Can PublishAmerica terminate me for this?

hangnail · Sep 26, 2011

Hi everyone. I haven't read all of the threads on this subject so this may be a new situation. I read a lot of the complaints about several publishing companies before choosing PA. I have health problems and didn't feel that I had the time to go with a 'normal' publisher. So, I get my book published by PA, errors and all, and two months later they tell me that my contract is terminated, because I was wasting their time. You see, I started asking questions. Questions they didn't want to answer, or couldn't, or they feared I was getting too close to figuring them out. One of the questions was, "Why do you ask all of your authors to change the title of their books and yet you don't have them change the old title in the contract?" They said that this isn't true and I pointed out that everyone I talked to said that this is what happened to them. Instantly I got the termination notice and they told me never to contact them again, ever.

Anyway, I am just wondering if they can terminate my contract just because I asked them questions, and can I get back the $80 I just gave them to have my book put on Amazons kindle, BnN's nook and Googles ebook if they actually do terminate me?

This is a great forum.

D.M.Drake · Sep 26, 2011

Publish america is a pretty well known 'scam' I don't think they need a reason to terminate you.

http://www.ripoffreport.com/Search/publish-america.aspx

D.M.Drake · Sep 26, 2011

Also P&E doesn't like 'em ><
http://pred-ed.com/pealp.htm

hangnail · Sep 26, 2011

I'll have to read those links when I have more time. Thanks.

I thought that a contract was between two parties and both parties were bound (in this case) for seven years, unless one or the other did something that was stated in the contract that would break the deal. Isn't that how these things work? If not then couldn't all of the people on here just terminate PA for no reason, or for ripping them off?

Terie · Sep 26, 2011

Actually, hangnail, I think that you'll soon see how very lucky you have been to get out of the contract. Contract termination is something people (even people here) have paid money for, and you got it for free.

I do hope you get your money back on your e-books.

Welcome to AW! Here's some popcorn and cookies. :popcorn:

djf881 · Sep 26, 2011

hangnail said:
I'll have to read those links when I have more time. Thanks.

I thought that a contract was between two parties and both parties were bound (in this case) for seven years, unless one or the other did something that was stated in the contract that would break the deal. Isn't that how these things work? If not then couldn't all of the people on here just terminate PA for no reason, or for ripping them off?

No. Your contract gives PA control of the rights to your book in exchange for consideration of one dollar. Then they sell copies of it to you, as well as bogus services like the Kindle listing. If you had looked into that at all, you'd have learned you can publish your own books on Kindle for free, and you can price them at a level where somebody might actually buy them.

Consider yourself lucky to be rid of PA and lucky you didn't give them more money. And do a minimal amount of research, in the future, before you sign away control of a book you wrote in exchange for one dollar.

Christine N. · Sep 26, 2011

Hangnail,

You say you don't have time to go with a 'normal' publisher and have medical problems. I can respect that. But be glad you got away from PA. Since they don't do any editing, you can take your manuscript and publish it yourself. Two companies that will do it for free (really free), are Lulu.com and Createspace. I've not used Createspace (owned by Amazon), but I did make a book through Lulu.com as a gift for family one year (it was a transcription of my Great-grandmother's diary, and I included photos and a family tree).

I only paid for copies I bought, and they were VERY reasonable. Maybe $3/copy. If you can take the time to format the manuscript, or find someone to help you, you can have your book ready to go in a day. Createspace gets you listed on Amazon, I think, so maybe you want to go that route. Someone who's used them may be able to better explain.
Good luck!

Chris P · Sep 26, 2011

Terie said:
Actually, hangnail, I think that you'll soon see how very lucky you have been to get out of the contract. Contract termination is something people (even people here) have paid money for, and you got it for free.

Yeah, I'm a bit envious.

If you check your contract, you'll almost certainly find language saying that PA can terminate the contract at any time for any reason PA sees fit. The author is not given the same option.

shaldna · Sep 26, 2011

congrats on getting free.

you seriously don't know how lucky you are.

if you don't want to go the traditional route, there are plenty of alternatives to PA, CreateSpace and Lulu are both great, and virtually free (minus the cost of buying a proof copy). You should check out the Self Publishing forum, the folks there will be glad to help.

