Amazon.com Widgets

all that's new(s) from A to Z

All That's New(s) from A to Z presents news from The Zack Company, Inc., a full-service literary agency representing authors of commercial fiction and nonfiction. Read our blog to learn more about our clients and their titles. If you have a question about the publishing business you'd like answered here, please use the FAQ form on our site.

  • Home
    Home This is where you can find all the blog posts throughout the site.
  • Categories
    Categories Displays a list of categories from this blog.
  • Tags
    Tags Displays a list of tags that have been used in the blog.
  • Archives
    Archives Contains a list of blog posts that were created previously.

The Business of Publishing

Blogs related to the business of publishing

In July’s IBPA Independent, Authors Guild executive director Mary Rasenberger wrote about the potential future of a flat royalty rate for authors. Unfortunately, her article included inaccuracies that almost certainly will mislead most authors.

In her article, Rasenberger makes one key statement that is so grossly inaccurate that I feel it calls into question her knowledge of everyday industry practices of the publishing business.

The standard e-book royalty rate for many publisher is 25% of net profits; the publisher shares just a quarter of his profits with publishers.

As a literary agent, I have negotiated publishing contracts with every major house. No publisher shares a percentage of net profits. According to Merriam-Webster, a “profit” is “the excess of the selling price of goods over their cost.” It is not the difference between what publishers are paid and what they pay authors.

What publishers’ contracts actually say is that the publisher will pay the author “25% of the net amount received.” This language is nearly universal in publishers’ contracts. Contracts also nearly always define the term “net amount received.” For example:

All monies actually received by the Publisher from sales by the Publisher (directly or through agents or distributors) of Electronic Version(s), less any applicable taxes, handling or processing fees paid by the Publisher, customer refunds resulting from bona fide errors in the transmission of the Work and commissions paid or payable to third parties.

So, how does this work in practice? If a publisher has an Agency Model agreement with Amazon, it generally will receive 70% of the amount paid by the consumer, less a delivery fee. That delivery fee may be only seven cents, but they add up. On a $9.99 eBook, the publisher may receive $6.93. It will then account 25% of that net amount received to the author, or $1.73. The $6.93 is not the publisher’s profit on the eBook. It may be difficult to calculate the profit on an individual eBook sale because the publisher’s expenses are amortized across the costs of publishing the book in multiple formats. The 25% the author received is a royalty expense. The costs of paying editors, copy editors, typesetters, proofreaders, cover artists, cover designers, interior designers, publicity, eBook conversion expenses, distribution fees, co-op payments, and other expenses all come out of the cumulative amounts received before you can figure out profit. One could easily argue that authors benefit from getting a share of the amount received per book, because so many books are not profitable.

If a publisher has a wholesale-model relationship with Amazon, Amazon is likely paying that publisher 45% of the publisher’s suggested retail price on the eBook, i.e., Amazon is receiving a 55% discount. So, if the publisher has an SRP of $9.99, Amazon is likely paying it $4.50 for every eBook it sells. Amazon may also be discounting the book well below the publisher’s SRP. Of that $4.50, the author would receive 25% or $1.12, though if the contract includes a deep-discount clause that can be applied to eBooks, the author could be receiving just 10% of net, or 45 cents. Regardless, in either scenario, the author receives more money if the publisher has an Agency Model with Amazon.

Is this making a mountain out of a molehill? No, because the difference between a percentage of profits and a percentage of net is as big a deal as a percentage of retail price versus a percentage of net. There is no doubting that deep-discount clauses are prone to abuse. The fix for that is for agents to argue that they cannot apply to “normal wholesale and retail channels, including but not limited to sellers such as Amazon.com, Barnes & Noble, Costco, Walmart, Target, and other retailers customarily engaged in the sale of books.” Some publishers will agree to this and some will not. Like anything else is a publishing contract, the publisher’s willingness to negotiate depends on how badly it wants the book or author.

Anyone who has ever heard the term “Hollywood accounting” should be very afraid of the idea of publishers paying authors based on profits. As for the argument of whether or not authors would be better receiving a percentage of the SRP (as they do on hardcovers and paperbacks) versus a percentage of net on eBooks, that’s highly dependent on the discount. If publishers can maintain an Agency Model with sellers, then the net is actually better and, in fact, would be better across the board. But when discounts get higher and net gets lower, the royalty based on SRP is better.

Therefore, the argument could be made that a flat royalty might work and might make sense, but only if the discounts granted are low enough to ensure authors don’t lose money on the deal. And there are too many moving parts in that. Publishers would have to draw lines in the sand regarding their discounts and booksellers would have to stop demanding better discounts. However, the history of publishing shows the opposite trends. So an across-the-board flat royalty not only would not benefit authors and provide higher income, it would no doubt hurt them.

Do I think publishers could pay more in eBook royalties? Yes, but I am less concerned about the rate being based on net or retail than I am about the lack of escalators. As the number of copies of a book sold increases, the costs of publishing it are amortized over more and more copies. Therefore, the profit per copy increases. Yet, eBook royalties rarely have escalators. Think about that. The eBook edition is the one likely to be available the longest and, over time, probably sell the most copies. It is, by nature of the format, less expensive on a per-copy basis than printed copies. Yet, the author’s royalty rate does not increase based on the number of copies sold. This is the battle the Authors Guild and other writers’ organizations should be fighting: the fight to get escalators on eBook sales.

When you factor in all of the above, flat royalties are not worth considering. They may simplify the accounting, but they work against the very goal the Authors Guild would seem to be seeking in its argument for authors to receive a larger percentage of “net profits.”

Tagged in: Authors Guild eBooks
Hits: 829
0

While self-publishing experienced huge growth driven by authors who could not get publishers to pay attention to them and agree to publish their books, there are now very good authors—even authors who have deals with major publishers—getting into the self-publishing game. Why? Two words: “company policy.” And, no, I don’t mean banning casual Fridays. If only. I mean insisting on certain rights or royalty rates and refusing to negotiate on those rights or rates.

I have repeatedly been informed by publishers that they must have audio rights and that there will be no offer without the inclusion of audio rights. I have also been informed that they must have World English rights or even World rights, or they will not make an offer. This is not about negotiating the best package of rights given the advance; these are firm take-it-or-leave-it positions. Yet, in most cases, the editors have not even yet read the book!

Whenever I make a submission, I specify the rights I’m offering. And what I offer US publishers is the United States, Canada, and the non-exclusive Open market, excluding Audio, Film, TV, Graphic Novel, Comic Book, and other traditionally retained rights.

All too often, the editors respond by saying, “We appreciate your position, but it’s company policy.” Really? Company policy to withhold an offer or break off a negotiation over rights the house may or may not exercise? Company policy to alienate the author you want to do business with by drawing a line in the sand not after a series of offers and counter-offers, but at the very start? Seems like a terrible way to start a relationship.

At the end of the negotiation, an author should feel he got a good deal, that she trusts her publisher, that he or she looks forward to being in business with the publisher. And that they were treated respectfully during the negotiation.

Authors should feel excited about getting a publishing deal. Not as though they just agreed to an arranged marriage in which the terms were dictated to them. The vast number of authors who get publishing contracts do not get them after an auction or bidding war. Most are patiently waiting for editors to get to their manuscripts and make an offer. That doesn’t mean the offer won’t be for good money from a good publisher. But when the offer comes and it ignores that certain rights were on the table or it takes the position that getting World rights including Audio is company policy and those things are not negotiable, I think most authors end up feeling boxed in and bullied into giving up rights they would otherwise have hoped to license for additional advances and income elsewhere. Perhaps we should just be grateful that getting movie rights has not become “company policy” anywhere . . . yet.

And I understand authors can always walk away, but we both know that it’s not a realistic move. When Hachette had a months’-long dispute with Amazon, it could have walked away. It did not, because that would not have been a realistic business decision.

Fundamentally, these company policies are about making money. Publishers want every chance to make money. As do authors. But making these policies take-it-or-leave-it positions shows a lack of respect for authors and for the traditions of publishing. Sure, publishing is a long way from its days of gentlemen publishers who made deals over three-martini lunches, but publishers still buy the lunches for the agents and authors, if only to recognize the fundamental reality that publishing survives because good authors (and their agents) bring good books to publishers. It may be a buyer’s market (it always has been), but we must still recognize that publishers need authors.

On the other hand, authors do not need publishers. Not anymore. Amazon, CreateSpace, Ingram Lightning Source, Smashwords, Nook, and Kobo will happily take any author’s book and make it available in eBook or print format. NetGalley will help make it available for review. GoodReads will help you promote it with a giveaway. Sure, getting it into traditional brick-and-mortar bookstores may be harder, but it’s by no means impossible.

Publishers need authors. Perhaps that should be the first and most important “company policy.”

Hits: 2286
0

Posted by on in The Business of Publishing

Today is Veterans Day and I am extremely pleased to announce the publication of The Brave Ones, by Michael J. MacLeod. You may have seen the press release when I signed Mike as a client, back in 2013. Yep, this book has been years in the making.

The Army's 2012 Military Journalist of the Year and one of only nineteen photojournalists working within the Department of Defense to have a permanent profile on the DOD website, MacLeod published thirty-two photo essays and dozens of articles on Department of Defense and Army websites, many of which were republished by national news organizations including The Atlantic, The Huffington Post, Mother Jones, The Long War Journal, and Time.com. The latter asked for and published an article by MacLeod about what it is like to be a combat photographer. One of MacLeod's images from that deployment has received the most hits of any image ever published on the DOD website.

