Those of you who follow my tweets and this blog know that for the last year and change I’ve been shopping my Feywild Faerie Tales series, specifically the novel, Soul Alchemy, which began as a short story that won the 2010 Literotica Winter Story Award. Its sequel, Soul Shadows, was on the Literotica High Score and Most Read Lists for nearly a year after I posted it. Both stories were very popular among my readers, and I truly didn’t foresee much difficulty in selling them (rewritten and edited into full-length novels), along with a third novel called Soul Forge, to a publisher.
I couldn’t have been more wrong.
The stories – like most of what I write – are character-driven, cross-genre works. This is, apparently, not what male/male romance publishers are used to receiving in their submission slush pile (what they call subs that come in from writers who do not have a pre-existing relationship with an editor or an agent) as I soon found out. From my “top two” publishers I received the following: an outright rejection from one, and from the other, a very lovely, personalized letter, letting me know how much they loved the novel (I’d subbed Soul Alchemy only), that four different editors had read it and they all agreed my writing and technique were nearly flawless, but that in the end they could not find a place for the novel in any of their publishing lines, and could not effectively market it were they to accept it. They invited me to submit to them again at any time, gave me an editor to submit through directly (always a plus) and were extremely professional. Despite it being a rejection, I counted that one a win.
But the Feywild Faerie Tales still had no home. So I began submission round two. This time I received two rejections. I took them in stride and immediately went to round three. Now please bear in mind that it takes a publisher anywhere from one week to four months to review a submission and get back to an author. So by the time I started round three, I’d been at my submission process for eight months. By the time I received my third round of rejections, I’d spent just over a year shopping the novels to six different publishers.
In June of this year, despite some misgivings because of negative press, I chose to submit both novels to Ellora’s Cave. I was well aware of the issues they’d had with their new accounting system, and how some of their authors were crying foul because once-monthly royalty checks were late. I also knew they’d changed EICs and experienced some internal turnover. But I did some research and chatted with half a dozen of their current authors. Satisfied, I submitted. A week later, I was offered a three-book contract for the Feywild Faerie Tale series.
Of course, I moved at the end of June, so things were put on hold until I got settled into my new home. But in August, the EC Contracts department sent me a twelve-page document with detailed instructions that they wanted filled out in triplicate – one for each novel. According to them, they didn’t do multi-book contracts (despite what my editor offered me). I would be signing three separate contracts.
This was where the real problems started.
What follows is some basic, general advice for all writers regarding contracts. Pay attention. There will be a test. It’s called when you’re miserable and trying to get your rights back later or when you’re wondering why you need a lawyer. If you are repping yourself, if you do not have an IP lawyer, then you must educate yourself. Read on.
Check out this rights section from the EC Contract and see if you can tell me what’s wrong with it.
Author exclusively grants to the Publisher the right to publish, print, sell, distribute, and license the Work throughout the world, and in any and all media and forms of expression now known, and all subsidiary rights granted in the Subsidiary Rights clause hereunder.
This is what’s known as an “all rights” contract. I didn’t know they still existed. When you sell all rights to your work, you can never use the story again. While you are still the copyright holder, you have no rights left to sell. To resell the novel, you would have to create a substantially different version; you'd basically have to rewrite it. In addition, the purchaser of "all rights" is free to reprint your material, sell it to other publications for reprinting, include it in an anthology, post it online, or sell it to some other agency, all without paying you any additional money.
Now check out this section regarding subrights. If you thought the rights clause was bad, this one is terrible!
Except as otherwise provided below, Publisher shall credit Author’s account with a royalty equally divided between Publisher and Author of all net revenues actually received by Publisher for the exploitation or disposition of the Subsidiary rights in the Work.
Subsidiary rights include the following:
Mass Market Paperback, Trade Paperback, Hardcover Edition and any other reprint edition (before or after first publication in whatever format), Book Club editions, Syndication, Second Periodical Rights (after first book publication), serialization, digest, abridgement, condensation, excerpt, Anthology and Other Selection Reprint, in whole or in part, in complete, condensed, adapted, or abridged versions.
