The Newer Never-Ending PublishAmerica / America Star Books Thread

James D. Macdonald said:

It's what, in the language of bunco-artists everywhere, is called the blow off.

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The dumb thing is if they would cool out the mark instead, they'd find they have far fewer complaints, and those of us trying to warn potential victims would find it even more difficult. But cooling a mark takes real skill and effort, and PA seems to be one of the laziest cons I've ever seen. (Yes, my latest WIP does revolve around con artists. How'd you know?)

I bet their "large marketing department" is a 300-pound intern.

kullervo said:

I bet their "large marketing department" is a 300-pound intern.

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Well - unlike some I really (honestly) do not have terrible thoughts and wishes for the folks at PA. I know - I know, they possibly don't deserve the kind remarks nor the forgiving wishes, however that is what I do wish to convey to them - regardless of how onry and nasty they have been to me.

I am fully aware of what is going on - "now". You see, I struggled and worked hard with blood, sweat, tears, and exhaustion to start (from scratch with less than $100) a corporation that is now a multi-million dollar enterprise. How did I do it? I treated people right, honestly, and up front. I obtained all of my clients with a manly agreement - a "Handshake." That exists today - and I still have my very first client with me.

One would think that with my position and experience - I would not be suckered into the PA situation. Truth is I was just over anxious to have my work published and from searching for good, established and honest publishers or agents, I found something that talked a good talk, unfortunately their walk is far less than a good walk.

Whether or not Mr. Clopper sees fit to release me from the contracts isn't really a major blow to me - at least I will have tried and in the mean time I have a receipt (certified letter signed by PA's agent) to the effect that I shall NOT renew my contracts when the time for renewal arrives - and I now have to him a "Registered" and "restricted" letter restating that very thing.

In the meantime - my life goes on and my books go on, through a very interesting learning experience and I now have nearly a dozen such works that are not only longer, but better.we

One of the replies in the e-mail I received was the threatening tone of publishing my works with another publisher - while I have an active contract with PA - and the person (whoever wrote the e-mail) didn't really come out and threaten me - they made it perfectly clear that the contract is and will be enforceable.

Possibly these guys think and feel that I am a real dummy here - well, they may wish I really was fairly soon.

I just am praying and hoping that Mr. Clopper does cut the contracts loose for me - because he has absolutely "nothing" to gain from holding onto them. They do not have my books under print, in any stores, and unavailable (according to Barnes and Noble), so what's to gain. Their decision, however, and the only thing I can and shall continue to do is send them a continuous flow of letters "requesting" the release ---- all of which I do keep a copy complete with date, in a growing file under the PA name.

In meantime

God Bless

Bill

I just am praying and hoping that Mr. Clopper does cut the contracts loose for me - because he has absolutely "nothing" to gain from holding onto them.

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Mr Clopper was a writer who could not publish his books. He may not be too keen on seeing other writers get away from his company and accomplish what he failed to do.

I hope they do release your rights, but I wouldn't count on it.

Sepisllib said:

One of the replies in the e-mail I received was the threatening tone of publishing my works with another publisher - while I have an active contract with PA - and the person (whoever wrote the e-mail) didn't really come out and threaten me - they made it perfectly clear that the contract is and will be enforceable.

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Check your contract. Some PA contracts in the past have given them right of first refusal on any future projects while the current contract is active, meaning you have to send them your next book.

BenPanced said:

Check your contract. Some PA contracts in the past have given them right of first refusal on any future projects while the current contract is active, meaning you have to send them your next book.

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But that doesn't mean you have to accept their offer. So even if you do have that clause (and you probably do), it doesn't really mean anything. They offer a $1 advance, and you say, 'No, thanks.' End of problem.

Terie said:

But that doesn't mean you have to accept their offer. So even if you do have that clause (and you probably do), it doesn't really mean anything. They offer a $1 advance, and you say, 'No, thanks.' End of problem.

