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Book Reversion Game Theory & Consent

October 5, 2014 by deirdre 8 Comments

Please Release Me
Let’s say the following:

  1. You’re a small press with a lot of authors, most of whom still have books that you get right of first refusal on their next books, either in the same genre or in the same series.
  2. You’ve had a downturn in sales, and that means staff cuts, including editors that would accept/reject and/or edit new titles.
  3. There’s a lot of grumpiness out on the ‘net, and you need some good PR.

Right now, this is EC's defense: "Authors hate working with Ellora's Cave so much, they formed a massive conspiracy to escape." #notchilled

— Courtney Milan (@courtneymilan) October 4, 2014


What are your best moves?

Things I hadn’t Considered About Right of First Refusal Clauses

When I started looking at romance publishers a couple of years ago, I found this clause of Samhain’s:

5.3. If I contract the first book of a series with Samhain, do I have to give you first refusal on subsequent books in the series?
No. Samhain contracts one book at a time. We hope you’ll love working with us enough to send us all your other books, but we want you to be free to make that decision for yourself.

I hadn’t realized the prior association of Samhain’s founder with Ellora’s Cave, but I found that to be an interesting clause.
Of course you’d rather have authors writing for you who want to write for you.
Also, the more I think about it, the more I wouldn’t sign a right of first refusal clause unless there were an advance involved, where the reversion fee’s some explicit portion of the advance.

The Cold Harsh Realities of Series Numbers

Here are the current Amazon rankings for the first six volumes of H. M. Ward’s The Arrangement, a bestselling indie new adult series that’s currently up to 16 books. (Which, frankly, this series is like crack for me. Loved it.)

1 656
2 612
3 638
4 711
5 755
6 789

The cold, harsh reality of series is that, overall, the later books in the series sell less well than the earlier books in the series. Some percentage of readers never pick up that next volume. Sure, there are times when the newer books sell better—like when they’re first released. In the long run, though, they will tend to sell less well.
Ergo, the value of that next book in the series is necessarily lower than the income from the previous books.
For a troubled publisher, some writers may feel, as Lolita Lopez/Roxie Rivera (hell of a #micdrop post) apparently does, that not writing more books in the series is the right answer for them.
If you’re the publisher who’s published, say, books 1-5, and there will be no book 6, then the revenue of books 1-5 will tend to decrease over time. If, however, another publisher (including self-publishing here) publishes book 6, and books 1-5 are still listed on the author’s website, then there will still be some level of increased demand for books 1-5.
I read a lot of authors. I mostly don’t read their blogs. When I do look them up, I tend to look at their website for new books.
So what’s the publisher’s best strategy here?
Releasing the author from right of first refusal for the next books in the series, in exchange for which the author puts the publisher’s books back on their website for, say, a year.
But…but….

Consent, People

I haven’t really seen this come up, which kind of surprises me given the subsection of romance Ellora’s Cave is in.
A lot of their books are about the boundaries of consent. BDSM, for example.
What struck me in Lolita’s post: she’d essentially said she no longer consented to future publication from Ellora’s Cave.
It doesn’t matter why someone no longer consents. Contractually, it may, but consent is important, and it really, really gets me that there are, in fact, so many consent issues at the heart of this debacle.

Slower Paying?

One of the data pieces that’s been corroborated by several authors, including Lolita Lopez (at the link above) and Cat Grant: the payments, once regular, are alleged to have been getting slower.
Several authors have alleged they received their payment for May royalties at the end of September (4 months later). Lolita alleged she received December’s payment (assuming this is for royalties received in November) in mid-February, which would be 2-1/2 months later:

In February 2014, I received my 2013 Form 1099 from Ellora’s Cave. It included $13,354.79 worth of income that I did not receive in 2013. In fact, a few days after my 2013 Form 1099 arrived, a royalty check with a December 2013 date on it finally made its way into my mailbox. That’s right. A royalty check that was cut in December of 2013 took more than 6 weeks to arrive in my mailbox. The amount was enough to push me over the income limit for the next hop in tax rates so the IRS slapped my hand with a fine for underpayment.
The accounting firm that I use was not amused by this. They encouraged me to file a complaint with the IRS, but I declined. I paid the fine and the extra taxes. Clearly, I should have listened to the professionals. Hindsight, right?

