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Is Traditional Publishing an Increasingly Bad Deal?

I agree that it almost certainly isn't legal or enforceable. But how many debut and midlist writers do you know who have the resources to take it to court to find out? Big publishers with their millions in revenue and teams of lawyers can still hold these clauses over the individual writer's head.

Agree 100%

Or they can use such clauses as an excuse to cancel a contract. I remember the story of Kiana Davenport, traditionally published award winning writer, who signed a contract in 2010 for a book with a Big 5 imprint. It wasn't going to be published until 2012 and she needed some income, so she self published a collection of short stories that had already been rejected by publishers many times (including by the publisher she was contracted with). However, when the publisher found out they went "ballistic" and demanded that she take the volume down and attempt to delete all record of it from the internet. (heh) She refused (the short stories had nothing to do with the civil war era love story she was contracted with them for) and so they cancelled the contract and demanded she repay the advance.

So let me give you what I think was the takeaway on that Davenport case...Although I should note that the contract was never made public so we are all "guessing" on what it said. But here goes.

I don't think she violated non-compete...what she probably violated was a nasty little clause that is added to the indemnity section. Usually that section say things like I attest that I wrote this book and no one else can claim they did, blah, blah, blah...but recently they've been inserting.... "I attest that this work will be my next published work." For my first contract, I didn't fight that clause because I had no other book that was coming out before my trad books were. But for my second contract...I had another book waiting in the wings (that I planned to self-publish) so I got that struck.

My guess is she didn't read her contract carefully and that clause snuck in. Given that she signed it...the publisher had every right (although it was a crappy thing to do) to make her abide by the contract. If she wasn't willing to abide by what she signed...they had every right to cancel the contract...and if the contract said the advance is refundable if the book isn't published (and many do say that) then again the publisher followed what the contract said. I felt bad for Kiana, but I still am 99.9% sure that it's her own fault for signing something that she didn't realize the repercussions of.

Now, this exact sort of thing isn't likely to happen anymore, since publishers are much more accepting of authors self publishing these days. But it's an example of the kinds of lengths that publishers can go to thanks to the language they put in their contracts. And you can't believe them when they say things like "oh, well, that's just standard boilerplate, but we would never exercise it, trust us". Whenever you sign a contract you need to read it in light of what's the worst case scenario that can come from it. And if that worst case is something you don't want to have to deal with, then you need to get it changed.

I do think such clauses still are being put in...and yes I think the publisher hopes you don't notice...but the point you make is 100% correct - you have to look at "worst case scenaios" and make sure that you aren't boxing yourself in because you didn't pay attention to what you signed. If you sign a "bad" contract - you have only yourself to blame...and if you sign a contract...you should expect them to enforce it.
 
it will be very low such that it will probably never trigger.

This isn't true, especially if you include a sales floor of some sort in the contract, that is, if the book doesn't sell a certain number of copies or make a certain amount of revenue in a fiscal year, then the author can request the rights be reverted. I should add that publishers are incentivized to put books out of print in order to destroy stock, so it happens all the time, usually long before a book's sales fall to any contractual floor.
 
This isn't true, especially if you include a sales floor of some sort in the contract, that is, if the book doesn't sell a certain number of copies or make a certain amount of revenue in a fiscal year, then the author can request the rights be reverted. I should add that publishers are incentivized to put books out of print in order to destroy stock, so it happens all the time, usually long before a book's sales fall to any contractual floor.

The "floor" I have (which is more generous than most I've seen) is $500 worth of royalties (from print, ebook, audio, bookclub, graphic novels, and any other subsidiary sale) over the course of a year. That's $9.16 a week. Which is NOTHING! I don't know about you but how many bills can you pay with $9.16 a week of income?

The publishers can pulp all the stock they want...it's the ebooks and audio that continue to produce income with no warehouse space. The reason publishers hang onto rights...is if the writer is still producing new books then they will get sales on the backlist (in most cases the backlist earns far more for the publisher than the front list). But let's say for the sake of argument the author's books aren't earning well. It is a cheap investment to buy some copies themselves to keep the right...on the hopes that the next year will be better.

