Legal Help Needed, PLEASE?

JoeD37

Hi - A few years ago I had a children's book that I wrote published by Publish America, I am sorry to admit. At any rate, they did not do much with it, and it barely sold. I think it sol about 25 copies or so. After a year or so I requested in writing to cancel my contarct with Publish America, and they granted my request and cancelled my contarct and I have said cancelation from them in writing. Now, of late, my book, which is entitled "Melanie's Magic Stones" is being sold at various prices by many different book stores, including Barnes & Noble, Dalton, and many more!
I have written all of these places and requested that they please stop selling my book as I never gave permission for any of them to do so. I have never gained a response from any of these places! They still keep advertising my book for sale. This can't be legal, can it? I have the sole rights to my book and have never given permission to anyone to market or sell my book. In addition, I have no idea as to how many, if any, books they have sold and I have never received any royalties at all. What can I do to stop this? Can I sue? If so, where do I find a lawyer that would handle this matter? Please help, won't you? My e-mail address is as
follows [email protected] thank you so much, Joe DeMonte
 

Del

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I'm sorry to see no replies, Joe. But this is somewhat unusual, to want your book out of stores.

I assume the books came from PA, which is also unusual. My understanding is the primary complaint about them is their LACK of production. It seems that there is effort on someone’s part to see your book in stores.

I'd read that contract cancellation really close. I'd guess someone is exercising a fine print clause.

I assume you are not receiving payment? Did you hold on to your copyright? It is yours to start with but that doesn't mean it can't be finagled through legal gibberish. I'd start there and then find the source of the books. After you have some sense of the trail you should find a real lawyer.
 

JanDarby

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Are they being sold at actual, brick&mortar stores or are they at on-line stores? I'm guessing the latter, b/c most B&N stores don't stock PA books.

If they're at on-line stores, there are two possibilities. One is that they list everything that has an ISBn, regardless of whether they actually have or can obtain a copy, and the other is that they have a used copy. In the first case, if someone orders a copy from them, they will contact PA and, presumably, be told it's unavailable, and then will contact the person ordering it and say "sorry." If it's the latter (a used copy), they can resell it, just as any other book is resold, and the author gets no royalties on the resale, only on the original sale.

What you're seeing is most likely the former situation (listing without any actual stock or any actual sales). You can find out by ordering from one of the places listing it, and see what they come up with, which is probably nothing.

Just keep in mind that listing something is different from actually selling it.

JD, not giving individual legal advice, just general information.
 

CaoPaux

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Joe, it can take a while for Ingram/LSI to delist your book, and even longer for the out-of-print info to trickle through Amazon, etc. I suggest reading though the PA forum for how others accelerated the process.
 

akaa1a

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Here's what you do...
Get a lawyer to draw up a Cease and Desist order explaining that they are selling a product that isn't their's to sell and that a copy of your letter will be sent to your state's Atty General for investigation of fraud. Give them a date to respond by

Be sure to attach the letter from your publisher releasing you from your contract.

Send one copy to the president of the bookseller and another copy to their management director.

I'll bet you'll get their attention...and if you don't, the atty general will.
Hope this helps.
 

veinglory

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The odds are that gradually these sites will change to listing the book as out of stock. But any online store may retain a listing of the book as previously in print and vend used copies. They may withdraw the listing if you ask, but I would suggest doing so in writing and ... well, nicely--formal business letter style.
 

benbradley

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Hi - A few years ago I had a children's book that I wrote published by Publish America, I am sorry to admit. At any rate, they did not do much with it, and it barely sold. I think it sol about 25 copies or so. After a year or so I requested in writing to cancel my contarct with Publish America, and they granted my request and cancelled my contarct and I have said cancelation from them in writing. Now, of late, my book, which is entitled "Melanie's Magic Stones" is being sold at various prices by many different book stores, including Barnes & Noble, Dalton, and many more!

This is interesting (that's a codeword for suspicious). I looked up Melanie's Magic Stones as title at http://bookfinder.com (I suggest you do this too) and found many sellers selling both new and used copies. You say you sold about 25, well there are 23 USED ones listed just at Amazon! I sell used books on amazon, it seems unlikely that more than a few (!) of the sellers would list it without having it onhand. I've heard of "sellers" listing others' books and when they sell a book they order it and have it drop shipped to the buyer's address, but that's unusual, seems very unlikely that as many as half the listed sellers would be doing that with this book.

I see two publishers listed in these listings, PublishAmerica of course, and also "Lightning Source Inc." Is anyone familiar with that? Is it a POD publisher? Is it any connection with PublishAmerica? Some entries say something like "This book is printed on demand, please allow up to 10 days extra for delivery."

I googled and got to:
https://www.lightningsource.com/index.htm
which from a quick look appears to be an "honest" POD and traditional (?) book printer. Is this the printer that PublishAmerica uses?

Are these all really "vaporware," or has someone printed copies or set it up as a POD book and making the money from sales themselves? I don't see anything on lighningsource.com that lists the books they've printed, but I'd definitely contact them and see if someone has gone through them to make "Melanie's Magic Stones" available through them.

I know very little about publishing (other than what I've read on AW, and I haven't paid much attention to the publishing side of things), so someone who does might look through the above and tell something right off that I have no clue about.
 

veinglory

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This is pretty routine. A lot of websites lists book assuming that if they are ordered they can get copies to re-sell. Once it is clear the book is out of print these listings drop off. Many of the people selling these books don't actually have them. Lightning Source is the printer most PODders use, you can also use them directly.
 

