Publishing Contracts

How to Negotiate Your Publishing Contract

Publishing-Contract

Generally I am writing for Indie authors, and how they can successfully run their publishing business.  However, many of these tips, especially those about book marketing, can be used by “published” authors as well.  But in these promising times for author-publishers, there are still many writers who want to go with a trade publisher.  As always: Author Beware!  Get helpful information in this article, such as the – very detailed – checklist for your publishing contract negotiations.

Lawyer Lloyd J. Jassin, specialized in Publishing and Entertainment Law, posted via GooglePlus:

“A book is a book, except when it comes to e-Book royalties.”

A class action lawsuit has been filed against Simon & Schuster Publishing House by class representative Sheldon Blau, MD., – represented by Law offices Lloyd J. Jassin.  Why?  Lloyd J. Jassin explains:

“The royalty rate for e-book sales is much lower than the rate for the license of rights.  If categorized as a “LICENSE”, the author receives 50% of net receipts, rather than 25% of net typically paid to authors for the “SALE” of an e-book.”

If you work with a trade publisher, better check your contract, if it says: “license” or “e-book-sale”…  And while you are at it, go through your publishing contract, and compare it with the following list, compiled by contract lawyer Lloyd J. Jassin.
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Publishing Contract Negotiations.
Negotiating a publishing contract is a lot like buying a house or a car.  There’s some give and take, not everyone will get the same deal, especially for new authors and sometimes you have to pass on a publishing offer, if there are non-negotiation clauses that would interfere with your writing career.  What can authors do to get a fair deal?  Before navigating the minefield of book negotiation, READ the contract you have been offered, carefully, several times, line for line…  Use the checklist below, and ask the publisher or your agent IN WRITING what the clauses mean which you don’t understand, and think long and hard about the consequences for you.  Don’t accept a phone answer, get it in writing!

BEFORE you sign the contract, make an appointment with a contract lawyer to handle your contract negotiations.  Agents are not trained and able to give you legal advice!  How to hire an attorney who can help you is described in Kristine Rusch’s useful article.
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A couple of hundred dollars are a good investment that helps you possibly with all contracts during your writing career.

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Publishing Contract: Checklist What to Negotiate:

I. General Provisions

1. Name/address of parties
-Why kind of author? Joint? Single? Corporate entity?
2. Description of work (synopsis)
-Tentative title, no. of words, intended audience, fiction, non-fiction…
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II. Grant of Rights and Territory

1. Is it an assignment of “all rights” or a license agreement?
2. Term or time period (i.e., usually the life of the copyright)
3. Geographic scope
a) World
b) Limited (e.g., U.S., its possessions and Canada)
4. Exclusive rights granted
a) Primary rights
-Hardcover
-Trade paperback
-Mass market
-eBook
b) Secondary (subsidiary rights)
-Periodical rights
1) First serial (i.e., pre-publication excerpts)
2) Second serial
-Book club
-Dramatic rights
-Film/TV rights
-Video Recordings / Audio Recordings
-eBook
-Other digital versions (apps, enhanced eBooks)
-Radio rights
-Merchandising (commercial tie-in) rights
-New technologies
-Foreign translations rights
-British Commonwealth rights
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III. Manuscript Delivery

1. Delivery requirements
a) When due? Is the date realistic? Time is of the essence?
b) What format? Specify size of paper, spacing, margins, etc.
c) What to deliver?
-Number of manuscript copies, disks (what WP format?)
-Index (who pays?)
-Number of illustrations, charts, photos (who pays?)
d) Copyright permissions and releases
-Scope of rights (does it parallel grant of rights?)
-Who pays?
2. Manuscript Acceptance
a) Criteria: Satisfactory in “form and content” or at “sole discretion” of the
publisher? (Note: Historically, this clause has been a litigation flashpoint)
b) Termination for unsatisfactory manuscript
c) Termination for changed market conditions
d) How is notice of acceptance or dissatisfaction given
e) Good faith duty to edit
f) Return of the author advance
-First proceeds clause
-False first proceeds clause
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IV. Copyright Ownership

1. In whose name will work be registered?
2. Exclusivity
3. When will work be registered? (Should be done within statutory period).
4. Joint authors
5. License versus assignment
6. Independent Contractor or Work for hire
7. Reserved rights
-Overlap between audio & multimedia on the one hand, & performance rights on the other
-Overlap between print on the one hand, & screenplay / play publishing on the other

V. Author’s Representations & Warranties
1. Author sole creator
2. Not previously published; not in public domain
3. Does not infringe any copyrights
4. Does not invade right of privacy or publicity
5. Not libelous or obscene
6. No errors or omissions in any recipe, formula or instructions
7. Limited only to material delivered by Author
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VI. Indemnity & Insurance Provisions
1. Author indemnifies publisher
2. Does indemnity apply to claims and breaches?
3. Can publisher withhold legal expenses? Is it held in an interest
bearing account
4. Is author added as additional insured on publisher’s insurance?
5. Does publisher have ability to settle claims without prior approval of
author? If so, are there a dollar amount limitation?
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VII. Publication
1. Duty to publish within [insert number] months of ?
a) Force majeure (acts of god)
– Any cap on delays?
2. Advertising and promotion
3. Right to use author’s approved name and likeness
4. Bound galleys/review copies
5. Style or manner of publication
a) Title consultation or approval?
b) Book jacket
– Right of consultation? Approval?
c) Changes in manuscript
6. Initial publication by specific imprint or publisher may sublicense
rights?
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VIII. Advances & Royalties
1. Advance against future royalties
2. When payable? (in halves, thirds, etc.)
3. Royalties and subsidiary rights:

a) Primary rights
-Hardcover royalties
-Trade paperback royalties
-Mass market royalties
-eBook royalties
-Royalty escalation(s)
-Bestseller bonus
-Royalty reductions
1) deep discount and special sales
2) mail order sales
3) premium sales
4) small printing
5) slow moving inventory
6) bundling with other works
b) Secondary (subsidiary) rights royalty splits
-Book club (sales from publisher’s inventory v. licensing rights)
-Serialization (first serial, second serial)
-Anthologies, selection rights
-Large print editions
-Hardcover
-Trade paperback
-Mass market
-Foreign translation
-British Commonwealth
-Future technology rights
. -Audio rights
-Motion picture/TV
-Merchandising
-Advertising
4. Reasonable reserve for returns
a) What percentage is withheld?
b) When liquidated?
5. What is royalty based on? (Retail price? wholesale price? net price?)
a) At average discount of 50%, 20% of net is same as 10% of list
b) At average discount of 40%, 16-2/3% of net is same as 10% of list
c) At average discount of 20%, 12-1/2% of net is the same as 10% of list
6. Recoupment of advances
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IX. Accounting Statements
1. Annual, semiannual, or quarterly statements
2. Payment dates
3. Cross-collateralization
4. Audit rights
5. Limit on time to object to statements
6. Limit on time to bring legal action
7. Examination on contingency basis
8. Pass through clause for subsidiary rights income
9. Reversion of rights for failure to account
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X. Revised Editions
1. Frequency
2. By whom?
3. Royalty reductions if done by third party
4. Sale of revised edition treated as sale of new book?
5. Reviser/Author credit
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XI. Option
1. Definition of next work
2. When does option period start?
3. Definiteness of terms (i.e., is option legally enforceable?)
4. What type of option? (e.g., first look, matching, topping)
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XII. Competing Works
1. How is competing work defined?
2. How long does non-compete run?
3. Any reasonable accommodations?
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XIII. Out-of-Print
1. How defined? (Eg, __ copies sold over __ accounting periods)
2. Notice requirements
3. Author’s right to purchase digital files, inventory
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XIV. Termination
1. What triggers reversion of rights?
a) Failure to publisher within ___ months of manuscript acceptance
b) Failure to account to author after due notice
c) Failure to keep book in print (see Section X)
2. Survival of Author’s representations and warranties
3. Licenses granted prior to termination survive
4. First proceeds clause
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XII. Miscellaneous
1. Choice of governing law
2. Mediation / Arbitration?
3. Bankruptcy
4. Modification
5. Literary agency clause
6. Personal guarantee if the author is a business entity, not a human being.
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In case you ever need their advice:
Law Offices of Lloyd J. Jassin
1501 Broadway, New York, NY 10036
phone 212.354.4442
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LLOYD JASSIN is a New York-based publishing attorney. He teaches a digital rights & permission at the NYU Publishing Program. He is co-author of the Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.).
Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners. A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association (IBPA) and sits on the advisory board of The Beacon Press, one of America’s oldest independent presses.

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The Shocking Fact Why Authors Don’t Get Paid

Publishing-Contracts

If you go to an Amazon sales page, you will find that they offer a new paperback for $14.98.  But also another new paperback for $4.98.  And a used paperback for one penny…

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“Now, why would you choose to buy the more expensive copy, instead of the other, much cheaper paperback?   They’re both new.   You’ll buy the cheaper one. But where does that cheap paperback come from?  It’s probably a copy the publisher sold off to make room in a warehouse somewhere.  It’s very common.  Publishers have high hopes for every book they make, they make more copies than can sell… After a certain period of time, they realize they need that space in the warehouse, so they sell off copies cheap to a jobber, a middleman.  They sell them at a very deep discount.”
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Publishing Contract Clauses:
“Many publishing contracts have clauses that will allow the publisher, under these circumstances of deep discount, to pay no royalties.  The publisher gets paid by the middleman.  And the middleman gets paid. Only the author will get NOTHING at all for the sale of this book.”

This is from a speech of author Roxana Robinson, President of the Authors Guild since 2014, who warned of the mounting difficulties authors are facing in finding compensation of their work.  It was one of the keynotes at Publishing Perspectives’ Rights and Content Conference and presented in an article by Porter Anderson, Editor in Chief at Publishing Perspectives.

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This is How Authors Will Eventually React.
First of all: Authors Beware… of Publishing Contracts.  However, Publishers beware too – of authors !  They can just decide not to be a token in making money for you!  And can opt out of trade publishing altogether. Many high-profile bestselling authors went this route already and are now self-publishing.

Speaker Randy Petway at this conference also warned publishers: “Or the other scenario is the one which the author becomes an adversary,  if they don’t feel you’re doing enough as an advocate to protect the rights of the content they provide to you.”  Which means in other words to sue the publisher.

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Publishing Contract Issues.
Kristine Rusch:  Just be aware that publishers often cut payments, and they use the contract as their guide.  Not necessarily the contract negotiated in good faith with a corporate entity long merged into five other corporate entities, but the corporate entity that exists now.
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The largest problem about publishing contracts is that trade publishers have very savvy lawyers, who will ensure that everything is to the benefit of the publishing house – while on the other side are authors / artists who are not familiar with contract law, who often have no background in reading legalese or business and accounting – and don’t get a copyright lawyer’s advice (or cannot afford it) before they sign the publishing contract. And even after signing…

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Bestselling author Kristine Rusch writes:
“All contracts can be changed, modified, muted, and defanged with enough effort.  Sometimes that effort requires a judge and a courtroom.  But often that effort is just as simple as a letter of notification, saying quite clearly that one party to the contract no longer wants to follow one particular clause in the contract.  The other party may simply accept that notification, or the other party might protest.  Either way, a dialogue has been opened and the contract might end up being re-negotiated.”
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Writer Beware offer some general advice if you want to opt out of your publishing contract or if you need to go further.   And in many countries authors can sue for free, if their financial circumstances are not favourable, there are possibilities to be exempted from court fees, and / or to get free representation by a lawyer (pro bono) or at least free legal advice (most law schools provide this).

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Always remember: There is no need to contract with a trade publisher.  Self-Publishing goes mainstream now: “The quality of literature from non-traditional sources is higher than ever.”
~ Adam Gomolin

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Watch Out for these Legal Contract Terms

No-Tempations

Copyright Lawyer Helen Sedwick, author of the Self-Publishers Legal Handbook wrote in an article at Bookworks

“What is the worst mistake an indie author can make?
A bad book cover? A poorly edited manuscript? A hokey website?  No.  It’s LOSING CONTROL over your work.”

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DO READ the Fine Print!
She explains that an author’s manuscript is a valuable asset, “just like your car or home. You wouldn’t hand over your car keys to a stranger you met on the internet. You wouldn’t let someone with a slick website move into your guest room.”

