Ellora's Cave Publishing, Inc.

[Deirdre]

Now Jaid Black's Facebook page is down/deleted, possibly after an inflammatory final post? Don't suppose anyone's seen screencaps...?

I have the text of that post.

There were two that I saw. One I didn't screencap, and it was kind of a nasty jab at the Ann Jacobs counterclaim.

The second one was far longer, full of her various regrets about romance and publishing. It opens:

It's unfortunate that only hindsight is 20/20. Why can't foresight work that way? I regret the day I read my first romance novel, but I especially regret the day I published my first book. It was genuinely the biggest mistake of my life.

And closes:

I will miss all of you I regularly interact with... And I genuinely mean that. It's just time for me to do a Kenny Rogers and "know when to walk away, know when to run."

Take care of yourselves. Hopefully we'll meet again. xx

Several of us felt it could be interpreted as a suicide note. I genuinely hope it is not.

I've considered posting it, but that feels wrong to do.

 

[Captcha]

Yikes. I mean, it sounds like typical JB exaggeration and over-dramatics, but you're right, it could be something more sincere.

What a mess.

 

[Filigree]

Sigh. The non-politically correct part of me wonders how any 'real writer' would give up so completely. Tina's been complaining about losing her love of writing, for a long time. She tends to be overdramatic, but burnout happens. Pity it might be taking a whole company and hundreds of authors along with it.

 

[frimble3]

I also hope she's not planning to commit suicide.
Maybe she's kicking publishing to the curb to get back to writing? Just like to point out that Kenny Rogers, though no longer as big a star as he once was, is still around. He kinda sorta semi-retired for a while, but as of last year, he was still doing ads as himself.
Maybe she's planning a 'run for the border' to avoid opening the Ellora's Cave books?

 

[Deirdre]

I don't know what's going to happen with EC. I'm pretty sure they can't afford to buy Tina out, which is often what happens when a business owner wants out. It may explain rumors of a sale that have been floating around for months. (Pubnt claimed EC was going to "merge" with a big 5 publisher.)

Edited to add: it's worth noting that EC is about 2000 miles from where Tina lives (LA). I don't think the bookstore was her thing.

 

[S.C. Wynne]

Something needs to happen. I wish they would merge with a Big 5 publisher. They can't keep limping along like they're doing.

 

[Filigree]

A merge might save the backlist and go far to restore confidence in EC. Tina's strident FB posts to the contrary, I don't know *any* seasoned authors willing to sub there right now. Some newbies are also holding off.

 

[UnbearableLight]

Sounds like what, in unions, would be called 'past practice'. If you say management's doing something contrary to the contract, and they come back with 'We've always done this, and no-one's ever made a complaint' it's that much harder to fight. A lot of things are insidious, and the union spends a lot of time reminding people to tell a union official if something is going on, or has changed 'just temporarily'. Complaining to your co-workers in your department does not count as an 'official' complaint.

Interestingly enough, collective bargaining agreements are what I'm finding are most linked with 'past practice' as a term of art. I distinctly remember this coming up in my contract law course, but my LexisNexis-fu has atrophied, I guess.

Interestingly enough, there's a split among arbitrators when it comes to past practice modifying contracts. Only a minority hold the theory that past practice can modify a contract when past practice conflicts with clearly stated contract terms. Unfortunately, I found only one instance of case law applicable to authors' interests in the Ellora's Cave problem... The cases I found involved arbitrators rather than civil courts. Still, some of these articles might be useful.

http://www.poam.net/legal/2009/what-constitutes-a-past-practice/
https://www.lris.com/2012/03/30/can-past-practice-change-contract/

The relevant case was F.B.T. Productions, LLC, et al. v. Aftermath Records, et al., filed in the US district court for the central district of CA. The case was decided in 2011. This case involved Eminem and his production company as the plaintiffs versus his label, Aftermath Records, and the label's owners as defendants. In brief, a contract was established and subsequently amended and updated such that Aftermath owed Eminem royalties on licensed use of master recordings, later including side projects; Aftermath agreed to provide payment to Eminem and separate accountings to both Eminem and FBT, which was also due a share of Eminem's royalties in much the same manner as a literary agent is owed a share of an author's earnings per the terms of their agreements. FBT was specifically named in the contract as a passive income recipient. In 2005, the plaintiffs hired a firm to audit Aftermath and found that Aftermath was applying the incorrect royalty rate to licensing of master recordings on side projects, resulting in underpayment. The plaintiffs filed suit in 2007 for breach of contract and declaratory judgment based on the underpayment, then filed in 2008 for breach and declaratory judgment based on failure to pay. These cases were combined. There are interesting notes on past practice of the defendant and the industry and whether parties' performance of the contract can actually be held to modify the contract (and naturally the obligations of parties under the contract). The 9th Circuit Court said no and the district court agreed.