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Mmmm . . . actually (not a lawyer here, though), I believe that it means precisely that they get first dibs on it and you do have to let them take it if they don't refuse it. That's what right of first refusal is. HENCE, send them a piece of crap, filler, and forget it.

--Ken

No, I don't believe anyone can force you to sign a contract. IANAL either, but I think Terie has the gist of it. They just have to see it first. If they offer a contract, they cannot make you accept the terms. You are well within your rights to take your ball and go home. Either that or make such outlandish demands, like a high advance and a hundred author copies, that they refuse. Unless the first contract contains the clause that they their offer is the same for the first, and non-negotiable.

First refusal is better than an Option clause, which is pretty much iron clad and which you absolutely have to take the offer if they make one. I know First Refusal can sound similar, but I recall someone saying here at AW that it's simply that you will show them the book first and exclusively and they get to decide if they want to buy it. You can say no and walk away if you don't like the terms. Most ROFR clauses, I believe, are non-enforceable in the courts, but that may be my faulty memory.

Ken, that link isn't working for me, but when I looked it up on Wikipedia that particular ROFR clause article seemed to be skewed toward real estate.

Christine N. said:

. . . Ken, that link isn't working for me, but when I looked it up on Wikipedia that particular ROFR clause article seemed to be skewed toward real estate.

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The right of first refusal is the publisher's, not the author's. Really. See this. Or this. (Quoting from the latter, "In layman’s terms a right of first refusal gives the publisher the right to bind you to them for your future projects.")

Right of first offer (which the author could refuse) is a different thing, but not what is at issue here, btw. If the publisher retains right of first refusal, it is keeping for itself that right (first opportunity to say "no" to the author's next book).

Also, see this, which outlines some variations on the theme with different implications for the author. But as for its view of right of first refusal, "Today most attorney-written contracts give the original publisher an option on the author’s next book, and sometimes on the next several books. Some such clauses specify that the next several books will be published on the same terms as the first book."

Hence my (nonlawyerly) recommendation to make sure that next submitted mansuscript is a throwaway, sufficient to pass a bare test of credibility (not gibberish, not only a couple of pages, etc.), but of no real value to the author.

At some point, one of the authorities here will chime in.

--Ken

ResearchGuy said:

Mmmm . . . actually (not a lawyer here, though), I believe that it means precisely that they get first dibs on it and you do have to let them take it if they don't refuse it. That's what right of first refusal is. HENCE, send them a piece of crap, filler, and forget it.

--Ken

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No. I'm right, as far as a proper commercial publisher's contract is concerned. I'm not going to dig out PA's contract from the 'net to see its precise language (perhaps a PA author will volunteer the language from their contract), but here is EXACTLY what's in my contract with a commercial publisher:

The Author hereby agrees to submit to the Publisher her next booklength work or product similar to that which is the subject of this Agreement, and in the interest areas for which the Publisher is known, before submitting same to any other publisher. The Publisher shall be entitled to a period of 90 days after receipt of the completed manuscript within which to notify the Author of its decision. If within that time, the Publisher shall notify the Author of its desire to publish the manuscript or recording, it shall thereon negotiate with her with respect to the terms of such publication. If within 30 days thereafter the parties are unable to arrive at a mutually satisfacftory agreement for such publication, the Author shall be free to submit her manuscript elsewhere, provided, however, that she shall not enter into an agreement for the publication of such manuscript or recording with any other publisher upon terms less favorable than these offered by the Publisher.

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(emphasis mine)

It is NOT standard for commercial publishers to be able force an author to sign a contract to whose terms the author does not agree.

I'm not a lawyer, either, but the terms of my contract are quite plain and easy to interpret without recourse to an outside interpretation, especially not Wikipedia.

One of my publishers has no Right of First Refusal. - each contract is for that one work alone.

