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Thread: Damnation Books

  1. #26
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    Quote Originally Posted by brainstorm77 View Post
    Kill fees are also an issue with Eternal Press. I'm not surprised.
    The kill fees have increased, since Damnation took Eternal over, to one thousand dollars. It's also now a five year contract, rather than two years. A copy of the new contract is on the EP thread. This isn't by any stretch of the imagination an "author friendly" publisher.

    http://www.absolutewrite.com/forums/...=eternal+press
    Last edited by Ravenwing; 05-02-2010 at 06:52 AM.

  2. #27
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    Quote Originally Posted by J.Henry View Post
    Reputation good or bad makes or breaks a business. Why a business would deliberately alienate its clients and get so much bad rep for the sake of a couple of hundred dollar kill fee, defeats me. They must be darned hard up for cash. I've been let out of many contracts over the years with no problems. All I had to do was ask. I'd never even heard of a termination fee until now. I can imagine the shock being suddenly hit with something like that. Good luck Alex.

    Alex's book is now available on Lulu. It looks interesting. Please buy this version that's authorized by Alex, and not the one illegally being sold by Damnation Press.

    http://www.lulu.com/product/paperbac...shelf/center/1
    Because the kill fees appears to be their business.

  3. #28
    Tired and Disillusioned Momento Mori's Avatar
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    showme:
    Damnation Books officially violated their own contract when they made substantial changes to my text without my approval, including the re-naming of chapters and inappropriate additions to the copyright page.
    You should check your contract as to what rights Damnation has to edit your work - most contracts do give the publisher some limited rights, subject to an author's final say.

    showme:
    Damnation published the book on Amazon as The Berserk by Alex Smith, April Duncan, and Matt Truiano. The latter two are editor and cover designer, respectively.
    It could be that this is just a mistake on the Amazon page (albeit one put up by Damnation) because I've seen similar things happen to books from commercial publishers.

    If they're putting that attribution on the cover though then again, check your contract to see what the position is re Berne Convention rights. You may have a right to refuse attribution of your name or claim sole ownership of the work.

    showme:
    I have decided to publish a “perfect version” entitled Berserk on Amazon. Damnation are welcome to try to sue me if they so chose
    IMO (and while I understand your frustration), you shouldn't do that. Your own lawyer has said that Damnation has the right to publish your book so right now, you are in breach of contract and further, by advertising your own version of the book you are opening yourself up to a claim for loss of profits.

    I don't know if Damnation will take you on in court - they seem like a bunch of cowardly clowns at the best of times - but they do have that right and you are doing yourself no favours.

    Ravenwing:
    If they're trying to stick you for a termination fee that's not in the contract then they don't have a leg to stand on.
    You keep saying this and it keeps being wrong.

    The lack of a termination fee in a contract does not mean that it a party cannot seek to charge one as a condition to their agreeing termination of a contract. It's not nice, it's not particularly ethical, but if the contract says that termination can only occur with both party's consent, then one party is perfectly free to specify what condition they attach to their consent and that does not invalidate the contract.

    showme's own lawyer has told him/her as much.

    MM

  4. #29
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    Momento

    I'm not Alex. I just posted his open letter to Damnation from his blog. My situation is not dissimilar, though. My contract with EP expired a couple of days ago. Phew! (LOL) When I signed up EP was a small Australian based publisher with no bad rep. I always check before I sign. Then a few months later they sold the business to someone based in Canada. It was bad news all the way after that.

    In January of this year it was sold again to Kim Richard of Damnation Books. I asked to be let out of my contract, and was hit with a termination fee demand. There was no clause covering termination fees in my contract. The only mention of termination was this:

    "PUBLISHER Termination: At any time prior to the publication, or during the publication, or after the publication of the WORK, PUBLISHER may, at its discretion, cancel this contract and remove the WORK from publication or distribution for reasons of poor sales, excessive returns, or any other reasons."

    It's interesting that poor sales is a reason for publisher termination, because if I didn't qualify I don't know who would. My sales, during the two year contract period, was two ebooks and a total royalty payout of $2.89!

    Kim claims I signed another contract with them, which has a termination fee clause, and which doesn't expire until next year sometime, but has ignored all my requests, since January, to see it.
    Last edited by showme; 05-02-2010 at 10:36 PM.

