A CAUTIONARY TALE OF THE IMPORTANCE OF HEEDING RED FLAGS
If you’re a writer, I don’t have to tell you that writing a book is hard work and getting published is even harder. Publishing companies are inundated with submissions, and more and more small presses are popping up. Unfortunately, some of them prey on new and hungry writers. If you’re not careful, your hopes and dreams can turn into despair and nightmares. That's what happens when bad publishers happen to good writers.
DO:
• Look at the publisher’s online presence. Scrutinize their website and social media pages. What sorts of things do they post? They should have a solid social media
presence with both quantity and quality posts. Publishers should have active, engaging websites, Facebook, Twitter, and Goodreads pages. Their websites and posts should be professional, nit free, and up to date.
Note: this step should be taken before you submit your work. It’s much easier psychologically to cross a publisher off your query list than to turn a publishing contract down. Once you get an offer, those glasses turn rosey. • Google, research, and investigate the company and the people associated with it. Do an Internet search on the publisher’s and the company’s name. How long have they been in business? Check to see if they’re listed negatively on Preditors & Editors, Writers Write, Absolute Write, or other online writers’ forums. “But they may have changed their ways since that was posted,” you say. Yeah, and Elvis might still be alive.
• Look for positives as well as negatives. How do their authors feel about the publisher? Verify positive experiences. Contact other authors who have had works published by them. Yes, someone has to be the first author for companies just starting out. But don’t let it be you. If you find negatives, can’t find positives, or can’t find anything about the publisher at all, then run like there's no tomorrow.
• Verify quality for yourself, don’t take someone else’s word for it. Examine books the company has published. At the very least, read an excerpt from Amazon’s “Inside the Book” feature. Are there nits? Bad grammar? Poor formatting? Poorly written work? Make sure the editing and the product is quality.
• Be clear on their royalties policy. You’ve worked hard and deserve to be compensated, so make sure the wording in the contract specifically states how the publisher pays royalties and on what royalties are based. In a perfect world, all authors would be paid royalties based on list price. But unless you have a book in every bookstore in the country, that probably won’t happen. Beware of a clause that waives royalties on a certain number of books. (See the Don'ts section.) Take note of wording. If a contract says you'll be paid 50% of net profits, you're thinking that's really sweet, right? Think again. Most small presses pay royalties on net income or net profit, which are two different things. Net income is the money publishers receive after bookseller discounts have been subtracted, which is a sweeter deal than net profit, which is what the publisher makes after any number of expenses are deducted. Are taxes, editing, printing, shipping and handling, marketing, distributor fees and/or their dry cleaning deducted? If production costs aren't defined, they could feasibly count anything they do as a production cost. Do they require you to buy books? Do they withhold royalties until a certain number of books are sold? Make sure production costs are clearly defined. One more point on royalties: Watch for a clause stating the publisher will freeze royalty payments in the event of a legal dispute. If a publisher does something to cause an author to take legal action, or if they take legal action against the author, the publisher will still get paid, but the author will not.
• Be cautious if there's no advance offered. An advance simply means the company has faith in the author. Rogue publishers might say they don’t pay advances so they can keep overhead low and be able to pay their authors more. Probably bologna. They might say no advance is standard for first-time authors. More bologna. Note: there are many legitimate small presses that don’t pay advances, so no advance isn’t always a red flag. If your royalty percentage is higher than average, it may offset no advance. It's just something to consider.
• Beware of mumbo jumbo. In addition to looking at how royalties are paid, take notice of verbose or overly complicated wording in a contract. Smoke and mirrors, people. Read the terminology carefully. Look at this clause:
Work Expenses means all reasonable amounts actually incurred by [Publisher] in connection with the exercise of the Granted Rights that are identifiably attributable to the Work as a standalone work, to a maximum amount equal to 25% of Gross Work Revenues. By way of example only, Work Expenses include the costs of creating versions and copies of the Work (including, without limitation, manufacturing costs related to the Work and the costs of manufacturing ancillary products), shipping costs, advertising expenses related solely to the Work, and charitable contributions derived from sales of the Work, but do not include expenses related to the general overhead costs of Publisher.
Say what? In other words, this publisher will deduct everything before paying your royalties.
Or watch for this one:
We calculate net property by taking the Sale Price minus retail discount minus production costs aggregated across the minimum print run: SP-RD-(PC/MPR)=NP. This is split 50/50 with the author so the Author’s Royalties are 50% of net profits.
This is pretty much mumbo jumbo that most authors will gloss over. But again, it says the publisher has the right to deduct any cost he wants from royalties he receives before paying you. Fifty/fifty is a misnomer. Walk away!
