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Thread: PublishAmerica's Nonexclusive Contract Amendment/New Release Agreement

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    Writer Beware Goddess Absolute Sage victoriastrauss's Avatar
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    Thumbs down PublishAmerica's Nonexclusive Contract Amendment/New Release Agreement


    Newsflash: There are two versions of ammendments going out... or at least two versions of the cover letter. Anyone who wants to e-mail me what they got, I'd appreciate it. Very interesting the way they're presenting this "offer" differently to different people.
    __________________
    Jenna Glatzer
    One of the Mystery Two of Eight
    Editor-in-chief of Absolute Write
    Brand-spankin'-new book: Fear Is No Longer My Reality (with Jamie Blyth of The Bachelorette)

    -------------------------------------------------------------------------------------------------------------------------

    OK, the cover letters are definitely slanted differently.

    Version 1 starts...

    "Upon review of your books' sales results we want to allow you to the option of breathing additional life into your book while continuing to give you the opportunity of remaining a published author.

    "We are offering you an effective and innovative solution, one that constructively meets our mutual objectives."


    Version 2 starts...


    "We have reviewed your request to terminate your book contract, and have decided that discontinuing to publish your work at this juncture would not benefit either the author to the publisher.

    "Instead, we are offering you an innovative and more effective solution, one that meets your objective more constructively."

    Much of the middle is the same. But it ends differently, too...

    Version 1:

    "This proposed amendment to your contract opens every door and every window to any future publishing opportunity that you may want to seek. At the same time, it ensures that you remain what you already are, a published author.

    "Terminating your contract today would effectively put an end to that special status. Please sign both copies of the enclosed amendment, keep one for your files, and return the other to us. Should you opt to not agree to this amendment, we must consider invoking Par. 24 of your contract[s] during our next review meeting. We recommend that you return the signed paperwork by registered mail."

    Version 2:


    "This proposed amendment to your contract opens every door and every window to any future publishing opportunity that you may want to seek. At the same time, it ensures that you remain what you already are, a published author.


    "Please sign both copies of the enclosed amendment, keep one for your files, and return the other to us. Until we have received our signed copy of this amendment, the original contract remains in full force. Therefore we recommend that you return the paperwork by registered mail.
    "

    ---

    Scare tactics, different methods: The first tries to scare the author into believing he/she won't be a published author anymore and PA might cancel the contract because of poor sales. The second tries to scare the author into believing they'll stay exactly as they are-- screwed and published by PA under the original contract. No mention of them possibly revoking the original contract.

    Iiiiiinteresting.
    __________________
    Jenna Glatzer
    One of the Mystery Two of Eight
    Editor-in-chief of Absolute Write
    Brand-spankin'-new book: Fear Is No Longer My Reality (with Jamie Blyth of The Bachelorette)

    -------------------------------------------------------------------------------------------------------------------------

    Here is a new contract they're offering. There may be other versions. Some noticeable changes from previous versions have been marked in red.

    Settlement Agreement and Release
    This settlement Agreement and Release ("Agreement" or "Settlement Agreement") is made this XXth Day of XXX 2005, by and between PublishAmerica, LLLP (“Publisher”), and XXXX (“Author”) who shall collectively be identified as the “Parties” herein.
    Recitals

    WHEREAS, Publisher and Author entered into a contract whereby Publisher agreed to publish Author’s book, XXXXXXXXX (the “Work”), according to the [contract date] agreement (“Publishing Contract”).
    WHEREAS, all parties are desirous of terminating the Publishing Contract.
    NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


    1. Mutual General Releases
    In consideration of the agreements and covenants contained herein, Author, on behalf of himself, his predecessors, successors, assigns, affiliates, heirs, family members, administrators, executors, trustees, directors, officers, employees, partners, attorneys, agents, representatives, and associates hereby fully and forever releases, remises, acquits and discharges Publisher, and their predecessors, successors, assigns, affiliates, heirs, family members, administrators, executors, trustees, directors, officers, employees, partners, attorneys, agents, representatives, and associates from any and all claims, demands, liabilities, actions or causes of action of any kind of character, at law or in equity, whether known or unknown, accrued or not, present or future, in connection with, arising out of or in any way involving the Publishing Contract including any pre-contract and post-contract representations.
    In consideration of the agreements and covenants contained herein, Publisher, on behalf of themselves, their predecessors, successors, assigns, affiliates, heirs, family members, administrators, executors, trustees, directors, officers, employees, partners, attorneys, agents, representatives, and associates hereby fully and forever releases, remises, acquits and discharges Author and his predecessors, successors, assigns, affiliates, heirs, family members, administrators, executors, trustees, directors, officers, employees, partners, attorneys, agents, representatives, and associates from any and all claims, demands, liabilities, actions or causes of action of any kind of character, at law or in equity, whether known or unknown, accrued or not, present or future, in connection with, arising out of or in any way involving the Publishing Contract including any pre-contract and post-contract representations.