The other has very clear language that they have first crack at any subsequent works relating to the first (and only to that one), but for a specified amount of time. After that, I'm free to sub anywhere. It doesn't say I have to accept their offer, only that they be given the opportunity to make said offer.

But, INAL either. Nor do I play one on TV.

ResearchGuy said:

The right of first refusal is the publisher's, not the author's. Really. See this. Or this. (Quoting from the latter, "In layman’s terms a right of first refusal gives the publisher the right to bind you to them for your future projects.")

Right of first offer (which the author could refuse) is a different thing, but not what is at issue here, btw. If the publisher retains right of first refusal, it is keeping for itself that right (first opportunity to say "no" to the author's next book).

Also, see this, which outlines some variations on the theme with different implications for the author. But as for its view of right of first refusal, "Today most attorney-written contracts give the original publisher an option on the author’s next book, and sometimes on the next several books. Some such clauses specify that the next several books will be published on the same terms as the first book."

Hence my (nonlawyerly) recommendation to make sure that next submitted mansuscript is a throwaway, sufficient to pass a bare test of credibility (not gibberish, not only a couple of pages, etc.), but of no real value to the author.

At some point, one of the authorities here will chime in.

--Ken

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Okay, newbie question, so on this, couldn't PA potentially lock authors in with them? If PA offers an author a contract for the next book and the author has to sign it, then wouldn't THAT contract also ask for first right of refusal on the next book and then the next book? And so on and so on until the end of time?

I would assume it would depend on the wording. My contracts specify ROFR only for books that are sequels, prequels, continuations - i.e. series. It doesn't apply to any other works not related to the contracted one.

I don't know how PA contracts are worded - I've never seen one.

ResearchGuy said:

Mmmm . . . actually (not a lawyer here, though), I believe that it means precisely that they get first dibs on it and you do have to let them take it if they don't refuse it. That's what right of first refusal is. HENCE, send them a piece of crap, filler, and forget it.

--Ken

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Correct! That's also exactly what I did as my contract with PA does have that stipulation. They received the worst drivel I could come up with and being from the south, that wasn't too hard to do. Imagine my surprise when they declined to offer me another contract.

The exact wording from my contract regarding first refusal: Paragraph 28 in my contract.

"The Author grants and assigns to the Publisher the exclusive right to publish or first refuse Author's first next work under terms to be determined through good faith negotiations that will take place within a reasonable period of time after the Author has submitted for consideration his first next work to the Publisher."

My contract only has 26 paragraphs and I have read it several times failing to locate this in mine.

God Bless

Bill

Terie said:

... the terms of my contract are quite plain and easy to interpret . . . .

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It does appear that not all have had terms as good as yours. Hence the complaints posted in various writer-related sites about right of first refusal in contracts.

BTW, perhaps this legal textbook's treatment will prove more satisfactory than other links I have suggested.

A literary agent comments briefly here (search for "first refusal" on the page).

An attorney writing for an American Bar Association page comments here: "A third type of noncompete clause prohibits the author from agreeing to write another book for a different publisher until the work at issue has been submitted to and rejected by the publisher (the right of first refusal). As with any of these provisions, the author must take care to limit the breadth of such clauses, if he has not granted all subsidiary rights to the same publisher, or if he intends to write further works."

--Ken

agentpaper said:

Okay, newbie question, so on this, couldn't PA potentially lock authors in with them? If PA offers an author a contract for the next book and the author has to sign it, then wouldn't THAT contract also ask for first right of refusal on the next book and then the next book? And so on and so on until the end of time?

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It is probably moot for all but a handful. The vast majority will not have a second book. Some will be satisfied to continue with PA (I know one who is up to four now). Some will wise up and line that provision out of a second contract (one secured for a throwaway manuscript).

--Ken

Sepisllib said:

My contract only has 26 paragraphs and I have read it several times failing to locate this in mine.