MacLeod enlisted in the Army in 2008 at the age of 41, the maximum age at which one could enlist. He attended basic training at Fort Knox, Kentucky. From 2009-2010, his unit of paratroopers deployed to Al Anbar Province, Iraq, as the first fully-developed advise-and-assist brigade. Two years later, MacLeod accompanied the same paratroopers to Afghanistan as they conducted the last major clearing operation of the war.
 
But this is not your usual “war story" and getting the story told is a story in and of itself.
 
When I started sending this out to publishers, the book didn’t get the reaction I’d hoped for from editors. “The market is too crowded,” “I already have an Iraq memoir,” “We pubbed an Afghanistan memoir and it didn’t perform,” and other reasons to pass on it where offered. No matter that this book isn’t “just” about Iraq or just about Afghanistan. No matter that this was not "just" a combat memoir or that it was not by a soldier who enlisted at 18 or became an officer at 22. No matter that this is actually a combination of memoir and embedded journalism and analysis of the modern-day military. They weren’t biting.
 
Then I got interest from an editor at Amazon Publishing. I was surprised too. I considered Amazon a long shot, but why not try? The editor liked the book. Her boss liked the book. I felt an offer was imminent.
 
Then, suddenly, the boss left the company. I just hoped the editor could champion the book to the new boss, whomever that might be and I'd still get an offer.
 
Then the editor left.
 
To say this was devastating would be an understatement. Here I thought we were on the verge of an offer and then the two parties that were involved on the publisher's side left.
 
I began working the phones, trying to keep the momentum going. A new boss came in, but she came from a publisher best known for romances. Would she even be interested in Mike’s book?
 
Another contact got involved. Honestly, this was so long ago, the order of events is unclear in my memory, but I do know that we got the offer, we negotiated the contract (no small feat in and of itself) and finally had a deal. Phew!
 
You’d think that would be it until we got to pub day, right? No. I will spare you the details, but the ups and downs of getting to the publication of this book were many and I could probably write a decent one-hour TV drama, multi-episode arc about them (think The Good Wife, but in publishing). But that is not the point today. The point today is that the road to publication is a long one, often a difficult one, and, in the end, no one knows if anyone will actually buy the book, no matter how worthy it is.
 
So, if this story has intrigued you or inspired you, go ahead and buy the book. It’s an incredible look at our modern-day military and worthy reading for anyone who has friends or family in the service. At the finish, you will have an even greater understanding and respect for those who serve our country, which I think makes this an appropriate book to tell you about on Veterans Day.
 
Thanks for reading.

Z.

Tagged in: Amazon.com
Hits: 5268
0

A few weeks ago, I spoke at San Diego State University to a group of students, most of whom were enrolled in a class on publishing and editing.  I speak to this class a couple of times a year, though I rarely speak on the same subject.  I have spent the class discussing the Department of Justice’s persecution of publishers and Apple.  I have discussed “a day in the life of a literary agent.”  I’ve talked about how I got into publishing and how the business works.  Most of all, I emphasize that publishing is a business and that working in publishing is not the idealized interaction of editors and writers in the pursuit of great literature that they may think it is.  As I’ve often said, “If you leave this lecture thinking you should not go into publishing, then I’ve done my job here.”

Which brings me to this post, my first in a long time.  I write about once a year that agents are people too, emphasizing that our response times may be slow and our acceptance rates may be low, not because we’re not working hard, but because we are people too, with kids and parents, with illnesses and cars that need servicing, with teacher meetings and a desire to volunteer.  All of which means we can’t spend eighteen hours a day just reading and working.  No one can.  No one should.

A number of months ago, a client of mine met a guy at a conference.  The guy had a small press and a small TV production company.  He expressed interest in my client’s work.  I was wary, but had a phone call, which didn’t really make me less wary, but I asked to see their contract as a part of starting a conversation.

It took probably a month or more for that contract to show up.  My client was interested.  He didn’t think there was a lot to lose in pursuing a deal.  When I did get a contract, I didn’t get a chance to look at it right away.  I had other matters that were pressing and that I felt took priority.  It’s a reality of any business that priority issues get taken care of before those that seem unlikely to generate income.  And in the literary agency business, that contract for $50,000 is likely to be handled before the contract for $5,000 and the contract for $5,000 is likely to get handled before the contract for $500.  Certainly if the deal is for no money, it’s at the bottom of the list of things to handle, pretty much after "order a new toner cartridge."  You would probably be shocked how many no-money offers are received and how often authors are interested in pursuing those.  But agents work on commission, so doing a deal with no money upfront means I'm working for free.  I cannot afford to work for free.

After a follow-up inquiry from the author as to where I was with the contract, I seriously considered parting ways with him.  He’s a great guy and I’ve done some business for him, but nothing like what I’d hoped when I took him on as a client.  But, more importantly, if he couldn't be patient while I found the time to work on his "no money" contract, it was time to part ways.

And then he sent me a letter terminating representation.  Apparently, we were both feeling similarly.  I sent him an email acknowledging it and wishing him luck.

I’ve talked about parting ways with clients before.  It’s rarely a happy occasion.  But I will say parting with this client was a bit of a watershed moment.  Agents are a bit like professional gamblers.  We put our time, money, and effort into trying to find a winner who will make us money.  That’s got to be one reason why we always talk about the writers in our stable, right?  But this writer was not making me money and I had stuck with him for years, hoping eventually he would make me money.

And I know every writer out there would say he was sticking with me for years, hoping I would make him money, but the business is not one where an agent can magically make a publisher buy a book or grow an author’s career. We help authors get deals and get better deals than they may have by using our relationships and knowledge of the business, but if you are not writing something that editors think is “the next big thing,” don’t be surprised if it doesn’t sell.  If your agent tells you that it won’t work in the marketplace, trust your agent and drop the project or find a new agent who thinks it will work. And if you never sell it, be sure to drop your old agent a note telling him how right he or she was.

But I’ve digressed.  I was writing about a watershed moment.  I realized that I had far too many clients on my list that simply weren’t producing actual income for me.  Most of them simply hadn’t written a new book in years after selling one.  For some, their book never sold and they weren’t revising or producing a new one.  Their reasons were many, but mostly it boils down to they are human too and had kids to raise, new jobs to find, spouses who needed their help in life, etc.  And that’s all very reasonable.  But it’s not good business to keep them as clients if they are preventing me from taking on new clients and investing in new projects.  And they were.

How? you might ask.  After all, they aren’t really taking up your time if they aren’t doing anything, right?  Well, it’s more of a mental thing.  You feel you should be revisiting those clients' works (no matter the forty or more submissions already made) or checking in to see what they are doing now (no matter they didn’t respond to the last email or letter you sent to them asking that), versus just looking for new clients.  In a way, it’s hard to admit you were wrong about a book or an author, but if the book doesn’t sell or the author stops writing, then you probably were wrong to take on that book or client.  But sometimes you just have to admit that you have been throwing good money after bad in terms of your time and effort and move on.

There is nothing wrong with any of the fourteen or so authors with whom I parted ways.  They are good people and many are good writers.  Or could be, with more editorial work.  However, just as editors rarely choose to take on a book that needs a lot of editorial help these days, I must stop taking on diamonds in the rough.  There are too many books that don’t need multiple rewrites that I could be taking on and I need to focus on those.

So, I have cleared the decks a bit and I have taken on a couple of new clients and I am reading a revised novel that I still very much like, even though I have represented it for a decade or so and it has not sold in the US (but it has in foreign countries).  So I guess I’m still gambl— investing there.  Change is hard.

I have finished all but one of the sample chapters I had to read.  But I still have a few manuscripts to get through, and I do want to get on the many queries waiting for my attention.  So keep your eyes on your inbox if you are waiting to hear from me.

Z.

Hits: 1678
0

Posted by on in The Business of Publishing

I don’t usually write about the clients who leave me.  Frankly, it doesn’t happen a lot and when it does it’s not exactly a proud moment, so why would I?

But I discovered something today about a client who left me that I think offers an educational opportunity about the business, so I’m going to share it.

I had a client I met when I was an editor.  I was involved with the acquisition of one of his books by the publisher for which I worked.  I got the book in, though, due to in-house politics it actually ended up being acquired and edited by another editor.

When I became an agent, I ended up taking on this author as a client.  I honestly don’t recall how he came to me (did he write me? did I call him?).  Doesn’t matter.

I ended up selling a couple of books by him to a publisher.  He was not, in the end, very happy with the publisher.  In fact, he described the president and publisher of the house in some very negative terms and felt that the house did a very poor job selling his book.  He vowed never to publish with that publisher again.

Then there was a new novel and I had some editorial issues with it.  I thought it needed to be rewritten.  He ended up shelving it instead and he kind of went radio silent on me.  I reached out now and then.  There was an offer to reprint his reverted backlist, but he turned it down.  I reached out another time and got, essentially, a “don’t call me, I’ll call you” response.  He was busy with his day job, had moved once or twice, and I wondered if there were other personal issues at play.  I regretfully decided I should give him his space and focus on more active clients.

Then I started up a small press to help my clients get their reverted titles back into print.  I was very excited about it, as were a number of my clients.  I’ve published twenty-six books by my clients now, mostly reissues, but a few originals.  Some of the titles have moved thousands of copies, some have not.  It’s not unlike the rest of the publishing business.

