I'm a PublishAmerica author wanting out of my contract, what should I do?

Lowercase Prelude said:

I sent an e-mail to Darla yesterday and this was her reply:

"Dear Mr. Crane:

We have invested time and money into your contract; and we have given you
everything that we promised. Importantly, you knew before you signed with
PublishAmerica that you would be obligated to promote your book.
PublishAmerica makes this perfectly clear on its website; and this
requirement is spelled out in the contract itself. Nevertheless, you have
now admitted to an anticipatory breach by claiming that you have stopped
promoting your book. While you are free to breach your contract if you so
choose, it is still a breach a contract and we are entitled to damages.

Please do not compound the damages caused by your breach by forcing us to
spend more time responding to your unwelcome advances. If you want to
terminate the contract, you have an avenue open to you; you can accept our
very reasonable offer.

Thank you,
Darcy
Public Relations/Web
[email protected] "

What should I do?

Click to expand...

Well, this ought to influence a stampede of authors into PA's loving arms.

Since PA's contract places promotion as PA's responsibility and states only that the author should actively participate, it sounds to me like PA better start setting up those interviews, signings, and what nots so their authors can participate.

Lowercase Prelude said:

Please do not compound the damages caused by your breach by forcing us to
spend more time responding to your unwelcome advances.

Click to expand...

I'm gonna use that line the next time some guy hits on me in a bar.

DaveKuzminski said:

Since PA's contract places promotion as PA's responsibility and states only that the author should actively participate,

Click to expand...

Dave hit the nail on the head, because the contract does call for the author to "participate". They're trying out a new scare tactic and it's a bad one, IMO. Particularly this bit.

Importantly, you knew before you signed with PublishAmerica that you would be obligated to promote your book. PublishAmerica makes this perfectly clear on its website;

Click to expand...

The contract states it is the only agreement between the parties, so their claim that the author knew in advance outside of the written contract what they were required to do because of something the author may or may not have read on their website is not grounds for breach of contract.

If they want to use that strategy, the author can now claim they were mislead and induced to sign the contract by the misleading and false statements on PA's website, not least of which being their claim that they are not a vanity press or a POD.

My advice is that you take that letter to an attorney and have him fire back a response highlighting all of the misleading and false statements on PA's website and have him demand they immediately release you from the contract.

Disclaimer: These are my personal opinions expressed in this post and should not be construed as legal advice.

Here's the clause from PA's contract.

17. Sales promotion, advertising and publicity shall be at the Publisher’s election and discretion as to the extent, scope and character thereof and in all matters pertaining thereto. The Author agrees to actively participate in promoting the sales of the said literary work in his home town area and elsewhere, by making himself available to media interviews, book readings and/or signings, and other public sales promotion appearances.

Click to expand...

Notice that PA's participation in promotion is at their discretion, but the author's participation is mandatory. Weasel wording if you ask me--but then no one did, did they?

Hopefully the website angle will produce some results. PA can't have it both ways!

Maddog said:

Notice that PA's participation in promotion is at their discretion, but the author's participation is mandatory. Weasel wording if you ask me--but then no one did, did they?

Click to expand...

True, but it only says the author agrees to make himself available. There's nothing about the author having to be the one that sets up the interviews, signings, etc.

Bad faith is obvious but can bad intent be their legal undoing? PA clearly does not want a best seller like a real publisher, just more paying victims.

And brianm, PA would never end up in court. One of their sneakier clauses requires all disputes be settled via arbitration in Maryland.

I wonder if whistling for Jaws would clear up this legal puddle?

Alphabeter said:

Bad faith is obvious but can bad intent be their legal undoing? PA clearly does not want a best seller like a real publisher, just more paying victims.

And brianm, PA would never end up in court. One of their sneakier clauses requires all disputes be settled via arbitration in Maryland.

I wonder if whistling for Jaws would clear up this legal puddle?

Click to expand...

PA's latest contract now specifies that disputes will be handled in Maryland state court. PA's clearly trying to get away from arbitration which allows disputes to be litigated on conference telephone calls which made it too easy for authors not living near Maryland to still protect their rights.

In the meantime, that change doesn't affect their previous contracts because changes to it, if I recall correctly, have to be made in writing with the approval of both parties. That means PA still has to participate in arbitration with their first "30,000" authors.

This is Easy!

