Rising from the Ashes - Another Battle Against PA

Gillhoughly · Sep 10, 2010

"Publisher shall not be liable to Author for sales of copies of the Book which were printed prior to the termination of the publication rights or resales of books printed and sold by PA prior to such termination."

Demand an accounting statement of exactly how many copies they have stored in the warehouse. It's your right.

It's called (I think) a "reconciliation of account". It is done all the time in real publishing. I've asked for it a few times and no one bats an eye.

Someone at the warehouse physically goes and counts the books there written by any author demanding such an accounting.

The number for you, of course, should be ZERO, since they are POD.

As for resales, no, they are not accountable, you should have gotten a royalty from those. Anyone can resell a book.

With real publishers, unsold new books are usually sold at a big discount as remainders.

If PA claims a few copies, you can offer to buy those at a remainder price. It'd be fun to see their reaction if you offered a dollar per copy to free up the shelf space. LOL!

You can offer, but not buy.

Momento Mori · Sep 10, 2010

Author will also remove any messages posted by him on the internet or in any other forum concerning Publisher

You should get a lawyer to check this out. To my mind, the obvious interpretation is that you have to delete your posts in this Forum about PA - given that we know that PA checks this Forum and you've given information about your book here, it's not inconceivable that they will check to make sure that you do so and if you don't, that they will sue for breach of contract.

MM

CatSlave · Sep 10, 2010

DaveKuzminski said:
Yes, do send me a copy. Thank you.

Yes, please post it if you can.
I think PA authors should have the opportunity to read it before they pay to be released from their contract.

I'd like to see it on Facebook, too.

James D. Macdonald · Sep 10, 2010

They want a Get Out of Jail Free card. The answer to that one should be, "Not in your wildest dreams."

The whole of the contract should be, "PublishAmerica hereby reverts all publishing rights in -nameofbook- to -nameofauthor-." Signed and dated, and done.

Wrider · Sep 10, 2010

A few others here who have been released from their PA contracts... were the agreements the same as this (including the forum clause etc)? Or have they modified it to make it even more difficult for the author?

ResearchGuy · Sep 10, 2010

James D. Macdonald said:
They want a Get Out of Jail Free card. The answer to that one should be, "Not in your wildest dreams."

The whole of the contract should be, "PublishAmerica hereby reverts all publishing rights in -nameofbook- to -nameofauthor-." Signed and dated, and done.

The language of the PA letter reminds me of settlement agreement for a product-liability case. Those, however, typically involve payment to the injured party, who is then required to keep silent as part of the deal.

--Ken

Neil Larkins · Sep 10, 2010

I, for one, would not sign this. It is far more inclusive than the contract and obligates you, thereby leaving you liable to litigation, to things which you have no control over nor do they have a right to demand. For example, this clause of you removing any derogatory posts anywhere is totally unreasonable and impossible for you to comply with, especially considering the nature of the Internet wherein all sorts of information, data, etc. are mirrored, reproduced and so forth without your knowledge or permission. Since they (PA) know this but think you don't, they are looking for an opportunity to at a later date get more money out of you, or even destroy you for defying them, should one of their web-trolling lackeys discover an un-deleted post or comment after your havng signed.
Neil

victoriastrauss · Sep 10, 2010

narcolepticgi said:
Well, gag me with a spoon!
Today I received a large white envelope from PA. It contained a release contract written by Brian Winfrey(??)

This release appears to be very similar, and in parts identical, to a release form they have used before (I have a copy from 2005), with a few changes to accommodate current reality (for instance, the 2005 version mentioned arbitration, which is no longer in the contract).

The first part of the wording you've quoted from the non-disaparagement provision is identical to the wording in the 2005 version--but the bit about you removing your posts, and the yakkity-yak about irreparable injury, have been added--no doubt, just for you!

"Publisher shall not be liable to Author for sales of copies of the Book which were printed prior to the termination of the publication rights or resales of books printed and sold by PA prior to such termination."
So you kind folks who are complaining that PA continued to sell your book after your contract was released or expired. Here is your answer. My question is why have they printed books when three Royalty statements in a row say that I haven't sold any.

A publisher has the right to sell off existing copies even after a contract is terminated or a book goes out of print--but remains liable to you for the royalties on these sales. However, my guess is that this isn't so much an attempt to get out of paying you for post-termination sales (I think it's extremely unlikely that they have any copies on hand) as it is a pre-emptive measure intended to head off any possible post-termination complaints. Basically, they don't want to hear from you again.