When I reached back out to this client about reissuing his books for him, I got put off again.  And then I got a termination letter.  It was a perfectly pleasant termination letter, a bit of “it’s not you, it’s me” in tone and expressing a desire for a “fresh start.”  But it also mentioned that he had a completely new novel.  Done.  Ready to go.  And rather than letting me handle it, he was moving on.

This was, you can imagine, upsetting.  So we exchanged emails.  The tone got a bit less pleasant.  Clearly there were some pent-up frustrations about his career.  Obviously, I didn’t talk him out of parting ways with me.

Fine.  It happens.  I haven’t given it much thought since, though I will always be rather sad about this “break-up.”

Today, my intern, not realizing we no longer repped this author and while looking up some information on Amazon, discovered his new book.  It’s coming out early next year.  It has some great quotes from best-selling authors and apparently some Amazon Vine readers got early copies and so there are actual reader reviews already.  Seems to be a solid four-star book.  Good for him.

But here’s where the “learning opportunity” comes in.  This author was so frustrated by his old publisher that he vowed never to be published by that publisher again.  He thought the publisher did a terrible job with his last two books.

Yet his new publisher is simply a different division of the exact same publishing house.

And not even the main division, the one that has regularly picked up former New York Times best-selling authors and pumped some life back into their careers.  No.  It is with the “mystery” imprint.

Consider that there aren’t many publishers out there and each has multiple divisions and multiple imprints.  Ace is not Del Rey, though both are now imprints of Penguin Random House.  Thomas Dunne Books is not Tor Books, but both are part of Macmillan.  William Morrow is not Harlequin, but both are part of HarperCollins.  Putnam is not the same as the Penguin Press, but both are part of Penguin Random House.  Pocket is not Scribner, but both are part of Simon & Schuster.  I could, obviously, do this all day.

But all of those imprints and divisions that are not the same but are part of the same corporate parent?  They pretty much all share the same sales force.  That’s right.  You have one sales force for the massive parent company, selling the books by all of the divisions and imprints, just as you have one order department and one warehouse.  In fact, the first things to be consolidated when two publishers merge are the sales and order departments and the warehouses.  It is a minor miracle when a small publisher is bought by a large one and it gets to keep its sales reps.  Though I assure you that’s likely not a long-term situation.  Over time there will be attrition, retirement offers, and assimilation, until there’s just one sales force.

So has this author who was so unhappy with his prior publisher actually achieved anything in terms of his career here?  Well, he has a new editor, publisher (the person, not the house), new publicity department, etc.  But his book will still be sold by the same sales force that let him down the last time.  In fact, there’s a real chance that some of those reps and the accounts they service will remember his last book and it may not even register on them that it is coming from a different imprint.  And they may simply treat it as though it is coming out of the same house.  Because when it comes to the larger publishing complex, it is.

I would never have shopped this guy to other imprints of that same parent company until I had exhausted every other opportunity with other publishers.  He was so unhappy there.  And can he have a better experience with a different division or imprint at the same parent company?  Sure.  But can he go from mid-list and not successful to best-seller?  That would greatly—truly—surprise me.  His book is going to be sold into accounts by the very same sales force that previously sold his books.  At the top is the same guy who was running the show when he was published years ago by another division.  This is, in the end, no “fresh start,” but just the same old-same old.

And that frustrates me.

As an agent, I want my clients to succeed.  And if a client left me and became a raging best-seller, it might really undercut my confidence.  But that has never happened to me.  Dumb luck?  Maybe.  Or maybe it’s just a reflection of what I’ve always said about the agent-author relationship.

In 2005, I wrote an entry for Jeff Herman’s Guide to Publishers, Editors & Literary Agents, in which I opened my description of the “client from hell” as authors who “have probably published two or three, or maybe three or four, books.  These are likely fiction but might be nonfiction.  They have ‘fired’ their previous agent because their career is going nowhere and that is, of course, the agent’s fault.  They are looking for an agent who can ‘make things happen.’”

I would love to meet that agent.  I want to meet an agent who can overcome a bad sales track record and solid but not exceptional reviews for an author’s works and make something fantastic happen for that author’s career.  Because I don’t think any agent can do that.  Only the author can, by writing so exceptional a new book that so blows away an editor and publisher that they will go to extreme lengths to make the book succeed and to help it overcome what has happened for this author in the past.

I still remember sitting at lunch with an editor who handed me an ARC (advanced reader’s copy) of a book he said was going to be a best-seller.  He told me that so many people had read it in-house and loved it that they had just printed thousands of additional ARCs.  There were, as I recall, tens of thousands of ARCs in print, more copies than any of the author’s books had ever been printed for publication.  Why so many?  Because the publisher wanted to put a copy into the hands of as many people in the sales “funnel” as they could to ensure that they saw for themselves the best-selling potential of that book.  That book was the Da Vinci Code.

Do I think my former client’s new book is the next Da Vinci Code? Based on the reviews so far, no.  And based on what I know of the publisher and its abilities to create best-sellers, no.  But I hope my former client does become a best-seller.  Why?  Because as much as we ended up parting ways kind of the same way a lot of couples break up, I think he’s a very good writer and I'm a fan of his work.  And if this new book succeeds, maybe by the time I retire and have the time to read for fun, there will be a nice pile of new books by him for me to enjoy.

Z

Hits: 5793
0

Lately, I've gotten a few follow-ups related to the status of queries or submissions and I thought it might be time to revisit this subject.

I do not charge a reading fee, hence when you submit, you are not paying my firm anything to review your material.  My priority is always the current clients and those projects that will help me earn a living.  That may be your project or it may not.  Statistically, I reject the vast, vast majority of what I get, so odds are that it won't.

At any given time, I have requested manuscripts and sample chapters and I have material from current clients that needs my attention.  I will always prioritize the current clients.

Why can't I tell you where I am with your submission?  Because that takes time and effort to figure out, time and effort I could be putting on other projects that I already represent.

All that said, I will, eventually, reply to every requested sample chapter or manuscript and even query letter.  Might it be months later?  Yes.  Might I miss out on great projects?  Yes.

We do not ask for exclusive submissions.  You can keep querying and submitting.  We are not holding you up.

Is tracking your material to ensure it arrived a good idea?  Sure.  But phoning or emailing (directly or via Facebook) is rarely going to lead to a faster, positive response.  I'll never say never, but every agent I've ever discussed this subject with seems to say it won't.

Thanks in advance for your patience.  We eventually get to everything, I promise.

Z

Hits: 4140
0

Imagine if you went in for a job interview and during the interview, your prospective boss told you that he had reviewed your sales numbers at your prior company and determined that you were not an effective enough salesperson for him to hire.  Then he showed you the numbers and you knew they were wrong.  You would, of course, argue in your own defense, but what if the guy won't listen?  What might you do?  Well, if the numbers came from a third party that reported on your sales, might you sue that third party?  You'd go after your credit-reporting agency for showing you as delinquent on your bills if you weren't, right?  So why not go after this party?

Authors—and the Authors Guild—why aren't you going after Nielsen BookScan?

I wrote about the lie that is BookScan data is 2009 (http://zackcompany.blogspot.com/2009/06/lie-that-is-bookscan.html), but nothing has changed, that is clear.  Yes, it is collecting data from more accounts, but it still is not collecting all data.  And clearly its data is far, far, far off of what is real.  Either that, or publishers are grossly exaggerating sales and paying royalties far above what they should be.  Any author who believes publishers are overpaying, please raise your hand.

I thought not.

Let me be perfectly clear:  Nielsen BookScan is destroying authors' careers.  By reporting grossly low sales figures that publishers use to guide their acquisitions, BookScan is labeling untold thousands of authors as low sellers, even if their actual numbers may be much, much higher.

At Comic-Con last week, an editor handed me a piece of paper with sales figures on a client he had pulled from BookScan.  I won't share the author of the title, but I will share the numbers I was given and the actual cumulative sales figures from the publisher's royalty statements:

BookScan Number

Actual Reported Royalties from Publisher

Discrepancy Percentage

3,998

10,398

71.2%

5,612

13,506

58.5%

893

9,343

90.5%

1,487

22,752

93.5%

As you can see, the numbers are grossly off.  And the publisher based its rejection of the author's new work on these numbers.

Are these best-seller numbers?  No, but for books sold in the very midst of the collapse of the mass-market wholesale business, I think they reflect very well on the author.  And a publisher who likes the author's writing should be able to argue for acquisition based on these real numbers.

While there was a reduction from the first to the second paperback, that’s completely in keeping with what I refer to as the paperback "buy-down" pattern where the accounts order the net sales number from the prior title and then sell through at 50%.  The fact that the author's numbers on the third book were up considerably from the second is a credit to the author.  And even his fourth book wasn’t considerably lower than the third and still outsold the second.

I've sent these numbers off to the editor.  I would hope they will make a difference, but even if they do not, I hope that this editor and all editors will acknowledge that the BookScan numbers are simply not reflective of reality.  Stop using them!  At least to guide acquisitions.  It isn't fair to the authors and ultimately, it isn't fair to the publishers themselves.  They are missing out on the chance to do business with great authors.

Z

Hits: 9965
0

As I read the reports of the upcoming trial for price-fixing in which the Department of Justice is going after Apple and Penguin (the other defendants all settled out of fear the costs of fighting and losing were too great; and the DOJ has, by far, the better track record in winning these things), I can't help but shake my head at the damage being done to the publishing community.

This seems to be a classic case of the cure killing the patient.  Perhaps not yet, but in time.