• Watch out for bait and switch. Verify that the promises the publisher has made on the website, in emails, or in person are also in the contract. Sadly, people break promises. They even break clauses in contracts. But the law is on your side if all expectations are in writing. For example, the publisher may talk about obtaining reviews for the author, but is it in the contract? They may say they’ll do the editing for free, but is it in the contract? Ask them to be specific. And who exactly are the editors and what are their credentials? Verify the information.
• Beware of smoke and mirror marketing claims. Enticers are proficient at wording things that can be interpreted differently by different people. An example might be:
“The Author hereby grants the Publisher the rights to publish the characters found within the Work and the setting established therein for the purposes of marketing and promotions.”
See what they did there? They mentioned marketing and promotions, so you think that’s something the publisher will do. Read it again. All that clause says is that you grant them the right to use the characters and setting in marketing—-there is no promise of a marketing effort. What is their marketing plan? Is it only through social media and book signings? If the publisher offers no marketing or nothing more than marketing that you can do yourself, or if the wording is ambiguous, or if they require you to pay for services, then run. Because you might as well be doing it yourself and reaping all the profits.• Beware of publishers asking for your submission. If a publisher contacts you or advertises for submissions . . . run. Legitimate publishing companies have so many submissions they don’t have to look for authors. Don’t buy the line that they want to help first-time authors, or your work is so fantastic they just have to publish it. It’s just that—-a line.
• Verify their employees’ experience and that they even exist. Anyone can claim anything on a website. They have five editors with a combined experience of twenty-five years? Who are they? What exactly is their experience? Where did they get it? The school newspaper? They're writers themselves? What have they written? A grocery list? (And notice the word "writers" instead of "authors.") Who are these employees? Are they even real people? Verify. It's entirely possible their editor, Arlo Cooper, is the combined names of their dogs, Arlo and Cooper. Don’t take their word for it. Google. Research. Verify.
• Ask who will print the book. Some companies use CreateSpace. Don’t give away royalties for something you can do yourself.
• Verify the publisher’s address is an actual address. It's a big red flag when a publisher lists their address as a post office box. If there’s an address listed, Google the address and see what comes up. Google map it and go to the street view. Is the address a reputable building or a mail store in a strip mall?
Look at this bogus address:
Rogue Publishing
123 Scumbucket Lane, Suite 666,
Scammers RS, 12345.
What’s wrong with that (besides the fake names)? Looks legit, right? Wrong. “Suite” can also mean “box.” Who knew? Do they list a phone number? Google it. Call it and see how it’s answered. If it’s not an actual business address or company phone line, then run like heck. Sure, some brand new publishers may start with a home office. But why didn't they list that address? They're probably trying to appear like more than they are, or they're hiding something.
• Make sure there are no hidden costs. Does the contract clearly state the editing and formatting of the book are services provided by the publisher free of charge? No legitimate publisher charges for editing and formatting.
• Ask about the distribution plan. Will the publisher get your book in brick and mortar stores? Will it be available on the distribution lists that go out to all booksellers and librarians? Will it be available for order outside of Amazon.com and Barnes&Noble.com? It’s hard to sell books if your book isn’t distributed properly. Make sure the distribution plan is in writing.
• Make sure the contract states in what forms the book will be printed. If the clause says “May be” or “At the publisher’s discretion,” request the wording be unequivocal. They may promise an eBook or a hardback, but unless it’s in writing, they don’t have to honor their promises. Don't sign a contract in which the wording is vague, or two clauses contradict themselves.
• Ask for a galley proof. Is there a clause in the contract stating the author will receive a galley proof at the publisher’s expense? Don't assume. As the author of the book, you have every right to and should see a galley, and it should be part of the production cost. (When you upload a book to Amazon, you have the option of getting a free .mobi copy so you can proofread. Your publisher should forward that to you. Hard copy proofs are also very low cost. A legitimate publisher can afford to send you a galley proof or advance copy. It's your book and your name on the front. A galley or .mobi should be offered—get it in writing.
• Keep every email or letter you receive from your publisher or liaison. You never know what you may need in the future to prove a point of contention. Keep everything.
• Negotiate the contract. You should see a huge red flag waving if the publisher refuses to negotiate. If you’re uncomfortable about something, ask, and don’t buy the line, “it’s standard in publishing contracts.” Contracts are meant to be negotiated so they’re fair for both parties. If you ask questions and get mumbo jumbo answers, or are asked to sign the contract as-is, instead of signing, you should be running.
• Hire a lawyer or agent to look at the contract before you sign. Yes, lawyers are expensive. But which would you rather do: spend money up front to make sure the contract is fair, or spend money later to get you out of the contract you didn’t fully understand? Be clear on what you're signing, because rogue publishers count on duping newbie authors with double talk and mumbo jumbo.