Speaking for myself, I wouldn't sign such a release.

I'd appreciate a copy for my files. IM me and I'll give you contact info.

- Victoria

Unimportant · Sep 10, 2010

Victoria, James, et al: is it kosher for Narco to cross out the offending bits with a big black Sharpie, leave in the simple "PA reverts all rights" bit, sign it, and send it back?

victoriastrauss · Sep 10, 2010

Sure! (And initial the cross-outs.) But he should then probably expect another communication informing him that his changes are not acceptable.

- Victoria

brianm · Sep 10, 2010

Unimportant said:
Victoria, James, et al: is it kosher for Narco to cross out the offending bits with a big black Sharpie, leave in the simple "PA reverts all rights" bit, sign it, and send it back?

You can cross out anything you want in a contract by initialing and dating an altered section(s) but whether or not it becomes binding is wholly dependent upon the other party initialing and dating the altered section(s),too.

If they don't agree to the terms by initially and dating the altered section(s), you haven't got a contract and you're back at square one.

~brianm~

spike · Sep 10, 2010

HistorySleuth said:
The release part sounds weird to me. If you skip the mumbo jumbo part and get to the basics it would read.

""Author .. releases ... and discharges Publisher ..from any and all claims of any kind or character, at law or in eqity, whether known or unknown, accrued (?) or not, present or future, in connection with, arising out of or in any way involving the Contract including any pre-contract representations."

Can you release someone elses claim to something? If Sam has my little red truck and I want it back, he would need to release his claim to it and give it to me. Not me saying I have released his claim to it. That would pretty much mean nothing. Shouldn't it read more like the publisher releases it's claim in connection with, etc. ???

Not a lawyer, but I was in business for a long time and I know that you can put anything in a contract. Doesn't mean it is enforceable. But some people will be scared away by it and not contact a lawyer.

Gillhoughly · Sep 10, 2010

Not a lawyer, but I was in business for a long time and I know that you can put anything in a contract.

In which case I want a clause in my next contract:

It requires my editor must dance the Hokey Pokey each time an unapproved change goes into my book. :evil

Unimportant · Sep 10, 2010

victoriastrauss said:
Sure! (And initial the cross-outs.) But he should then probably expect another communication informing him that his changes are not acceptable.

- Victoria

Yeah, probably. But I was thinking that if it got opened by someone other than the Three Stooges, it might get countersigned and returned to him as an acceptable reversion agreement. Worth a try?

CatSlave · Sep 10, 2010

Unimportant said:
Yeah, probably. But I was thinking that if it got opened by someone other than the Three Stooges, it might get countersigned and returned to him as an acceptable reversion agreement. Worth a try?

The Stooges are not going to allow anyone else to countersign, in case there are cross-outs, IMO.
They want to keep a firm grip on your ...uh, wallet... to the bitter end.

Manuel Royal · Sep 10, 2010

"Author agrees that he, his agents, attorneys, employees or family members will only represent that the relationship between Author and Publisher was "dissolved amicably" and will not disparage Publisher in any manner whatsoever, or host, maintain and/or post a message to any Internet web sites and/or message boards in which the content disparages or mentions Publisher in any manner whatsoever; Author will also remove any messages posted by him on the internet or in any other forum concerning Publisher."

(Bolding mine.) How can that possibly be enforceable? I can imagine holding an author responsible for the statements of his "agents, attorneys, employees" -- but family members? Unless they sign the same agreement, they can say what the hell they want, subject to normal libel and slander laws.

Gillhoughly · Sep 10, 2010

The whole of the contract should be, "PublishAmerica hereby reverts all publishing rights in -nameofbook- to -nameofauthor-." Signed and dated, and done.

This.

Kiss rules--Keep It Simple Sweetie.

This is what I'd do, everyone jump in if you spot a problem, 'cause I'm no lawyer.

Print it, send four signed, dated copies to PA with a return postage envelope. In the cover letter you instruct PA to return two of them to you, signed by whoever has the authority to terminate contracts. I doubt it will be one of the easily fired minions, which leaves either Larry or Miranda.

Unless someone here had a different name on their termination?

The document they sent is ridiculous and over-complicated. I'd certainly not sign it, however desperate I was to get clear of them.