Simply put, the DOJ says Apple and publishers conspired to raise eBook prices and that consumers were negatively affected by this conspiracy.  A large number of states also sued for the same reason.  Publishers that settled have paid or will pay out millions.  Macmillan alone is said to be paying out $26m.

I remember going to breakfast with John Sargent, the CEO of Macmillan, and he proudly explained to me that the St. Martin's model was to buy a mystery for $5,000 and then make a bit of profit and hopefully pay $6,000 for the next book.  Now, that doesn't apply to every mystery, of course, but probably a lot of them.  Now, I admit to having issues with St. Martin's.  I think its contract is one of the more author-unfriendly and I have issues with the deep discounting they have done.  I think deep discounts should be offered only to non-bookstores and certainly not Barnes & Noble, since the purpose of such discounts is to provide an incentive to an account that would normally not order books to order some.  But that's an argument for another day.

Because throughout this matter, I have a bit of newfound love and appreciation for St. Martin's and John Sargent.  While certainly it acted in its own interests, St. Martin's has been the leader in standing up to Amazon, and if you are an author, then you have to appreciate that.

You see, I love books and I respect authors, and while oftentimes the publishing industry gets lost in its search for the profit part of the P&L, I believe that nearly everyone in the publishing business loves books and a lot may actually be authors or want to be authors.  After all, you don't go to work for a book publisher hoping to become wealthy.

Amazon, on the other hand, professes to love books and authors—and I'm sure the folks there do—but the perspective from where I sit is that Amazon is more interested in "content" that can be sold via Kindles.  And publishers provide content and Amazon wants to provide it to you as cheaply as possible and damn the consequences.  Authors already not making a living wage?  Who cares?  As long as they write.  Self-published novels not edited, copyedited, or proofread?  Who cares?  As long as they get published.

People use to laugh at cable-access channels.  Wayne's World wouldn't have existed without real-life goofballs who were no doubt shocked to be able to turn on their TVs and watch themselves just a few channels away from Law & Order.  But those access stations were part of the deals with communities into which the cable companies wanted entry.  But no one actually needed or, to my knowledge, sought free self-publishing without standards.  Self-publishing always existed but the entry costs were too high for most authors.  And I'm not slamming self-publishing.  Done right, it can be a boon and has been a boon to some of my clients.  But I don't think Amazon offered free self-publishing and higher royalties for those in the Kindle Select program out of a love for authors.  It did it for a desire for more content and to have that content exclusively.

And it didn't sell eBooks at a loss for consumers.  It did it for the same reason your cell-phone company gave you "free" minutes: to sell Kindles and build market share.  But it was devaluing books in the process and publishers saw this.  Now, why the DOJ never investigated this, I do not know.  I've been told that selling at a loss as Amazon did with eBooks could have anti-trust implications.  Why isn't the DOJ looking into those implications?

Consumers comparison shop all the time; it's a national pastime.  And Amazon happily shows us the same product in different formats and priced differently.  Or the same format priced differently.  Or the new and used versions priced differently.  And when consumers see a $25 hardcover and a $9.99 eBook of the same book, they have a true WTF? moment and start to think that $25 for a hardcover is grossly overpriced, even though hardcovers have been published at that price for decades, give or take a few dollars, and aren't actually making anyone rich at that price, either.  Readers start to think that they can recoup the $199 for a Kindle Fire (with "special offers," i.e., advertising on the screen) pretty quickly, depending on how many eBooks they buy.  Which is exactly what Amazon wants you to think.  But if the eBook for that $25 hardcover is only $21, then the savings isn't that significant, so why spend the extra money and go to the hassle of getting a Fire?  That kind of model is what killed the earliest eBook readers like the Rocket.

I have no desire for Amazon to get sued, but I have concerns that it hasn't exactly been playing fair and that in not playing fair it is costing the publishing industry as a whole many, many millions of dollars.  At some point, some editor is going to tell me he can't acquire the rights to publish a book because the house took such a big hit in the DOJ settlement, I'm sure.  And that's going to hurt my client and me.  And you. Because if you are an author, your odds of selling a book to a publisher are made greater by the expenses of this litigation and settlements.  And if you are a reader, you may have fewer options from traditional publishers because they may publish fewer books because of the expenses of this litigation and settlements.

In the near future, the DOJ and states may get to chalk up a win and to claim they cured a great consumer illness by beating the publishers into submission on the alleged price-fixing, but in the process they will have done more long-term damage to the publishing industry and ultimately more damage to authors and consumers than the price-fixing (if it actually occurred).

Z

Hits: 8865
0

If you haven't already heard, there are new terms on the table from Skyhorse and Start Publishing for Night Shade authors.  I'm excited to see these, not least because a lot of them reflect the conversations I've had with Tony Lyons and Jarred Weisfeld over the past few days.  I spoke with and reported on my conversation with Tony over the weekend.  And I also chatted with Jarred yesterday.  In a post on io9, the new terms are outlined as follows:

  • 7 1/2 % of retail for all printing books.
  • 25% of net receipts on all ebooks up to 15,000 copies sold and 30% thereafter
  • 50/50 on audio, with a reversion if we don’t sell the rights in six months. Audio rights money to flow through within 30 days of receipt of payment, provided that the advance has earned out.
  • The assignment clause, clause 7, would only apply if the assignment is part of a sale of “all or substantially all of the assets of the company” purchased by either Start Publishing or Skyhorse Publishing.

And I think those are certainly better terms than were previously on the table. And I should; I suggested versions of all of them and I'm pleased to see that Skyhorse and Start have actually gone a bit better than I'd hoped.  The escalator on eBooks, in particular, puts this deal ahead of terms you'll see from Random House and other major publishers.

So, I think authors should take this deal and be happy.  I'm pleased to have been a part of the conversations and I'm exceptionally pleased that Night Shade, Skyhorse, and Start have really listened to the agents and authors involved and worked to improve the terms.  This is the way publishing should work.  It should be a give-and-take between the parties, where each party walks away satisfied.  All too often, authors feel abused in their negotiations with publishers and as though they were ultimately forced to accept terms they didn't want in order to get the deal done.  Here, I think authors can be satisfied to get fair terms and I thank Night Shade, Skyhorse, and Start for working hard to make that happen.

Z

Hits: 6637
0

So I had an hour-long-plus-some telephone conversation with Tony Lyons, publisher of Skyhorse, today. It was very enlightening and no matter what the outcome of the Skyhorse/Night Shade deal, I very much appreciate that he took the time to chat with me.

I’m not going to go into details about what he had to say, since I never asked him if he would mind if I blogged about the conversation. I will say that he shared with me a ballpark figure of how much money was owed by Night Shade and I was pretty surprised that what I feel is a pretty small publisher got that deep in a hole.

Now, what I will discuss here is what I told him and here are a few points:

  • The psychological impact of the letter that was sent was underestimated.
  • I think that 98% of the problem with this deal is psychological.
  • If Skyhorse were to offer a retail-based royalty rather than one based on net, that would help make it more attractive to authors, since authors pretty much believe that “net” equals a form of Hollywood accounting in which the author never sees another penny. However, that could easily mean a trade-paperback rate of 5% instead of 8% (5% of retail generally equals 10% of net based on a 50% discount; 8% was the starting rate for Night Shade). But since many publishers start at 6%, I wouldn’t feel that 5% is a deal-breaker, particularly if escalators are offered.
  • If Skyhorse wants audio rights that are not included in the current contracts, that’s something it should deal with a case-by-case basis. Making it a blanket demand, in my opinion, makes it seem more like a bullying tactic, since the deal was presented as one in which either the majority of authors took it or Night Shade would go bankrupt. Further, I think there should be a reversion option on those rights if they are unsold after a year.
  • Yes, 25% of net is established industry standard for eBooks, but very few authors and agents think it should be.  Most think the rate should be 50%. Hence, Night Shade’s rates of 30% or 50% were much more attractive. I suggested building in escalators.
  • Any payments of past royalties and overdue advances must come from Skyhorse. I simply do not trust that handing over thousands of dollars to Night Shade and expecting it to turn around and immediately start paying authors what they are owed is a worry-free scenario.

Keep in mind that I wasn’t negotiating here. I was merely putting some things out there as thoughts that might make this deal more palatable to authors in general. Authors often have a very different view of how publishing should work versus how it does work and that’s under the best of circumstances. We do not have the best of circumstances here. For example, if you read the Authors Guild Model Book Contract, you’ll find that it bears little resemblance to an actual publishing contract as used by major houses. It is bit like Barbie, in that it is very pretty, but not actually anatomically correct. All of this commentary on the Internet (mine included) seems to imply there’s another option out there, but right now there isn’t (Hello! Amazon?!). The options are Night Shade selling or Night Shade going bankrupt. My preference is the sale, but I do think the terms could be improved in a manner that authors would appreciate and without grossly altering the financials.  Of course, I write that having never seen the financials.

All that said, I hope the conversation was helpful in that it may result in better terms or some additional language that could benefit authors in the long run. And I’ve forwarded Mr. Lyons some thoughts on the terms and language of the letter and I hope that helps move us all toward a document and terms that work for all of the parties involved without authors feeling bullied or screwed and without Lyons feeling like Night Shade’s authors are a bunch of ingrates who don’t recognize that someone is trying to help them.

Z

Hits: 10306
0

Last night about 11:30, I posted a blog about how embarrassed I think the Skyhorse Publishing team should be about its offer for Night Shade Books.  And this morning I got a couple of emails from Tony Lyons (one via his assistant and one from him).  Mr. Lyons wants to chat tomorrow and I'm happy to have that call with him.  In the meantime, though, I just finished reading through this piece on io9:  http://bit.ly/XYJwJG. This is important reading for any Night Shade author and his or her agent. Because here the buyers state their case and it's interesting both for what it says and doesn't say.

