This week I had a very hard time trying to decide on a topic. Not because of a dearth of ideas, but because I had more than one that seemed urgent and timely. They are:
- The draconian TOS (Terms of Service) of self-publishing through KDP, PubIt, iBookStore, etc. (see representative blog on the subject from Jim Hines)
- The draconian non-compete clauses lurking in publishing contracts. (see overview of issue on Kris Rusch’s blog)
- Amazon disappearing 5,000 titles from IPG when contract negotiations broke down. (via PaidContent)
- Author Patricia O’Brien sells rejected book using a new pen name (via NY Times)
Feeling ambitious and unable to choose, I’m going to try to tie them together with the dustbunny metaphor. Wish me luck.
First, all of these issues deal with the “behind-the-curtain” business aspects of publishing that have been thrown into disarray by the advent of digital publishing and the subsequent easy, low-cost distribution of ebooks through Amazon, B&N, Apple, etc. It used to be hard to get a book onto a bookshelf so that it could be sold to a customer. You needed the author to write a great book, the publisher to package it and convince the distributors that their customers would sell a ton (or librarians that their patrons would check out the book until it was in tatters). Then you needed the distributors to convince their booksellers to take enough of the titles that the sales would mean a profit. And then the booksellers had to find room on their shelves, and believe in the book enough to handsell to customers. That’s a lot of work, and an entire industry grew up around each link in the publishing chain.
From the author’s perspective, the publisher (and/or the agent) was the gatekeeper to this chain. The rest of it was not that important. This was not true, as many authors discovered when any one of the links broke after they had signed a deal with their publisher (for example, a poor cover led to poor distributor or bookseller or customer buy in). Then the curtain would pull back and the monster dustbunny would swallow the author’s hopes and dreams.
Poor sales numbers leads to publisher doubt about author, resulting directly in a situation like Patricia O’Brien’s, where her first novel sold only 4,000 or so copies and her next novel was DOA once an interested editor looked at her BookScan numbers. The interesting thing, to me, about the story is not that O’Brien and her agent were able to sell the book in a deal any author would envy when they took it out under a new and untried pen name, Kate Alcott. That’s an old story. I know authors with five and six pen names for that very reason. My interest is piqued by the idea that the New York Times lauded the idea of the author plagued by bad numbers aiming for a blank slate. Normally, the agent, editor, or publisher will suggest this route to an author with a problem book (all in an attempt to convince distributors, booksellers, and librarians to spend some of their precious book money on an author who previously disappointed sales expectations). But no one announces it until much later, when it can’t negatively affect those all-important pre-sales. This time, the story is being used as sales promotion and is making the Times at the same time the book releases. Why?
Yes, Kate Alcott’s The Dressmaker (which sounds fabulous to me as a reader), is being released in hardcover. It is being stocked in bookstores and given prominence in placement. But the story of the little author who could overcome steep adversity in her publishing career comes from the narrative developing over the past year or two from the Kindle self-publishing superstars Hocking, Locke, Konrath. The “little guy” proving the publishing gatekeepers wrong. In this case, the “little guy” couldn’t have done it without Amazon.
Which brings me to the anti-Amazon fest that is manifesting in unhappy reflections upon Amazon’s clout in the marketplace (it is not a monopoly, it is not close to a monopoly, it can only become a monopoly if everyone else gives up and goes home with their marbles). Remember the old commercials where someone says, “Well, E.F. Hutton says…” and the rest of the room falls silent and begins to eavesdrop? Change that to Amazon, and you have the same situation. Everyone wants to sell their product (book, soap, software, headphones, whatever) on Amazon. Because Amazon has created a cult of satisfied customers by crunching data to match customers with the products they want and need (and one day soon, the products they didn’t know they needed, which is a bit chilling, I must admit).
