Sunday, December 13, 2015

#notchilled Ellora's Cave vs Dear Author case settlement and contract warnings to authors


I've been holding back on posting this because I wanted to see if anything else came out of it, like an official settlement, but since it appears the settlement terms are confidential, we likely won't hear everything, so I'm not going to wait for the final to show up.

Dear Author Update on the EC lawsuit

Jane at Dear Author posted an update and a few...curiously and precisely worded "corrections." Corrections that, frankly the way I and others are reading them, are in my opinion coming off more as things to soothe a certain EC principal's ego than anything else. But there has bee NO "proof" provided to counter all the sworn filings. Contrary to what one of EC's ill-informed supporters has posted on Facebook, no, Jane was not "ordered" to make the statements. It was a SETTLEMENT. It was NEGOTIATED. There has been no court order issued on this matter. That means they agreed to the terms.

One thing to remember: Patty Marks, Ellora's Cave's CEO, reported both to the RWA and in an e-mail to the biz loop that they were behind on payments to authors and getting caught up.

She admitted to Publisher's Weekly in an interview that their sales dropped.

They had a MASSIVE staff layoff.

*cough*

Deirdre Saoires Moen has an excellent wrap-up post about this.

Lisa Hendrix put together a Storify timeline of Courtney Milan tweets with excellent points.

And we are still waiting to see what happens with the Ann Jacobs motion. This lawsuit is not "finished" yet.

Now some more brave individuals are coming out and speaking about their experiences with Ellora's Cave, in additions to the ones who spoke out before and during the process.

Kate Sherwood

Kelly Jamieson

Jane Leopold Quinn

The one that will make you sick to your stomach, however, is this one by Nina S. Gooden.

I've heard one of the principals of EC lambasting the authors who spoke in this case, accusing them of lying just to get their rights back.

Helllooo, even PATTY MARKS admitted they were late paying authors. They laid off staff. Authors are reporting that e-mails go unanswered.

I saw a Facebook post where the once principal (she who shall not be named) was crowing about the things she bought for people, someone gushed over being bought a puppy by her.

Bet those authors who are STILL claiming they're owed money (follow the #notchilled tag on Twitter) wish Ellora's Cave would pay their bills.

I'm also seeing that same principal say some pretty nasty things about writers instead of admitting to the facts of what happened. I seriously cannot believe that all those people who filed SWORN affidavits in the case were risking perjury to file about their experiences. I just don't.

Law of averages.

Someone can shrilly scream as loudly as they want that allllllll these authors are lying.

Why would they lie?

Why would a LARGE group of authors and editors all say pretty much the same thing? If this is some sort of "conspiracy," why not go after them? Oh, wait, we have proof in the form of the e-mail and the RWA SWORN affidavit in the lawsuit that Patty Marks admitted they were behind.

Frankly, in my experience and in my opinion, I've NEVER seen large groups of authors speak out so vehemently against a publisher en masse.

EXCEPT...

Noble...Silver...Triskelion...Dorchester...

Hmm, what do those publishers all have in common?

That's right, they imploded. And in the time before the final implosion occurred, you had authors speaking out, reporting problems.

You draw the correlation.

So forgive me and others who are willing to listen to the authors, because in the past we've seen this EXACT SAME PATTERN play out before, and the authors were always proven right. I refuse to participate in victim shaming when literally I've seen this play out before. Multiple times. With other publishers.

Will you have a couple of discontented authors at any given house? Sure. But WHY would a huge group of them start requesting rights reversions or asking people to not buy their books and be reporting that they either haven't received timely payment or they doubt the veracity of the numbers?

I, personally, have NEVER seen that scenario play out at a publisher where overall the authors are...oh...happy.

If you have ONE person screaming that a group of people are lying, and the group of people is producing evidence showing that the ONE person is wrong...who do you tend to believe?

Law of averages.

It's pretty bad when authors are ASKING readers not to buy their books from a certain publisher because they haven't been paid (or feel they've been paid inaccurately) and want their books to revert back to them. It's REALLY bad when it's because of signing a bad threshold sales level contract.

Oh, heh, here's a news flash, Laurann Dohner, a former EC heavy-hitter, is now self-pubbing a new series. Hmm. (Yes, I've already pre-ordered the first book.)

My opinion remains unchanged: I cannot in any way, shape, or form at this time recommend an author submit a book to Ellora's Cave, especially considering I'm seeing reports that they still use sales threshold contracts.

One of THE worst things you can to do yourself as an author in this day and age is sign a contract without a finite, limited lifespan, like 3 years, 5 years, 10 years, whatever. That way, there is NO way a publisher can screw around with extending the contract. They have no control over the calendar, so at least you'll know that you'll get your rights back on X date, even if the publisher goes under and you're unable to secure a formal ROR form from them.

DO NOT sign a contract that has "life of copyright" as one of its terms. PERIOD.

DO NOT SIGN A PUBLISHING CONTRACT THAT USES THRESHOLD SALES LEVELS AND DOES NOT HAVE A REASONABLE FINITE EXPIRATION DATE.

Also, DO NOT sign a contract that doesn't clearly specify WHEN sales periods end and when statements and payment will be rendered. For example, my publisher specifies that payment will be rendered quarterly, and that the quarters end on December 31, March 31, June 30, and September 30, and that payment and statements will be issued no later than the 30th day of the month following the end of quarter.

If there is NOT clear language in the contract specifying those kinds of payment periods, DO NOT SIGN IT.