I know some "floors" that are $200 or less a year...and others that are 100 books or less in a year. I'm sorry all those floors are REALLY REALLY low and very easy to keep in print.
 

acapes

Sage
Yes, but I'm a pretty successful traditionally published author...most wouldn't be in my position. I'm not in the 1% like someone like Hugh Howey or Stephen King but I'm certainly more comfortable than probably 90% of authors both self and traditional.

The Good
  • It was absolutely the right decision to make - on all kinds of levels. My audience grew. I made more money than I would have in self-publishing. It opened doors I couldn't open on my own
  • I've been treated very well...better than most...with a marketing budget and good marketing programs
  • The books were well produced and professional (although not the covers I would have preferred)

The Bad
  • The more successful my books become, the greater the disparity between the money in their pockets and the money in mine
  • I've had to sign contracts that I don't agree with on principal...yes no one put a gun to my head, and I could have walked but it's still not something I'm happy about.
  • When me and my publisher disagree...they win. It's what I knew I signed up. But it is still frustrating to see things that would help my career that I'm powerless to implement.

Thanks, Michael, appreciate you taking time to answer.

Having the audience grow must be a reasonable trade-off for the lack of control over the cover art (?) but the gap on low royalties is always frustrating, huh? But you'd be self-publishing other works at the same time?

I'm curious too about the steps the publisher won't take - if you don't mind chatting more?
 
Thanks, Michael, appreciate you taking time to answer.

Having the audience grow must be a reasonable trade-off for the lack of control over the cover art (?) but the gap on low royalties is always frustrating, huh? But you'd be self-publishing other works at the same time?

I'm curious too about the steps the publisher won't take - if you don't mind chatting more?

You are very welcome...Yes growing the audience is very important...but it's not just cover art that you lose control over...it's everything. I would have preferred my books to come out in hardcover followed by mass market paperback but they were done in trade paperbacks. There are a million little decisions I have no say in.

I do plan on staying hybrid...some titles self (or a joint self and traditional) my most recent novel Hollow World had 4 publishers: 2 foreign language, 1 for print, 1 for audio) but I retain the ebook rights. In the future I might put out some titles that are full self-published where I have the print, ebook, and audio rights.

As to what publishers are holding firm on. There are many things but the ones that bother me the most are:

  • 25% of net for ebooks
  • Reduced royalties for exports and high-volume sales
  • Life-of-copyright contract length
  • Really low thresholds for "in print" determination which means rights don't revert when they stop performing well.

There are other issues like non-competes - that they will negotiate and to me it is the most important clause in the contract to get "right" as it could affect not only the book(s) being signed...but future works as well.
 

Devor

Fiery Keeper of the Hat
Moderator
There has to be a lawsuit there somewhere against people who make contracts knowing they aren't legal . . . something about good faith and an intent to extort. I wonder if someone's pursued that?

There are jurisdictions where non-competes are unenforceable as a matter of law, like California. Someone should start a publishing house there, if just for people locked in non-competes to self-publish legally.
 

Steerpike

Felis amatus
Moderator
There has to be a lawsuit there somewhere against people who make contracts knowing they aren't legal . . . something about good faith and an intent to extort. I wonder if someone's pursued that?

There are jurisdictions where non-competes are unenforceable as a matter of law, like California. Someone should start a publishing house there, if just for people locked in non-competes to self-publish legally.

Yeah. Problem is, unless you're only selling in California, I imagine you're going to run into an issue when someone buys the book in a jurisdiction where the non-compete clause can be enforced. If I have an online store and someone buys a book in Missouri, and then the former publisher sues me and the author in Missouri over the non-compete clause, that would be an issue.