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And it is worrying that every day, writers accept contracts with Vanity / Self-publishing companies that take too much control over the author’s work.  Just as Helen Sedwick warns authors, I did it in many articles during the last years here on this blog (see the list below).  Sure, it is no fun to read the fine print, especially if it is written in “legalese” but these contract clauses may influence your writing career to an extent you cannot even imagine.

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Helen Sedwick Explains some of the Vocabulary:
“LICENSE:  When writers sign book contracts, they often say they “sold” their books.  That’s not entirely correct.  Authors grant publishers “licenses” to use their work, in other words, permission. Writers continue to own the underlying copyright.
Similarly, licenses may be exclusive or non-exclusive, world-wide or geographically-restricted, short-term or perpetual, royalty-free or royalty-paying, limited to a particular language or format, such as audio, print, or eBooks.  The permutations are endless.
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“EXCLUSIVE:  If you grant an exclusive license, then the licensee has the right to stop everyone else from using the licensed work, even you. Authors should retain the right to sell print books via CreateSpace, Ingram, bookstores, and their own sites, all at the same time. Ebooks should be distributable via KDP, eBookPartnership, Digital2Digital, and other sites.  If you are publishing through a traditional publisher, then you should expect to grant an exclusive license in return for the publisher’s investment in your work.  Limit the scope of the license to the language, format, region, or other category in which the publisher has the ability to market your work successfully.  For example, you would not want to grant an exclusive license to your work in all languages and formats to a small publisher that markets only English print or ebooks.”
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“ROYALTIES.  Your royalties are the portion of sale proceeds that will be paid to you.  Self-publishing companies have various ways of calculating royalties.  But it’s critical that you know what your royalties will be on a per copy basis before you sign on.  You should be able to calculate royalties assuming different trim sizes and page counts online.  If the company or its website says that royalties cannot be determined until your manuscript is reviewed or formatted (and typically after you have given them your credit card number and paid a non-refundable deposit), don’t work with that company.  Find one that provides more transparency and control.”

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These are just some examples of what could go wrong.  The best advice for authors is to never sign with a “self-publishing” / vanity company.  Finding out about all the legal implications of a contract is extremely important before you are signing any publishing agreement with a trade publisher.

Get the Self-Publisher’s Legal Handbook, a step-by-step guide to the legal issues of self-publishing.  Attorney and self-published author Helen Sedwick uses 30 years of legal experience to show writers how to stay out of trouble and money-losing.

More Warnings here:

http://www.savvybookwriters.com/victims-of-vanity-publishers/

https://savvybookwriters.wordpress.com/2014/01/30/stop-vanity-publishing-aka-subsidy-publishers/

http://www.savvybookwriters.com/real-publishing-vs-vanity-subsidy-publishing/

http://www.savvybookwriters.com/the-non-compete-clause-in-publishing-contracts/

http://www.savvybookwriters.com/the-traps-in-publishing-contracts/

https://savvybookwriters.wordpress.com/2014/05/04/the-traps-in-publishing-contracts-2/

http://www.savvybookwriters.com/do-you-understand-your-publishing-contract/

https://savvybookwriters.wordpress.com/2014/05/05/do-you-understand-your-publishing-contract-2/

http://www.savvybookwriters.com/the-good-the-bad-and-the-ugly-in-publishing/

https://savvybookwriters.wordpress.com/2013/11/13/comparison-of-trade-publishing-vanity-author-publishing/

 

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The Non-Compete Clause in Publishing Contracts

Publishing-Contract

Bestselling author Kristine Kathryn Rusch wrote about “Short- and Long-term Thinking”, a phrase that describes what every author (or other artist) should do – well before signing any contract.  In her piece she insists that no one should EVER sign a non-compete clause. Look up your own publishing contract(s) if you can find the word compete and read on:

Kristine explains: “for the past several years, traditional publishers are trying to control everything about a writer, from the rights she / he sells to the amount of money she makes.  They also want what they are calling “a non-compete” clause, which means: it’s a “do-not-do-business-without-our-permission” clause.”
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Sounds to me Like SLAVERY.
Kristine Kathryn Rusch advices: “If you sign any version of a non-compete clause, you will never be a full-time professional writer.  Writing will not be your career.  Something else will, and you will write on the side for the rest of your life.”
And further: “Contracts are one long document that works as a whole, not a series of linked paragraphs.  Deleting the non-compete clause is not enough. You must also get rid of all the language about competition in the warranty section of the contract.  That’s the part your agent tells you is boilerplate so you don’t have to read it.  And don’t listen to an agent who tells you that: “You don’t have to read your warranty clause.  Yes, you have to read your entire contract, not just the parts that someone warned you about.”
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She explains that publishers these days requiring non-compete clauses in almost all of their contracts, and are making those clauses a deal breaker from the publisher’s side. It means that either you let the publisher control your entire career just because you sold that publisher one book for $5000 or else. Don’t walk out of their office, RUN…
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The Ugly Truth…
You would agree that during the term of the publishing contract you will not, without the written permission of the Publisher, publish or authorize to be published any work under this name or any other (e.g. a pen name), including blog posts, short stories, nonfiction articles, novels, or the like.  Books generally aren’t going “out of print” any more, (thanks to e-books).  Contracts with traditional publishers are becoming contracts for the life of the copyright.  It will prevent you from making a living with your craft.  According to that clause, your publisher is in charge of everything you write, whether the publisher pays you for it or not.”
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Kristine Rusch writes from her own experience: “I demanded the clause’s removal and got it with no fuss at all.  Recently, however, writers have signed contracts with that clause because they were told the clause was a deal breaker. I know of at least two mystery writers who need their publisher’s permission to put up a blog post.  Do you really want that to happen to you?  Because it could if you sign this clause.
Consider that the contract, like your mortgage, it might get sold to another company you are entirely unfamiliar with at the moment.  This happened to Avalon authors who had no idea when they signed their contracts that eventually Amazon would have the rights to publish those works.  Your current publisher might not enforce that clause; but the publisher / business your current publisher sells out to, might enforce the clause.”