Publication in the English Language worldwide, Publication in Other Languages (translation) worldwide, First Periodical Rights (prior to first book publication), Motion Picture, Television, Radio and Dramatic Rights, Commercial Adaptations and Tie-Ins, Audio Rights, Multimedia Rights, Display rights (the right to electronically display the text of the book in whatever format and over whatever media).
Author shall not have the right to review or approve any foreign edition of the Work, and such editions may be altered by the foreign publisher at their discretion, including editing the work for length and content.
Author acknowledges that subsidiary or secondary rights licenses may continue after termination of this agreement and that Publisher may enter into such licenses at any time during the term of this agreement regardless of the termination date of the subsidiary or secondary license. In all such cases, Publisher shall continue to credit Author with Author’s share of income from all such licenses, and agrees to revert rights to that particular license to the Author upon termination of the license.
I offered to make the following rights available to Ellora’s Cave: First World English Print, First World English Electronic, Audio Rights and Publication in Other Languages (Translation) Rights. They countered with offering to strike the following rights from the subsidiary clause: Motion Picture, Television, Radio and Dramatic Rights, Commercial Adaptations and Tie-Ins.
Just process this for a minute. At their most basic level, my novels are explicit gay male stories about faeries. Now just WHO is going to abridge those stories? What book club exists that is going to take my gay faeries? Where are my gay faeries going to be serialized? A publisher who asks for subsidiary rights that they have no intention or ability to ever utilize or sell and who will not relinquish those subrights when specifically asked raises a huge RED FLAG.
I also took issue with their caveat that forbid authors from reviewing or approving foreign editions, and requested that clause be stricken. They told me they couldn’t strike it, because they didn’t see foreign editions before they were printed, and so had no ability to allow authors to approve such editions.
I explained my concern was that as the author of LGBT works, since the contract explicitly stated a foreign publisher could edit for content, then by those terms they could, if they so chose, change one of my male characters to a female and make my male/male story a heterosexual romance. The legal department never answered this concern.
Indemnification essentially means that the author agrees to become an insurance company for the publisher. The section either included with this or immediately before it is the warranty section, where the author guarantees the Work in question is original and completely his, that it doesn’t infringe on anybody else’s copyright, and that it is in no way libelous or violative of any third party’s right to privacy. The indemnification clause exposes the author to a great deal of risk, and should always be read carefully. When I read EC’s I discovered this little gem lurking within it.
In the event of any Claims, Publisher shall have the right to suspend payments otherwise due to Author under the terms of this Agreement as security for Author’s obligations under this Section. Any payments withheld by the Publisher pursuant to this paragraph shall be released to the Author after a period of one (1) year in the case of any Claim, action, or proceeding that is threatened but not pursued, or within thirty (30) days of the discontinuance of any Claim, action or proceeding.
Now I don’t begrudge the Publisher the right to be paid if an author screws up and gets them sued. The part of this that bothers me is where they get to keep my royalties, presumably in their bank account where they can earn interest on them, for an entire year, over any claims that are “threatened but not pursued.” That would be frivolous claims or claims without merit. Basically, they’re going to keep my money for a year as insurance just in case… And I don’t agree with that at all.
I requested this clause be inserted in place of theirs: The Author’s indemnification obligations will apply only to an actual breach of any of the Author’s representations and warranties, as determined by a court. They responded with a resounding and spelled out in all-caps, “NO.”
A publisher’s unwillingness to negotiate over something where you, the author, are the one taking all the risk and your money is at stake, is another RED FLAG.
OPTION OF FIRST REFUSAL
This allows the publisher to have first dibs on your next work. Nearly all writers’ guilds, groups, agencies, and organizations advise against such an option. It holds you to the publisher, who may or may not be the best publisher for your next work (ex: they specialize in hot steamy male/male paranormals, and your next work is a sweet contemporary with few explicit sex scenes and a het subplot). If your first work with them sells extremely well, you may be stuck with terms that are less than what you would get if you went somewhere else (ex: they give you 35% on royalties and you turn out to be the next Hugh Howey, so another publisher offers you 65% to sign with them). And finally, it’s a time suck. They normally have anywhere from 60 days to six months to consider your next work before making an offer, during which time you cannot shop it to anyone else.