    2. Transfer of Publication Rights and Release of Publication Obligations
    In consideration of the agreements and covenants contained herein, all terms of the Publishing Contract except the arbitration provisions are deemed terminated and of no further force or effect. All rights to publish, sell or export, or cause to be published, sold or exported, the Work, including but not limited to print of book publication, motion picture, film, video, television and/or any other electronic or computer video medium are deemed released and revert back to Author.
    Publisher is deemed released from all their obligations under the Publishing Contract (or any other duty implied by law), including the obligation to manufacture, market, advertise or distribute the Work. Author is deemed released from all his obligations under the Publishing Contract.


    3. Confidentiality and Non-Disparagement Provision
    Each party acknowledges and agrees, promises, covenants and warrants that from this time forward they will not at any time exhibit, reveal or show this Agreement (including drafts) or its contents to a third party, or another publisher, unless compelled to do so by a court of competent jurisdiction or to the party’s attorney, who may only show Paragraphs 1 and 2 of this Agreement to another publisher as proof that the Author is in full possession of all rights to the Work. 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 Publisher in any manner whatsoever. Publisher agrees that it, its agents, attorneys, and employees will only represent that the relationship between Author and Publisher was “dissolved amicably” and will not disparage Author 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 Author in any manner whatsoever.
    If suit is filed to enforce any part of this Confidentiality and Non-Disparagement Provision, or otherwise seek redress for breach of this Provision, the prevailing Party or Parties shall be entitled to recover all his/her/their attorneys’ fees relating to the dispute as well as liquidated damages of Five Thousand Dollars ($5,000.00) for each instance.


    4. Entire Contract
    This Agreement constitutes the entire understanding of the parties hereto, and they shall not be bound by any terms, covenants, conditions or representations not expressly contained in this Agreement.


    5. Modifications Only By A Writing
    Any modification, novation, waiver or amendment of any of the terms of this Agreement shall not be effective unless in writing and signed by the parties. A failure of a party to insist upon the strict performance of any provision of this Agreement in any one or more instances shall not be construed as a waiver or relinquishment of right to insist upon strict compliance with such provision in the future.


    6. No Admission of Liability
    The parties understand and agree that nothing in this Agreement shall be construed or taken as an admission of liability on the part of any of the Parties.


    7. Counterparts
    This Agreement may be signed in counterparts.


    8. Attorney’s Fees
    The parties agree that if it becomes necessary for one party to incur attorney fees in order to enforce any provision of this Agreement, the breaching party will be obligated to pay the attorney fees and any other costs incurred by the party required to enforce the agreement.


    9. Arbitration
    The parties agree that if it becomes necessary for one party to incur attorney fees in order to enforce any provision of this Agreement, the breaching party will be obligated to pay the attorney fees and any other costs incurred by the party required to enforce the agreement.


    10. Governing Law
    This Agreement shall be construed according to the internal laws (and not the law of conflicts) of the State of Maryland, regardless of the domicile of any party.


    11. Reliance
    The parties further agree and understand that this Agreement is made without reliance upon any statement or representation by the parties or their representatives, which is not contained herein, the making of any such statements or representations being specifically denied.


    12. Headings
    Any headings preceding the text of any of the paragraphs in this Agreement are inserted solely for convenience or reference and do not constitute a part of the Agreement, nor shall they affect the meaning, construction or effect of any of the paragraphs of the Agreement.


    13. Gender
    Whenever the masculine gender is used herein, it shall also mean the feminine gender, where appropriate, and the plural shall mean the singular, and vice versa, where appropriate.