In an ideal world, the payments for authors would be put immediately into a separate account. Assume 45%, then fix it for the amounts that are less (I see some sales are 40%). There would be no need to pay slower because the money would always be available on time for the authors.
Ergo, the implication when royalties are being paid slower like this (or, as others have reported, no check at all arrived for a given month): the company is using the received royalty income for operational expenses instead of setting it aside for the authors.
Edited to add this paragraph: one of the confusing parts of the various author accounts: it’s not clear if people reporting missing checks were meaning they never received a check for that month (let’s say April), or if they never received any check in April, but may have received royalties they expected to receive in April in a subsequent month.

Chop the Long Tail

With over 800 authors, some of those authors are going to be bringing in peanuts and others whole food trucks. Release the authors that are consistently not performing.
As an example, calculate how long it takes to put together all the royalty information, divide by the number of authors. Figure out how much you’re paying the people who do that work, including cutting the checks. Triple that cost. For the authors who aren’t making, on average, that much for the house over the last year, offer to release their titles (for no fee).
Probably, that’s more than half the authors. It’ll take more work temporarily, but it’ll be less work long term. Then the business is focused on the higher-performing writers.

Release the Remaining Long Tailers from Right of First Refusal

In addition to releasing existing books from the end of the long tail, release the right of first refusal for those people, too. (Might even want to make it for a larger pool.)

Charging for Reversions

Victoria Strauss runs Writer Beware, a site that warns about predatory practices and predatory companies in publishing.

@victoriastrauss I thought I remembered that you said somewhere that publishers shouldn't be charging for reversions? (except advances)

— Deirdre Saoirse Moen (@deirdresm) October 5, 2014

@deirdresm Correct. I don't think there should be any fees associated with reversion–a red flag if you see this in a contract.

— Victoria Strauss (@victoriastrauss) October 5, 2014

@deirdresm I've also heard of pubs who ask for reversion fees even if there's nothing in contract to allow this.

— Victoria Strauss (@victoriastrauss) October 5, 2014

@deirdresm No matter how pub justifies it, I think it's abusive.

— Victoria Strauss (@victoriastrauss) October 5, 2014

Contract One Book at a Time

The editorial staff has shrunk. Money’s tighter than it should be. People are complaining. The future isn’t looking as bright as it used to.
Only contract the books you can afford to edit and produce. Given the changing market conditions, an agile approach is needed here: limit scope of future projects.
D. Renee Bagby/Zenobia Renquist has quite the post on her attempt to get reversions for twelve proposal titles.
So apart from the fact that it sounds like EC is intending to publish the books outside their contract terms (and wouldn’t that be an interesting DMCA takedown quarrel?), here’s the gotcha, in the form of a letter from EC CEO Patty Marks (emphasis added):

We have already cut staff, special EC projects and other expenses, but the drastic drop in sales has resulted in large net short-term variable production losses and slow and often negative return on investment for EC on almost every new book we publish, with the exception of a handful of the highest sellers.

So what do you do? Only contract multiple books from people who already are the highest sellers.
Renee/Zenobia has said that she was not released from twelve books under contract. Yet, in the same post, she shows that her royalties for May would not put her in that group of “a handful of the highest sellers.” And yet, EC doesn’t want to release those books back to Renee/Zenobia despite it appearing that would put her in the negative return on investment?
These things have to be business decisions and not emotional ones. There’s an old economics maxim:

If the expected added benefits exceed the expected added costs, do it. If not, don’t.

If Renee/Zenobia were to self-publish, she’d undoubtedly do better, and EC wouldn’t lose money. Isn’t that win/win?

Consent Is Key

As a publisher, you want readers, reviewers, and authors to stick with you through tough times. You want them to continue to consent to be in your corner.
Those perceptions can be managed if you look beyond initial blame and hurt. Win/win negotiations are still possible.
Respecting the word “no,” however phrased, is key.
Related: Coerced Consent: When “Yes” Really Means “No”
The image in this post’s header is free for you to use. Details and a higher-resolution copy are over here.

Filed Under: Ellora's Cave Tagged With: ellora's cave, ellorascave, publishing

Morning Has Broken, and It's a New Day

September 30, 2014 by deirdre 1 Comment

εξοδοσ-web-image
Quite the round of updates this morning. Probably because I slept so late. (Which, given my post yesterday, is a good change.)