Read more scenarios on her blog post, especially about the boilerplate section of the contract.
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Don’t Forget: You can Always Self-Publish.
The best way to handle a non-compete clause is to refuse to sign one.  Or you can try to find a publisher who is not insisting on a non-compete clause.  And you need to find an agent that not only understands IP law, but is actually working ‘for’ you and not just doing whatever they can to get you to sign any contract so they can get their cut.  Or you need to hire an IP lawyer to make sure the agent isn’t taking you for a ride … If you still sign these unfavourable clauses, you will have no one to blame but yourself for your tanking writing career.
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Why Self-Publish?
There are now very good authors – even authors who have deals with major publishers – getting into the self-publishing game.  Why?  They are unhappy about certain rights or royalty rates and the refusal of publishers to negotiate those rights or rates.
Authors have to do their own marketing anyway, no matter if self-publishing or going with a publisher.  While many authors assume that getting a trade publisher means that this publisher will take care of the marketing chores, the truth is that a traditional publisher will only put real marketing muscle behind the one or two books per year that it truly believes to become a bestseller or the one from a celebrity.  But how can you promote your book, if you are at the mercy of a publisher?  Only the publisher who uploaded books to online retailers gets the password and authors have to fight for each little improvement or change on the retail platforms.

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Publishers Need Authors. But Authors Don’t Need Publishers!
Amazon, Apple, CreateSpace, Ingram Lightning Source, and Kobo will happily take any author’s book and make it available in eBook or print format for much higher revenues that trade publishers would ever pay.  Sure, getting it into traditional brick-and-mortar bookstores may be harder, but it’s by no means impossible.

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The Good, the Bad and the Ugly in Publishing

Self-Publishing

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Success of the self-publishing movement during the last ten years attracted lots of vanity/subsidy/self-publishing services.  Even large, once respected trade publishing houses jumped on the bandwagon, founded dozens of imprints and are trying now to monetize their “slush-piles” of once rejected writers via their newly established subsidy services.
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Often Difficult for Authors to Determine…
How can authors find out what lures behind a publishing name and enticing advertisements?  Let’s dissect the various ways of publishing – the pro’s and also the con’s.  With proper research and questioning you will be able to navigate your way through the sometimes murky publishing “jungle” for your future books.
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Trade Publishers:
Also called legacy publishers, who contract with authors to licence their manuscript in order to get publishing rights for a variety of book forms (print, digital, audio etc.) and other rights, such as movie rights or foreign rights.  Only bestselling books are making them money, so they are very picky in taking on new authors and also in choosing books that are promising commercial success.
They take on the risk for a manuscript and invest into the production and distribution of books, purchase the ISBN, order the cover image and the book layout – and in most cases pay for the editing of the manuscript.  Even so they expect more and more from new authors to deliver a polished and edited manuscript.  And most important they pay royalties and advances on these royalties.
However, marketing for the book is up to the author, who should have a solid platform (website, blog, previous books and articles), memberships in reader circles and lots of followers on social media.  What trade publishers call “marketing” is often just listing in a catalog and distributing of the book.
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Vanity Publishers:
Some call themselves subsidy publisher, which is a fancy word for letting the author pay for everything, get all the overhead paid and make a good living. Vanity “publishers” accept pretty much every book.  They are not in the business of selling books, but rather selling services to authors at inflated prices: editing, cover and layout design, and ISBN’s.  Their “marketing” (paid for by the author) is often minuscule and consists of distributing to very few places.  Many bookstores refuse to carry books by vanity firms.  A vanity “publisher” in Canada for example refuses to place print books on Amazon, others don’t produce e-books altogether, and most sell the books totally over-priced.  The author has to pay for the printing of the huge amount of books, but it might be that the vanity firms are using POD (print on demand) – as authors are not invited to visit the warehouse to see the stocked books. Others have contracts that bind the author (or their heirs) for 70 years – not worldwide, but in the whole universe… Subsidy publishing means: the author takes all the risk and then pays the producer of the books in order to say “I am a published author”.
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Self-Publishing Services:
These are companies who are offering authors production of their ebooks, print and audio-books.  Authors are paying certainly higher prices and must be very vigilant not to give away their self-publishing status, and to buy their own ISBN to be considered as the publisher.
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True Self-Publishing:
Authors are becoming more and more publishing-savvy.  They can get all the information at their fingertips on the internet, through forums and books, and choose among many service providers for all the publishing steps: editing, layout, ebook formatting, cover design and marketing – and certainly a great platform and reader contacts.
Most important for authors is it to buy their own ISBN’s to be recognized as the publisher, to do the homework before releasing a book, and to deliver an excellent and professional produced book. Authors can and should shop for best quality and favorable prices.
Self-publishing authors are free to sell their books wherever they want: on their own website, at all the online retailers, as print, digital or audio-books, at book fairs etc..  The possibilities are endless.
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Do Your Homework.
Whatever publishing path you choose, diligently research service companies and providers, as well as the publishing houses.  Insist on getting all your questions answered fully, honestly, and promptly, and on getting firm prices.  Google them, using the word complaint, read and search in Writer Beware  and similar report sites, Preditors & Editors  for example, and use writer forums to find out more about their business. Read the bewares and background check forum at Absolute Write.  Ask for references and contact authors who had used them previously or with whom they closed a publishing contract.  Never order anything over the phone. Get every detail in writing.  Let publishing contracts evaluate by a contract lawyer before signing anything.
Take your time!  Only this way you can make informed publishing decisions.

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Signing a Publishing Contract: Calculations?

Advance

There are lot of reasons why authors want to go with trade publishers.  They don’t want to do the work. They want books on the shelves.  Or they want the prestige.  They think a trade publisher will do a better job in marketing.  They want reviews in major print publications.  Great expectations and wishful thinking… But how will you fare money-wise in the end?
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Imagine you have two publishing offers:
One has a advance of $5,000 and 6,5% royalties against the advance, the other publishing contract presents $2,500 advance and 9% royalty you will earn out against the advance. Which offer do you take and why?