    14. Under Seal
    The parties intend for this document to be a specialty under seal.


    Dated: XX/XX/05 Publish America, LLLP By Janet Morrissey (For PublishAmerica, Inc., general partner)

    __________________
    When it comes to PA, the royalty check and the reality check arrive in the same envelope.

    Larry creep. Larry creep.

    Flying combat suits weren't meant to fall into the hands of a medieval society...

    -------------------------------------------------------------------------------------------------------------------------



    3. Confidentiality and Non-Disparagement Provision
    Each party acknowledges and agrees, promises, covenants and warrants that from this time forward they will not at any time exhibit, reveal or show this Agreement (including drafts) or its contents to a third party, or another
    publisher,unless compelled to do so by a court of competent jurisdiction or to the party’s attorney, who may only show Paragraphs 1 and 2 of this Agreement to another publisher as proof that the Author is in full possession of all rights to the Work. 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 Publisher in any manner whatsoever. Publisher agrees that it, its agents, attorneys, and employees will only represent that the relationship between Author and Publisher was “dissolved amicably” and will not disparage Author 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 Author in any manner whatsoever.
    If suit is filed to enforce any part of this Confidentiality and Non-Disparagement Provision, or otherwise seek redress for breach of this Provision, the prevailing Party or Parties shall be entitled to recover all his/her/their attorneys’ fees relating to the dispute
    as well as liquidated damages of Five Thousand Dollars ($5,000.00) for each instance.

    That paragraph is total BS. I wouldn't sign a contract with that paragraph in it. Cross it out. Delete it.

    __________________
    Viable Paradise Workshop
    A week with working writers and acquiring editors

    -------------------------------------------------------------------------------------------------------------------------


    Originally Posted by DaveKuzminski
    [1] for good and valuable consideration

    [2] Author...hereby fully and forever releases...Publisher...from any and all claims, demands, liabilities, actions...in connection with...the Publishing Contract

    [3] Publisher is deemed released from all their obligations under the Publishing Contract (or any other duty implied by law), including the obligation to manufacture, market, advertise or distribute the Work.

    [4] 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 Publisher in any manner whatsoever.

    [5] Publisher agrees that it, its agents, attorneys, and employees will only represent that the relationship between Author and Publisher was “dissolved amicably” and will not disparage Author 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 Author in any manner whatsoever.
    I'm not a lawyer, but...

    Using the reference numbers I've added above,

    1. Doesn't this mean something has to change hands, like money, for the contract to be valid?

    2. I believe this means you can never sue them about anything in your previous contract. Did somebody whisper the words "class action"?

    3. Does this imply that, under the previous contract, PA had an obligation to market, advertise, and distribute your book?

    4. Suppose you don't believe the relationship was dissolved amicably. Then agreeing to this part means promising that, if anyone asks, you'll lie, and so will your attorney, relatives, etc. Can that be legal? I should think it ran contrary to public policy.

    How about this: web sites and/or message boards in which the content disparages Publisher? Does "which" refer to web sites and message boards, or does it refer to the author's post only? This message board has some content that disparages PA. Suppose a PA author, having signed the agreement Dave posted, posts a message here, saying his or her relationship was dissolved amicably and PA is wonderful. Does the presence of disparaging posts written by others constitute a violation of that author's contract? What if a PA author posts a pro-PA message on a message board that hitherto contained nothing disparaging, and a day later someone else posts a disparaging message; is there then a violation?

    5. Similarly, the authors' message boards that PA maintains contain messages from pro-PA authors disparaging individual PA authors who disagree with certain statements. There are also messages disparaging such authors as a group without naming individuals. Suppose a poster on one of those boards puts up the following message: "Looks like So-and-So and her stupid, ungrateful friends the brainwashed bashers took their books and left PA. Good riddance!" Would that be a violation? In addition, how might it be determined that the poster was or was not a PA employee?

    -------------------------------------------------------------------------------------------------------------------------



    Originally Posted by tinasamuels
    so this contract that Dave posted. If we sign that one are we released so long as we don't attempt to sue them over royalties we didn't get?
    And if you agree to that release they can charge you $5,000 every time you "disparage" them -- for example, each message board post that you make. Or if you're interviewed by a newspaper reporter, every unfavorable sentence you utter.