Dear Author and the Temporary Injunction Hearing

A TRO was not granted today, but there will be another hearing on it. Jane makes the following request:

Therefore, If you are willing, I need help with the following:
Individual authors, editors, cover artists willing to testify, either in person, via telephone or in an affidavit to payments made/not made.
It would be best if you could testify in person, but a sworn written statement will be adequate.
Additionally, if you have any Screenshots of any public statements regarding Ellora’s Cave, those would be helpful too.
You can reach me at jane@dearauthor.com.

Courtney Milan on Confidentiality Clauses

Courtney Milan has a great post on confidentiality clauses here. She’s also offered to help find representation for people who wish to speak up but are afraid to because of the confidentiality clause.

But there is one thing that I know for sure–silence breeds fear. And no matter how broad the confidentiality clause is, there are some things that it can’t prevent you from saying. So if you’re an Ellora’s cave author, editor, or cover-artist, and you would speak up but you’re afraid, say that much. Go on twitter. Post it on your blog or your Facebook page. “I’m an Ellora’s Cave author, and I’m afraid to speak up.”

I want to talk about this for a minute. Fifteen years ago, I was in a pre-IPO startup with a culture of silence and fear. Two years ago, I finally wrote about it. I was only able to write about it as a fable, thirteen years after it happened. Here’s another side of the story. I am $COLLEAGUE in this telling—and I’ve never said that publicly before. The stress cost me a hospital stay with a kidney infection.
So: I get it. It’s one of the reasons I want to help provide support.
If you are willing to state that you’re an EC author afraid to speak out, and have non-EC titles to promote, I’ll add you to the Ellora’s Cave Author Exodus Support Thread.

The Flush Pile

The advice I was given by a number of senior writers back when I was learning the ropes was: money in hand is important, but reversion clauses are a critical negotiating point that may, in the long run, be even more important.
Carolyn Jewel’s post The Flush Pile – An Author’s Perspective is one of the single best posts I’ve ever seen about the business of writing from the school of hard knocks. You should read it, engrave it onto copper plates, and frame that sucker. Okay, I exaggerate. A tidge.

Do not assume a publisher has an interest in your book selling well. They should, but they don’t. Their interest is in seeing which books unexpectedly hit. That’s it. If it’s not you, you’re screwed.

Gulp. Welcome to the post-Kindle world of publishing.

Is Your Copyright Registered? Are You an RWA Member? SFWA Member?

I added three important updates to the Ellora’s Cave Author Exodus Support Thread. that you may have missed.
First, several EC authors have said their copyrights were not registered. This link allows you to check if yours was.
If you’re an RWA member or SFWA member and are having trouble with Ellora’s Cave, there are links to grievance processes. I don’t know much about RWA’s, but in the years I was a SFWA member, I know SFWA’s was pretty awesome.

For the EC Authors Who Haven’t Had Problems

There’s no universal experience with Ellora’s Cave. Some have had problems, some have not. Some have questioned their royalty accounting, and others believe it’s fine.
In short, some people have had absolutely great experiences with Ellora’s Cave, and other’s haven’t. Please don’t assume that others have the same experience you have, and be gentle with the people who can’t quite believe what’s happening because their own experience is so much more positive.
The people who could wind up being the most hurt—and not just financially—are the ones Ellora’s Cave has protected the most: their best-selling authors. They’ve had incentive to ensure that these authors have had premium experiences, possibly at the expense of those in the long tail. And with (if I counted accurately) 934 active authors, there’s quite a long tail.
It’s hard to want to ask for reversions when your experience has been strong, even if some of your titles aren’t selling well. It’s hard to want to go with another publisher for some work when you’ve had an ongoing relationship. However, this leads to having all your eggs in one basket, which can go fabulously well or fabulously poorly, depending.
So here’s what I’d suggest for authors who are in this boat—or, really, any author.

  1. Build your email list. If you don’t already have one, start now.
  2. Work on your marketing. If you don’t have a strategy, Tim Grahl at Out:think Group has a free 30-day course that may help you.

Best of luck to you. Really.