DON’T:
• Do not, under any circumstances, sign a contract with a clause giving the publisher first rights of refusal on subsequent works. If this becomes a major sticking point, then a) run like a house afire, b) ask for a two-year opt out clause, where you can at least get free and clear after two years. Legitimate publishers will work to retain your loyalty. Dubious publishers will force you to publish with them or not at all. If the publisher does his job to your satisfaction, then by all means sign a new contract with them. But if their work was unsatisfactory, or your relationship turns sour, you need to be able to walk away. If you’ve granted a publisher first rights of refusal, it may be years before you can publish another book because you’re sure as heck not going to give some #@&*^ more of your work to screw up—-right? Run, don’t walk, away from first rights of refusal clauses.
• Don’t give the publisher exclusive rights to publish works based upon characters and settings of the work for the duration of the contract. Never, never, never agree to that. If things go horribly wrong, you’ve lost control of your work. If you'd intended on writing a sequel or a series, an unscrupulous and/or vindictive person could hold your work hostage because of one stinking clause. If you sign off on this clause and later find that you don't want them to publish subsequent works, your choice is to wait years until the contract expires and you can publish again, or spend thousands of dollars suing to regain your freedom. Run from the term "exclusive."
• Don’t accept free books in exchange for royalties. You're in red flag city if a clause in the contract states you will not be paid on the first 100, 200, or any mumbo jumbo number of retail copies sold of any edition. An author deserves to be paid for every book sold. If a publisher wants to give you free books in exchange for royalties on a certain amount of books, just say no. Publishers should give authors free books for promotional purposes—-period. Publishers pay authors, not the other way around. Run like crazy away from a clause that cheats you out of hard-earned royalties.
Note: If a contract has the double whammy of no royalties on the first X-number of books, and they pay on net profit, from which they deduct production costs, run to the law, because you're about to be robbed.
• Don’t agree to a book purchase requirement, even at a discount. Just don't. There's no reason you should be required to purchase a certain number of books. None. That's a huge red flag.
• Don’t sign multiple contracts until you have one book under your belt. Even if the publisher produces a quality product, what if your relationship goes south? Protect yourself. Note: Publishers do take a risk on first-time authors, and the more books the author writes, the better the first book will sell, so ideally it’s only fair to reward a publisher’s faith in you by publishing multiple books with them. If you’ve done your homework, and the publisher is solid with no other red flags, signing a two-book contract is a show of good faith in each other. Just don’t sign away an entire series. Stuff happens. And it wouldn't hurt to have an opt-out clause just in case.
After you sign on the dotted line . . .
Verify, verify, verify:
• Verify promises. If the contract states the publisher will have the work copyrighted within a certain amount of time, verify that he has done so and that it is in your name. Just because the contract says he will, doesn't mean it will happen. Protect yourself.
• Verify formatting quality. This is where a galley proof or advanced reader copy is important. Formatting should be included in any service a publisher offers. But just offering it isn't enough. Readers notice sloppy formatting. If the eBook formatting isn’t done properly, insist it be fixed and don’t take anyone’s word for it. Verify. If it’s not fixed when it’s published and after a reasonable amount of time, Amazon might pull it for review, and you will lose sales. A badly formatted eBook will affect your reviews, ratings, and reputation.
• Verify sales. Would you believe there are some rogue publishers who try to falsify sales reports? Shocking, but true. Since Amazon doesn't allow authors to see Kindle sales (can someone please explain to me that decision?), the author must trust the publisher's reports. But watch your online sales closely. If you feel you've been given an incorrect report, verify.
• Verify facts. Take screen shots if you believe your publisher has violated the contract and there is online evidence. You may need it at some point in the future. Be a boy scout. Be prepared. If your book is on Amazon best seller lists, even in subcategories, your book is making money, and your royalties should reflect that. "It is better to look ahead and prepare than to look back and regret.” ~ Jackie Joyner-Kersee
Some red flags I personally found but ignored before signing the contract:
I'm a trusting, honest person. So even though people told me the contract smelled fishy, I brushed the concerns aside. I encountered a lot of the above points, but here are some specific red flags I found out too late were practically flashing at me in neon lights.
• I googled the mailing address. It showed a strip mall, so I assumed since the publisher was new, the “office” was in the strip mall. I later discovered had I looked further, I would have seen the mailing address was merely a box in a mail store.
• The contract said royalties would be paid after 250 books were sold. This is a very (at best) rooky move and (at worst) an unscrupulous tactic. If the publisher gets paid, so should the author. If he's deducting expenses before paying you anything, he's nothing more than a vanity press.