Lowercase Prelude said:

I sent an e-mail to Darla yesterday and this was her reply:

"Dear Mr. Crane:

We have invested time and money into your contract; and we have given you
everything that we promised. Importantly, you knew before you signed with
PublishAmerica that you would be obligated to promote your book.
PublishAmerica makes this perfectly clear on its website; and this
requirement is spelled out in the contract itself. Nevertheless, you have
now admitted to an anticipatory breach by claiming that you have stopped
promoting your book. While you are free to breach your contract if you so
choose, it is still a breach a contract and we are entitled to damages.

Please do not compound the damages caused by your breach by forcing us to
spend more time responding to your unwelcome advances. If you want to
terminate the contract, you have an avenue open to you; you can accept our
very reasonable offer.

Thank you,
Darcy
Public Relations/Web
[email protected] "

What should I do?

Click to expand...

First, send them an email with the dates you are available for book signings and personal appearances. Make it clear that you will abide by the contract and make yourself available for these book signings. Make sure that you list the travel expenses PA will be responsible for in the event the book signing is more than a reasonable travel distance, say 25 miles.

Make sure the PR lady knows she is responsible for setting up the signings, promo material, and selling plus shipping the books to the bookstore.

Next, as a course of business, email them once a week to make sure they have been actively trying to promote your book. Also make sure you call every couple of weeks and ask to speak to Darcy about the schedule and the days you are available.

As these are regular business related calls and emails, PA should have no problem responding to them.

You might ask to do an audit of the books so that you can tell if the new program of promotion is working. That would also involve another audit after a couple of months. The first would establish a baseline, the second would let you know if the program was working. It would be a good idea to ask about the royalty dept person's name so that you can call after each event to do spot checks along the way.

just thoughts running through my head...

Alphabeter said:

And brianm, PA would never end up in court. One of their sneakier clauses requires all disputes be settled via arbitration in Maryland.

Click to expand...

The old contracts contained the arbitration clause, but the new ones require civil action.

PA is presently in Maryland District Court with at least two cases, Farnsworth v. PublishAmerica, LLLP et al, and Instabook Corporation v. PublishAmerica, LLLP etal.
[FONT=&quot]

Lowercase Prelude said:

Actually, they have ended up in court at least once that I know of, where they did have to pay the gentleman an "undisclosed amount"

Click to expand...

If you are referring to Phil Dolan that was an arbitrated case and was not heard in civil court. [/FONT]

Somewhere in the land of PA threads I did a post on the Maryland law concerning fraud in the inducement of a contract. That new letter stinks to high heaven. Frederick County Maryland has a very vibrant bar association. It might be possible to get one of the locals to look over the contract and letter and frame a reply for a reasonable price. Or at least to have a telephone consultation. Check them out.

Contract problems

Well It is not new but i am one of the few who decided to not waste my time with PA. My book is filled with mistakes and makes you wonder how they can green light final manuscripts with only spell checkers. Anyway i changed the title and made some minor adjustments as i am selling my work from Lulu. People don't buy PA books anyway(unless its your uncle aunt or you got a massive $$ marketing ad going on. ) and bookstores don't even like hearing Publisher and PA in one sentence. My book with PA is buried anyway since i have not advertised it and told no one about the old title. Those who do ask of my relatives i send them to my site with the lulu link. Hey who will pay 20 $ when you can pay 11 $ or even get the adobe format for 4$.That is the way i like it. More royalties for me than 1 $ form PA if i am lucky. This is what a small rewrite and a new title can do for you. Technically by doing that it is a new story since the WGA clearly states any minor changes to any submitted manuscript makes it a different story. There are PA success stories of course(talking about getting released here) but if they did that for everybody then they would end up in the gutters. You might want to change your character names too. At the pace PA is doing business with new authors flocking like it was a turkey giveout on Christmas , Pa's got no time to check on dead books but they have some hope that someday it will make money. You already know that if a book came out and did not make money then unless a scandal happens it will never resurface anywhere except if someone is looking for it on some search engine. And then they will see it is out of stock and that is the end of the story.

overfiend said:

Well It is not new but i am one of the few who decided to not waste my time with PA. My book is filled with mistakes and makes you wonder how they can green light final manuscripts with only spell checkers. Anyway i changed the title and made some minor adjustments as i am selling my work from Lulu.

Click to expand...

A new title and minor adjustments do not make it a new work. It is basically the same book that is under contract to a publisher. PA may never find the title of your "new" book, but IMO your problems will start to happen when you interest a legitimate publisher in another manuscript.

Your reputation as a writer who honors contractual obligations should be paramount. A legitimate publisher can and probably will ignore your error in judgment when it comes to your PA book, but IMO it will be difficult for them to ignore your selling basically the same book yourself on LULU when the original of the work is contractually bound to a publishing company. They won't care that it's PA. They'll only care that you may not be trustworthy in a legally binding agreement.

