Some of you may know the current situation with Ellora’s Cave. If not, this post at Dear Author should get you to the information you need.
The TL;DR is that several authors who write for Ellora’s Cave have said they are not being paid money due them. The rumblings began at least a year ago. Recently, EC laid off all of its freelance staff. Jane at Dear Author recently wrote a post in which she discussed the ongoing situation at EC. The owner of EC has now sued Jane for defamation. Do head over to DA if you want to know more about this situation.
I am an author who was with a publishing company that was heading toward bankruptcy. (Dorchester Publishing) This post is about what the experience was like for me. My situation ended up with a silver lining, but the outcome I had was never certain, just as it is not certain for any of the EC authors who are wondering if they’ll ever get paid or if they are going to lose their books.
If you have books with a publisher in the Flush Pile, here’s what’s quite likely:
1. No, you are never going to be paid money owed to you.
2. Yes, you could well lose your books. Gone.
Every publishing contract I’ve ever signed has had a bankruptcy clause. The clause means nothing. Zero. Zlich. It might as well not be there. If your publisher declares bankruptcy, your book is an asset of the company to be liquidated and turned into cash to pay to creditors. Authors are dead last on the list of creditors.
At Dorchester, authors talked amongst themselves. Advances and royalties due to authors were paid slowly. Some of use waited months for advances to be paid. More and more often, authors just weren’t paid. Foreign rights got sold and authors were never told. Those monies never appeared on royalty statements. I was surprised, for example, to find that one of my books had a Dutch translation. Toward the end, I also learned about other translations I was never told about and never paid for. One of them did not even have a signed contract despite being on sale. As royalties continued to be paid in haphazard fashion, there were consolidations and reductions in books, imprints and staff, and sales of rights to backlist titles of prominent authors to other publishers. (Marjorie M. Liu’s titles were sold to Avon, for example.)
None of this is legal advice. I’m not a lawyer. But if you’re an EC author, I do have some non-legal advice. In fact, I have advice for ALL authors with traditional contracts.
In 2010, my agent, who did not represent me at the time of my Dorchester contracts, was working hard to get reversions for me. I wanted them anyway, because the books were out of print and/or I was not being paid the money due to me. Dorchester had not filed for bankruptcy, but there was wide speculation that they could not recover from their difficulties and a filing was felt by some to be inevitable. I was advised that it was possible that rights reversions made within the year prior to a bankruptcy filing could be deemed fraudulent and any reversions negated. I was horrified to learn there was case law to that effect.
Even before the non-payment issue was a severe problem, it was clear to me that at long last, there was a good reason (ie, self-publishing) for an author to vigorously pursue reversions for all books that met the criteria of the out of print clauses. I’d read all those clauses and had begun that process with all my titles well before this. And by the way, I was roundly ignored everywhere except for Harper-Collins, who noted the request and put it on their schedule for a decision 6 months later. Literally. The meeting was in 6 months. Let that sink in.
My reversions from Dorchester came through at the end of 2010. Other publishers were an even harder nut to crack. St. Martin’s Press was spectacularly uncooperative. Hachette — I don’t even have words. And I have loads of hind-sight advice about what reversion clauses should say.
Eventually, quite late in the game, and months after I had my Dorchester reversions, Amazon bought the Dorchester backlist. Authors were given the option of a reversion or publishing with their Romance or Horror imprint. I don’t recall if Amazon agreed to pay outstanding royalties to those authors or not. By then, I was thousands and thousands of dollars ahead of the money Dorchester owed me, and more than happy with my own outcome.
My Advice to Authors with A Publisher in the Flush Pile
My advice is going to sound harsh. But, assume you will never be paid. The risk of waiting to see if your publisher rights their ship is the complete loss of your rights in your books. This is your career and you must not fail to take steps to protect your back list and front list.
You should take steps now to get your rights back. Read the reversion clause of your contract(s) and for all books where you meet the criteria follow the requirements for requesting a reversion and get it in now. Right now. If you have titles for which you have not been paid, then request a reversion on the grounds of non-payment. Get a lawyer to help you, if you can afford it. This is your professional writing career on the line, and this is not the time to be nice.
If you elect to wait it out, then make sure you understand the nature of the risk you’re taking. It cannot be that you hope everything works out. You must be sure that you can accept the worst case outcome — you lose control of your books and will never recoup your losses and never make another penny from those titles. The books will disappear from the market and you lose all benefit that accrues to your author brand when you have multiple titles on sale to the public.
In the current environment, every title you control is a title that can be earning you money right now every month. This is NOT a “I don’t know if my book is good enough situation.” A publisher bought your book. Therefore, that book can be making you money right now and you only have to worry about the vendor paying you.
This is also not a situation where you need to find another publisher. That might have been true in 2009 but it’s not true now. An author with reverted backlist can decide whether she wants to self-publish on her own or find another publisher or something in between.
My Advice to Authors With Traditional Publishers or Considering The Traditional Route
For future contracts, negotiate the fuck out of your reversion clause. If the publisher is making you both money, that is awesome. But the minute you’re not both making money or you’re below a mutually satisfactory threshold, then you should be able to ask for and timely receive a reversion. There is no nice girl here. This is your business and you should be in control of its operations. Therefore, you need to stand firm on reversion clauses.
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.
I have 5 books still with traditional publishers and I know for a fact that if those books were in my control, I would be making more money and more effectively controlling my author brand and, therefore, my writing career. That was not the reality of publishing prior to 2010, but it’s the reality now.