A Question About Discovery

IANAL and TINLA, but….
As I mentioned before, there are some suspicions of hinky royalty accounting. Others have stated their non-EC titles didn’t have the precipitous drop.
So, my question: doesn’t the nature of this lawsuit mean that Amazon can be subpoenaed for the royalties for titles?

A Pithy Thought

You can’t build trust with your entirely pseudonymous author list by outing the real name of a pseudonymous blogger.

Last, But Not Least

εξοδοσ-web-image
You probably saw the image up at the top. It’s free for you to use. There’s a smaller version just above, also free for you to use. The characters, ΕΞΟΔΟΣ, literally mean “exit” (or “going out”) in Greek. Of course, it’s also where the name of the second book of the Bible, Exodus, comes from. I admit I wasn’t thinking about the deeper historical meaning of the Israelites leaving slavery in Egypt, and I mean no disrespect in using the term. The ankh, well, that symbol’s all over Ellora’s Cave’s site.
I’ve made several products on Redbubble, and here’s the plan. Several of you may wish to speak out. Several EC authors have said that they are quite poor. Thus, for them, calling in testimony in Dear Author’s case may be prohibitively expensive for them.
I’ll make 75% of my royalty on these items (10-20%, depending on the item) available for people for whom it would be prohibitively expensive to speak out. Every month when I get my royalty statement, I’ll update how much is available below. I don’t expect it’ll be much, though, based on past experience.
Here’s a 100% detail of the background on the non-clothing items:
εξοδοσ-detail

Filed Under: Ellora's Cave Tagged With: ellora's cave, ellorascave, publishing, romance

Ellora's Cave Author Exodus Support Thread

September 27, 2014 by deirdre 76 Comments

Greek Sphinx, Delphi

Greek Sphinx, Delphi


This post is for authors, editors, and cover artists who’ve left, or who are trying to leave, Ellora’s Cave. I’ve got a section for other resources for EC authors at the end of this post.

Authors

At least one of the following needs to be true:
1. Asked for your rights to be reverted in 2014 (or 2015) or had your rights reverted in 2014 (or 2015). Or, and I hope this isn’t true for you, your rights were reverted but EC is still selling your titles.
2. Have taken your EC titles off your website. Or, if they’re reverted, have re-published at least some of them.
3. Have spoken up since December 2012 about late royalties, missing royalties, or suspiciously declining royalties in a public post (blog, facebook, google+, whatver) or tweet.
4. Have had an EC title for which EC has sold the contract to another publisher.
5. Have publicly posted that you’re afraid to speak up. (Thanks for the idea, Courtney!)
You must also have a non-EC title to promote, since many of the readers of this thread may not wish to enrich Ellora’s Cave.
Click on author name for the author’s website.

  1. Cat Grant. She’s gotten her three Ellora’s Cave titles reverted (soon to be re-published) and has more than twenty titles from other sources.
  2. Kit Tunstall. “What I do know is I haven’t been paid for three out of the past nine months[…]” Later received a check, commented, “The low amount of my check is hardly indicative of the financial health of the company.” Note: she later deleted those posts, and they were not archived on archive.org.
  3. Evanne Lorraine. talks about deleting the covers of her EC titles from her website:

    I loved my editor, thought their cover art was brilliant, and was very fond of the regular royalty checks.
    Yesterday I deleted those covers from my website, which makes me want to sob.
    I still adore those stories, but Ellora’s Cave isn’t paying me. I sent them formal notice requesting payment and the reversion of my rights. I received an automated response to both emails stating they’re overwhelmed with requests.

  4. Avril Ashton. Spoke about royalty issues. “I’m going to say that once again Ellora’s Cave isn’t paying royalty checks. I’m going to say that once again, emails and phone calls and fucking homing pigeons are being left unanswered. Silence on all correspondence.”
  5. Jan Springer. Commented on DA, “Jan, one of the EC authors not getting paid and fighting to get her rights back.”
  6. Trista Ann Michaels. Spoke about royalties not arriving.:

    Another month has gone by and no check from EC. Emails and phone calls go unanswered, just like always. I have no doubt if I was to go up there in person, I would find the office doors locked.
    . . . .
    It’s a shame that we at EC have to resort to such a tactic, but I’m adding my name to the list of authors who are asking that readers not buy their EC titles. We’re not getting paid for them anyway.

