Writing in the Digital Age: Pulling Aside the Curtain Reveals Some Nasty Dustbunnies

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:

  1. The draconian TOS (Terms of Service) of self-publishing through KDP, PubIt, iBookStore, etc. (see representative blog on the subject from Jim Hines)
  2. The draconian non-compete clauses lurking in publishing contracts. (see overview of issue on Kris Rusch’s blog)
  3. Amazon disappearing 5,000 titles from IPG when contract negotiations broke down. (via PaidContent)
  4. 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?

Digital publishing.

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).

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Writing in the Digital Age: Pulling Aside the Curtain Reveals Some Nasty Dustbunnies — 14 Comments

  1. It seems like I know a dozen writers, easily, who had to go to a second or third name to become box office successes. My agent once told me that an editor would ask if the house wanted the writer to use a pseudonym — but today, I suspect that becoming someone else first is a good idea.

    And it looks like establishing a new identity is something we should all do. I have a couple I use when registering for web sites, but have never gone as far as having a secret identity!

    Of course, our comics friends would suggest that this means super powers and a costume…

  2. Kelly, that’s a lot to digest. A very interesting post with lots of fascinating data, many of which I had not considered myself.

    I am a formerly published author who fell into the e-book market two years ago, when e-publishing was just beginning to escalate into the giant it is now. I self-published my back-list and then some of my newer titles and I am very pleased with what I have achieved so far.

    Having been published, I find that now, when I am completely on my own, I have far greater freedom in all aspects of publishing, especially the creative process of writing and being able to design my own covers.

    It seems to me, though, that Amazon is beginning to look a lot like the Microsoft of e-publishing, so it will be interesting to see how competitors will fight back.

    As long as Amazon keep holding out carrots to self-published authors in the form of KDP Select, they will continue to tempt many to become exclusive to Amazon. This may not seem quite correct and even slightly immoral, as you should, as a creative artist, make your work available to all. But that whole deal is so seductive and you find yourself very taken with the whole idea of being able to control marketing and pricing with short free promos, which often result in books going very high up in the charts.

  3. I wonder if B&N and the others who wish to compete with Amazon will make their e-publishing venues more user-friendly.

    At any rate, this is definitely a time for creative freedom, if one doesn’t look at the difficulties new (and old) authors have with trying to think up ways to connect book to its potential readers, if one doesn’t go the Amazon route.

    It seems to me that constant firing off of marketing promotions on Facebook and Twitter are beginning to pall on readers.

  4. Sherwood — studies suggest that Twitter folk shrug off the promo Tweets (the nature of the medium being fairly immediate and quick — easier to ignore than a 30 second commercial, or one of those annoying advertising cards in a magazine or book). FB, I agree.

    Susanne — Microsoft got an exclusive license for DOS on every PC. It set out to be a monopoly (which Amazon hasn’t). And even Microsoft had early operating system competition from Linux and other user-programmed options.

    K-E-K — Yes! It used to be the editor/publisher would suggest the new name. I think some still do. I know of three authors, personally, who found the right name and became bestsellers. The market is a fickle lover.

  5. We are very affected by this latest amazon grab.

    Before Kindle, my partner’s first book became a huge success, and it was an amazon success because the chain refused to stock it — too large, i.e. too expensive.

    But as the new contract amazon wants for IPG distributed titles stands, we simply can’t afford to allow the books to be sold at that price. Nor can the publisher or the distributor.

    Amazon has also pulled all its Kindle titles from public library sales.

    Amazon is not a good guy here.

    Things are a mess, and in the end the messes devolve to always deprive the author, the creator, of income to far greater degree than anyone else.

    Love, C.

  6. Foxessa — I’m sorry that you’re being hurt by this. To be fair, Amazon and IPG are negotiating, and both are playing hardball. That means authors are the ones being hurt, as you say. But wasn’t Patricia O’Brien also being hurt because publishers were afraid to give her a second chance? Aren’t there authors out there being hurt right now by publishers who will not give permission for them to publish other books/stories to supplement their income, despite dwindling advances or longer times between contracts? (Answer: yes, and I know some of them).

    The truth is that publishing hasn’t been a friendly business to authors in quite a while, if it ever was. Amazon changed that in a very real way, both for authors that traditional publishers were rejecting, stalling, or underpublishing.

    What would happen to many authors who have found success in indie, or with a smaller epublisher if Amazon went away tomorrow? What would happen to publishers?

    That reality is what gives Amazon its current power. Publishers seem to be deaf, blind and dumb to the reality that Amazon offers a huge number of authors more than publishers do right now.

    I don’t think the answer is power to the publisher. I think the answer is power to the author. But I am prejudiced when it comes to authors. I think we’re some of the smartest people on the planet and publishers have lost track of that (while Amazon has not).

    It says something profound when Amazon, even with its toxic TOS, treats authors with more respect and business sense that publishers do.

  7. This is where BVC comes in–an author-run, author-centric cooperative that operates more and more as a publisher.

    Speaking of being author-friendly.

  8. Judith — yes. At some point, I plan to blog about exactly that, too. BVC, and other author-led collaborative enterprises have a growing role in the future (I hope). No author should want to be under a publisher’s thumb, under Amazon’s thumb, or under the thumb of anyone who isn’t saying: “Let’s get it right for you and for your reader.”

  9. So since authors are being hurt in one place it justifies another entity hurting them in another place?

    No.

    It is not right that amazon insists on pricing a full price book, on which price the clauses of the contract are hammered out, at 99 cents, if the author does not wish it priced at 99 cents.

    Yes, IPG is playing hardball with the incorporatin of everything masters. It should. So should we all.

    Love, C.

  10. Pingback: SF Tidbits for 2/27/12 - SF Signal – A Speculative Fiction Blog

  11. Good points all and only one thing I really take exception to: Amazon is not a “monopoly” in the legal definition of the word, but Amazon IS an effective monopoly by virtue of the fact that no one can make a move in the publishing industry without taking it into consideration and/or being affected by its presence.
    Effective monopolies do not want to become legally defined monopolies, as that ends them up in court and puts an actual stamp of ‘bad guy’ on the enterprise. Far better to remain only an effective one – having cake and eating it too.
    The problem is, of course, that there’s only one workable way to deal with an effective monopoly – find or encourage someone else to become one in the same industry so there is at least some choice, a minimal amount of wiggle room between the two. Without such, the effective monopoly remains in effective control, using its distribution powers to attract the hot products and using the availability of hot products (at discount prices) to enhance the overweening powers of their distribution channels.