    They're trying to shut you up.

    For example: Diana Hignutt has made about 75 posts here -- just since the new board was created. Had she signed that reversion, they could take her to court and if they proved that she had "disparaged" them (not even saying anything false, just something unfavorable), they could pull that piece of paper out and claim that she now owes them $375,000. That would buy Larry a couple more SUVs, you betcha. And that kind of nonsense would sure-enough frighten some folks into silence.

    They're fond of saying, "Read your contract" Well, eff-ing read it! And don't assume PA's good will or good intentions. Everything they do has a double purpose. Everything they say has a double meaning.
    __________________
    Viable Paradise Workshop
    A week with working writers and acquiring editors

    -------------------------------------------------------------------------------------------------------------------------


    PA Settlement
    OK, I'm NOT a lawyer, but I review the contracts my company signs for professional services (not the publishing industry), so I've got some familiarity with ferreting out odd stuff in contracts. Here's what raises red flags with me about the "Settlement Agreement and Release" from PA the Dave posted. As always, talk to a lawyer before signing anything!. This is just my non-legal-professional opinion of what struck me as bad or possibly bad:

    Paragraph 1: This paragraph says in part: "Author ... hereby fully and forever releases, remises, acquits and discharges Publisher, ... from any and all claims, demands, liabilities, actions or causes of action of any kind of character, at law or in equity, whether known or unknown, accrued or not, present or future, in connection with, arising out of or in any way involving the Publishing Contract including any pre-contract and post-contract representations." This appears to me to be saying that an Author can't sue the Publisher for anything ever and terminates any existing suits. This is an extremely broad clause.

    Paragraph 2: This paragraph says in part: "Publisher is deemed released from all their obligations under the Publishing Contract" Well, PA's obligation to pay royalties was in the previous contract. What happens to royalties due but not paid?

    Paragraph 3: Non-Disparagement??? Ok, the problems with this are obvious. Sheesh.

    Paragraph 9: Looks to be the same as paragraph 8.

    Paragraph 10: This paragraph says in part: "This Agreement shall be construed according to the internal laws (and not the law of conflicts) of the State of Maryland" The non-lawyer in me wonders what the heck this means and why PA wants it in the contract.

    Paragraph 11: Hmm, seems like this might be releasing PA from something for which they should be held accountable - but there are some subtleties to contract law having to do with not being able to sign away certain rights that you need a lawyer to answer (this might also vary from state to state - a lawyer would know).

    Paragraph 14: The non-lawyer in me wonders what the heck this means and why PA wants it in the contract.


    What this all adds up to is:

    If I were given this contract, I would be on the phone to a publishing lawyer pronto.

    -------------------------------------------------------------------------------------------------------------------------


    Julianne's note below appears to refer to a different agreement than I have had the opportunity to review. Thus, it appears that there are at least three different documents floating around... which says volumes about the legal strategy and representation PA has used.
    __________________
    CEP
    Any legal comments in this message are general commentary only, and not legal
    advice for your specific situation. No vanity publishers or other similar carrion-eaters were bent, folded, spindled, or mutilated in creating this post… darn it.

    -------------------------------------------------------------------------------------------------------------------------
    Contract comments

    First, I'll post the amendments here, with identifying info x'ed out:

    MEMORANDUM OF AGREEMENT ("Memorandum")
    made this March xx, 2005, between PublishAmerica, LLLP ("Publisher") and xxx ("Author"), who shall collectively be identified as the "Parties" herein.



    WHEREAS, Publisher and Author entered into contracts whereby Publisher has agreed to publish Author's book, xxx, according to the x/x/200x agreement ("Publishing Contract").



    WHEREAS, all Parties are desirous of making limited amendments to the Publishing Contract.



    Section I. Par. 1 of the Publishing Contract shall read as follows: "I. The Author grants and assigns to the Publisher during a period of seven years from the date of the signing of this agreement by both parties thereto the right to produce, publish, sell or export, or cause to be produced, published, sold or exported, the above work in book form in any language or languages, in the United States of America, its Dependencies, and in Canada {what about Mexico under NAFTA?}; and the right to arrange for the publication of the above work in book form in all foreign countries, and/or to export copies to these territories and countries. The Author and the Publisher agree that this agreement is renewable upon the date of its expiration during an additional and successive period of seven years, on the same terms and conditions as specified hereinafter, provided that both parties to this agreement shall mutually ratify such renewal in writing at least three months prior to the date of expiration as here above set forth."