- The contract said the “publisher” would give the author 25 free books to offset the lack of royalties. That sounds good. But it isn’t. On paper, you could sell your book for $15.99 each, which would be $399.75 pure profit. But in reality, and what I learned, is that you are not going to sell those books to your family and friends. You also need books to give to reviewers, or small bookstores, or for marketing. Those should be provided free of charge by the publisher and not be used instead of royalties. The promise of pure profit from 25 books was an empty one.
Red flags once the contract was signed:
• The contract said the publisher would obtain a copyright in my name. I later found out he registered it in his name.
• The “publisher” often mixed up my book with another author’s. He posted on Facebook that he was formatting my book when he was actually formatting another author’s book. He even mixed up our titles when he put my book on Amazon. To this day, even though he is no longer listed as the publisher of my first book, it is technically listed under another author’s title. Amazon says there’s nothing they can do if I want to keep my 600+ reviews of the book.
• During the editing process, it became clear that the “publisher” and his wife were the editors. Neither had solid editing credentials, which I found out once the book was published.
• I was not allowed a galley proof. He said it was too expensive. That’s not true, and I don’t know why he wouldn’t send me a galley proof. They are under $5 from Amazon. When I received my 25 “free” copies, and I started looking through it, I found multiple—multiple errors in not only grammar and punctuation, but also in the story. He had mixed up one character’s name completely. In the case of a fellow author under this “publisher” he misspelled the title of the book. Instead of “Angels” he had “Angles.” Big difference! And the error was not discovered until her book launch party which turned into a major disaster. It could have been avoided had she been allowed a galley copy.
• His email responses were erratic. He always had a good excuse, His mother was sick. His neighbor needed his help. His computer was down . . . The excuses got more ridiculous each time he disappeared or was out of contact for days even a week or more.
• My book began hitting Amazon bestseller (top 100, even down to top 10) in sub categories: women sleuths, animals, cozy mystery. I was climbing the Amazon top 100 authors list and was on it for months. Yet he still wasn’t paying me royalties. He was sending me “reports” but there was nothing official about them. They were a spread sheet that he created. (And I use “created” in every sense of the word.) I contacted a lawyer. He quickly sent me a check for $1,000. My book and author status kept climbing.
• I waited way too long, but I eventually evoked a clause in the contract that said I could audit the sales of my book and the publisher’s books. We set a date and time for me to travel to Atlanta for the audit. The day before our arranged time, he canceled the meeting with a bogus excuse. My reviews exceeded the number of books he said I had sold, my ratings status continued to be high. I knew he was selling more books than he was reporting to me. When he canceled the audit, I was convinced.
• As my lawyer attempted to broker a deal to end the contract, the “publisher” threatened legal action against me because I had published online a few of his unscrupulous actions. Eventually, with my book on the top 10 cozy mystery list, I had to contact Amazon and reported him as a fraudulent publisher. I revoked his right to publish my book, and they removed the book from their site. It took another year for me to have the book edited again and republish it. And that lawyer wasn't cheap. Had I decided to go further and sue the man for unpaid royalties, the legal fees were estimated be be around $60,000.
• I eventually discovered, thanks to some excellent online sleuthing from another author with this “publisher” that the name we knew him by was not his name given at birth. Since my dealings with him, he has changed his name again, at least once. I’m not sure why a judge would allow a person to legally change his name every few years, but it’s pretty evident why he does so. I quit tracking him years ago because he literally made me sick, but I am sure wherever he is, or whatever he is doing is unscrupulous.
Please use this cautionary tale to vet any prospective publishers and hold them to account for sales figures. I wish I had.
Final thoughts
I'm certainly not disparaging all small presses or pointing fingers at any specific publishing companies (well, maybe one). I believe there are a number of great Indie publishers out there doing really fine work. But I've heard so many stories about publishing nightmares and experience my own, I think it's worth writing about to hopefully keep other authors from falling victim to a rogue publisher. Have you had a nightmarish publishing experience? Leave an anonymous comment so others can learn from it.
If you're comfortable with some of the red flags above, that's your decision. It's up to each individual author to decide what he/she can live with in a contract. But I believe the more informed you are, the better able you are to make educated decisions. It’s sad that sometimes lessons are learned the hard way. The above points are not melodramatic or overly cautious; and what's worse is, I'm sure it's not comprehensive. Bad things happen, even to nice people and good writers. Don’t disregard red flags or fall for false promises. Be aware. Protect yourself. Investigate. Verify. If you see the warning signs, prepare to run, because chances are, if you don’t run away, you’ll be slogging through the mud with a devil in a cheap suit.