Also, the original publishing agreement may have a choice of law provision, which means no matter where the suit is filed the parties are agreeing that the law of a chosen jurisdiction will apply to the agreement. If the original publisher is smart, it'll be one where the non-compete is enforceable (or at least arguably so). I'm not convinced California would enforce it even with a choice of law provision, but that would be another consideration.
 

acapes

Sage
You are very welcome...Yes growing the audience is very important...but it's not just cover art that you lose control over...it's everything. I would have preferred my books to come out in hardcover followed by mass market paperback but they were done in trade paperbacks. There are a million little decisions I have no say in.

I do plan on staying hybrid...some titles self (or a joint self and traditional) my most recent novel Hollow World had 4 publishers: 2 foreign language, 1 for print, 1 for audio) but I retain the ebook rights. In the future I might put out some titles that are full self-published where I have the print, ebook, and audio rights.

As to what publishers are holding firm on. There are many things but the ones that bother me the most are:

  • 25% of net for ebooks
  • Reduced royalties for exports and high-volume sales
  • Life-of-copyright contract length
  • Really low thresholds for "in print" determination which means rights don't revert when they stop performing well.

There are other issues like non-competes - that they will negotiate and to me it is the most important clause in the contract to get "right" as it could affect not only the book(s) being signed...but future works as well.

That would bug me too - & I really don't like the trade format as a reader, it's just not comfortable to hold I find.

And I agree, 25% is not much at all - especially if a title is on special for say 99c (I think that nabbed me 17c per copy on my first book when it was on sale) and the life of copyright and the low thresholds are rough on the author too - being able to negotiate on those aspects is what I like about having a small publisher. (Of course, what I then don't have is the powerful network of a major publisher to help grow the audience.)

In terms of your staying hybrid (which is the approach I'm going for) for instance, do you have the option to self-publish a work in the Riyria universe in the future?
 

Addison

Auror
Traditional Publishing isn't a bad idea, just a dying way. Thanks to technology. Instead of buying books, real books of paper and ink with a choice between hard cover or paper back, there's download. Either the kindle, nook or even google books. These types of publishers are taking off so fast in this day and age with more than just novels that soon even magazines and newspapers will be a thing of the past. Times like this you have to wonder if all these technological advances are really for the better. Computer programs, robots and other things are growing so fast that they'll either replace or destroy opportunity for jobs.

Me, I prefer a solid material book. Currently I'm taking an online English class and, for the first time in ever, I am getting lower than an A in English. I have a C-. MINUS!! All because the reading material is pdf files. My grade is going up now that I fixed my printer to hold the stories in my hands. Not to mention, reading a story on a lit screen really hurts my eyes.

So the advances in technology are great for marketing and promoting, but I'll stick with the old school books.
Oh, and I think that creating a contract knowing it can be broken or such is more of a con. I'm not sure, I'm glimpsing Timothy Hutton and Christian Kane in "Leverage" right now.
 

Mythopoet

Auror
I think one of the main things that new authors need to think about, when choosing what path to pursue, is that traditional publishing does not allow writers to grow a career like they used to in past decades. They still claim to "nurture" authors and their careers, but the fact is that if you're not a success right away with a Big Publisher (or most of their imprints), you're going to be dropped.

This observation has been made by established traditional authors like Val McDermid (a best-selling crime writer) who admitted in an article for The Telegraph that if she were to start out publishing today she "wouldn't have a career". She admits that no one in publishing today is going to publish multiple books that don't perform well in order to allow you to grow as a writer and develop an audience.

It's also something that self publishing author Michael Stephen Fuchs learned the hard way. In a recent Open Letter to Jeff Bezos posted on his website, Michael discusses how he published 2 books with MacMillan, but the second book didn't do well (he also describes how this was at least partly a result of MacMillan's mistakes in handling the book) so MacMillan dropped him. He tried to point out to the CEO of MacMillan that "Graham Greene wouldn't have made it if he were a Macmillan author today. Both his second and third books were monumental commercial flops." But that didn't matter to MacMillan, only his sales numbers did. (Note, you have to click on the asterisk in this post to read some of this stuff.) He describes how grateful he is that publishing now via KDP allows him to be a full time author.