  7. Lex Valentine. Lex commented on Passive Voice: “I got a lovely check September 23 dated August 31 for May royalties. It was $43 and change. The only thing I found curious was how it took nearly a month for that check to get from Ohio to Southern California and that I got a check at all considering some of my EC author friends haven’t been paid.”
  8. Lynne Connolly has said “I just want my rights back.”
  9. India Masters, also writing as Keira Cole. She comments below, “My last check, covering royalties earned for the month of April, was $48.94 – around 1/4 of my usual earnings.”
  10. Abigail Barnette/Jenny Trout. One of my favorite people, and I’m a fan of her Boss series. She says:

    I’m an Ellora’s Cave author. I only have one book there, and it has never been a bestseller, but I love it and I would be heartbroken if it were to end up as part of a bankruptcy settlement. So, I asked for a reversion of my rights last week, after a summer of rumblings from other authors who weren’t happy with their experience with the company. I myself have never had any payment issues with Ellora’s Cave, but having been in the business for almost a decade, I’ve learned that when authors are saying that they aren’t getting paid, other things aren’t getting paid, either. As Litte points out in her post, if a company goes bankrupt, authors can lose their rights permanently, so some Ellora’s Cave authors are faced with a difficult, possibly bridge-burning choice right now. I’ve never met an Ellora’s Cave staff member about whom I could say a bad word, and it pains me to cut ties with a publisher that I feel has treated me well, but in business you have to make hard decisions to protect your interests.

  11. Lynne Connolly. Comments below, and has removed her EC titles from her website as well as gotten reversions on her unpublished titles.
  12. Shoshanna Evers. Comments below, and has gotten several titles reverted.

    I would also like to add that everyone who works at or for EC has always been awesome to me, and Romanticon used to be my favorite convention. I’m sad this is going down the way it is.

  13. Cassandra Carr. Comments below. Has gotten two shorts reverted, but still has several titles at EC.
  14. Regina Cole. Has a non-EC book available for pre-order, Draw Me In.
  15. Suz deMello. Commented below, asking for rights back on five titles.
  16. Kate Sherwood. Tweets: “Please don’t buy my EC novella. I don’t want any profits from it to contribute to EC’s lawyers’ bills. #notchilled” She’s got other titles available.
  17. Liz Crowe. Commented below, and generously offered the Stewart Realty series ebook for our readers.
  18. Kelly Maher. Asked for reversion of her EC titles.
  19. Lissa Matthews. Spoke up about royalty accounting and also getting a cover that wasn’t compliant with Amazon’s standards.

    I have one book filtered at Amazon and I don’t even have a year’s worth of sales numbers on it, but I can tell you it definitely meets the ‘sells less than 100 copies in a calendar year’… No one even knows the book exists unless I tell them. And it’s filtered because I didn’t specify No Nudity for the cover. Okay, I took blame for that, but how was I supposed to know I had to tell Ellora’s Cave what their distributors would and wouldn’t allow on covers in order for them to be found by readers and not stashed so deep into the abyss? I had never had to specify that before and believe you me, I learned that lesson. Because the next and final book that I submitted specified on the cover art form NO NUDITY!

  20. Berengaria Brown. Comments below. She’s got plenty of non-EC titles for you to read. Thanks, and welcome!

  21. Delphine Dryden. Comments below. I have read and enjoyed her Cosmo/Harlequin titles, but she’s got plenty of others.
  22. Leigh Ellwood. Comments below. She’s got quite a few titles out and is a very versatile writer.
  23. Lolita Lopez / Roxie Rivera Wrote a heart-wrenching blog post about her EC relationship. She has plenty of titles to entice you with, especially if you like paranormal or sci-fi in your romance.
  24. Nina Pierce. Comments below, and has asked for reversions on her EC titles when her sales started slipping.
  25. Angelia Sparrow. Comments below. Many of her EC books reverted before the recent issues with EC.
  26. Lynn Rae. Pinged me on Twitter, and has other non-EC books featured on her website.
  27. Emily Ryan-Davis. Has gotten reversion on her Ellora’s Cave titles. She’s got plenty of other books for you to read!
  28. Kate St. James. Has gotten reversion on her EC titles and has other titles for you to read.
  29. Blair Valentine aka Bonnie Vanak. Has spoken out about EC’s slow royalty payments and asked people not to purchase her EC titles.
  30. Jane Leopold Quinn. Has asked for reversion, but also has non-EC books to check out.