God Bless

Bill

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As the contract has changed several times since 1999, I imagine that many of the newer ones lack that paragraph. PA has instead started accepting multiple submissions and limited royalty pay outs to a $49 minimum before the author sees a check. Most of PA's authors don't have the kind of money PA charges for books plus shipping. I imagine this is why they have started accepting multiple submissions and added stipulations to their contract. This way they can hold a book hostage until an author buys enough copies (over time) to make the kind of profit they are looking to gain. They have seven years to get that profit and while they are waiting on one author to buy, buy, buy, there are more writers signing contracts every day to become an author. I also think this is why some authors have been able to get a contract release. They've already paid enough money in self purchases to get PA that profit. Those that haven't yet fed the monster are still chained to the wall. JMOFWIW

tlblack said:

The exact wording from my contract regarding first refusal: Paragraph 28 in my contract.

"The Author grants and assigns to the Publisher the exclusive right to publish or first refuse Author's first next work under terms to be determined through good faith negotiations that will take place within a reasonable period of time after the Author has submitted for consideration his first next work to the Publisher."

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How a first right of refusal plays out depends upon the language contained in that clause in the contract.

In the above example, it is clear PA must negotiate new terms in a reasonable amount of time and if the author and PA cannot agree on the terms, then the author has complied with the contract's requirement of first right of refusal and is free to submit the work for consideration to another publisher.

~brianm~

brianm said:

tlblack said:

The exact wording from my contract regarding first refusal: Paragraph 28 in my contract.

"The Author grants and assigns to the Publisher the exclusive right to publish or first refuse Author's first next work under terms to be determined through good faith negotiations that will take place within a reasonable period of time after the Author has submitted for consideration his first next work to the Publisher."

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How a first right of refusal plays out depends upon the language contained in that clause in the contract.

In the above example, it is clear PA must negotiate new terms in a reasonable amount of time and if the author and PA cannot agree on the terms, then the author has complied with the contract's requirement of first right of refusal and is free to submit the work for consideration to another publisher.

~brianm~

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This. There's that wee word 'negotiations'. If an agreement can't be reached the author cannot legally be forced to sign another contract.

And yes, I agree that the easiest way to get around this is to submit a rubbish manuscript, but it's important for PA's victims to understand that they are NOT bound for life to sign any future contracts.

As a matter of fact, I'd love to see a case in court where a publisher tried to say that a first right of refusal clause meant that the author was bound by the first contract to sign the next one. What if the publisher's subsequent contract included language that the author had to pay $50,000 to the publisher to publish the work? Surely you wouldn't argue that such a contract would have to be signed by the author just because they signed the first contract.

No. It means the author is bound to sumbit the next manuscript, and if the publisher wants to contract it, to try to negotiate the terms. If terms can't be agreed upon, either or both parties can drop it and move on.

In the case of PA, all an author offered a subsequent contract has to say is, 'I want a $5,000 advance, which is low in the industry,' and PA would drop it. That's what negotiating terms is all about.

And really, if a publisher is that certain they want the next book, don't they just contract the writer for more?

Terie said:

As a matter of fact, I'd love to see a case in court where a publisher tried to say that a first right of refusal clause meant that the author was bound by the first contract to sign the next one. What if the publisher's subsequent contract included language that the author had to pay $50,000 to the publisher to publish the work? Surely you wouldn't argue that such a contract would have to be signed by the author just because they signed the first contract.

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If the author put their signature on the first contract agreeing to those terms and conditions, then they would be bound to those terms and conditions for their next book. That's why it is so very important to carefully read and understand every clause contained in a contract before signing it.

PA has the first right of refusal clause in their contract so that they can continue to play on the vanity of their newbie writers, while also maintaining the illusion they are a commercial publisher.

A newbie reading the clause would think PA was so enamored with their writing that they didn't want to miss out on their next great manuscript, and that PA would be willing to negotiate better terms for the second book.

All nonsense but it works to maintain the illusion.

~brianm~