Money earned today is worth more than money earned next year…
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You could take the money you earned today, put it in the bank, and have more money next year – also not in a savings account with these whimsical interest the banks are paying, you would need to invest it smarter.  So, if you are thinking about the rights you are giving up to a publisher, consider their value for 35 years, and take into account the time-value of money.  Luckily, economists have been doing this kind of calculation for years. It’s called a net present value calculation.
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How much is Money Worth over Time?  
Money today is worth a lot to you.  Money earned in a couple of months is not worth nearly as much.  If you’re carrying credit card debt at a 19% interest rate, money today is worth a lot more to you than it is to someone who has no debt at all.

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Let’s Take the Example:
You are offered $2,500 advance for a book.  What would it take for the net present value of your self-published earnings to come out to $2,500?  Using for example 2% as an interest rate, a contract that offers you $2,500 is the equivalent of earning approx.  $109 a year for 35 years, which is making you in the neighbourhood of $9.97 a month.  That’s what $2,500 book advance means roughly.  What kind of steady sales would you need to equal that advance over time?  A $2,500 advance is an absolutely pitiful investment by a publisher.  They will earn back their money in short time.

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Bestselling Author C. Milan Calculated:
“What if you were offered $500,000 for a book?  A huge advance.  A self-published book that has the same net value is one that makes $19,750 a year, $1,645 a month – which means selling about 633 copies at $3.99 a month every month.  Put another way:
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A book at $3.99 that falls somewhere between Amazon rank 5,000 and 10,000 for 35 years is worth $500,000 today.
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Whether your books are still performing well in 35 years will probably depend on whether you are still writing new books at this time, and what you’re doing to promote and push your books in Year 35.”
You also have to take into account that you can earn out your advance on your traditionally published books.  If you’re offered an advance of $2,500 for a book, you will earn out your advance over the course of your publishing career unless your book was unprofessionally produced and priced. How long will it take you to earn out? How much will you earn per year after that?
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Let’s assume you self-publish the book at $3.99.  That you sell 2,000 copies of the book a year for the first five years (the lower price point combatting whatever marketing the publisher may or may not do for the book) and 500 copies a year for the next 30 years of comparison.  And let’s suppose that you must spend $2,000 to get your book on the market.

The first year, you will make $3,200 – $5,200 income minus $2,000 in expenses.  From year 2-5 you earn $5,200.  Years 6-35 you make $1300. The net value of self publishing your book is in the vicinity of almost $50.000.

If you want to know what your rights are worth,
you should think of the value over time for 35 years.

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Why go With a Trade Publisher?
Have at least some sense of what this is costing you.  If you are offered an advance of $2,500, look at people from this particular publisher who are similarly situated, and ask what kind of marketing they are really getting.  How much is it worth?

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Another Consideration:
“Ebooks are Forever”. It might be true in the strictest sense of the word. Yet ownership rights in your ebook will terminate seventy years after your death – no matter if you self publish or work with a publisher.  However, if you sign a traditional publishing contract, your publishing rights are not tied up forever if you are an American author.  All U.S. authors have the statutory right to terminate a grant of rights 35 years after publication under 17 U.S.C. 203.  Self-published authors and publishers can relaunch books at any time.  Traditionally published authors sometimes get the opportunity to relaunch a book when their publisher reverts a book’s rights back to them.
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Let your heirs know this too and mention it in your will or give your family copies of your contract, just in case! Thirty-five years is a long time, but it’s not forever.

 

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Beware! Read What Fellow Writers Can Teach You

publishing contract

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Brooke Warner, author and publisher, writes on Huffington Post: “Most writers have traditional publishing aspirations.  They want an agent to fall in love with their project and champion their work; they’re looking for the external validation of being accepted by a publishing house; their fantasies about getting published involve a red carpet experience that’s increasingly elusive in this industry.”  But she also cautions: “Be vigilant, self-advocating, and savvy during this process.”
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Caveat. Scriptor: Let. the. Writer. Beware! 

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Be Careful What to Wish For.
Following blog posts of “published” writers, you might have read similar remarks as I found on the website of a bestselling author, who went for many years with traditional publishers.  She explains in her blog that she has never been paid on time.  She had to threaten her publisher more than once to pull her books, in order to get her royalty payments that were months overdue.  This author sometimes had to wait only for her royalty statements two months.
But that’s not all: “The production on my last two books ran so late that there were no review copies sent to major markets and reviewers. I had turned in my manuscripts early, so the problem was entirely on the publisher’s end.”  For her latest book she had to remind them for the copy edit because the book – its launch was only two months away – had no copy editing, proofing, or Advanced Review Copies (ARC’s). Her e-book came out nine months after the print book…

She is talking here only about book production and payments. Another example how unprofessional publishing companies are handling the book promotion and sales pages of their authors at online retailers, can be found in two of my recent blogs :

http://www.savvybookwriters.com/test-yourself-how-professional-are-you-publishing-part-1/
http://www.savvybookwriters.com/2nd-part-of-test-yourself-how-professional-are-you-publishing/

Book Rights And Wrongs And Traps To Avoid


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Check the Publisher Before you Sign an Agreement.
Talk to a variety of authors who work with this publisher, bestseller, mid-list and first-time writers, but also with authors who left the publishing company and are now self-publishing.  Ask these writers:

  • Has the publisher lived up to its contractual obligations?
  • Has the publisher tried to change the terms of the contract after signing?
  • Does the company pay on time (within 30 days of the payment’s due date)?
  • Does the company issue royalty statements on time?
  • Has it published the books in a timely fashion?

Before you ever contact a traditional publishing company, do your research.  Start with Publisher’s Marketplace, and don’t forget to google the publishing company with the added word: “complaints”.

Websites that are stating complaints and are giving advice what to look out for:
The Fine Print of Self-Publishing
Predators and Editors
Author Beware Thumbs Down Publisher List
So far you will not only find complaints and cautionary stories about trade publishers, but also about Vanity publishers.
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Vanity Publishers or so-called “Self-Publishers”.
“Self-publishing companies” – the worst of predators – are really an oxymoronic: you are either self-publishing or someone is publishing you.  Paying someone to be your publisher is like hiring someone to take a vacation for you so you can stay home and work.  Read my former articles about Vanity publishers:

Five Worst Publishers
Comparison of Trade/Vanity/Author-Publishing
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Here is the definition for the term, “publisher.”  A publisher is an entity that invests in and assumes the risks for the producing and distributing a piece of media, such as books, e-books or audio-books.  And you as an author license the copyright (or parts of it) of your manuscript.