  5. #30
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    Quote Originally Posted by Momento Mori View Post
    You should check your contract as to what rights Damnation has to edit your work - most contracts do give the publisher some limited rights, subject to an author's final say.




    MM
    The problem here is you're assuming that this is an ethical, reputable publisher who actually cares what their contract states. It isn't and they don't. They even take it a step further, it seems, by claiming they have contracts that don't even exist. What's a writer to do? They've already been blacklisted on all the writer advocate sites.

  6. #31
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    Quote Originally Posted by brainstorm77 View Post
    Because the kill fees appears to be their business.
    Agreed. They don't make any attempt to sell the books to the reading public, they're accepting everything they get just like PA, and the kill fees are damned profitable. They have about 200 authors now -- mostly as you can imagine non too happy -- so if even half want out, do the math. They tried to cheat Alex out of more than 800 dollars. This shifty outfit is laughing all the way to the bank. And it's not illegal PROVIDING they have a termination fee clause in the contract. They do now, but the earlier contracts didn't have. There was an Ally Robertson addendum covering print publishing issued some time last year that had a termination fee clause, but for only fifty bucks. Kim's trying to skim (hey that rhymes:-) a heck of a lot more than that, like 800 big ones. Ugly. What the heck is Alex and her other victims supposed to do? Let her hang onto their titles illegally for years and years? Kim, although she appears to be a clumsy amateur, should still be charged with attempt to extort, and fraud. I'd love to know how many authors have actually coughed up the dough to get free of her. What a be-etch.
    Last edited by Sugertime; 05-02-2010 at 11:47 PM.

  7. #32
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    Unusually low sales and high termination fees are a warning flag. Sorry for everyone who got caught up in this mess. It's important that Damnation and EP authors report their sales. This can be done confidentially here:

    http://erecsite.blogspot.com/2010/05...nal-press.html

  8. #33
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    Quote Originally Posted by Sugertime View Post
    The problem here is you're assuming that this is an ethical, reputable publisher who actually cares what their contract states. It isn't and they don't. They even take it a step further, it seems, by claiming they have contracts that don't even exist. What's a writer to do? They've already been blacklisted on all the writer advocate sites.
    My concern is for first time authors who find themselves mixed up in something like this. They could well think that low sales and high termination fees are the norm.

  9. #34
    Writer is as Writer does Terie's Avatar
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    Quote Originally Posted by Sugertime View Post
    The problem here is you're assuming that this is an ethical, reputable publisher who actually cares what their contract states. It isn't and they don't. They even take it a step further, it seems, by claiming they have contracts that don't even exist. What's a writer to do? They've already been blacklisted on all the writer advocate sites.
    No, Momento Mori isn't assuming any such thing. MM is a lawyer-in-training and works for a law firm, and is talking about legal interpretations of contracts. Many companies do immoral and unethical things under cover of legality. *cough*PA*cough*
    Last edited by Terie; 05-03-2010 at 09:00 PM. Reason: Fixing a boo-boo
    Changing Gears (available now) -- Winning the race doesn’t equal winning at life.

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  10. #35
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    Quote Originally Posted by Terie View Post
    No, Momento Mori isn't assuming any such thing. MM is a lawyer-in-training and works for a law firm, and is talking about legal interpretations of contracts. Many companies do immoral and unethical things under cover of legality. *cough*PA*cough*
    I took this to mean that with a company who doesn't care what's in the contract and even claims contracts exist when they don't, the normal rules don't apply.

  11. #36
    Brian Boru brianm's Avatar
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    Quote Originally Posted by showme View Post
    Momento

    I'm not Alex. I just posted his open letter to Damnation from his blog.
    First, you should have made it clear you were not Alex when you posted the letter.

    Second, do you have permission from Alex to post the letter here?

    ~brianm~
    "This is one race of people for whom psychoanalysis is of no use whatsoever." Sigmund Freud (about the Irish)

    "Opera singers have resonance where their brains ought to be." Anna Russell

  12. #37
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    Quote Originally Posted by brianm View Post
    First, you should have made it clear you were not Alex when you posted the letter.

    Second, do you have permission from Alex to post the letter here?

    ~brianm~
    This is an Open Letter to Damnation Books. The author wants it publicized as much as possible.

    "Feel free to publicize this email and the contracts I’ve included as you wish.