For starters, the tone is clear:  Skyhorse sees itself as trying to save this publisher and do its authors a service in keeping their books in print.  And that's something authors should appreciate.  It also makes clear that the owners of Night Shade prioritized making their authors whole and getting them paid all they are due.  And that's something authors should really appreciate.

But there are some points that I found interesting.  Lyons is quoted as saying "they were paying royalties which really nobody else pays."  Now, I can't speak to every contract and author at Night Shade, but I can speak to industry standards.  And for fiction they are well established:

Hardcover:  10% of the retail price on the first 5,000 copies sold; 12½% on the next 5,000 copies sold; 15% thereafter

Trade paperback:  Tends to be either 7½ of the retail price on all copies sold or 6% on the first 20,000 copies sold and 7½ thereafter.  In some instances, you might see higher rates, but these are the standards.

Mass-market paperback:  Can be as low as 4% of the retail price on the first 150,000 copies sold; 6% thereafter to the more common 6% to 150,000; 8% thereafter to the also common 8% to 150,000; 10% thereafter.

As Lyons states in the interview, the trade-paperback rate from Night Shade was higher, but the breakpoints were high enough that I would expect few authors to ever actually escalate beyond the initial rate of 8%.  So Night Shade was paying about ½% more on the starting rate than many publishers.  Okay.  Got that.

Additionally, Night Shade was paying about 5% more on eBooks than many publishers, but certainly not all, as some pay 50%.  And Mike Stackpole stated in his blog post on this deal that he was getting 50%.  But should that break the bank?  I would say no, since the costs associated with doing eBook editions are quite low if you are also producing a print edition.

So what broke the house?  Lyons, in this article, claims that Night Shade was losing 25% a year, which clearly is not a level of losses any publisher can sustain, and that comment raises the question, How did they last as long as they did?

I imagine the owners might have invested quite a bit of their personal money in the company, but I can only imagine.  Because one thing that has not been discussed by either the owners of Night Shade or Skyhorse is hard numbers.  How much does Night Shade owe authors?  How much does it owe printers?  How much does it owe other creditors?  And how much does it owe its owners?  These numbers are pretty relevant if you want to convince a bunch of authors to take a lower royalty and give up new rights.

The offer from Lyons requires authors to accept 10% of net as a rate on all copies sold, other than eBooks, which would be at 25% of net.

If you go to Google and in "Random House Terms of Sale," you can get here:  http://www.randomhouse.biz/booksellers/pdfs/RHPSRetailTOS.pdf.  This tells you pretty much all you need to know about what the discount granted might be on a Random House title and your expected "net" on which a net royalty might be based.  I couldn't find anything like that for Skyhorse, but then remembered they are currently distributed by Norton, but are moving to Perseus.  Presuming most Night Shade sales will be via Perseus, here are the terms of sale:  http://www.perseusdistribution.com/salesterms.asp.  Based on this, authors' royalties will mostly be based on a net after a 50% discount.  So Skyhorse will sell a $15 trade-paperback at $7.50 and the author will get 75 cents.  Under his original contract, that author would get $1.20.  So the deal loses the author 45 cents per sale.  But is some money better than none? (Let's ignore that most authors would read that sentence and think, I only get $1.20 out of $7.50??!  That's the reality of publishing.)

Let's look at some other harsh realities here:

Most titles never earn out.  That's right.  If you talk to people in royalties departments (something I did a lot of when I was the chairperson of the AAR's Royalty Committee), you find out that the vast majority of titles never earn out.  This does not mean the titles are not profitable; it just means they never earn out.  So for many Night Shade authors, it may not matter at all if their rate is cut.

Many authors never see their royalties escalate.  Since the breakpoints are so high and sales volume on most titles is so low, getting to the breakpoints is often a moot issue.  So, again, eliminating escalators may not matter.

Now, on the subject of audio rights.  I'm not sure if I'm "the one guy" that Lyons refers to in the interview, since I don't think I made it sound like a travesty of justice, but I'll respond anyway.  When one does a deal with a publisher, agreements are made with regard to rights.  Certain rights are included and others are not.  When Night Shade did its deal with Audible, it started making getting the audio rights at a 50/50 split a deal-breaker.  Now, keep in mind that once that initial deal was done, Night Shade does no more work to sell the audio rights.  It merely puts them into the program.  It does nothing to earn its 50%.

Now, some publishers who make rights like audio a deal-breaker will argue that they need "every opportunity to earn back our advance."  Okay.  Where is the additional advance being paid for these audio rights by Skyhorse?  What exactly is Skyhorse doing that it deserves these rights? Well, they might say, we are rescuing the company.  Okay, fair enough statement, but does Skyhorse really need to demand assets that are not owned by Night Shade to make this deal work?

The interview continues on this subject, "Why on Earth wouldn't [authors] be thrilled that we're trying to negotiate on their behalf?" asks Lyon. "Why wouldn't they want us to sell rights that are as yet unsold, and give them half the money? That seems like it ought to be a good thing, and yet it's being portrayed as, 'Oh, they're trying to grab rights that weren't included in the original contract.'"

Well, let's be honest, they are trying to grab rights that weren't included in the original contract.  It's not a "portrayal," it's a fact.  But, also, if I were an author who had unsold audio rights, I wouldn't want to sell the rights to Skyhorse because (1) I don't recall that the contract includes any kind of flow-through provision, i.e., if the audio rights are sold, the author's share is immediately paid to the author within 30 days of receipt.  No, instead that money will be applied to the author's royalty account, which means if the author has an unearned advance, then he or she will not see that money, while Skyhorse will put 50% straight into its pocket.  Another reason is that Audible has a standing deal with Night Shade, so if you hold the audio rights, your agent can go directly to Audible and cut a deal.  Under the Skyhorse deal, you give up 50% and your agent takes 15% of your 50% (presuming you are earned out) and you get 35%.  Under the direct route, your agent takes 15% and you pocket 85%.  It's not the kind of math one needs to have graduated college to do.

Last but not least, when I read this contract from Night Shade, it has the feel of something cobbled together by the publisher frantically and never run by an attorney.  Even if you agree to the basic terms—10% of net royalties for print; 25% of net for eBooks; and giving up audio at 50/50—I'd still say there's plenty of language here that should be negotiated.  The audio rights should come back to the author if no audio is produced within one year and should also have a reversion threshold.  Also, there needs to be clarity about when these new royalty rates will kick in.  Let's say an author agrees to this deal, but is owed royalties.  Will those be calculated at the old rate or the new rate?  In other words, will the new rates be retroactive?  I don't think it's clear in the agreement.  Also, note that this agreement states that all accounting will be cash-based and not accrual.  So if an account orders 100 books in January but doesn't pay until July, those sales will be accounted for as happening in July.  That's not industry standard.  There are other issues, of course, but I'm not going to go through the entire agreement here.  It seems to me that Night Shade and/or Skyhorse could engage with the Authors Guild, the AAR, or SFWA to discuss this agreement and to make sure that it isn't a contract for indentured servitude.  And while I know SFWA has had conversations about this deal, I do not know if it has reviewed this agreement.

In the end, the decision to move forward is each individual author's, but what I'm seeing online isn't promising. Never have I seen a prospective acquisition of a house so publicly discussed and debated.  On the one hand, I appreciate and applaud the transparency.  On the other, I sympathize with Night Shade and Skyhorse at having to defend itself so publicly and to so many individuals.  In the end, though, if authors don't approve some changes that are enough to get Skyhorse to do the deal, the deal will fall through and that could be that.  Night Shade could go bankrupt and authors will then have to struggle, individually, to get their rights back.  There are no other suitors yet (hello, Amazon!) and no better offer on the table.  So as authors bitch and moan and post publicly that they will not be taking this deal, I advise them to be careful what they wish for, as it may come back to haunt them.

In closing, I can't help but think that the real problem here is that this entire deal was "spun" wrong. It's a PR nightmare.  If you want to ask authors to take a cut in royalties, fine, but asking them to go from a retail royalty to a net royalty was too aggressive.  Asking for more rights than licensed in the original contract was too aggressive, also, and arrogant.  If I had had the chance to review this in advance, I would have suggested raising the breakpoints on the hardcover rates and cutting the trade-paperback rate to an industry-standard 7½% straight or even 6% to 20,000 and 7½% thereafter.  I would also have reassured authors that the cuts in rates would not be retroactive and offered any and all authors not interested in the deal the opportunity to negotiate a reversion of rights.  Let's say your book has earned out.  Your rights should be yours for the asking.  If your book has not earned out, you can revert rights by paying back the unearned portion of the advance.  If you are owed an advance, e.g., an advance due on pub that was not paid, you can have your rights back in exchange for the unpaid advance.  However, most authors are loathe to pay a publisher back money.  It just never happens, other than in rare legal wrangling.  So most would probably accept the reasonable revision of royalties but, the authors would feel as though they were treated more fairly and given more options.  And that would have served both of the publishers in this matter better, IMHO.

As I head off to bed, I'm looking forward to my call tomorrow.  It will, I'm sure, be interesting and educational, and I do appreciate the willingness of Mr. Lyons to chat with me about all this.