Momento Mori · Sep 26, 2011

Not to burst anyone's bubble here, but what do you mean, hangnail, when you say that PA has terminated its contract? Have they just said that they aren't going to publish your book or have they gone further and reverted your rights to you?

Termination of a contract does not automatically mean that you can publish it somewhere else. It may just mean that PA are being open in saying that they're not going to do anything with it.

MM

brianm · Sep 26, 2011

Momento Mori said:
Not to burst anyone's bubble here, but what do you mean, hangnail, when you say that PA has terminated its contract? Have they just said that they aren't going to publish your book or have they gone further and reverted your rights to you? MM

This. The language needs to specific, especially when you're dealing with a company like PA.

~brianm~

James D. Macdonald · Sep 26, 2011

I haven't seen their current contract, but it probably contains language saying that they can terminate your contract for any reason or no reason.

I find it interesting that they've been changing titles. It shows more work on their books than they're used to doing.

My guess is that they terminated you for talking with other authors.

You dodged a bullet. Congratulations!

See our thread, Alternatives to PublishAmerica.

hangnail · Sep 26, 2011

Wow ... thanks for the great replies. Now let me see if I can catch up. I thought about using createspace until another author told me that she had to pay $500 up front. Then too, PA was easier for me to send things to. I don't know dip about computers. As far as Kindle, Nook, etc., I was under the impression that I had to have my book changed over into these things by PA by using their formatting. I'm sorry but I don't know the terminology to better explain this. Yeah, I feel stupid now for having paid them.

I didn't see anywhere in the contract that they could terminate me at any time for no reason, although they did say that I could terminate them if they didn't start production within 365, and if I didn't send them the finished manuscript within X amount of days they, as they put it, "Unless postponed by mutual agreement, failure to make delivery of the manuscript of the Work by the deadline specified herein shall be deemed just cause for Publisher, at its option, to terminate this Agreement by giving written notice." There was also this part that said, " if the Work is no longer sufficient to warrant its continued manufacture".... which doesn't apply to my case. It also said that when they want to end the relationship because it's no longer selling then I can buy back my plates, etc., and if I refuse to pay in 30 days they will destroy these things.

There was another thing mentioned about termination that included the words: "This clause shall survive the termination of this agreement." I'll give an example: "Disputes: All unresolved disputes, matters and controversies of any kind and nature arising from, relating to or involving this agreement (including questions about the existence, validity, construction, performance, nonperformance, operation, or breach of the agreement, fraud in the inducement of the agreement, mistakes relating to the formation of the agreement, and torts committed during the performance of the agreement), including claims against employees, agents, representatives, officers, directors and/or attorneys of Publisher, shall be submitted, if at all, to a court in the State of Maryland. This agreement shall be governed and construed in accordance with the laws of the State of Maryland. This clause shall survive the termination of this agreement." But I don't think that this means that they can terminate me.

As far as the name change and yet they don't ask change it in the contract, I figured that by not changing it they could truthfully say that they didn't sell any books by the title in the contract. I even asked if they would change it and they wouldn't.

I was given a $50 advance instead of one dollar, but they said that they would take it back out of my royalties.

There last email they sent to me after I asked a few questions, one of which was about the name change, read: "You are now wasting our time. Do not contact us again, ever. Your contract has been terminated and paperwork is forthcoming. Thank you"
So I'm just waiting to see what is going to happen. If they tell me that I must pay to get my plates I'm tempted to tell them that they can take the money out of what I already paid them for the ebooks, and the sales they made on my book. What do you think?

I know other's want to get out of their contract, and so do I, it's just that it's the principle of the whole thing that they think they can do what they want even if it's not legal, including keeping my money. I hope I covered everything. Any suggestions?

James D. Macdonald · Sep 26, 2011

It also said that when they want to end the relationship because it's no longer selling then I can buy back my plates, etc., and if I refuse to pay in 30 days they will destroy these things.

There are not now, and never have been, "plates" for your or any other PublishAmerica book.

That's part of the smoke-and-mirrors in the PA contract.

Unimportant · Sep 26, 2011

Don't worry, there aren't any plates. Metal plates are used when a book is being printed in many many thousands of copies -- like a mass market paperbook. PublishAmerica uses the Print On Demand technology, where one copy at a time is printed from a computer PDF file. So there are not any plates for your book in existence.