    I believe I’ve said enough—I am more than willing to answer any other questions regarding this incident, or fill in any details you may need.

    Thank you in advance for any consciousness-raising you do on the issue.

    Sincerely,

    Alex Smith"

  13. #38
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    Quote Originally Posted by brianm View Post
    First, you should have made it clear you were not Alex when you posted the letter.

    Second, do you have permission from Alex to post the letter here?

    ~brianm~
    There were quote marks at the beginning and end of the letter.

  14. #39
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    I've sent a link to this thread to Alex Smith with the hope that he'll participate.

  15. #40
    Tired and Disillusioned Momento Mori's Avatar
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    showme:
    I'm not Alex. I just posted his open letter to Damnation from his blog.
    It would have been useful to know that from the start of your post because the way you set it out makes it seem that you are Alex.

    showme:
    Kim claims I signed another contract with them, which has a termination fee clause, and which doesn't expire until next year sometime, but has ignored all my requests, since January, to see it.
    There's been a lot of discussion about this on the Eternal Press thread. Did you sign a new contract with her when she bought out Damnation?

    Check the terms of your original contract - unless there's a clause in there giving the publisher the unilateral right to amend the terms of the contract without your consent (which will be evidenced by your signature on the amended terms) those amendments may not be enforceable.

    It sounds as though your original contract was for a specified period with an expiry date. Is this the case? If so, when was the expiry date and what did the contract say (if anything) about extending the term?

    Most contracts will usually say that extension has to be by mutual consent in writing (PA's contract however says that if you want out then you have to serve notice 3 months in advance to notify them or else there's deemed extension). If the contract extension has to be by mutual consent and you did not agree to extend, then I would say to Kim that you consider the original term to have ended and revoke all rights for Damnation to continue to publish. If she continues, warn her that she is in breach of contract and you will look to sue her for that and infringement of copyright.

    If the contract expiry is as per PA and the expiry date has expired, then you're on stickier ground. Check out how long the extension period is for - if it's another set period, then put the date in red in a calendar and make sure you serve a termination notice in time for it. The downer is that your book remains tied up, but it does at least leave you with a potential eventual out.

    Sugertime:
    The problem here is you're assuming that this is an ethical, reputable publisher who actually cares what their contract states. It isn't and they don't.
    Where in my posts have I ever said that I believe Damnation to be either ethical or reputable? I believe I explicitly use the phrase "cowardly clowns" to describe them.

    My point is that if you're an author stuck playing the contract game with these people, then each and every breach of contract that you can point to (in the absence of a termination clause enabling you to walk away without payment) is a weapon in your arsenal that should be deployed to wear them down.

    Sugertime:
    even take it a step further, it seems, by claiming they have contracts that don't even exist. What's a writer to do?
    I address this higher up in this post.

    Personally, if you feel so strongly about a book that you don't want to let it go then:

    (a) look at your original contract terms and the provisions relating to amendment - if they can't amend without your consent, then the amendment is not binding and you can seek to rely on your expiry clause;

    (b) look at your original contract terms and the provisions relating to expiry of the contract term. If contract rewewal requires both parties consent, and you didn't give that consent, then the original contract can be deemed to have expired.

    Personally, I'd look at spending a small amount of cash (depends on how much lawyers charge where you live, but in the UK you'd be spending between 50 to 100 quid for a decent lawyer) on getting a lawyer to draft a letter to Damnation on my behalf setting all that out and asking for an immediate reversion of my rights, together with a cease and desist of further publication to see if they blink (some publishers don't take you seriously unless the letter is on legal headed paper), but you can equally do the same yourself or look into free legal services in your local area.

    Terie:
    MM is a lawyer-in-training and works for a law firm, and is talking about legal interpretations of contracts.
    I'm actually qualified and have almost a decade's worth of UK commercial contracts experience but for the sake of clarity and so that no one here is labouring under a false impression - I am not giving anyone here specific legal advice.

    If you're a Damnation author then you need to read through your contract and take your own legal advice as to your situation from someone qualified to advise on the law applicable to your contract (which I believe was Australian).

    My comments are merely general observations intended to give you a jump point in order to decide what you do next.