Do I wish Ellora's Cave could turn their rep around? Absolutely, I do. But unfortunately when I see social media posts from one of the company's principals lambasting authors and people supporting those authors, instead of trying to productively work toward fixing the problems, it leaves me with a bad taste in my mouth. And how many times has that same person tossed the words "misogynist" and "bully" around when describing the people speaking out about what's going on? Lots of times. (We could make a drinking game about it.)

Here's the thing: Doesn't matter if the company is run by a man (Silver) or by a woman (Ellora's Cave) if a publisher is NOT living up to their contracted obligations, then they shouldn't be shocked when people start speaking out about it and warning other people.

I can tell you, the mentality some take of denning up and hoping it blows over and that they won't be affected does NOT work. Never does. The culture of silence only hurts new authors who sign on and get sucked into a bad situation. That. NEVER. WORKS. Didn't work in Silver, didn't work with Noble, not working now. I've seen assorted comments from principals at EC stating to the effect that if people would just shut up, things would be fine.

Uh, no, they won't. It just means no one's calling anyone out on the problems.

I'm sad for the few people I'm seeing who are blindly defending Ellora's Cave and when you ask them points about the lawsuit, they haven't even read the filings, the evidence. They're taking one person's word as law instead of independently doing research.

ALL the filings are available.

https://dl.dropboxusercontent.com/u/11698292/ecda/index.html

Important takeaways from the Ellora's Cave fiasco:


1) EC did NOT "win" the lawsuit. There was a confidential settlement (that is still not finalized with the court as of this writing) and while Dear Author had to post some "corrections" (and if you read their very particular and precise wording, you'll see an interesting pattern) but the original blog post still stands.

2) There are even MORE EC authors coming out now, in light of certain EC principals crowing that they "won" when they didn't, and reporting their experiences (some of them horrendous) with EC. Including a former editor. LISTEN TO THEM.

3) This is a VERY valuable lesson: DO NOT SIGN threshold publishing contracts. PERIOD. Do NOT sign "life of copyright" contracts. Only sign contracts that expire after a clearly set timeframe (3, 5, 10, whatever years). That way, regardless of what the publisher does (or if they go out of business) YOU have a set timeframe of when that contract expires and you can get out of it. Publishers might be able to fudge sales data, but they cannot change the calendar.

4) Make SURE the contracts specifies EXACTLY when royalties and statements will be paid. No loosey-goosey "3 months" or "quarterly." Make SURE the DATES are specified. In my publisher's contracts, they specify that the end of quarter is December 31, March 31, June 30, and September 30, and that statements and payments will be issued by the 30th day of the month following end of quarter.

And, oh, guess what? They've NEVER BEEN LATE paying me. EVER. Evvvveeerrrrr. And they have hundreds of authors.

5) DO NOT SIGN a contract you are not comfortable with. If there's something you want changed, ask for the change. If they refuse? Walk away. Do NOT be so desperate to sign a contract that you regret it later.

6) RESEARCH RESEARCH RESEARCH. If there are ANY hints of trouble at a publisher, don't sign with them because you "really like" one of the people there. This is YOUR book, YOUR intellectual property. Don't let yourself sign it over just because someone's really nice, and, "Oh, that'll NEVER happen to me!" (Yes, it can and will.)

7) I have NEVER seen an "organized conspiracy of authors" gang up against a publisher who wasn't having problems. The ONLY time I've seen authors speak out en masse was in instances like Noble, Silver, Triskelion, and Dorchester, when they started having problems (and eventually folded). If LOTS of authors are speaking out, it means that things have hit critical mass and people are upset. You will always have a few discontented authors at ANY house, but the ONLY time you see LARGE numbers of them all speaking out is when there is a HUGE problem. Law of averages, folks. If one shrill person is screaming that EVERYONE is a liar, and everyone else is calling that shrill person a liar...do the math. Seriously. Just do it.

4 comments:

  1. Here's something to think about in addition to all of the excellent information in Tymber's post: Do you not research backwards and forwards about a prospective childcare provider before you trust your child to that provider's care? Why wouldn't you do the same when it comes to handing over something you invested with your blood, sweat, tears, and weeks and months of your life to produce? After all, you invested roughly 40 weeks of your life just to get your child into the world, right?

    As Granny S always said: If the deal sounds too good to be true, and you decide to go with it, bend over and grab your ankles.

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  2. Another great post and warning to authors. And I would add Red Rose Publishing to the list of problem publishers. I got out of that one as the stuff was hitting the fan but many, many were caught with no letters of reversal. I keep my reversal letters from EC close at hand. I should frame them. Thanks for adding your voice here, Tymber.

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  3. I always have one thought when I hear the comment "They are all telling lies to get their rights back"
    Why? Why would author, a large group at that, suddenly start telling lies all over the internet to get rights back for books, if there wasn't a problem. They chose to sign with EC, many of them more than once, so they must have been somewhat happy there at one point. So what changed and why do so many authors suddenly want rights back?
    That still says to me there is a problem.

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  4. I came on as an editor at Aspen Mountain just as it was imploding. I spent probably a hundred hours working on a ginormous urban fantasy and just as we were ready to go round 2, the owner *poofed*. No pay for editing, and many, many authors counting the days from when the website went down until contracts were breached... Now I'm in that position - hoping for a reversion of rights on my solos. They aren't making *anyone* money at this point. It's an odd circle I've traveled. O.o

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