Usually they charge people hundreds of dollars to be let out of their contracts, so you've got off very cheap by comparison!

PVish · Sep 26, 2011

It also said that when they want to end the relationship because it's no longer selling then I can buy back my plates, etc., and if I refuse to pay in 30 days they will destroy these things.

"Plates" do not exist in the world of digital publishing. They were used by actual printing presses to do press runs. At best, all they have for you is a computer file.

ETA: Unimportant beat me to it.

victoriastrauss · Sep 26, 2011

hangnail said:
There was also this part that said, " if the Work is no longer sufficient to warrant its continued manufacture".... which doesn't apply to my case.

The catch-22 of this phrase is that it can mean anything the publisher wants it to mean. (Which is why, with a real publisher, you want much more specific definitions of the conditions under which a publisher can take your work out of print.)

- Victoria

James D. Macdonald · Sep 26, 2011

What I'm really interested in is what led PA to offer a $50 advance?

hangnail · Sep 26, 2011

victoriastrauss said:
The catch-22 of this phrase is that it can mean anything the publisher wants it to mean. (Which is why, with a real publisher, you want much more specific definitions of the conditions under which a publisher can take your work out of print.)

- Victoria

Victoria .... here is the part where they explain what I was talking about, it also mentions the plates, and more (thanks yall for filling me in about the plates, ironic).
"Reversion of Rights: When in the judgment of the Publisher, the public demand for the Work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and may, at its discretion, destroy any or all materials used for the production of the Work without any liability in connection therewith to the Author. Publisher agrees to notify the Author of its decision to discontinue production upon discontinuation, and offer to transfer to the Author the materials in its possession, if any, before destroying any stock or materials, on the following terms F.O.B. point of shipment: the plates at their value for old metal, the engravings (to be used only in the work) at one-half (½) their original cost, the bound stock at one-half (½) the list price, and the sheet stock at cost of gathering, folding, sewing and preparing for shipment, all without royalties. Unless the Author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the plates, book stock, sheets and other property without further liability for royalties or otherwise. Notwithstanding the reversion of publishing rights to Author, Author’s remaining obligations to Publisher, including the warranties and indemnifications provided in paragraph 23 shall survive the discontinuation of the book pursuant to this paragraph."

@James.... here is their explanation for giving me the $50. It used to only be a buck. "Thank you for your interest in PublishAmerica. Please send the manuscript of "Open Door Prison" for our review. We make our acceptance decisions fast. PublishAmerica is a traditional publisher. We publish our books and make them available to book vendors
worldwide, using the best distribution channels, for totally free. In fact, we start off by sending our new authors $50 in hard cash. The $50 cash underscores our mantra: we don't want your money, we want your book. All publishing expenses are entirely underwritten by the publisher. That's how we believe things ought to be.

Of course, we also do e-books: especially for Amazon's Kindle and Barnes and Noble's Nook."

They are so full of bull ... as yall know ... as I knew ... but I already explained why I chose them. Now I'm just trying to figure out what they have a right to do, or what I should do about what they have chosen to do. Your words are very helpful. Keep them coming and I'll add whatever I find out from them too.

Terie · Sep 27, 2011

hangnail said:
Wow ... thanks for the great replies. Now let me see if I can catch up. I thought about using createspace until another author told me that she had to pay $500 up front. Then too, PA was easier for me to send things to. I don't know dip about computers. As far as Kindle, Nook, etc., I was under the impression that I had to have my book changed over into these things by PA by using their formatting. I'm sorry but I don't know the terminology to better explain this. Yeah, I feel stupid now for having paid them.

Hangnail, first and foremost, don't feel stupid. PA runs an excellent scam that catches all kinds of folks. If they weren't so good at it, it wouldn't have lasted this long. So stop with the feeling stupid...done now...time to move on.

