The Flush Pile – An Author’s Perspective

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.



13 Responses to “The Flush Pile – An Author’s Perspective”

  1. fiona jayde says:

    Really good advice! Thank you for sharing your experience and what you’ve learned.

  2. Working on that final draft says:

    Thank you for posting this. I really appreciate your insight. I’m leary to expound on my thoughts, but I’d just like to say that I think this is really useful information, especially for novice authors like myself. I hope to have many, many baskets for my forthcoming eggs. Thank you again.

  3. Thanks for posting this. Sharing.

  4. Lily says:

    Because self-publishing is now a viable alternative, at this point I think I’d be crazy to sign a contract a publisher offered me. As someone who is unpublished, I have no clout to negotiate the contract details, and their attitude is “Another one of you will be along in a minute, begging to be published by us. Take it or leave it.”

    This all could change in the next few years, but right now, the David and Goliath situation is still too iffy for me to take a chance on having my rights tied up with a company that is uninterested in pursuing sales of my books.

  5. Angela Booth says:

    Wonderful advice for authors, Carolyn. I’m glad your situation worked out. Heaven knows what will happen to EC’s authors. Fingers cross for them.

    Your post is a timely reminder to all authors that their troubles don’t end when a publisher buys their book. If they don’t pay attention, their real troubles may just be beginning.

  6. Joe Konrath says:

    For future contracts, negotiate the fuck out of your reversion clause.

    I agree, but have an even better solution: don’t sign any contract that lasts longer than 5 years.

  7. Joe I totally agree. In fact I’d start out asking for 2 or 3. But 5 is fairer. A publisher does have some longer lead times. “Life of the copyright” terms should be a non-starter. Don’t sign any contract with such language.

  8. M.R. Storie says:

    It was good of you to put your knowledge out there so we won’t all end up like the authors currently lost in the darkness of Ellora’s Cave. (It’s okay, Becky! We’ve still got a candle stub left!)

  9. Thanks to everyone who stopped by to comment or just read. I absolutely believe authors need to consider reversion clauses as make or break for a contract. It really matters. Kensington has long had 7 year contracts, and while 7 years is too long, in my opinion, I know plenty of Kensington authors who have gotten their rights back without much hassle at all. Seven years is up? Done.

    I have written 23 plus books, all traditionally published until 2013, and until I started getting reversions not a single one of those books made me money after 3 or 4 years. I got my rights back and now a book I wrote in 1987 makes me a bit of money. But the bigger deal, and the one that needs to matter is that all that backlist has earned me thousands more than I ever made when they were traditionally published.

    OBVIOUSLY NY is wrong, wrong, wrong about genre backlist and it’s traditionally published authors who pay the price. If you are an author looking at a publishing contract, reversion clauses matter a lot. A bad one will cost you serious money. Joe Konrath is absolutely right. Walk away from anything that isn’t for a limited term. 5 years probably isn’t too bad. I’d want 3, but I could probably live with 5.

  10. This is a really scary post. I have been self-publishing for two years now and the dream was always to get self-publsihed, but this is off-putting. Did you have an agent negotiate your initial terms? And if you had to do it all over would you self-publish only?

    • To answer your questions about an agent, yes. I have always been agented, but not always by the right agent. Having had the wrong agent for me I can tell you that having the right agent makes a huge, huge difference. I’m not sure any agent, not matter how good or right for you, would have anticipated the effect of Amazon’s KDP. Until then, reversion clauses just didn’t matter that much. Only the very biggest authors would have had a hope of interesting a publisher in a previously published title, particularly in genre fiction. My current agent, who did not represent me for any of the titles I was trying to get reverted at that time, was happy to help me when I mentioned I was having trouble getting publishers to pay attention to the requests.

      If I had it to do over, hmm. At least 9 of my novels were published before self-publishing was a viable option and another four were contracted during that time. I can say that during that early time when the contracted books were not yet written, if I had a do-over, I would have been braver — as others advised me to be — and scraped up the money to buy back the contracts and self-publish those.

      I was very fortunate that I was going back to contract during this early period –2011 or so because there were contracts I either refused or did not pursue. Hachette was far far out of time for a response to my option proposal but I already did not care to pursue further publication with them. They felt the same, I’m sure, so that worked out for the best. 😉 I turned down a contract from Berkley because my self-publishing numbers indicated I would make as much or more than they were offering.

      So, the short answer is, partially. However, the fact that I already had several novels traditionally published, some award finals and wins, including a two RITA finals, means that my self-publishing efforts had more visibility than someone starting from 0 books.

      A traditional contract, at this time, under the terms usually offered, essentially means you are losing that book forever if you don’t negotiate a reversion. You’d have to carefully balance the risks and benefits. If you’re writing genre fiction, traditional publishing is quite risky in terms of future income. You’re giving up income in return for visibility that the publisher may not actually deliver. Caveat Emptor.

  11. Stuart says:

    This all sounds like good advice. We, as a publisher, make it clear that the copyright remains with the author. We charge no fees to publish and the author can either self-publish through us (ie we sell their digital edition) or they can be exclusive. If exclusive then we do what we can for an author. If the author is not happy they just pull their book. We do say we will claim a charge of $50 to pull a title in its first year but that is to stop the frivolous authors not giving us a chance to make them some money – we have, to date, NEVER imposed that and only two authors have ever pulled “exclusive” titles with us – and that is in 10 years.

    The world has changed a lot and we are constantly evolving. As a past author I only ever established Fiction4All because I had been ripped off a few times in the past and my determination was to provide a publishing route that did not leave the author exposed to undue risk. I think our exclusive authors would agree we have achieved that over the last decadee

    • Stuart:
      The issue is not transfer of copyright, it’s publishers licensing copyrights for the life of a copyright. It’s rare/nearly unheard of that a traditional publisher would acquire the copyright. The license the rights from the author.

      So, the discussion here is about the reversion terms of a contract that allows an author to request, basically, that the license of rights be terminated such that the publisher no longer has the right to sell a book.