JoeD37

Melanie's Magic Stones

Hi Everyone - Thanks for the messages. Much appreciated. Well, I went into a local book store today at the Mall (Dalton) and asked if they had
"Melanie's Magic Stones" available. I told the lady clerk that my nine year old granddaughter wanted it. She looked on her computer and said they don't have it but could get it for me in about 10 days for $12.95. She said she would have to get it from Tennessee, so it would take baouyt 10 days. She i goiung to call me when it comes in, she said. I aksed her if the book would be new or used, and she said, "New, of course". Yes, I own the copyright. and I do have it in my possession. Also, ALL rights, etc. were returned to me alone when PublishAmerica and I mutually agreed to cancel our contract. I do
want to get a lawyer on this, but don't know of any who would handle such a case as this. I do think there could easily be a law suit against these sellers,
Dalton, Barners & Noble, Amazon, etc., etc. Again, any help would be most welcome, especially from a lawyer or someone who could put me in touch with the RIGHT lawyer. Many thanks, Joe DeMonte
[email protected]
 

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"I do think there could easily be a law suit against these sellers, Dalton, Barners & Noble, Amazon, etc., etc."

IANAL, but I don't think so. They're ordering a book from a publisher, and then selling it on to the customer. If the publisher supplies the book, the bookstore must take it on good faith that the publisher has the right to print and distribute that book, just as the customer must take it on good faith that the bookstore ordered the book properly from the publisher and didn't steal it out of the library.

If the publisher does *not* have the legal right to print and distribute the book, then I expect this is an issue between the author and the publisher; the bookseller is just the innocent middleman. Bookstores cannot possibly insist that every publisher provide them with legal proof that they have purchased the right to publish every single title in every single format that the stores order and stock.

If your contract with PA was cancelled and included a rights reversion clause, and it included an agreement that all existing unsold copies would not be sold publicly, and PA then sells a new copy to a bookseller or customer -- then, yes, my understanding is that you would have a legal case against PA. Just make sure you've got all your ducks in a row.
 

Jamesaritchie

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Books

Tis is a publisher problem, not a bookstore problem. All bookstores do is get books from publishers. They can't get a new book unless some publisher is providing it. If you do receive a new copy of your book from a bookstore, your beef is with whoever sold the book to the bookstore, not with the bookstore itself.

It's always possible that PA had a number of books already printed, in which case the odds are that either you buy them from PA, or PA has the right to sell those copies elsewhere, even if you do now have copyright control.

But I doubt the bookstores have any illegitimate part in this at all. You need to find out where the bookstores are getting the books, if they even are.
 

jclarkdawe

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In a former life, I was an attorney, although not in intellectual property law. I can tell you, however, the starting point of what you need to do.

You signed a contract with PA granting them some rights. You need to read that contract and find out exactly what those rights were. The contract also has specific provisions for cancelling it, which you needed to follow when you cancelled the contract.

You then received an agreement to terminate your contract. You need to read this document very carefully to determine what rights were returned to you. Only those rights that were specifically terminated are terminated. I'd be leary of a termination contract that says something along the lines of "all rights returned."

One scenario that I can see here is that PA terminated its rights to any future printings of your books, but retained the right to sell any and all books in its possession. As PA appears to have had a stock pile of your books at the time the contract was terminated, I can't see them terminating the contract without requiring you to purchase its stock. Otherwise, it is sitting on a bunch of books that it can't sell. Why would it do that?

Jim Clark-Dawe
 

jclarkdawe

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Originally Posted by jclarkdawe View Post
In a former life, I was an attorney, although not in intellectual property law. I can tell you, however, the starting point of what you need to do.

Many people have assumed that any old attorney can help them with their Publish America contract. They're all wrong.

I'll agree with you, up to a point. My point here was you need to read your contract. Many peopple approach an attorney without ever reading their contract. It's the starting point of any contract dispute. It always depressed me to have to tell someone their contract covered their situation very specifically and their chances were slim of getting anywhere.

The original poster had a question involving his termination clause, which he hadn't apparently read. That clause may (it may not) define exactly how the termination occurs. Read it, understand what you think it means, and then go from there. It may be blatant that they broke the contract, it may be they followed the contract exactly, or something in between. But once you know that, then you can begin to formulate a plan. Paying an attorney $500 to review a contract before you've read it is a waste of your money.

Jim Clark-Dawe
 

batgirl

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selling nonexistent books

For what it's worth, my 'real' job is purchasing out-of-print books online, to replace our library's lost or damaged copies, and to fill in holes in our collection.
Not wanting to downplay anyone else's experience, but in the last few years its been my observation that the used/OOP book market has been diluted by mass-listers who copy listings from Amazon, B&N, and other sources, without necessarily having any copies on hand. When you order a book from one of them, they'll search for it, and six weeks or so down the road they'll either have found it (and charged you a hefty mark-up for a search you could have done yourself) or they'll inform you that it's out of stock.
Amazon does this too - any time you see an Amazon listing that says "available in four to six weeks" it means they don't have the book, just a listing.

There's been some extensive discussion of the difficulty of getting a PA book removed from Lightning Source's listings, over on the Never-ending PublishAmerica Thread. It might be helpful to check the index.
-Barbara
 

James D. Macdonald

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We do have evidence of PA printing and selling books to which they no longer have the publishing rights.

But ... lots and lots of those on-line stores list the same used book. There could be one physical copy somewhere and twenty stores all listing that same object. It isn't twenty copies -- it's one. Lots more of the on-line stores are just databases of everything with an ISBN. They work on the assumption that if someone orders a copy, they'll find one somewhere.

So, my advice would be to order a copy, and see what happens. And if you do get a copy, talk with a lawyer.

BTW, the PA contract specifies that they can sell any copies that they have on hand after contract termination without owing any royalties. It's a lousy contract in lots of ways. And now that they own their own digital printer all kinds of hanky-panky is possible without any third party (like Lightning Source) being in a position to say.