Z

Hits: 7021
0

I should start this off by saying that I don't really feel the need to write extensively about the letter from Night Shade Books that went out to authors and agents recently.  There are plenty of others doing that, including Joshua Bilmes and Mike Stackpole.  And both of them make good points, so read those posts and then come on back and let's talk about what should be going through the minds of Tony Lyons and his team at Skyhorse:  This is so embarrassing.  Honestly, it should.  I'm embarrassed for them.

I remember when Skyhorse launched, taking its name from one of its editors, Brando Skyhorse, not because he was such an integral part of the team (he's no longer there) but just because it sounded cool.  And it did.  But for a while, I wondered if Skyhorse would survive.  There seemed to be something not quite clicking and the publishing business, as we know, is harsh toward those trying to start up.

But survive and thrive it has and I'm happy for everyone there.  I'm always happy to have another thriving market for my clients' works.  I've never done business with Skyhorse, but I've sent a few things to editors there over the years, mostly if not all nonfiction.  And when you visit its website, you'll find exactly zero titles under "Fiction." Which raises two questions for me:

  1. Why would Skyhorse want a genre publisher such as Night Shade?
  2. Why would a Night Shade author want to be published by Skyhorse?

There are significant differences between publishing fiction and nonfiction, particularly when it comes to publicity and promotion.  Now, some might be reassured that Night Shade's team is going to remain involved with the imprint and so perhaps that ensures some kind of genre knowledge, but that same team is the one that got all of these authors into this mess to begin with, right?  So some authors might be less than excited about continuing to do business with that team.

Furthermore, the terms offered are universally worse than those Night Shade's authors have under their current contracts, a reality demonstrated ably in the two posts I've linked to above.

In a sense, this entire deal seems to me to be:

  1. Bottom-feeding
  2. Extortionist

I recognize that these are terms that both publishers might find offensive, but surely they must understand how offensive this deal is to the authors involved.

According to Merriam-Webster.com, a "bottom-feeder" is "an opportunist who seeks quick profit usually at the expense of others or from their misfortune."  Surely this is an accurate description of the role being played by Skyhorse in this matter.  After all, do we think Night Shade came up with the idea of cutting the royalties and demanding rights it didn't own in order to close the deal?  Well, maybe, but let's come back to that.

That same online dictionary defines "extort" as "to obtain from a person by force, intimidation, or undue or illegal power."  In this case, I'll go with "intimidation"—agree to the new terms or else you'll never get paid what you are owed—and "undue power" which I'm sure most authors feel their publishers have over them and their careers.

So let's ask ourselves a couple of questions:

  1. Whose idea was it to change the terms of the existing contracts?
  2. Whose idea was it to ask for more rights than those contracts already included?

These are important questions, because they help determine whether these two highly questionable "asks" are Night Shade's or Skyhorse's.  And if Night Shade's, then I think Skyhorse should really consider whether or not it wants to be in business with a company that appears to be trying to take advantage of authors who are caught between a rock and a hard place.  And if it is Skyhorse's idea, then I think authors have to really ask themselves if they want to be published by a house that is so grossly opportunistic at the expense of authors.

Either way, now that this entire matter and the offer from Night Shade is public knowledge, I think Skyhorse should be pretty embarrassed.  We all like a good deal and we understand that business is business, but no one wants to be seen kicking a kid when he's down and taking his lunch money, and that's kind of how it looks right now for Skyhorse and the way it's treating authors here.

I understand that Skyhorse may see it differently.  It may see itself as a savior of these Night Shade authors and that without this deal those authors would be screwed.  After all, some money is better than no money, right?  I guess that's a decision that only each individual author can make.  But why ask for those extra rights?  Why not just try to cut the royalty or, heck, offer authors fifty cents on the dollar for what they are owed?  Why the rights grab?

Night Shade has a deal with Audible.com to publish audios of each of its books.  This, I'm confident, is why Night Shade wants every author to sign over their audio rights, even if the original contract did not include audio rights.  I do not know the terms of this deal, but if there's an advance for every book they turn over to Audible, then Night Shade may be taking advantage of this situation to raise cash at authors' expense.  If Skyhorse is the one insisting on this provision, then it is Skyhorse trying to up the value of the deal to them at authors' expense.

When a publisher buys another publisher, the new publisher may try to change the terms of the contract but more often the publisher merely honors the existing contract.  When Kensington bought the bankrupt Carol Publishing Group, it paid out the overdue royalties and followed the existing contracts . . . and publishers loved them for it.  Even when John Colby bought the assets of the bankrupt Byron Preiss imprint, ibooks, he just picked up where they left off in terms of the contract (alas, he only bought the assets and did not make good on royalties owed).  So why would Skyhorse take such an aggressive position as to demand that the authors accept worse terms and sign over rights not covered by the original contracts?  I don't know, but if this was a decision by Tony Lyons and his team, it doesn't reflect well on them, I feel.

So what's an author to do?  Traditionally, publishing contracts have clauses that revert rights automatically when a publishing house goes bankrupt, but bankruptcy court judges tend to say those will not be honored, since the contracts are assets and the judge's job is to protect assets for the creditors.  But in practice, I have found that trustees assigned to look after bankrupt companies are flexible on reversions of rights.  If Night Shade can't close the deal with Skyhorse, then it will declare Chapter 7 bankruptcy, as per its letter.  Authors who are owed money will not see that money.  But they may be able to get their rights back . . . eventually.  And what happens then is anybody's guess.

Now, I haven't even gotten into the company that will buy the eBook rights (which will be dealt with separately than the print books and associated rights), because I have never heard of it and I'm wary of any company I've never heard of swooping in and owning rights I represent.  And I will add that I think separating eBook and print rights in today's marketplace is a giant mistake.  I don't know why Skyhorse would let those rights get away.  If print books are going to be a smaller and smaller percentage of the marketplace over time, why on earth wouldn't it insist on getting eBook right also (and pay for them)?

I'm getting a sense that there's a lot of author resistance to this deal, because it does seem unfair to the authors in the long run.  I suspect that Jason is going to get a lot of negative responses.  And then he's a bit screwed, I guess, as are his authors.  But the entire situation is also casting a negative light on Skyhorse and so I wonder if Skyhorse wants to step up here and fix this.  All it has to do is agree to accept the contracts as they are and not to require additional rights and the deal would undoubtedly be done.  But I think Jason Williams and Jeremy Lassen have to walk away.  One of the deal points is that Jeremy Lassen and Jason Williams will stay on with Skyhorse/Start in an acquisition/editor capacity as consultants.  And they are specific that this is a sale of assets and not the entire company.  I have no reason to dislike or distrust these guys; I've actually found them very forthcoming and communicative about their financial issues.  But I think authors will want a clean start with Skyhorse and there are many, many freelance editors out there who would be happy to step up and run that list. So I think they should sell the entire company and take what they can get and move on.  The fact that they want to change the contracts and get extra rights seems to me an attempt to ensure they have jobs when this all gets wrapped up, but if authors are going to lose money in the form of lower royalties and new rights granted, shouldn't these guys lose something, too?  Where is their skin in this game?  If this all goes through, they are in a better-than-ever situation, it seems:  free of the burdens of administration, free of debt, employed, and walking tall.  That hardly seems fair, does it?

Now, having said all that, allow me to ask a question:  Where is Amazon and 47North in all this?  This seems a tailor-made situation where Amazon could swoop in and save the day and take on a backlist of highly regarded titles and earn great goodwill in the author community.  And, of course, it would be pocket change for Amazon to buy Night Shade and take care of the advances and royalties owed.  47North is the SF&F and horror imprint there and the list would fold in nicely.  Audible is a division of Amazon and already publishing audios of Night Shade's books.  This seems to me to be a no-brainer and the perfect solution.  So, c'mon Amazon, step up and save some authors from years of headaches and heartaches and a Night Shade bankruptcy (because if you wait for the bankruptcy and then just buy up the list, that will kind of make you look like opportunistic bottom-feeders and you don't want anyone to think that way about you, right?).

Z

Hits: 12342
0

While no one has actually asked me this question, I imagine there must be a few authors out there who've wondered about my posts reporting three sample chapters declined and whatnot and wondered, "Must he be so happy about it?"

Yes, I must.

As the risk of you thinking "dick" right now, allow me to explain some realities of the publishing industry:

  1. Rejecting things releases endorphins.  Okay, not really.  Well, maybe.  You see, crossing things off lists releases endorphins.  Look it up!  It's true!
  2. Everyone, from the geniuses from whom I want to hear to the guy who collected enough bottles to finally rent some time on the computer at Kinko's to write his memoir of collecting bottles, is writing a book.  And they are querying me.  Or so it seems.
  3. I'm a nice guy.  Really, I am.  I am kind to dogs and I haven't kicked a cat on purpose ever (I did fling one across a room once, but it's not my fault it was sleeping on top of the blanket between my knees when I decided to yank on the blanket while rolling over).  So I try to give people the benefit of the doubt and request their sample chapters and proposals.
  4. Which means I have far, far too much reading to do.
So when I reject a sample chapter (I know; I usually say "decline," but let's be real here) or proposal, I get this little "yippee!" moment that my reading pile is that much smaller and there will be one less author wondering when they will hear from me.  Sure, they may not be happy to hear a "no," but they are happy, I hope, to no longer be waiting.

So when I report that I'm rejecting things, I'm actually high on endorphins and feeling good that I've succeeded in responding to something before an author sends me an angry What the hell?  You have had my chapter for whole month and you haven't read it yet? email.  Because, you know, things that are done for free should be done right away.

Thank you.