IMO, it is not worth doing what you have done just to sell your first book. Either legally end your relationship with PA or forget that book and concentrate on new works.

DaveKuzminski said:

You can also point out that demanding payment is contrary to your contract provisions (assuming they haven't added that in yet) and that your rights should be released because sales are low enough to justify invoking that section of the contract.

Click to expand...

I have read over my contract again on payments. I dont see where you get that from? Am i missing something? I guess they added it, cuz i cant find anyhting except that i have to pay to have it re-edited or text added.

As for the release of the rights cuz of sales... All i found was something in pragraph #24,
"When in the judgment of the Publisher, the public demand for the work is no longersufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and destroy any or all plates, books, sheets and electronic files without any liability in connection therewith to the author. However, the Publisher agrees to notify the author of such decisions in writing, and will offer to transfer to the author the work and its rights in copyrights thereon, the paltes (if any), the bound copies and sheet stock (if any) on the following terms F.O.B. point of shipment: The paltes at their value for old metal, the engravings (to be used only in the work) at one-half (1/2) their original cost, the bound stock at one-half (1/2) the list price, and the sheet stock at the cost of gathering, folding, sewing and prepareing for shipment, all without royalties. In the latter event, 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 work, copyrights, plates,books, sheets and other property without further liability for royalties or otherwise."

I wonder if that is where they are justifiying the $300.00 to break their contracts. If so then they are busted, cuz it says right above it that you do not have to pay for any of this. It just keeps saying it will offer you the chance to buy what ever it is you think you may want. Am i reading this right? I would welcome any help on this please.
Thanks.

sorry, friend - but if I were a publisher I'd steer clear of any author who doesn't believe in what they sign.

you signed a contract with PA - you can't just change a few words and re-issue it because you're upset with them. It's a LEGAL document and if you want to break the contract then go through the paces like everyone else has.

what's to stop you from doing the same thing with your next publisher?

It is because of that mentality that PA will always be in business.If any publisher was acting as they were then it would be my duty to seek better pastures for my work since they do not want to release my work even if it is not marketable.I would not even respect that contract if they printed something passed only through a spell cheker.That is not editing thus you cannot bind a contract when you are dishonest.By the way PA is not a traditional publisher so in my book a contract cannot be upheld straight forward with them or any of such type editors and publishing companies.If i was doing that to DAW or Bantam for example then someone could come and tell me i would not respect an author who does such things.And yet again these are serious houses.

overfiend said:

It is because of that mentality that PA will always be in business.If any publisher was acting as they were then it would be my duty to seek better pastures for my work since they do not want to release my work even if it is not marketable.I would not even respect that contract if they printed something passed only through a spell cheker.that is not editing thus you cannot bind a contract when you are dishonest.By the way PA is not a traditional publisher so in my book a contract cannot be upheld straight forwards with them or any of such type editors and publishing companies.If i was doing that to DAW or Bantam for example then someone could come and tell me i would not respect an author who does such things.And yet again these are serious houses.

Click to expand...

uh.... no. Wrong on all counts.

if you sign a contract it's a LEGAL document. LEGAL. You can't just break it because AFTER you sign it you think it's unfair.

NO ONE is going to take you seriously as a writer if you declare that you're willing to break legal contracts because you're throwing a hissy fit and don't like it. NO ONE.

you signed it - you live with it until you get out of it like all the other PA authors here. It can be done. Legally.

no decent publisher should be offering you a contract after what you've posted here. Sorry.

Respect has nothing to do with it. It's contract law. Ever hear of it? I don't care if it's the crappiest deal since Manhattan Island was sold for twenty-nine bucks, you signed the thing. Should you have had it vetted by a literary attorney first? Knowing their rep, you know the answer to that. The fact you didn't puts the onus on you. Hard, but there it is.

If you don't understand the legality of signing a contract then PA may be the only publisher you EVER get to deal with.

As Gravity said - respect has nothing to do with it.

The courts are FULL of people who signed bad contracts and are trying to get out of it. Many here did without paying money. They were patient and worked within the system.

You just want us to justify you taking your book and republishing it illegally with Lulu.

Ain't gonna happen.

Overfiend, I'm very sorry you're stuck in this situation, but you've signed a contract.

Granted, I'm not a lawyer, but it seems to me that you should either get out of the contract by legal means or forget this book and move on to your next one.

If you feel that they are in breach, then you need to find an attorney who specializes in Intellectual Property Law (not Contract Law) to look over the contract and tell you what options you have.