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What to Look for in the Publishing Contract?
Find out if the trade publisher company:

  • will negotiate certain points of its contracts
  • will reserve the right to revise my manuscript
  • will try to buy all book rights
  • will want to own all rights to any pen name used by the writer

There are many more traps in publishing contracts, such as mentioned in these blog posts:

https://savvybookwriters.wordpress.com/2013/08/16/the-traps-in-publishing-contracts/
https://savvybookwriters.wordpress.com/2014/05/05/do-you-understand-your-publishing-contract-2/

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NEVER, NEVER, NEVER sign a contract without having your contract lawyer going over it and explaining it to you in detail – sentence for sentence.
“There is no consumer-type protection for authors, the laws governing (publishing) business contracts assume that each party to such contracts will watch out for themselves.  
If both parties sign a contract, the strong presumption is that each party understood what the contract meant and voluntarily agreed to be bound by it.  In extreme cases, if a lawsuit were filed, a contract might be deemed unconscionable and voided in whole or in part, but that is a high (and costly) hurdle to clear.”

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Trade Publisher’s Unethical Contract Practices

Publishing-Contract

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You might have read several articles we published in the past about the unethical contract practices of trade and Vanity publishers, and how they deceive their authors. Headlines were for example:

“Less than Minimum Wage for Authors?”

“The Traps in Publishing Contracts”

“What Publishers Won’t Tell You”

In these articles and many others we were pointing to the worst parts of publishing contracts, found under these paragraphs:

Duration of the contract
Rights granted by the author to the publisher
Territory for these rights
Out-of-Print Termination
Reversion of rights
Advances and Royalties
Statements and Payments
Competing Works

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What about Arbitration, Marketing or Editing?
Do you contract with a publisher who made you a book contract offer demanding arbitration, an unfavourable marketing or editing clause in its contract?

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Arbitration Instead of Civil Court.
Arbitration clauses, hidden in fine print of many contracts, often buried under other headings, like “Reversion”, “Termination”, “Dispute” or “Miscellaneous”.

Arbitration clauses have deprived authors of one of their most fundamental constitutional rights: to sue in court.  Judges and juries have been replaced by arbitrators who commonly consider the companies their clients.”  But arbitration clauses are increasingly common in publishing contracts, and even in the “Terms of Use” of some major self-publishing platforms.  Are you aware of their implications?  Kobo Writing Life, Smashwords, Draft2Digital, BookBaby, and IngramSpark for example don’t have arbitration clauses. Lulu includes an arbitration clause with a class action ban.
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Law in Plain English for Writers.
This valuable 300-pages guide book for authors explains: …”be aware that the resulting arbitration decision cannot be appeal and the process will not contain many of the procedural safeguards that are a part of the judicial process.”
And: “Arbitration does not provide for any pre-trial discovery, unless the contract allows the American Arbitration Association’s Commercial Rules to be used.” Just two examples of the valuable tips in this inexpensive law guide book for every writer – whether first-time author, seasoned freelancer or professional journalist.
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Next Problem: Marketing
When I red a fantastic book recently I was curious if this author has a digital version of the title available. Her Amazon page – set up by her publisher – shocked me, it’s the worst author page I have ever seen! I looked up the “publisher”, a tiny, home-run company in Kelowna, BC, Canada.

Until two decades ago, publishing houses did some marketing for books. Now, in the best case, publishers might send out some galleys to reviewers and wait to see if anyone is interested. Then they focus all their publicity on the books they expect to be a bestseller.  Rachelle Gartner a publishing agent set up a whole page, listing marketing efforts of publishers – in the best case, and for the VIP authors.

If you want your book to be a success, YOU will have to do ALL the publicity yourself!  That’s how it works most of the time.

Marketing activities vary widely from publisher to publisher.  The “bigger” the author, and the more money they expect to make on the author, the more they’ll spend on marketing.

On the other end of the spectrum is a publishing contract that states: “publicity is at our discretion” – even if it is just a lousy press release, sent to a list of people the author provided. With this move some publishers want to emphasize that marketing is under their control – even though they have no knowledge of professional publishing.
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Editing Clauses.
Writers need assurance that they will be a partner in the editing process, and that their work won’t be changed in major ways without their permission.  And publishers need the right of final approval–they don’t want to be forced to publish a manuscript that the author can’t or won’t revise to their satisfaction.
Usually the editor at the publishing house will provide revision suggestions and the author will carry them out. For copy editing, the publisher usually has discretion. But the author should have the opportunity to see and approve the copy edited manuscript before it goes to press.

Clauses like this: “publisher shall have the right to edit and revise the manuscript for any and all uses contemplated under this agreement” disregards the authors copyright, and allows the publisher to edit the author’s work without consulting or even informing him or her.“ “The publisher shall be entitled to develop, alter, edit, and proof the content, usage, format, capitalization, punctuation, and spelling of the Work to conform to the Publisher’s style, the subject matter, and intended audience previously agreed upon by the parties of this Agreement.” It means the same as above, but in more nebulous terms.

“Publisher shall have the right to correct errors, and/or edit and revise the Work for any and all uses contemplated under this agreement, provided that the meaning of the Work is not materially altered.” Which means, the publisher is not required to consult you or get your permission before making those changes. These type of clauses regarding the editing give all the power over the manuscript to the publisher.
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Bestselling Author Kristine Rusch: “Anyone who reads my blog regularly understands that I believe these “standard” book contracts are horrible.  No writer should sign some of the clauses in these contracts, and no writer should ever consider licensing rights under many of these terms.”

I wrote an entire book three years ago about contract terms writers should avoid.  Unfortunately, the book needs updating—not because the terms I mentioned are gone now, but because even WORSE ones have joined them.”

“I believe writers should understand what they sign, and walk away from bad contracts.  Simply knowing that publishers will negotiate many of these points will help writers in standing up for themselves—without agents, who often make the problem worse, generally speaking.”