    Section 2. Par. 9 of the Publishing Contract shall read as follows: "9. The Publisher agrees to distribute, at his discretion, for purposes of publicity and/or review, promotional information pertaining to the said literary work, to publications throughout the United States and/or Canada, or elsewhere. Distribution of this promotional material shall be at the Publisher's own cost and expense and to media outlets of the Publisher's own choice. The Author agrees that excerpts of the said literary work may be included in this promotional information, and agrees, furthermore, that the Publisher may, at the Publisher's election and discretion, cause to promote the said literary work, as designated, in any electronic format, and that the Publisher shall have the right to distribute or cause to distribute, and to sell or cause to sell, at the Publisher's election and discretion, copies of the said literary work in any electronic format. The Publisher agrees to pay to the Author a return as specified in Provision # 3 of this agreement of the sales price of every copy in any electronic format that may be sold and for which the Publisher shall receive payment in money."



    Section 3. Par. 20 of the Publishing Contract shall read as follows: "20. Author hereby agrees that the Publisher shall have the right for the duration of this Agreement to negotiate for the sale, lease, license or other disposition of the said literary work in all hard and/or soft cover or reprint editions in book form. Author furthermore agrees that the Publisher shall have the right for the duration of this Agreement to negotiate for the sale, lease, license or other disposition of the said literary work in the motion picture, dramatic, radio, television, and/or all other fields only if so instructed by the Author in writing. It is also agreed that the Publisher may engage an agent, or agents, to negotiate, or assist in negotiating, for such sale, lease, license or other disposition.

    Approval of all terms, provisions and conditions of any and all contracts in connection with any such sale, lease, license or other disposition shall be given by the Author upon the recommendation of the Publisher; and, for that purpose, the Author agrees to duly execute any and all contracts, assignments, instruments and approved papers submitted by the Publisher. All gross monies and compensation received in payment for such sale, lease, license or other disposition shall be collected and disbursed by the Publisher, and all contracts for such sale, lease, license or other disposition shall provide that such monies and compensations are to be paid to the Publisher; and the Publisher is authorized to receive, collect and disburse same and to endorse and deposit all checks and/or drafts for such payment. All payments due from the Publisher to the Author hereunder shall be made within ninety (90) days from the receipt thereof by the Publisher, accompanied by statements of the amounts received and disbursed."


    Section 4. There shall be a Par. 33 added to the Publishing Contract that shall read as follows: "33. As the Author has granted and assigned to the Publisher the rights to to produce, publish, sell or export, or cause to be produced, published, sold or exported the said literary work non-exclusively, the work may be separately and simultaneously published elsewhere. However, the Author agrees and warrants that any such separate and simultaneous publication by a third party, or by the Author, shall not commence until at least nine months after the First Edition of the said literary work has first been printed and released under this Agreement. In the event that a third party requires the cancellation of this Agreement as a condition for separately publishing the work, the Author may request the termination of this Agreement, and the Publisher shall agree to start the terminating process, provided that the third party shall be a legitimate publishing company, and that the Author shall furnish evidence of the third party's offer to publish the said literary work along with evidence of that offer's cancellation contingency, and that the Publisher shall at that time issue a confidentiality covenant that the Author and the Publisher shall mutually sign, and that this Agreement and all the rights and obligations there under shall, upon fulfillment of the above provisions, be deemed to expire nine months after the Publisher has agreed, in writing, to start the terminating process."


    Section 5. This Memorandum shall be deemed an annex to the Publishing Contract, and may not be modified or changed orally, but only by an agreement in writing signed by the Parties. It is understood and agreed to that this Memorandum shall not supersede the Publishing Contract as a whole, or parts thereof, beyond what is agreed to in Sections 1, 2, 3, and 4. above pertaining to, and strictly limited to, Pars. 1, 9, 20, and 33 of the Publishing Contract, and that Parties shall adhere to all other terms and clauses of the Publishing Contract unchanged and without exception.

    Now for some anonymous commentary that is not legal advice. I am simply its messenger: I did not write it.