Don Davidson · Sep 10, 2010

DaveKuzminski said:
Yes, do send me a copy. Thank you.

I'd love to get a copy, too. I would like to review it, and I might post it on the PA page of my web site (after deletion of names and other identifying information).

narcolepticgi, if you be so kind, please email me a copy. My email address is below.

brianm · Sep 10, 2010

Gillhoughly said:
The document they sent is ridiculous and over-complicated. I'd certainly not sign it, however desperate I was to get clear of them.

I agree. Whenever I see that much whipped cream in a contract, I'm confident it's covering up a mud pie and here's a lovely slice of it.

Author agrees that he, his agents, attorneys, employees or family members will only represent that the relationship between Author and Publisher was "dissolved amicably" and will not disparage Publisher in any manner whatsoever, or host, maintain and/or post a message to any Internet web sites and/or message boards in which the content disparages or mentions Publisher in any manner whatsoever; Author will also remove any messages posted by him on the internet or in any other forum concerning Publisher.

Absolute kaka and I wouldn't sign any document containing this verbiage.

~brianm~

Gillhoughly · Sep 11, 2010

You only put a clause like THAT in when you're well aware that you've done something worthy of bad-mouthing.

If a similar clause, but reversed with (replace "writer" with "publisher") was in it, that might be almost fair, but this blatant attempt at muzzling is wrong.

I have seen posts by writers who did sign just to escape, and they give the impression that it is a sore point and will ever remain a sore point with them. They feel obligated to abide by the agreement, but regret they had to do so.

It's one thing to have something like that in a divorce declaration or if one is resigning a sensitive job. (I bet the CIA has fewer clauses in similar documents). Those are matters of personal privacy or security.

The agreement with PA was a business deal gone wrong, and certainly far too small to warrant such a complicated document.

PA is well aware of the fact that a happy customer tells his friends, but an unhappy customer tells *everyone.*

In the case of this business the writers are ALWAYS the injured parties wanting out, never PA.

PA writers are ALWAYS the ones who initiate the proceedings, never PA.

PA tenaciously fights to keep the contract in place even when it is clearly has no advantage to them.

Even when the writers are clear that they will not buy books or pay an escape fee, PA still hangs on. It is certainly easy to interpret that as petty spite, adding to the vast bad press.

Dear Stooges,

I have a small business selling stuff, and lemme drop this nugget of wisdom on you: The customer is ALWAYS right.

When someone wants out, be pleasant and give them what they want without fuss. It's not like you have to refund them any money the way I do.

And sadly, it's not like there's no more hopeful writers where those came from.

You want to stop the bad press, then step up to the plate and be professionals. If you dropped the deception and half truths on your website and attempted to operate in a legitimate manner then AW could close this thread and move on to warning writers about other things.

.

Don Davidson · Sep 11, 2010

Gillhoughly said:
When someone wants out, be pleasant and give them what they want without fuss. It's not like you have to refund them any money the way I do..

How true, how true. If PA had granted my request to terminate the contract mere weeks after I signed it, I would have gone away quietly and they would not have ended up on my web site. Instead, they sent me a nasty email threatening legal action if I didn't hold up my end of the bargain.

I believe they hold your book hostage for 7 years in the hope that you will eventually get frustrated and try the self-marketing approach (which is of course how PA makes its money). The people who run PA have no interest in keeping their authors happy, or behaving ethically, or doing the right thing. For them, it's all about the money.

I would never, never, never sign such a contract, for fear that it might actually be enforceable (and it very well may be). That contract is all about suppressing the truth about PA.

spike · Sep 11, 2010

Gillhoughly said:
In which case I want a clause in my next contract:

It requires my editor must dance the Hokey Pokey each time an unapproved change goes into my book.

You could do that, and I think that would be enforceable. You don't know, your editor might like the Hokey Pokey, I do.

narcolepticgi · Sep 19, 2010

Loop-de-loop?