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Get Legal Tips from Professionals.
Bestselling author and self-publishing advocate J.A. Konrath wrote: “The trade publishing system is designed to take advantage of Authors’ naivete and lack of bargaining power, and it uses the promise of publication as a carrot to get them to accept onerous, deeply biased terms.”

Best advice for any author is to know what they get into, to understand the publishing contract and to consult a contract lawyer before signing the papers. As Copylaw.com advices: “While it is difficult to see how your publishing agreement will play out in the long term, the decisions you make today could have profound, long term consequences.”
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The author “Law in Plain English for Writers
Lawyer Leonard DuBoff, was teaching intellectual property law for twenty-five years, and writes really simple and easy to understand.

The Fine Print of Self-Publishing
by Mark Levine does not only provide sound advice, but also lists publishers and Vanity Publishers that authors must avoid under all circumstances.

Helen Sedwick, a Californian attorney and novelist, shows in the chapter “Understanding Key Contract Provisions” of her Legal Handbook the clauses of publishers and explains on the other side of the page what these provisions mean for the author.
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If you are still eager to sign a contract, you should at least know what you get into, and what the contract clauses really mean.  Try to negotiate.  Ask the publisher to add a clause, to ensure that your consent is required for changes – less the editing.

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Amazon Pays Advances for Your Book?

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Worldwide-Book-Rights

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Writers everywhere get excited about an email from Amazon, where they explain a glimpse into offering a new program, a crowd-sourcing program:  
Your readers and followers can decide if an e-book / audio-book will be published by Amazon – and you can keep the print rights.  There will be a (small) advance, royalties and certainly Amazon’s tremendous marketing power.  Here are the first details:
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  • Focused formats: We acquire worldwide publication rights for the e-Book and audio formats in all languages. You retain all other rights, including print.
  • Submit your complete! (means edited) never-before-published book and cover.
  • After a few days, we will post the first pages of each book on a new website for readers to preview and nominate their favorites.
  • Books with the most nominations will be reviewed by our team for potential publication.
  • Should you be selected for publication you will receive benefits that include:
  • Guaranteed advance & competitive royalties: You will receive a guaranteed $1,500 advance and 50% royalties on net eBook revenue.
  • 5-year renewable terms, $5,000 in royalties: If your book doesn’t earn $5,000 in royalties during your initial 5-year contract term, and any 5-year renewal term after that, you can choose to stop publishing with us.
  • Easy reversions: After two years, your rights in any format or language that remains unpublished, or all rights for any book that earns less than $500 in total royalties in the preceding 12-month period, can be reverted upon request – no questions asked.
  • Early downloads & reviews: One week prior to release date, everyone who nominated your book will receive a free, early copy to help build momentum and customer reviews.
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Update:  Not Yet Worldwide …

Amazon sent out this information (October 2):
We’ll be welcoming submissions for English-language books in Romance, Mystery & Thriller, and Science Fiction & Fantasy genres. Any adult with a valid U.S. bank account and U.S. social security number or tax identification number is eligible.

Here are the things that you should prepare to successfully submit your book:
Complete, never-before-published manuscript & book cover image – We’re looking for 50,000 words or more in Word format and a book cover image that reflects the essence and uniqueness of your book. Make sure your work is ready for others to read. Only the first pages will be posted to the website (approx. 3,000 words).

Book one-liner – A very short pitch (no longer than 45 characters) for your book that will be used on the homepage and throughout the website. Think of examples like “Space opera meets the Middle Ages” or “How far will one woman go to save her family?”

Book description- Help readers understand the content and quality of your book. Keep the description to 500 characters or less.

Your bio & picture – Give readers a chance to learn more about you. You will also have a chance to answer relevant questions regarding your book and personal story in a short Q&A section.
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We’ll also ask you to review and accept our submission and publishing agreement that grants us a 45-day exclusivity period to post your excerpt and tally nominations. If chosen for publication, you will receive a $1,500 advance, 5-year renewable term, 50% eBook royalty rate, easy rights reversions, and Amazon-featured marketing. If not, you automatically get all your rights back at the end of the 45-day exclusivity period.
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Read Behind the Lines:
The titles selected for this Amazon program will not have their books published by Amazon Publishing. This is mainly why they are not offering book editing or cover art design. Instead, Amazon is hoping to give authors another reason to exclusively publish with them and forgo submitting their titles to the trade publisher competition. Net-Royalties could be 10% of gross list after deducting everything the publisher can charge to the project – including salaries and marketing…

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Hybrid Between Trade Publishing and Self-publishing
Higher royalty rates might lead to the expectation that some of those functions are the author’s responsibility.  Not only are the royalties higher than normal trade publishing royalties, Amazon offers very liberal release terms, both for rights not exercised within two years by the publisher and for situations in which the royalties are lower than expectations.  Amazon will put extracts of the books on a website and call for the audience to vote for their favorites, with the most popular going on to be considered by an Amazon panel for publication.

The rights cover ebooks and audio, but you get to keep the print book. The length of term depends on how much your book makes. If the book has earned less than $500 in royalties in the previous year, then you can get the rights back after two years and if the book doesn’t bring in $5,000 royalties in the first five-year term, then you can also quit.
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Author Comments:
“As an indie author almost anything short of my soul would be worth Amazon having an interest in my book and advertising it FOR ME. We all know, selling more of one book means selling more of your other books. Usually hardcore Amazon advertising is reserved for large publishing houses with huge budgets. We get bones tossed to us when we do a good job, but a targeted campaign? When Amazon wants to sell something they do a fantastic job of it. The big attraction is the fact that Amazon can push any book into their best-seller lists with their email campaigns and promotions. For sure, it will generate more name exposure, which could lead to more sales of your other books.”

“I assume Amazon will put a promotional push behind these books like they do the Kindle First books, especially since Amazon is invested in them. 50% of a promoted book could easily make more than 70% of a non-promoted book. It also means that if you publish an additional paperback, it will indirectly benefit from whatever advertising Amazon does for your e-book and audible.”