Z

Hits: 6166
0

Should authors and agents oppose the merger of Random House and Penguin? The short answer is yes, and the primary argument against the merger is the loss of competition.

The most basic way that agents make money for authors is by creating a competitive environment in which publishers try to “win” good books that they can publish. Sometimes this is done in formal auctions and sometimes it’s done over the course of weeks as editors refine terms and try to talk agents into taking their offer over another.

When Bertelsmann bought Random House, there were many promises about continued “separation of imprints.” Competition would continue, they said. But as an agent representing many authors of science fiction and fantasy, I can prove that statement false. Bantam Spectra and Del Rey did operate separately for a time, but no longer. In fact, I’m told they now have a shared editorial meeting and a rejection by one is a rejection for the other.

Similarly, when Penguin and Putnam merged, competition disappeared. Ironically, the editor who had left Berkley/Ace to move to NAL/Roc suddenly found herself working with exactly the same team she had left, and Roc swiftly started to seem to me a stepchild to Ace.

So, what does a merger of Random House and Penguin mean to the average author? Well, for starters, it means hundreds if not thousands of people will lose their jobs. Once the “integration” is over, why would Penguin Haus (as I like to call it) need two royalties departments, two sales teams, two publicity departments, two subsidiary rights departments, two production departments, two marketing departments, etc., etc? Sure, there might be some expansion of all of those departments in order to address the increase in titles, but certainly people will be asked to “do more with fewer” in order to “create efficiencies.” And this will mean layoffs.

On the SF&F side, Del Rey and Ace are the flagship imprints and even if Spectra and Roc stay around as imprints (can’t give up the sales slots!), I don’t think all of the editors for each imprint can remain. The good ones will stay on and either the younger ones with fewer best-sellers will go, or the older ones who can be talked into “early retirement” will leave. And, of course, there’s the question of DAW, which operates independently under the Penguin umbrella. DAW will continue, I’m certain, but will it stay with Penguin or will it feel the need to strike a new deal elsewhere? I honestly don’t know.

Now, take all of that and multiply by the number of overlapping imprints at the two houses. What will become of Ann Godoff, who left Random House and landed at Penguin? Beyond the usual need to eliminate jobs in the interests of “efficiency,” there are massive personalities that could come into play in this merger. Each house has executives that have developed their own imprints and fiefdoms within the parent company. This is like merging the United States and Great Britain! Who will be president and who will be king? Can we have a president and a king? Not to mention that nearly everyone is likely going to be going into “I have to save my job” mode. No one looking not to make waves will be championing to buy a book against popular opinion. No one looking to stay employed will be arguing with his or her boss for more money for an author.

The internecine warfare that already takes place at major publishers is often the subject of gossip among editors and agents. Imagine what it will be like at Penguin Haus! This is going to be a publishing cage match, folks, pure and simple.

As an agent, I oppose such a merger because I know it means fewer markets to which I can actually submit books. Maybe not today, maybe not tomorrow, but certainly sooner than later. Already publishing houses had rules against imprints bidding against each other and a submission to a Penguin imprint not that long ago resulted in an email from the editor asking “Who else here has this?” Because, along with not competing in auctions against each other, there are now conversations that take place in-house about which editor should acquire a book for publication. And you might not get the editor you want.

Every agent has his or her favorites. There are simply editors who are better than others, or whom I liked better when I met him or her. Some are more professional. Some respond quicker. Some are more thoughtful. Some are black holes into which submissions disappear and never see the light of day again. But sometimes, when submitting a book to several imprints, we have to go with editors we’re almost hoping won’t offer on the book, because we know the headaches that will entail. Now, imagine if the editor you don’t prefer outranks the editor at another imprint you like. If both editors want the book, who is more likely to make you the offer? Because, unless you are having an auction and have multiple players, both will not be bidding.

Some houses have a rule that if there is a third bidder not related to the house, then both imprints can bid. But if that third bidder drops out, often the agent and author do not choose which imprint to go with, the publisher does.

This merger does require government approval and I expect the Authors Guild to object, but the Authors Guild is already fighting on so many fronts (seriously; if you are a published author, you need to join, and if you are a wealthy author, you need to donate something extra!). Plus, the publishers will promise that competition will continue! They always do. And it does . . . until it doesn’t. Or until it becomes conditional on other publishers (few that they are!) being in the auction.

In the end, I actually think this will have the reverse effect that the publishers are hoping for. I do not think this will make them more competitive with Amazon, even if they relaunch Doubleday bookstores or their own massive online retail bookselling site. Because reduced competition means reduced advances and likely reduced overall terms for authors. And that will only encourage self-publishing. And that just plays back into Amazon’s hands, since so many self-publishing authors use its services.

And while Penguin does now own Author Solutions, I don’t see how it can really make that work within the model of traditional publishing. Amazon, for example, owns servers to run its businesses. When it started selling server space to other businesses, that made sense. They had the capacity. But Penguin Haus is in the traditional publishing business and Author Solutions is not. Some have said it could be a like a “farm league,” from which authors might be “brought up” to traditional publishing. But I see it more like Little League, where many players with poor skills are trying to make a go at it and only a very, very small percentage will ever go on to club leagues, never mind the majors. So unless Author Solutions can win on pricing services directly to authors, it can’t really help Penguin Haus win the battle with Amazon.

I’ll write more about this over time, I’m sure. But, in the meantime, join the Authors Guild and help fund the battle against the merger. In the end, authors will be better off with more competition, not less.

Z

Hits: 5909
0

Last weekend I had the pleasure of attending the Atlanta Writers’ Conference in, you guessed it, Atlanta, Georgia. As conferences go, I have to say that this one was very well organized and the organizers treated the agents quite well.

But, damn, they worked us! On Friday, working in pairs, the agents met with about ten authors to critique their pitches. The basic idea was that we would listen to their pitch and then give guidance on how to make it better. The authors would then meet with different agents the next day and hopefully get them interested in their projects. For this reason, the agents they met with Friday were not necessarily their first choice to meet, based on areas of representation.

But it didn’t quite go that way in our room and I understand the same happened in the other rooms.

First, we had a written summary of the book. So when the authors came in, we had questions already, rather than really focusing on the verbal pitch. Additionally, there’s an old joke: How many producers does it take to change a light bulb? Answer: Why exactly does it have to be a light bulb? Over and over we pulled the writers’ projects apart, asked them why they went in that direction and not another. And given how nervous some of these authors were, I think we only introduced self-doubt, rather than bolstering their confidence for the next day. Or, arguably, we highlighted issues the agent the next day was sure to spot and gave the authors at least the day to try and revise or deal with the issues we spotted.

But this wasn’t the only problem with the pitch sessions. The big problem is that verbal pitch sessions at writers’ conferences are useless. Authors are nervous and think their entire careers depend on these pitches. But the truth is that it’s the writing that counts and agents rarely see anything written in these sessions (the written summaries at this conference were the exception, not the rule).

Agents are bait at writers’ conferences. Conferences pay for agents’ airline tickets and hotel rooms and meals in order to get them to the conference so that writers will pay to attend the conference and also pay for one-on-one sessions with the agents. But I would argue those sessions are an expensive way to get the attention of an agent.

I told the organizer for the AWC that I thought the pitch sessions should go away and that, instead, they should offer query-letter review meetings. Because those offer a win/win. The author gets his idea in front of the agent, who can express interest or not, and gets to walk away with actual tips and ideas for revising his query letter, which she or he can use going forward.

On Saturday, we met with authors in one-on-one critique sessions. The authors had provided sample chapters from their works and the agents had read them and provided feedback. For about fifteen minutes, I sat with the individual authors and discussed the material I had read and I provided each author with a memo I’d drafted ahead of time containing my thoughts (and, likely, the memo would have sufficed, rather than the meeting). And certainly this has value for the author, though perhaps less for the authors whose works really had little potential or market. I have no doubt one or two left that meeting not feeling very good about having paid for that time with me. Should I have lied?

I know agents and editors who do that. They go to writers’ conferences and they lie. They ask for things they have no interest in, but find it easier to reject the author three weeks later while sitting in their offices, rather than in person at a conference.

I’ve gotten in trouble at some conferences for simply saying I wasn’t interested. Over and over. And why not? Why should authors waste their time sending me things I don’t want to read? Well, from the conference organizers’ perspectives, it leads to dissatisfaction among the authors who paid to sit down with you. It creates buyer’s remorse.

One-on-ones to review query letters work because the writer, no matter the feedback, can always go revise and try other agents. They get value for the dollar. But if you pay just for the chance to pitch the agent and the agent says no, you feel like you just bought a date an expensive dinner but didn’t get lucky. My advice: Stop offering those one-on-one sessions.

I would like writers’ conferences to be more about teaching. Teach authors how to write query letters. Teach them how to properly format their manuscripts (please!). Introduce them to the Chicago Manual of Style and what “style” is. Teach them how to use Microsoft Word to apply styles (the other kind) and create a clean manuscript that can easily be converted for eBook publication or printed book production. Teach them about the marketplace and writers’ groups like the Science Fiction and Fantasy Writers of America, Romance Writers of America, Horror Writers of America, and Mystery Writers of America. Give them an overview of the different departments in a publishing house. Explain subsidiary rights and the difference between marketing and publicity. Explain the difference between retail and net royalties. Have a seminar on publishing contracts and what points need to be looked at carefully. In short, writers’ conferences should be about educating writers, and not just about collecting fees from writers for the “privilege” of meeting agents and editors.