Back like a bad penny

Just to recap some of my efforts which started last October:
IC3....they didn't care
FTC...They didn't care
Maryland BBB...PA convincced them my allegations of sloppy accounting were false
DoD...no response to the "Send books to troops in Iraq"
FBI local....bigger fish to fry, sent me to IC3
IRS...they didn't care
Barbara Bush Foundation...no reply
Lincoln Library...no reply
Target...not a brand issue but at least they answered
Walmart...didn't care
Barnes and Noble...didn't care
Apple...didn't care
NBC Today...didn't care
Red Cross fraud site...sent e-mail about Haiti, no responce
Baker and Taylor...don't care
Lightning Source...didn't care
Ingrams...didn't care
Random House...didn't care
Association of American Publishers...didn't care
and my latest endeavor
The American Red Cross has yet to reply!

The problem we have folks is that a SINGLE INDIVIDUAL AUTHOR carries no weight with anyone.

I kept at this diligently until March when my home came at risk from a probate matter.
It disgusts me to no end when a person lets PA buy their principles and moral codes. L&G I am not for sale, at any price.
If only 1% of PA authors are serious then 500 individuals should be on the war path. When I take point, I expect my squad to have my 6.
Complaining on these forums is a good start, but the old rule still applies; Lead, Follow, or get out of the way.
Someone on another forum mentioned a "book burning". That, including the Quran is to Natzi for me. I would gladly use some off my reserve monies to go to Frederick and have a massive book signing; when it opens on main street we sit there with e-mail promotions from PA and sign them explaining how we didn't have the cash reserves to buy a large quantity of our own books and just sign a photocopy of our book covers. I think the media would get the picture then and maybe pay attention to these shameful people.
As I stated before; out of sight out of mind. That's our problem. Anyone know a philantropist who is a big time literacy person. Anyone know someone with the Department of Defence, the Red Cross, or perhaps the SPCA?
I'm a professional "think tank" but ideas are worthless unless someone gets involved, stops complaining and acts. If you all truly want to get Oprah's attention then we should form a committee, pay for a ticket to one of her shows and hand carry a bundle of these e-mails to her personally.

How 'bout it Dave. Is P&E up to that little task?

Mean while I still have another probte hearing on Nov 15th, my wife is a nervous wreck and most of my energy is being spent keeping her distracted. She wants to go to a show, lets make it a multi-task trip. :snoopy:

ResearchGuy · Sep 19, 2010

narcolepticgi said:
. . . If only 1% of PA authors are serious then 500 individuals should be on the war path.. . .

It is entirely possible (if I can extrapolate from my own acquaintances) that 1 percent of PA authors are satisfied with what they got. Maybe they are deluded. Maybe they have low standards. Maybe they had minimal expectations. Nonetheless, they might find themselves coming down that warpath from the other direction.

--Ken

Don Davidson · Sep 19, 2010

narcolepticgi said:
I'm a professional "think tank" but ideas are worthless unless someone gets involved, stops complaining and acts. If you all truly want to get Oprah's attention then we should form a committee, pay for a ticket to one of her shows and hand carry a bundle of these e-mails to her personally.

I have no objection to actions, but when they begin costing me money I want a reasonable likelihood of success--and the more it will cost me, the better the chance of success needs to be. It's a cost-benefit thing. I'm not going to spend money on a plane ticket to Frederick, Maryland or to wherever Oprah's show is taped, in the hope that my presence might have some effect.

As for action, I have taken action. I have posted many PA documents on my web site for anyone to read who cares to. I get an average of about 1-2 emails a month from people who have either signed a contract with PA or are considering it, and many of those have thanked me for saving them from PA's clutches or from wasting their money on PA. I have also re-directed many of those to this site and/or Preditors and Editors for more info.

narcolepticgi, I admire your zeal, your dedication, and your thirst to see justice done. But zeal must be tempered with prudence. I will support you in any endeavor that I believe is prudent. But I don't think buying a ticket to Oprah's show satisfies that requirement. I fear that we would get as much consideration from Oprah as PA's unsolicited books.

Rising from the Ashes - Another Battle Against PA

Grumpy writer and editor

Tired and Disillusioned

Mah tale iz draggin.

Your Genial Uncle

Sleep. Eat. Write.

Resident Curmudgeon

Writer Beware Goddess

No COVID yet. Still masking.

Writer Beware Goddess

Brian Boru

Mostly Ignored

Grumpy writer and editor

No COVID yet. Still masking.

Mah tale iz draggin.

Grumpy writer and editor

Theophilus

Brian Boru

Grumpy writer and editor

Theophilus

Mostly Ignored

SSSSShhhhh! I'm taking a nap!

Resident Curmudgeon

Theophilus