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The offer includes an advance payment of $1,500 and 50% royalties on net e-book revenue. A 50% royalty for being published (and promoted) by Amazon sounds a reasonable deal, but “net” doesn’t mean half of the retail price.  If you would like to sign up to be notified when this program launches, Amazon has started a mailing list. Details on this site: http://www.amazon.com/gp/gss/detail/29134490/ref=pe_1148920_123694410_pe_button/1?tag=skim0x9814-20

Most important of all for your success in this upcoming new program, is to have LOTS of FOLLOWERS on SOCIAL MEDIA to vote for your e-book’s and audio-book’s publishing deal with Amazon!

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Read more:
http://rogerpacker.com/blog/authors-got-talent-coming-soon-amazon/
http://the-digital-reader.com/2014/09/22/amazon-publishing-crowd-source-next-books-now-recruiting-kdp-authors/
http://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/64103-amazon-launching-new-crowdsourcing-publishing-program.html
http://goodereader.com/blog/e-book-news/amazon-unveils-new-crowdsourcing-program-for-kdp-authors

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If you would like to get more support in all things publishing, have your book intensively promoted and learn how to navigate social media sites – or to learn how you can make yourself a name as an author through content writing: We offer all this and more for only $179 for three months – or less than $2 per day! Learn more about this customized Online Seminar / Consulting for writers: http://www.111Publishing.com/Seminars

Please check out all previous posts of this blog (there are more than 1,100 of them : ) if you haven’t already. Why not sign up to receive them regularly by email? Just click on “Follow” in the upper line on each page – and then on “LIKE” next to it. There is also the “SHARE” button underneath each article where you can submit the article to Pinterest, Google+, Twitter, Facebook, Tumblr and StumpleUpon.
Thanks a lot for following:

@111publishing

http://www.111publishing.com

http://www.e-Book-PR.com/

http://www.international-ebooks.com/

http://bit.ly/VmtVAS 111Publishing @ Google+

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Tagged: Amazon newsletter, book publishing deal, book royalties and advance paid by Amazon, how to become published, how to publish a book with Amazon, Publishing contract, worldwide publication rights


5 Worst Publishers – BEWARE!

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Yikes!

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Author and e-Book Builder Deena Rae wrote in one of her blogs:
“The world of publishing has always been filled with scammers, and top of the list are vanity publishers. To those who have been in the world of publishing a vanity press used to be a bad thing, but with Penguin, Random House, Simon & Schuster, and even Harlequin getting into bed with AuthorHouse / AuthorSolutions to form so-called subsidiary presses. Now there is a sheen of “respectability” to vanity publishing…
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Want to know which vanity publishers I personally find the worst?  This is based just on my own research, observations and studying of lots of “publishing contracts”.  Top of the list are the ones that are operating under so many names and are changing them so often, one can barely keep up with listing them:

  1. PublishAmerica, America Star Books
  2. AuthorHouse / AuthorSolutions (Penguin)
  3. Alibi, Hydra etc. (Random House)
  4. iUniverrse, XLibris,
  5. General Store Publishing, Renfrew, ON, Canada

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    “I wish I had seen this site (and many others popping up out there) before paying … to destroy my four years of hard work.”
    “Stay away from those people, do not invest a penny in …. Save yourself time, money and frustration! Buyer beware! Author beware! Writer beware!
    “I am their client too and very much disappointed with the way my book is handled, unless it is the matter of grabbing money, it is difficult to get a response.

These are original comments of authors to articles about the vanity company practices.

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Century-old Scams
Authors are surprised when so-called publishers want money up front. Publishers are supposed to pay authors, aren’t they?  There is nothing wrong in this. The trouble comes if the author, having signed a hefty check, is led to expect that his book will be treated in the same way as all the other books coming onto the market. To pay for publication is no guarantee that a single copy will appear on the shelves of even the local bookshop.  Authors feel they have been conned, persuaded to part with money for services not rendered.  If you think writers and publishers today are dodgy, get a load of the crooks and scoundrels of 18th-century London Publishing scams seem to be nothing new. Read this Salon.com article about the worst publisher of all time.
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Author BEWARE!
Despite the evidence, there are still writers who fall into the trap of vanity publishing – often with open eyes. That is why as soon as one vanity publisher goes out of business, another soon fills the gap. Here are a few tips on what to look out for. Read it in a former blog post – and BEWARE!
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The expression “publisher” should be legally protected and it should be forbidden by law to call themselves publishers! Read more about vanity publishers and un-ethical publishing contracts in Stop: Vanity Publishing aka Subsidy Publishers.  

Here is an excerpt from a contract where the vanity firm extends the right to the universe – in case people make home on Mars or the moon:
“The author hereby grants the publisher, during the full term of copyright, the sole and exclusive right to manufacture, print, publish and sell and to otherwise use, as set out further in this agreement, including, but not limited to, acting as agent and/or exercising any or all subsidiary rights, throughout the universe.”
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More about this topic:
http://whatever.scalzi.com/2013/03/06/a-contract-from-alibi/
https://savvybookwriters.wordpress.com/2011/08/15/easy-to-lose-money-a-lot/
http://emilysuess.wordpress.com/
https://savvybookwriters.wordpress.com/2011/11/23/author-beware-its-a-long-post/
https://savvybookwriters.wordpress.com/2011/12/06/how-to-choose-an-ebook-publisher-or-diy/
http://accrispin.blogspot.ca/2014/02/publishamerica-is-now-america-star-books.html

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If you would like to get more support in all things publishing, have your book intensively promoted and learn how to navigate social media sites – or to learn how you can make yourself a name as an author through content writing: We offer all this and more for only $179 for three months – or less than $2 per day! Learn more about this customized Online Seminar / Consulting for writers: http://www.111Publishing.com/Seminars

Please check out all previous posts of this blog (there are more than 1,100 of them : ) if you haven’t already. Why not sign up to receive them regularly by email? Just click on “Follow” in the upper line on each page – and then on “LIKE” next to it. There is also the “SHARE” button underneath each article where you can submit the article to Pinterest, Google+, Twitter, Facebook, Tumblr and StumpleUpon.
Thanks a lot for following:

@111publishing

http://www.111publishing.com

http://www.e-Book-PR.com/

http://www.international-ebooks.com/

http://bit.ly/VmtVAS 111Publishing @ Google+

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Tagged: author-publishing, Book distribution, never go with a vanity publisher, platform in order to build a brand, Publishing Comparison, vanity publishing


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