Starting out as a debut writer with a traditional publisher seems to me, in light of stories like this, a monumentally bad idea. Trad publishers no longer allow mistakes. And when the mistakes are theirs, they end up getting blamed on the writer, who pays the price by having their publishing career unceremoniously ended. They no longer allow slow growth of meaningful careers. They want immediate success. They want to throw the authors at the public, see what sticks, get rid of anything that doesn't and rake in the profits on anything that does.

So, if you really want to be published by a traditional publisher, the smart thing to do seems to me to use self publishing to build up your career. Write lots of books, experiment, try lots of different techniques, build a loyal fan base, find success the slow but much more likely way. Once you have reached a certain level of success, especially if you have a dedicated fan base that is guaranteed to buy your books, you can seek a traditional publishing deal. Traditional publishers are trying to snap up successful self publishers left and right because they're guaranteed profit without any risk. If you're already successful you'll have more clout and influence to obtain a fair and profitable contract. So you can gain the benefits that traditional publishing offers, without having to give up control of your career and future as an author.
 

PaulineMRoss

Inkling
Once you have reached a certain level of success, especially if you have a dedicated fan base that is guaranteed to buy your books, you can seek a traditional publishing deal.

And the question then would be: why would you? Why hand that success over to a publisher to cream off the profits on the back of all your hard work?
 

T.Allen.Smith

Staff
Moderator
There could be a number of reasons. Some authors who strike hybrid deals, retain the E-sales and contract print sales. That model would get you into brick & mortar locations (like airports) that you couldn't get into on your own. Maybe you want to expand internationally with print. Need foreign translation & distribution if you do. Audiobooks is another....

It could simply come down to a business decision. Maybe you just want to write, leaving all the other aspects to others.
 
Hi,

I think Pauline makes a very good point. I'm not saying don't look to a trade deal at some point in your career. It may be a good thing in many respects. But I am saying that before you consider signing on the dotted line you ask one very important question - what can they do for me? And the reality is that if you are a successful indie there is less that a publisher can offer you.

Cheers, Greg.
 

Mythopoet

Auror
And the question then would be: why would you? Why hand that success over to a publisher to cream off the profits on the back of all your hard work?

Personally, I agree with you. I have no intention of seeking traditional publishing at any time. But there are people who really, really want a traditional deal for their own reasons.

The thing is, if you self pub first there's nothing to stop you from traditionally publishing at a later date. (Again, trad publishers are constantly trying to pick up successful self pubbers. They no longer care if you've self published first.)

But if you publish traditionally first, there's a good chance your career may be seriously crippled by a non-compete clause or a contract that makes rights reversion almost impossible.

The safe and smart thing to do is to start with self publishing.
 

Trick

Auror
This may have been said before, as I have not read the whole thread, but I wanted to point something out.

A good agent can make traditional publishing much more profitable and worthwhile. A media lawyer can do even better. The difficulty lies in getting a big trad pub house to accept a deal that is actually fair. It's beginning to seem that respectable success as a self-published author is one of the only ways to make that happen. They see your name and want to say yes to a deal, you hand them a contract that they don't love but might actually consider. But if you show up out of the blue with a contract that's ironclad and say you'll sell your work to them on those terms, they'll laugh you out of the building.

I honestly can't think of another way to get a good contract other than being the best damn writer they have seen in a while.

Since self publishing can both get your name out there and help you improve, it seems like a nearly necessary first step regardless of your future plans.
 
In terms of your staying hybrid (which is the approach I'm going for) for instance, do you have the option to self-publish a work in the Riyria universe in the future?

I would never sign a contract that would limit my future works...except in the respect of having a small exclusive window for the publisher when their book comes out. So yes...I can publish any work any way I wish.
 
Starting out as a debut writer with a traditional publisher seems to me, in light of stories like this, a monumentally bad idea. Trad publishers no longer allow mistakes. And when the mistakes are theirs, they end up getting blamed on the writer, who pays the price by having their publishing career unceremoniously ended. They no longer allow slow growth of meaningful careers. They want immediate success. They want to throw the authors at the public, see what sticks, get rid of anything that doesn't and rake in the profits on anything that does.