 

[caromora]

A merge might save the backlist and go far to restore confidence in EC. Tina's strident FB posts to the contrary, I don't know *any* seasoned authors willing to sub there right now. Some newbies are also holding off.

I'm not sure how much actual backlist they have left. Most authors I know have either requested their rights back or bought them back (some paying exorbitant fees that, in my opinion, are what have kept EC afloat these last few months).

ETA: the problem with EC only announcing contract changes via the author loop, as they allegedly have done here: not everyone is on the list. Some authors were shuttled off to a second list, while others were dropped from it entirely. Even if they claim that by not protesting the change, authors were accepting it, the fact is a lot of authors never received the announcement in the first place.

 

[Captcha]

I'm not sure how much actual backlist they have left. Most authors I know have either requested their rights back or bought them back (some paying exorbitant fees that, in my opinion, are what have kept EC afloat these last few months).

That's a good (and scary) point. If they're selling rights back based on their anticipated lost revenue over three years, they're essentially grabbing fast cash rather than spacing out the income. And even with the cash injections from rights-buy-backs, EC hasn't been able to keep up to the royalties it owes. I assume things will be much worse when that source of income dries up...

 

[frimble3]

Only a minority hold the theory that past practice can modify a contract when past practice conflicts with clearly stated contract terms.

In collective agreements, I think the big problems with 'past practice' are in cases when there are no 'clearly stated contract terms'. When, for instance, a new situation comes up and management cobbles together a 'temporary' solution. Then the new situation keeps coming up and the 'temporary' solution, which gets the job done, is used more and more frequently, until the workforce sees that it's becoming the status quo, and that they don't want to live that way.
This shouldn't be an issue with a clearly defined and stated contract, but if there are several versions drifting around, and not everyone got the updating memos, and some things were never clarified, the publisher might try claiming there is 'wiggle room' in their favour.

 

[Deirdre]

Interview/Ad re: Ellora's Cave.

Caution: This has a surprise erotic content reading in the video, so NSFW.

 

[WritesTooMuch]

Interview/Ad re: Ellora's Cave.

Caution: This has a surprise erotic content reading in the video, so NSFW.

Thanks for sharing this latest...ahem...I don't even know what to call it. Just when I think EC can't get more ridiculous, Tina Engler starts typing or talking and new, drastic levels of WTF occur. I'm glad she has time to paint such a rosy picture of a company that is stringing out my royalty checks to the last possible moment and holding my rights for ransom (literally) as they pay me more than half a year later for one month's worth of ridiculously tiny royalties. This "publishing empire" apparently has 1 accounting person who doesn't respond to ANY emails. This "publishing empire" consists of management that is more concerned with sending nasty, berating emails to its authors about "bad apples" than trying to fix the many issues it has.

I'm not familiar with this site and I see you labeled it an interview/ad. I am assuming then that EC paid for this steaming pile of dog poo fiction?

 

[S.C. Wynne]

Thanks for sharing this latest...ahem...I don't even know what to call it. Just when I think EC can't get more ridiculous, Tina Engler starts typing or talking and new, drastic levels of WTF occur. I'm glad she has time to paint such a rosy picture of a company that is stringing out my royalty checks to the last possible moment and holding my rights for ransom (literally) as they pay me more than half a year later for one month's worth of ridiculously tiny royalties. This "publishing empire" apparently has 1 accounting person who doesn't respond to ANY emails. This "publishing empire" consists of management that is more concerned with sending nasty, berating emails to its authors about "bad apples" than trying to fix the many issues it has.

I'm not familiar with this site and I see you labeled it an interview/ad. I am assuming then that EC paid for this steaming pile of dog poo fiction?

If they did pay for that "commercial" it's very aggravating to all of us authors who aren't being paid.

 

[Captcha]

If they did pay for that "commercial" it's very aggravating to all of us authors who aren't being paid.

Yeah. I understand the need to sink company money back into promotion and growth, but it needs to be COMPANY money, not MY money.