    New paragraph 33 is inconsistent with several provisions in the A, D(2), and E versions of PA’s existing contracts, and with at least one provision in each of the other three versions of which I’m aware, but does not acknowledge or resolve the inconsistencies.

    The nonexclusivity provision only says it’s nonexclusive on its face, but takes away the nonexclusivity when read along with paragraph 1. The general rule in contract interpretation is that rights granted are exclusive unless specifically disclaimed; and the first and second sentences of new paragraph 33 contradict parts of new paragraph 1.

    Note that the author has essentially no right to simply tell PA “I have another deal”; new paragraph 33, by not being specific about what documentation will be required, essentially allows PA on an unlimited fishing expedition.

    All releases are essentially at PA’s discretion. That is, this continues to be de facto an exclusive contract.

    I’m greatly disturbed by the particular renewal language. It essentially denies the author the right to improve terms, and does not provide for author remedies if PA doesn’t pay monies due at termination (a detailed explanation would go well beyond the proper scope of a general comment).

    4. I infer the following:

    PA is under some pressure from authors who have legitimate grounds for rescission. This acts, instead, as a way to avoid rescission or other termination of the contract.

    It would actually be far simpler for PA to provide a simple, broad nonexclusivity provision in every contract; because PA would be returning rights to the authors, it doesn’t actually need the author’s permission to do so, and can do so simply by sending a signed document. As it stands, though, this is poor lawyering—it instead constitutes an offer to modify, which opens the door for counteroffers, etc., in a way that a unilateral disclaimer of exclusivity would not.

    PA has gotten some unfavorable attention from government officials regarding the publicity issues. I am inferring this from the way 20 has been amended.

    What is perhaps most interesting is that the cover letters are not well considered and were not run past competent counsel before being sent out. Each letter, in its own way, constitutes a serious admission against PA’s interests in the event of a claim for fraudulent inducement of contract, for an accounting of monies due and owing, and/or for deceptive acts and practices generally.

    Section 2, p. 9 gives them e-book rights.

    In section 3, par. 20, it says: "Approval of all terms, provisions and conditions of any and all contracts in connection with any such sale, lease, license or other disposition shall be given by the Author upon the recommendation of the Publisher."

    "Shall" means that the author can’t say no.

    Later in that section:

    "All payments due from the Publisher to the Author hereunder shall be made within ninety (90) days from the receipt thereof by the Publisher, accompanied by statements of the amounts received and disbursed."

    Industry standard is 30; the AAR requires ten.

    Section 4, p. 33: "Author may request the termination of this Agreement, and the Publisher shall agree to start the terminating process, provided that the third party shall be a legitimate publishing company..."

    Legitimate publishing company? What does that mean?

    "...that the Author shall furnish evidence of the third party's offer to publish the said literary work along with evidence of that offer's cancellation contingency, and that the Publisher shall at that time issue a confidentiality covenant..."

    What’s confidential? There’s a third party involved!

    "This means that, if you accept the proposed amendment, you will now be able to have your book published simultaneously through any other venue of your choice, if you so elect. You are free to take your book anywhere else."

    No, you will not be ABLE to have your book published simultaneously through any other venue. You may be *allowed* to, but the venues of your choice probably won't agree to this ridiculous proposal.

    "Should you opt to not agree to this amendment, we must consider invoking Par. 24 of your contract[s] during our next review meeting."

    Which will be when??

    --

    Now for my own snarky comments on the cover letters:

    "
    We have reviewed your request to terminate your book contract, and have decided that discontinuing to publish your work at this juncture would not benefit either the author or the publisher."

    How nice of them to decide what would benefit you, the author, who has already stated quite clearly what you want (termination of the contract).

    "
    Instead, we are offering you an innovative and more effective solution, one that meets your objective more constructively. The enclosed amendment to your contract makes your agreement with pa non-exclusive."

    Jenna translation: "We are offering you what appears to be a compromise in the hopes that you'll shut up and quit bothering us. It'll appear that we've done something nice for you in response to your complaints, and at the same time, it'll ensure that you never get a legitimate publishing deal because no real publisher will make an offer on a previously-published book without seeing a rights reversal contract."

    A confidentiality covenant = a gag order.

    You'd never be allowed to tell anyone the truth about your experiences with the company, warn anyone about what to look out for with PA, etc.

