Ada, who seemed to be a bit crazy, said, “I saw something nasty in the wood shed.”

Throughout the movie, I waited to find out what Aunt Ada saw. I waited. And waited. But the question was never answered, at least not for the viewer. I tried to find out if the novel solved the mystery and was unsuccessful in that quest, making me believe the book did not reveal the answer, either.

In my mind, the story broke its contract with the viewer. Since whatever Aunt Ada saw had a great effect on her, I think the nasty something should have been revealed.

Apparently I am not alone. Even now, the Internet is rife with posts about the mystery.

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Author Accounting 101

by Steve Laube

You are a published author. You must be rich!
You are an agent. I know you are rich.

If it only were true.

A couple weeks ago we peered at the bottom line for the brick & mortar bookstore, now let’s attempt to do the same for the author. Please remember this exercise is generic, your mileage may vary. As before we will use some round numbers so we can all follow the math.

Let’s start with that $10 retail price book we dealt with before. The publisher sells the book for $6.00 to a store. That creates a “net price” for the publisher. Be aware that some contracts pay the author a royalty based on the retail price and some on the net price.

The net price is $6.00. They author’s contract pays them 15% of the net price. That would mean when this book was sold to the bookstore the author’s account was credited for 90 cents.

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