The EC Contract included an option; this confused me. Obviously, I would be fulfilling the option in the first contract with the second book, and fulfilling the option in the second contract with the third book (since they were insisting on three separate contracts instead of a multi-book contract). Which really meant only one of the three had any teeth (or meaning) at all. So why bother including any of them? If I published an entire series through one publisher and wrote a fourth book, it would make sense I’d want it at the same publisher as the first three.
Here’s the EC Option Clause: Author grants Publisher an exclusive option on any works of erotic romance or erotica fiction of length over 7,000 words that are a sequel or prequel to or part of a series with the contracted Work or that make use of the characters of the contracted Work.
Author will submit to Publisher a proposal and material for the Author’s work as defined above, prior to submitting the Work to any other publisher and prior to offering the rights to the work to any other publisher and prior to pursuing self-publication of the work. After submission of the option Work, publisher will have sixty (60) days in which to consider the option work during which time the author shall not submit or offer the work to any other publisher. Should publisher make an offer, both parties agree to negotiate exclusively with each other regarding the terms of the option work’s publication. Should they fail to reach an agreement within sixty (60) days of publisher’s offer, the author shall be free to offer said option work to other publishers.
As I’ve already mentioned, this didn’t make much sense to me. I’d be signing two contracts where this clause was rendered fulfilled simply by the existence of the remaining contracts. From my perspective, it was a sign of good faith on my part that I was willing to sign a contract for all three books. I could’ve just said forget it, and demanded new negotiations with each novel. Since I was willing to negotiate the three as a series, I expected an equal sign of good faith from the publisher. I wanted the option of first refusal clause stricken from all three contracts.
Not only did they refuse to remove it, they pointed out that I had read their clause incorrectly. Have you caught my mistake? I assumed their clause was a standard one, and misread it as such – that they’d get first look at any work I wrote that had the same characters, or was part of the series. I missed that “s” after work.
If I signed the contract with the clause they refused to remove, I would owe them right of first refusal on ANY AND ALL FUTURE RELATED BOOKS. Not just the next one. They would get first dibs on any Feywild book or short story over 7000 words that I wrote, forever, based on these contracts. Any clause in a contract that ties you to a publisher indefinitely or puts you in a position in which you owe a publisher something for an indefinite period of time is a RED FLAG.
As if these things weren’t enough to convince me not to enter into a publishing agreement with this house, the auto-response from the contracts & rights department to acknowledge email receipt included this: We are currently overwhelmed with emails. We’re sorry for the delay. If you have sent an inquiry regarding rights reversion, it has been received and is in the queue. We have six months to respond.
Really? An author’s rights only revert when the work has been out as an e-book for 18 months, as a print/audio book for 12 months, and the sales from all sales channels, in all editions, in all available formats are so abysmal that they don’t exceed 100 copies in a 12-month period. So from this auto-response I can extrapolate that EC’s sales are in such dire straits that its authors are flocking to the rights department in droves to get their rights back. A simple check of EC's sales figures on Amazon verified this.
To put the icing on this melting, lopsided cake… I happened to check one of the forums I follow where other authors dish about publishers and what’s going on behind the scenes. As it turns out, while Contracts was offering me the world’s worst deal for three books, over in the main building, the EC Execs were firing the entire freelance staff. Yes, you read that correctly. My editor, the very person who acquired those three books, was fired, and will be gone by mid-September. They’re only keeping three editors plus the Publisher, who will be trying her hand at editing, or so the rumor goes. They also fired all their freelance designers, and now all covers will be done “in-house,” which apparently means by whoever has the most Photoshop experience.
Needless to say, I sent a letter officially declining the EC offer. I’m already preparing my fourth round of submissions for the Feywild novels. I’m sure they will find a home out there somewhere. I owe M.A. Church an apology. Whether through simple experience or some uncanny divination, she told me in June I didn’t want to sign with Ellora's Cave and I argued otherwise. I should’ve listened to a lady who communes with aliens. However, I can now proudly claim to be a superhero.
I am faster than the speeding bullet that was Ellora’s Cave and which was aimed directly at my head.
Just call me Tucker “Superman” McCallahan.