    WHAT TO DO IF YOU'RE STILL UNSURE:

    Write a few e-mails or make a few calls to editors at publishing houses you're interested in publishing with. Ask them if they'd consider publishing a book "non-exclusively," or making an offer on a book that has no rights reversal contract.

    You could probably publish with another vanity press simultaneously, but not a legit house. I can't imagine any editor who would be willing to even consider a manuscript with this much legal garbage attached to it.

    Nine months after they start the "termination process," you'll get your rights back? First, when will they start the termination process? Is this another one of those "termination meetings to be held at our leisure" things? Another one of those "your letter did not reach its intended recipient" things? Another one of those "don't take that termination tone with us" things?

    Nope, I don't trust them one bit. Let's get you guys the heck out of your contracts for real.

    __________________
    Jenna Glatzer
    One of the Mystery Two of Eight
    Editor-in-chief of Absolute Write
    Brand-spankin'-new book: Fear Is No Longer My Reality (with Jamie Blyth of The Bachelorette)

    -------------------------------------------------------------------------------------------------------------------------


    9. ... the Publisher may, at the Publisher's election and discretion, cause to promote the said literary work, as designated, in any electronic format, and that the Publisher shall have the right to distribute or cause to distribute, and to sell or cause to sell, at the Publisher's election and discretion, copies of the said literary work in any electronic format.
    Just a quick question. Does their failure to define the word "promote" mean that PA can upload an author's entire manuscript to Usenet the day before they release you from their contract if they so choose? Because I can just imagine this conversation:

    Author: I finally got out of my contract with PA. Now will you take my book, Mr. Random House Editor?
    Editor: It's a great book, really, and normally I'd at least consider it. But I see it's been posted in full to the internet. That's a bit too much "promotion" for us. Try us with your next book.

    -------------------------------------------------------------------------------------------------------------------------


    How could I have forgotten that in my commentary that is not legal advice?

    Yes, it doesn't specify how much of an "excerpt" may be used for promotional purposes, so it could conceivably mean the whole work.

    Also, to clarify: What I posted is the "revised, non-exclusive contract" amendments. What Dave posted is the new termination agreement.

    Two different things... both ridiculously unfavorable for the author.

    I do love it that they say your family and employees can't talk badly of PA, either. That's perfect.

    "Grandma! Please don't tell your bridge club members the truth about PA... I'll owe them another $5 grand for your disparagement!"
    __________________
    Jenna Glatzer
    One of the Mystery Two of Eight
    Editor-in-chief of Absolute Write
    Brand-spankin'-new book: Fear Is No Longer My Reality (with Jamie Blyth of The Bachelorette)

    -------------------------------------------------------------------------------------------------------------------------


    The first purpose of the new contracts is to break up as much of the criticism as possible by gagging any author who signs one of the new contracts. In fact, we can see that's true because they not only aim for the author, but the authors' families and any legal representation they might have. In this instance, there are a couple of lawyers who they are evidently afraid of and want very much to shut up. They don't even want those former authors associating with other writers by forbidding them from participating in other forums where PA is criticized. Keep in mind that this could even apply to being published in any venue that has ever criticized PA in any publication of theirs. That, in effect, would end all hopes of a writing career.

    The second purpose is to close up as many of the loopholes that are already present in their current contracts. They don't want authors using against PA what has been discovered in those loopholes.

    Third, they need money and they know that sooner or later, someone will speak out or post somewhere without knowing that one disparaging comment had previously been posted there. We know already that PA monitors routinely cruise other forums for such activity in order to find out who's still active on their on boards and to learn what we're doing next.

    This is not legal advice to anyone. It's practical advice. Do not sign any of the new PA contracts. Their offers are evil.
    __________________
    When it comes to PA, the royalty check and the reality check arrive in the same envelope.

    Larry creep. Larry creep.

    Flying combat suits weren't meant to fall into the hands of a medieval society...

    -------------------------------------------------------------------------------------------------------------------------

    Something else I just thought about concerning the contract amendment. It may or may not mean anything to some of you. However...

    If you sign that thing, I believe you would also be rolling back the time your book has already been with the evil company.
    Quote:
    From the memorandum posted by Jenna.