To deal with Amazon as an individual (ref. Jim Hines and every other KDP, Kindle blog, Kickstarter participant, independent vendor, etc.), you have to agree to their TOS (which, basically, allows them to set the terms however they desire, whenever they desire, without any warning). To deal with Amazon as a larger entity (ref IPG), you have to agree to Amazon’s terms in negotiating a new contract. If you don’t like the terms, you are free to walk away. But when you walk away, you lose a presence in the biggest marketplace in the world (the world, people). So it does not surprise me that authors who are unhappy with Amazon’s “we-can-price-you-however-we-want” terms, and companies like IPG who don’t want to give Amazon new contract terms more favorable to Amazon, are taking the fight public. We all feel like the little guy. And there is no question that Amazon is mighty big and powerful right now, because it has focused so hard on customer satisfaction. It is not a monopoly, I repeat (because so many business people keep missing this point). It can only become a monopoly if all its competition decides to stop competing. And that’s not happening, as far as I can see.
What is happening, from the author perspective, is what happened when publishers were the gatekeepers and very few authors had the wherewithal to self publish a book and make it successful. Authors accepting awful contract terms: low advances and/or royalties, forced pen names that the publisher owned, broad option clauses, ridiculous rights grabs (if a publisher doesn’t have the capacity or interest in selling a subsidiary right, it is wiser to let the author — the one with more personal stake — control those rights…so sez I). For an author, accepting the KDP/PubIt/iBooks TOS is no different from accepting that broad option in our contract that our publisher will not agree to narrow. Sure, it may hurt us down the road, but rejecting it will kill any chance of reaching a huge whack of readers in the here and now. The only relief is that the TOS agreement is easily ended by the author at will.
Which brings me to the last dustbunny I mentioned: the insidious hidden non-compete clauses that are being inserted into publishing contracts everywhere (and unlike the grabby TOS, these contracts are negotiated for the length of your license with the publisher and cannot be walked away from if and when they become detrimental to an author). There are many warnings about these clauses out there. I’ve linked to Kris Rusch because she gives a very good overview of the situation, and because she has seen a lot of contracts — both hers and those of other authors, through the years. For more specifics, authors can consult a literary attorney, or the Author’s Guild (who has a service for members where they evaluate individual contract clauses that an author is concerned about and suggest good-better-best language alternatives).
This last dustbunny will not be revealed if an author-publisher relationship is a happily-ever-after relationship, and the author never wants to self-publish anything. However, if something goes wrong…. Suffice to say, you do not want your publisher controlling your use of your hard-earned author name to publish other books (with another publisher, or by yourself). You do not want your publisher to have final say in what you can publish and when you can publish it. While it is only good business to work out a schedule where each book enhances the sales of every other book you write, you want to retain control over that decision, even though consulting with your publisher on said schedule is often a very wise thing to do.
There. Did I tie all my dustbunnies together well enough for you? These issues are all related to one thing: the legal obligations we take on when publishing and distributing our books. We need to know what we’re agreeing to (which, frankly isn’t easy when TOS and negotiated contracts contain hidden and draconian terms that are probably not legally enforceable but would take mucho bucks to fight). We need to be prepared to walk away if we cannot accept certain terms (that’s the way these terms get mitigated — if enough people walk away, negotiations resume and terms are changed, as IPG is attempting as I type).
And, sometimes, like Patricia O’Brien/Kate Alcott, we need to find creative ways around the things we cannot change, in order to get our books into our readers’ hands. For example, though I am awed by Amazon’s business model, I took advantage of NookFirst opportunity for the seventh and last historical romance in my Once Upon a Wedding series. The Twelfth Night Bride debuted last week exclusively as a Barnes & Noble Nook book for 30 days. I look forward to the future creativity publishers and booksellers show in offering partnership opportunities to independent authors, booksellers, and publishers. No one likes a monopoly — especially not the company that becomes a monopoly because competition failed.
Kelly McClymer is an opinionated new member of Book View Cafe, and a cheerleader of writers reaching readers however they can. You can visit her on her desperately-in-need-of-update website; Follow her on Twitter, hang with her onGoogle+, Like her on FaceBook, and share Pinterests with her. Oh, and she’s on Goodreads, too (once a reader, always a reader).