While in general I agree with your statements here, I will say that as upset as I get with Orbit (Hachette) from time to time, I've seen them really "hang in there" with authors that aren't (according to what I see in bookscan) selling really well.

So, if you really want to be published by a traditional publisher, the smart thing to do seems to me to use self publishing to build up your career. Write lots of books, experiment, try lots of different techniques, build a loyal fan base, find success the slow but much more likely way. Once you have reached a certain level of success, especially if you have a dedicated fan base that is guaranteed to buy your books, you can seek a traditional publishing deal. Traditional publishers are trying to snap up successful self publishers left and right because they're guaranteed profit without any risk. If you're already successful you'll have more clout and influence to obtain a fair and profitable contract. So you can gain the benefits that traditional publishing offers, without having to give up control of your career and future as an author.

Again, in general I agree with these statements. But there is NEVER any guarantees. Again, I've looked at bookscan numbers of some self-published authors that moved to traditional (some of which had really high advances and some were even in a bidding situation between multiple publishers) that came nowhere need what they needed to be to become a "success."
 
And the question then would be: why would you? Why hand that success over to a publisher to cream off the profits on the back of all your hard work?

Well as someone who did exactly this I can tell you why....

  • Bookstore presence - that helps to grow the audience
  • Library presence - again that opens up a reader type that self can't easily penetrate
  • More and higher advanced foreign sales
  • Audio books produced without cost to author
  • Validation which still means a lot to a large percentage of readers
  • Having a team of people producing the books rather than having to do it all yourself

Bottom line, I made more money by going traditional then staying self-published. My readership grew faster, and it opened doors I couldn't open on my own. Should EVERY project go this route? Nope. You have to evaluate each one on a case by case basis.

When I wrote Riyria Chronicles, the first offer I got wasn't at a level that was worth it for me to sign. The publisher came back with a larger advance...I thought I wouldn't earn that much with self...so I signed. For Hollow World, I had a good offer for print/ebook/audio...but I thought I could earn more by keeping my ebook rights so I turned that down and sold print to one company and audio to another. In the first few months of that book going live, I had earned back more than double of the original offer made.
 
But if you publish traditionally first, there's a good chance your career may be seriously crippled by a non-compete clause or a contract that makes rights reversion almost impossible.

If the non-compete is bad (and most are) it has to be re-negotiated to de-fang it...or walk...period. It's too big an issue to cross your fingers on that they won't enforce it.

As for rights reversion - you have to walk into any deal pretty much figuring those rights are gone forever. But it's just one book or one series so it's not the end of the world long term.

The safe and smart thing to do is to start with self publishing.[/QUOTE]
 
A good agent can make traditional publishing much more profitable and worthwhile. A media lawyer can do even better. The difficulty lies in getting a big trad pub house to accept a deal that is actually fair. It's beginning to seem that respectable success as a self-published author is one of the only ways to make that happen. They see your name and want to say yes to a deal, you hand them a contract that they don't love but might actually consider. But if you show up out of the blue with a contract that's ironclad and say you'll sell your work to them on those terms, they'll laugh you out of the building.

I don't agree. Don't get me wrong I think agents are great and so are IP lawyers, and they make their money and then some...but there are some industry standards that they won't be able to make a dent in. Yes I was able to get some concessions on my contracts...but some things just weren't going to budge ... period. The only ones that have gotten truly good deals are people like Hugh Howey, Bella Andre, and Coleen Hoover - but they were million copy sellers when they got those deals (well okay Hugh was a million yet, but he was earning six-figures each month and had a deal brokered for Ridley Scott)...so yeah unless you are in some superstar status no - you won't get a "fair deal" but you could get "a deal you could live with.

Since self publishing can both get your name out there and help you improve, it seems like a nearly necessary first step regardless of your future plans.

There are a lot of people who belief this...and for good reasons. I still think there are reasons for going either way.
 
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