    Kensington:
    I took this to mean that with a company who doesn't care what's in the contract and even claims contracts exist when they don't, the normal rules don't apply.
    The normal rules do apply - the problem is how far are you willing to go and how much are you willing to spend forcing the company to comply with them?

    Again, I'd look at the amendment provisions, the expiry provisions and then I'd be looking to see each and every area where I could argue breach.

    MM
    Last edited by Momento Mori; 05-03-2010 at 06:38 PM.

  16. #41
    Brian Boru brianm's Avatar
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    Quote Originally Posted by Momento Mori View Post
    It would have been useful to know that from the start of your post because the way you set it out makes it seem that you are Alex.
    A link would be in order, as well.

    ~brianm~
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    "Opera singers have resonance where their brains ought to be." Anna Russell

  17. #42
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    Quote Originally Posted by brianm View Post
    A link would be in order, as well.

    ~brianm~
    There IS a link. Always was. Right at the end of the post.

  18. #43
    Brian Boru brianm's Avatar
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    Quote Originally Posted by Kensington View Post
    There IS a link. Always was. Right at the end of the post.
    As MM stated, it would have been nice to know right from the beginning of the post that the poster wasn't Alex Smith. Same holds true for a link.

    ~brianm~
    Last edited by brianm; 05-04-2010 at 12:25 AM.
    "This is one race of people for whom psychoanalysis is of no use whatsoever." Sigmund Freud (about the Irish)

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  19. #44
    volitare nequeo AW Moderator veinglory's Avatar
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    Um, could we perhaps let that aspect drop now?
    Emily Veinglory

  20. #45
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    Quote Originally Posted by Momento Mori View Post
    There's been a lot of discussion about this on the Eternal Press thread. Did you sign a new contract with her when she bought out Damnation?
    No new contracts were issued. She tried to get me to sign an amendment in January, but I refused. There were also no new contracts (or amendments) issued when Ally Robertson in Canada, bought EP in early 2008. Although the original contract clearly stated that the laws of Australia applied.

    Quote Originally Posted by Momento Mori View Post
    It sounds as though your original contract was for a specified period with an expiry date. Is this the case? If so, when was the expiry date and what did the contract say (if anything) about extending the term?
    The original EP contract was for a period of two years, beginning from the time of publication. It expired a few days ago on April 30. In January, when EP was first bought by Kim Richards and she tried to get me to sign her amendment, I said I wanted out. As my title supposedly only sold 2 copies, no one could wonder why. :-) That's when she hit me with a termination fee of $150.00. There is no termination fee clause in the contract.

    Since then she has claimed she has another contract that I signed, agreeing to $150.00 in termination fees, which does not expire until next year. In one message she claimed to "have it in her hand." But, although I've been asking her to send it to me for four months now, she has not done so.

    I filed a complaint with the BBB and the Attorney General's Office. In Kim's response to the BBB, she claimed to be sending them a copy of this contract by regular mail. They told me they'd scan it in and email it to me if it does arrive…

    Meanwhile, I've contacted Fictionwise and every online outlet where my title is on sale, informing them that copyright reverted back to me on April 30.

    Thanks for all your help MM, it's much appreciated. :-)

  21. #46
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    Quote Originally Posted by brianm View Post
    As MM stated, it would have been nice to know right from the beginning of the post that the poster wasn't Alex Smith. Same holds true for a link.

    ~brianm~
    Not sure what the problem is here. The link is at the end of Alex's open letter to Damnation, and the letter is in quotes. I didn't have any difficulty with it.

  22. #47
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    Quote Originally Posted by Kensington View Post
    Not sure what the problem is here. The link is at the end of Alex's open letter to Damnation, and the letter is in quotes. I didn't have any difficulty with it.
    Neither did I. Yet Brian appears to have had a problem with every part of it.

    1) He said it should have been clearly stated that Alex Smith had not posted it. But as it already had quote marks around it, and a link at the end...well, that's the usual way to do it, is it not?

    2) He questioned whether the author of the letter had given permission to have it distributed. Yet it was clearly stated, by the author himself, that he had.

    3) Finally he said a link should have been included. Well it was -- right at the end of the open letter.

    I notice a postscript has been added to the message: "P.S. Just to clarify here, as there's been some confusion, I'm not Alex Smith."

    (LOL) Now wait for Brian to have some problem with that too.
    Last edited by Ravenwing; 05-04-2010 at 01:45 AM.