Now, if you don't have the computer skills to create your own files for CreateSpace/Lulu/e-books/whatever, there are legitimate service providers who will do this for you for a reasonable flat-rate fee. I have the skills and could do this kind of work for myself if I wanted, so I can't refer you to anyone, but I'm sure others here can provide references to legitimate service providers.

merrihiatt · Sep 27, 2011

My advice is to wait until you receive written confirmation via U.S. mail that publishing rights have been returned to you. Then, I'd want to know who your book's audience is (friends, family, the general book-buying public)? That will help you decide whether you head to Kinko's and have copies made on a copy machine, use Lulu or CreateSpace to self-publish, or submit your work to a smaller press. I'm not sure what your timeframe is, but that is a factor as well.

As others have said, you are lucky to be rid of PA. I know it may not seem like that right now, but it really is a good thing. I am an ex-PA author who paid to have publishing rights returned to me.

shaldna · Sep 27, 2011

hangnail said:
I thought about using createspace until another author told me that she had to pay $500 up front.

It cost me £6 to buy a proof copy. That was all. There is an option to ugrade for about $40 (£30) which gets you all sorts of extras, but it's up to you if you use it or not.

Plus createspace has some real nice cover templates and is super easy to use.

The only thing that is a little tricky with it is the pdf thing, but there are loads of templates that you can download and it's supereasy to do it in Word - there are lots of folks in the SP forums who can help more with formatting questions etc.

As far as Kindle, Nook, etc., I was under the impression that I had to have my book changed over into these things by PA by using their formatting.

Again, this is so much easier than it seems, and there are lots of super easy guides to show you how to do it - Amazon have one for the kindle that is real easy, and there's another on the smashwords site that is super easy to use too, and they provide a template for you too.

And both of them are FREE.

There was another thing mentioned about termination that included the words: "This clause shall survive the termination of this agreement." I'll give an example: "Disputes: All unresolved disputes, matters and controversies of any kind and nature arising from, relating to or involving this agreement (including questions about the existence, validity, construction, performance, nonperformance, operation, or breach of the agreement, fraud in the inducement of the agreement, mistakes relating to the formation of the agreement, and torts committed during the performance of the agreement), including claims against employees, agents, representatives, officers, directors and/or attorneys of Publisher, shall be submitted, if at all, to a court in the State of Maryland. This agreement shall be governed and construed in accordance with the laws of the State of Maryland. This clause shall survive the termination of this agreement." But I don't think that this means that they can terminate me. [/quote]

That's PA basically saying that you can't badmouth them after you leave them. Stange that I've NEVER seen another publisher with that in the contract, so what does it say about PA that they feel they need it?

I was given a $50 advance instead of one dollar, but they said that they would take it back out of my royalties.

An advance is an advance against royalities. This means that you won't get royalities until you have earned enough to cover the money the publisher advanced you. This is standard in publishing.

DaveKuzminski · Sep 27, 2011

hangnail said:
I was given a $50 advance instead of one dollar, but they said that they would take it back out of my royalties.

You actually received $50 in advance from PublishAmerica?

Chris P · Sep 27, 2011

I tried to invoke the "market no longer warrants continued production" clause with no luck, despite the fact my book has not sold a single copy in over a year. They said if I don't want to pay money for my rights the contract stands for the remainder of the contract.

And interesting about the $50 advance. I figured they would only do that if you agreed to purchase X copies in you contract. It seems that's not the case. But I wonder, if PA hold the royalties to $49 or $99, I wonder if the $50 is added to that? Perhaps those with $1 advances don't get paid until $49 and those getting $50 advances have to wait until $99?

victoriastrauss · Sep 27, 2011

Chris P said:
I tried to invoke the "market no longer warrants continued production" clause with no luck, despite the fact my book has not sold a single copy in over a year.

That's another demonstration of how a publisher (not just PA--many publishers have this kind of very vague language in their out-of-print or termination clauses) can use less-than-precise contract language to justify almost any decision.

For future reference, hangnail--if you decide to look for a publisher rather than self-publishing--look for a limited-term contract with a shorter term (3 years is reasonable, though beware automatic renewal clauses) or for a termination clause that obliges the publisher to take the book off the market if sales fall below a certain level over a defined period of time (for instance, fewer than 10 books sold in each of two [or four, if royalties are paid quarterly] consecutive royalty periods). Either of these alternatives will prevent the publisher from hanging on to your book forever (or, alternatively, kicking you to the curb prematurely).

- Victoria

Can PublishAmerica terminate me for this?

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