 

[S.C. Wynne]

Yeah. I understand the need to sink company money back into promotion and growth, but it needs to be COMPANY money, not MY money.

EXACTLY!!!

 

[Deirdre]

Lolita Lopez has left the building. For all you Lo fans, her EC work will be re-released by her soon.

 

[brainstorm77]

I don't see how that video will help sell more books *shrugs*

 

[KimJo]

I'm glad Lolita was able to get out, but it's ludicrous that she had to go so far to get her books back. Not ludicrous on *her* part, but on EC's for not just, y'know, working with her in the first place. I get forfeiting royalties and such; I had to do that with one of my other publishers when I pulled half a dozen books from two of their three imprints earlier this year. But demanding that authors pay thousands of dollars in "projected lost sales" or however it's phrased... yeah, show us your crystal ball so we know how you're projecting those sales.

Sorry. I "know" Lolita on another forum, and between the EC crap and other things she shares, I'm kinda furious on her behalf that she had to go through all this.

Usually I whine about how crappy my sales are--across the board, with every publisher I've ever been with--but with EC I was actually thankful for low sales because they weren't losing anything by giving me back my books, and I didn't have to pay them.

Now if *they* would just pay *me* the bloody royalties on the three books of mine that they still have, that would be nice.

 

[VoireyLinger]

I met Lo on another forum, too. I know some of her personal struggles and how much of a strain this put on her. I'm so glad she's out from under this rock and can move on. I'm also glad her extremely popular series can go back to supporting her family the way it once did. She needs this more than the average bear.

 

[black13]

As of 31st August, I am no longer an Ellora's Cave author. Figuring that I won't be seeing more royalty checks, I traded royalties owed since February, 2015 in return for the rights to the rest of my books back. By August 31st all my books would have been out for 18 months, which would have meant I could start the process, but the answers to emails and the process of retrieving them is painfully slow. This way, I get to draw a line.
I do feel sad, because there were some very good years, but their lack of grace in this business was dragging on me and my writing, so I just wanted out. They have 6 months to sell any print inventory they have, but I can't imagine it's that much, because they've been POD for some time now.
I'm putting out the Pure Wildfire series next month, starting to re-release my books. They've been lightly re-edited, nothing drastic, just taking out a bit of the sex and letting the story back out to breathe, and lovely Ginny Glass at Wordsugar has given them a beautiful new look. But it's a series about rock stars, so it's still pretty sex-heavy!
I can't imagine they'll set the world alight all over again, like they did the first time they were released, but fingers crossed!

 

[Captcha]

As of 31st August, I am no longer an Ellora's Cave author. Figuring that I won't be seeing more royalty checks, I traded royalties owed since February, 2015 in return for the rights to the rest of my books back. By August 31st all my books would have been out for 18 months, which would have meant I could start the process, but the answers to emails and the process of retrieving them is painfully slow. This way, I get to draw a line.
I do feel sad, because there were some very good years, but their lack of grace in this business was dragging on me and my writing, so I just wanted out. They have 6 months to sell any print inventory they have, but I can't imagine it's that much, because they've been POD for some time now.
I'm putting out the Pure Wildfire series next month, starting to re-release my books. They've been lightly re-edited, nothing drastic, just taking out a bit of the sex and letting the story back out to breathe, and lovely Ginny Glass at Wordsugar has given them a beautiful new look. But it's a series about rock stars, so it's still pretty sex-heavy!
I can't imagine they'll set the world alight all over again, like they did the first time they were released, but fingers crossed!

Congratulations on your freedom!

I can't bring myself to make the "past royalties for returned rights" trade because Fuck Them, but I only have one novella with them so it's not like it's a big drain on my writing or income. Sounds like you made the right decision for you - way to go!

 

[triceretops]

I can't imagine the pain experienced by those authors with multiple books or series. I lost two of my own, but not from EC. And it killed me--they were my first, eight years ago. I'll never forgive that publisher for what they did to me and 22 other authors.

 

[Deirdre]

So, both plaintiffs and defense have filed their motions for summary judgment. Dear Author's side has a total and complete mic drop.

I'll have a blog post as soon as I finish uploading the more than 20 megs of documents (with 54 exhibits on Dear Author's side and only 2 on EC's).

​shakes out hands

 

[Filigree]

Holy crap. Thanks for doing this. I knew something big might be happening this week. Does EC think they can skive off as negligently as they did with the Brashear case?