There is a Kindle book list of EC authors who have non-EC books for authors who’ve contributed to the Dear Author/Jane Litte Defense fund.
Additionally, A. Nonny Mouse comments below, “I’m an EC author who’s received obviously backdated checks, suspect royalty statements missing books, whose questions and concerns have gone unanswered by TPTB. I’ve removed all EC books from my website and have asked for all my rights to be returned. Obviously, they haven’t bothered to respond.”

To Participate

Please comment with, email me with or tweet me with your pen name and website (and link to the post if #3), and I’ll add it to this author list. Fan of an author not listed? Let me know!
Note: EC covered a wide variety of erotic romance tropes, and there’s no guarantee that any particular author will write something that speaks to you as a reader.

Editors

You’ve commented publicly, even if anonymously, that payments to you are currently, or have been recently, late.

  1. Just sayin’ comments: “I am a former EC editor and have not been paid since the beginning of the summer.” I believe, but obviously can’t be sure, this may be the same “Just sayin'” who comments below.
  2. And me commented below saying they have not been paid since early summer.
  3. This makes three adds, “I’m yet another EC editor who hasn’t been paid.”
  4. Me too also comments below, “I’m an unpaid editor too.”
  5. Lemon Squeeze Editing is a group of laid off EC editors now offering their services as freelance editors.

Cover Artists

You’ve commented publicly, even if anonymously, that payments to you are currently, or have been recently, late.

  1. Dar Albert Commented on Avril Ashton’s blog:

    They owe me for covers for two months. They worked me like a dog, took the art, and now tell me nothing. Or that they have no idea when I will be paid. I am really frustrated. Got bills, got a life, got just me, no back up, and now I have no loyalty for a company I served for six years as an artist.

    If you need covers for a book project, you can contact Dar at Wicked Smart Designs. I’m sure she’d appreciate the work.

Promotion Opportunities

  1. There’s a Google Doc form for each non-EC book by an EC author for bloggers to promote. Here’s the tweet. This is a great project to help get exposure for authors. Here’s the resulting web page.
  2. Felicia would like to feature EC authors on Top Off Tuesday. (I’m not affiliated with that, just passing along the info.) Covers should have a male with a top all or partly off.
  3. Angela would like to feature EC authors with non-EC titles on Boosting the Signal.
  4. Kastil Eavenshade tweets that her blog is open for EC authors to promote non-EC titles.
  5. Agents of Romance tweeted that they would love to help EC authors promote non-EC titles.
  6. Romancing Rakes wants to feature non-EC titles by EC authors for the entire month of November. Whoa.
  7. ScuttlebuttReviews comments below. “We currently cannot commit to reviews, but can accept author promos, guest posts, and the like. Please note that we only accept GLBTQ books, the bulk of which are MM/Gay.”

Copyright

Several EC authors have noted that Ellora’s Cave did not register their copyrights. Victoria Strauss tweets how to check if your copyright was registered. More direct link is here.

Romance Writers of America

By the way, if you are an Ellora's Cave author and an RWA member, you can file a complaint with RWA. #notchilled

— Courtney Milan (@courtneymilan) September 29, 2014

Here's how you do it. (1) Here is the Industry Code of Ethics: http://t.co/d2LABorDDD There is no easy way to report… #notchilled

— Courtney Milan (@courtneymilan) September 29, 2014

…so step (2) is to e-mail the RWA president (emails here: http://t.co/D94jUfVhif) and say you're reporting a violation. #notchilled

— Courtney Milan (@courtneymilan) September 29, 2014

Science Fiction and Fantasy Writers of America

If you’re a SFWA member and are having trouble receiving payment, or believe your royalties aren’t accurate, you may be able to use SFWA’s Grievance Committee resource. Not all EC titles fall under SFWA’s purvue, but many stories are science fiction, paranormal romance, or similar genres.

Comment Note

Note: Comments use gravatars. If you wish to comment anonymously, be careful. To the extent the law permits, I will protect anonymous commenters. Also, all comments are moderated unless there’s a previously-approved comment from you.

Filed Under: Ellora's Cave Tagged With: ellora's cave, ellorascave, publishing

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