One conference I attended years ago had a mock negotiation between an editor and an agent. I’d love to see editors invited and asked to present a P&L to the writers, to show what all of the line items are that go into deciding if a book makes economic sense to publish.

Publishing is a business. It’s not speed dating between authors and agents and hoping that you’ll find someone you like. Writers’ conferences should be like continuing professional education conferences for lawyers and doctors and accountants. Sure, there’s mingling and networking, but also some learning about how the business is changing. About new tools, like websites for writers or software for writers. Make it less about getting your project in front of someone than just getting better information.

And if you don’t, I just might. Keep an eye here. Sooner than later, you may find an announcement of a writers’ conference run the way I’d like to see.

Z

Hits: 6372
0

Yesterday I had the privilege of speaking to students at San Diego State University about the publishing business.  The class is ENGL 576 LIT EDITING & PUBLISHING and the description is "Principles and practices of editing and literary publishing. Workshop on small press publishing. Includes editing and publishing workshop."  The students all seemed eager and the professor was enthusiastic.  And I guess I did okay, since she told me I could expect to be asked back every semester from here on.

But the class raised a concern for me.  When I asked how many people hoped to be editors in publishing houses, more than half raised their hands.  When I asked how many hoped to be published writers, more than half raised their hands.  Most of the class was comprised of students hoping to enter publishing in an editorial capacity because they want to be published writers.  And I see this as a problem.

Very, very few of my friends in publishing have actually written published books.  Very few have ever mentioned that they go home and work on their own writing.  Now, before you jump on all that as one of the "biggest problems with publishing," let me point out that when editors go home, they shouldn't be writing, they should be reading.  That's how editors find new books to publish.  They don't sit in their offices reading all day.  They sit in their offices reading and responding to emails, writing contract requests, dealing with production questions, writing sales memos that can be turned into tip sheets, writing catalog copy and the like.  And going to meetings to discuss which books they might next acquire or that are soon to be published.  That is an editor's day:  an endless number of meetings and phone calls and emails.  Not reading.  Not editing.  Those two things you largely due at home.

Usually when someone tells me they want to get into publishing because they want to write, I tell them to go get a job pumping gas and then go home at the end of the day and write.  Because working in publishing is not going to give you much time to write.  You'll be too busy editing other writers and probably challenged to find your own voice.  As an editor, I have always felt one of my strengths was that I could read an author's work and edit in a manner that made their work better but without rewriting and without changing the author's voice.  I feel editors have to be chameleons who can change style with ease, depending on the work being edited.

But let's not forget that there's a lot more to publishing than just editing.  I worked in a bookstore in high school and college.  I worked in a library during college.  I worked on my high-school and college yearbooks.  And I attended the Radcliffe Publishing Course (now the Columbia Publishing Course).  I can't be sure, but I'd be willing to bet a small sum that none of the students in that class had worked in a bookstore or library or on a yearbook.  Yearbooks seem like a joke for many, I know.  Who needs a physical book when we can just use the Facebook Timeline to go back and see all the pictures from our time in college?  Yet they are a microcosm of the publishing industry.  They have to be written, photographed, edited, laid out, printed, and sold.  Just like any other book.  And bookstores are dying off left and right, but they still exist and are a wonderful education in how readers buy books (mostly based on the cover and from reading the flap or back-cover copy).  And they let you see what sells and what doesn't sell.  And understanding that selling books is what the publishing business is about is an important lesson for any writer.  It not about the publishing; it's about the selling.  It's not about winning literature awards; it's about selling books.  Few publishers are actively hoping their authors win awards as much as they are hoping the damn books just sell.  Selling books keeps the lights on, not winning awards.  If winning the award helps sell more books, fantastic.  But the end goal is the same.  Sell books.  Amazon is not letting every idiot with a computer self-publish and sell via its site because it is trying to "support the arts."  It is doing it because it wants to sell more books (and, in the way an alien race might seed the world with small microbes that in a century will irreversibly change our planet, it is trying to change the very nature of how books are published, though not for the better, I think).

I told these students that I needed interns and to be in touch if they were interested.  I hope to hear from several.  But I also hope I succeeded in communicating that book publishing is a business and if you want to get into publishing as a career, it should because you love books.  Because nothing excites you more than starting a new book.  Because you'd rather be reading a good book than doing just about anything else.  But not if you want to write for a living.  If you want to write for a living, get into public relations, magazines, newspapers, or websites, where the need for new content requires you to be constantly writing.  Getting into publishing because you want to write is like getting a job at the Frazee or Benjamin Moore store because you want to be an artist.  Spending years as an editorial assistant hoping to get promoted while making $30,000 a year (if that!) will not make you a better writer.  It will make you a frustrated writer who hasn't written anything in a long time.

So where is that next generation of publishing professionals?  I'm not sure.  I got into this business because I loved books.  I spent hours and hours reading them most of my life.  And while there's a bit of the old saying about never seeing how things are made (laws and sausage come to mind), I still love getting lost in a good book.  Except now it's far, far less often than it once was.

Most of what I read isn't publishable, in my humble opinion.  Someone once told me that, based on the stats I published online, I ultimately reject 99.75% of what comes to me.  That means most of what I read is really quite bad.  Yet I keep looking, hoping to find that fleck of gold in the mud, that diamond in the dirty coal mine, that I can help reach the masses and, more importantly, that might help me strike it rich.  Because, in the end, I am trying to make a living here and the books I choose to represent I choose not so much because I love them, but more because I think I can make some money licensing them to publishers.

Literary agents and even editors are, in a real way, gamblers.  We are investing thousands of hours a year in reading, editing, and submitting projects hoping for the phone to ring and an editor to offer tens or hundreds of thousands (a million would also be nice) of dollars for the rights to a book we represent.  So what publishing may actually need is smarter gamblers.  I have often said that I wish editors did less acquiring based on their personal preference and more on what they know will sell.  No one published Gor books because they were great literature.  Hell, no one published Dan Brown or J.K. Rowling because they were writing great literature.  It was entertainment and damn good entertainment.  And I have no problems with that.

So if you have the spirit of a gambler, love books, and like to be entertained, you might have what it takes to work in book publishing.  We could use you.  I hope you'll take the shot.

Z

Hits: 5340
0

A while back, I was tweeting about the glamorous life of being an agent.  Today is a great example.

4:30am:  Wake up to the sounds of my wife's alarm going off times three.  She had a plane to catch.

5somethingam:  Wake up again to my wife bringing our oldest son, who is four, into our room and putting him in bed with me.  He was upset about mom leaving.

6am:  Having not slept anymore, having refused to put on the Wonder Pets or Sesame Street, I get out of bed with my son and take him to go potty.

6-7am:  Refuse 312 times to put the TV on.  Try to talk to my son, while keeping an eye on the monitor to see if my other son is ready to get out of the crib yet.

6:53am:  Receive text from wife with picture of an airplane "for the boys."

7am:  Get youngest son out of crib.

7:12am:  Wife calls from plane to say good morning to the boys.

7:12-7:55am:  Give boys breakfast.  Discuss which kind of cereal oldest wants.  Call my father so he can chat with the boys.  Wish my father would wear his hearing aids so he could actually hear the boys.

7:55:  Get boys upstairs against their wishes.  Start getting oldest ready for camp.

8am:  Lupita arrives!  Takes charge of the boys and I get to go get myself ready for the day.

8:30am:  Take oldest to camp.  Manage to get away without tears (his, not mine).

9am:  Stop by cashier's office to actually pay for camp this week.

9:20am:  Arrive at office to start working.  On the way, leave message for editor asking status of contract that has been pending for months.

9:20:  Download too many emails.  Delete too few.

9:30:  Log onto Library of Congress to read more about sending files for CIP data.

10am:  Review banking transactions for incoming funds.

10:05am:  Check on work by webmaster.  Note fixes needed.  Begin attempt to make blog entries automatically appear on the Facebook page for The Zack Company.  Not sure I'm successful, but if this entry shows up there, then I guess I was.  Also tried to set up integration with Twitter (@thezackcompany) feed.  Somewhat concerned I will break the Internet since FB posts to the TZC page already feed to Twitter.  I could create a loop that will suck up all the bandwidth of the universe and end the world.  Or not.

11:50:  Start this blog post.  Which I will now post.  If the world subsequently comes to a screeching halt, apologies.

Z

Hits: 6865
0

I received this news via email today.  Some time ago, I wrote a few articles for The Writer and I'm very sorry to hear that it appears to be going away.

Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4

Dear contributor,

I’m sorry to announce that The Writer magazine will go on hiatus after the October 2012 issue, which is in production now. Kalmbach Publishing Co., which owns The Writer, is currently looking for a buyer for the magazine, and our hope is that The Writer will re-emerge under the careful stewardship of a new owner.

We deeply appreciate the fine work of all our contributors over the years, writers and illustrators who have helped us maintain the high editorial standards first set by founders William H. Hills and Robert Luce in 1887 and continued for so many years by Sylvia and A.S. Burack.

Please note:

Selected queries and submissions from recent months will be saved and forwarded to a new owner (or destroyed if no buyer is forthcoming). Other queries dated March 1, 2012, or later will receive a rejection notice in the coming days. Queries dated prior to March 1, 2012, should be considered rejected. All queries and submissions are free to be pitched elsewhere.

Outstanding contracts and payments are in process now. If you have concerns about payments owed, please contact me after Aug. 6 at XXXXXX.

Regards,
Jeff Reich

 

----------------------------------------------------------------
Jeff Reich, editor
The Writer magazine

Hits: 4537
0