  23. #48
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    "Since then she has claimed she has another contract that I signed, agreeing to $150.00 in termination fees, which does not expire until next year. In one message she claimed to "have it in her hand." But, although I've been asking her to send it to me for four months now, she has not done so.

    I filed a complaint with the BBB and the Attorney General's Office. In Kim's response to the BBB, she claimed to be sending them a copy of this contract by regular mail. They told me they'd scan it in and email it to me if it does arrive…"


    Okay, you don't have to say another thing. The very fact that she has not produced this contract says it all.

  24. #49
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    This is an Open letter written by author, Alex Smith, to Damnation Publishing. I am not Alex Smith. It is an open letter and Alex has indicated (see below) that it is intended for distribution. Here is the link to Alex's blog where the letter can be found:

    http://reimagineritual.wordpress.com...s/#comment-650


    "Overall my experience with Damnation was quite pleasant, until we disagreed on the design of the cover. They were unwilling to negotiate, so I asked to be released from my contract. At this time, they sent me a letter charging me a $800+ “termination agreement.” This letter included an itemized list of expenses—and as a publisher myself I know how exorbitant and ridiculous these charges are.

    Further, there was no mention of a termination fee in the contract I originally signed. I spoke to a woman name Victoria Strauss, who wrote a fascinating blog post on the subject of kill fees (http://accrispin.blogspot.com/2009/0...s-and-why.html). She explained that a kill fee is used to blackmail an unhappy author into getting back in line. She said this example of a kill fee was especially “sleazy” because there was no mention of it in the original contract. When I refused to pay the fee, Kim Gilchrist told me that unless I paid it they would go on and publish the book without my support.

    Believe me—I tried everything to negotiate—I even offered to PAY some of the legitimate fees in order to see a new cover designed for the book—but they refused. It was either, “Pay us 800 or shut up and sit down.” I also spoke to a lawyer—he agreed with Ms. Strauss in myself: Damnation Books would never get away with a kill fee in court, but they did have the rights to publish the work. So as of now, despite my pleas, Damnation will be publishing “The Berserk” in March (you can find it on damnation’s website).

    I am writing this in hopes that you will alert your readership of Damnation’s hidden fees. They are unlawful, unethical and, for a small independent publisher who should be out there championing small artists—this kind of cutthroat publishing behavior is unconscionable. There are other publishers who do this. According to Ms. Strauss’ blog, writers should beware of this type of bullying, and keep an eye out for it in their contracts (and NEVER sign a contract that includes a kill fee) but Damnation does not state it in their contract.

    Feel free to publicize this email and the contracts I’ve included as you wish.

    I believe I’ve said enough—I am more than willing to answer any other questions regarding this incident, or fill in any details you may need.

    Thank you in advance for any consciousness-raising you do on the issue.

    Sincerely,

    Alex Smith

    UPDATE March 10th, 2010

    Damnation Books officially violated their own contract when they made substantial changes to my text without my approval, including the re-naming of chapters and inappropriate additions to the copyright page. Further, Damnation published the book on Amazon as The Berserk by Alex Smith, April Duncan, and Matt Truiano. The latter two are editor and cover designer, respectively. It is outrageous that they would attribute the creation and writing of the novel to two people who, however talented and deserving of praise in their own right, had worked on the book for a month, where I had worked on it for two years. As such, I have decided to publish a “perfect version” entitled Berserk on Amazon. Damnation are welcome to try to sue me if they so chose."
    Last edited by showme; 05-04-2010 at 02:27 AM.

  25. #50
    Brian Boru brianm's Avatar
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    Quote Originally Posted by showme View Post
    This is an Open letter written by author, Alex Smith, to Damnation Publishing. I am not Alex Smith. It is an open letter and Alex has indicated (see below) that it is intended for distribution. Here is the link to Alex's blog where the letter can be found:

    http://reimagineritual.wordpress.com...s/#comment-650
    Thanks for this, showme.

    We get a lot of drive-by posters in this particular forum pretending to be someone they are not, so it's always best to be clear from the start what you are posting.

    By the by, welcome to AW.

    ~brianm~
    "This is one race of people for whom psychoanalysis is of no use whatsoever." Sigmund Freud (about the Irish)

    "Opera singers have resonance where their brains ought to be." Anna Russell

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