    Section I. Par. 1 of the Publishing Contract shall read as follows: "I. The Author grants and assigns to the Publisher
    during a period of seven years from the date of the signing of this agreement by both parties thereto the right to produce, publish, sell or export, or cause to be produced, published, sold or exported, the above work in book form in any language or languages, in the United States of America, its Dependencies, and in Canada {what about Mexico under NAFTA?}; and the right to arrange for the publication of the above work in book form in all foreign countries, and/or to export copies to these territories and countries. The Author and the Publisher agree that this agreement is renewable upon the date of its expiration during an additional and successive period of seven years, on the same terms and conditions as specified hereinafter, provided that both parties to this agreement shall mutually ratify such renewal in writing at least three months prior to the date of expiration as here above set forth."

    If you can't think of any other reason to not sign this agreement, given the evidence provided, this would make me think long and hard about not signing it. Some of you have less time to wait than others, I'm sure but who wants to start over?
    __________________
    What I know, I know well... What I don't know I can learn if it doesn't kill me first.

    -------------------------------------------------------------------------------------------------------------------------


    Originally Posted by JennaGlatzer
    In the event that a third party requires the cancellation of this Agreement as a condition for separately publishing the work, the Author may request the termination of this Agreement, and the Publisher shall agree to start the terminating process, provided that the third party shall be a legitimate publishing company, and that the Author shall furnish evidence of the third party's offer to publish the said literary work along with evidence of that offer's cancellation contingency, and that the Publisher shall at that time issue a confidentiality covenant that the Author and the Publisher shall mutually sign,
    Can an illegitmate publishing company mandate that it will only do business with a legitimate one?

    Forgetting all the other problems with the agreement for a second, this clause makes it virtually impossible for an author to even change over to another "legitimate" POD/Subsidy press (which may be a "bad thing" anyway, but has to be better than the current situation). Why? The decent POD's out there all have the author grant non-exclusive rights to the publisher that can be retracted with proper notice. Thus, none of them ever require a cencellation of another agreemnt granting non-exclusive rights. For the author, this means that the only way to exercise this clause would be if a "traditional" publisher actually was prepared to enter into contract negotiations with an author who had this agreement hanging over their heads (HA!), or if the author was prepared to go with a POD/Subsidy press that demanded non-exclusive rights (back to the same boat).

    Not good...

    Rob

    -------------------------------------------------------------------------------------------------------------------------


    More on the Memorandum

    I have compared PA’s “Memorandum of Agreement” for non-exclusivity as posted by Jenna yesterday with the contract offered by PA for “Atlanta Nights” as posted a while back by Jim. It appears that the only difference between the Memorandum’s Paragraphs 1, 9, and 20 and the contract’s is that the word “exclusive” has been removed.

    Paragraph 33 is another story. This has probably been dissected in detail, but – ignoring the fact that other publishers may not touch a book for which the author does not already have full rights – here is what caught my attention:

    “…Publisher shall agree to start the terminating process…” – and how long will this take? Apparently nine months, according to the last sentence of the paragraph (more on that later). That’s ridiculous! A better way to state this – for the Author – would be something to the effect of, “The original Agreement will be terminated within xx days of Publisher’s receipt of Author’s written termination request at which time all rights will revert to the Author.”

    “..legitimate publishing company…” – the memorandum needs to define “legitimate.”

    “…evidence of a third party’s offer…” and “…evidence of the offer’s cancellation contingency…” – the memorandum needs to define “evidence.”

    “…Publisher shall …issue a confidentiality covenant that the Author and Publisher shall mutually sign…” – at the very least, the Publisher should produce this for the Author’s review prior to the Author signing this Memorandum (e.g. attach it to the Memorandum), but I’d say that this needs to be removed entirely from the Memorandum. Never agree to sign something sight unseen.

    “…this Agreement, and all rights and obligations there under…shall…be deemed to expire nine months after the Publisher has agreed, in writing, to start the terminating process.” – Note that this says “after the Publisher agrees in writing” NOT “after the Publisher receives the Author’s written request.” Also, I don’t know what is standard in the publishing industry, but in my profession, termination clauses specifiy that if the contract is terminated for convenience (if the funding falls through or planning changes), we get paid for work done up until the date we are told in writing to stop work. I would think that here any termination agreement should mention that the Author shall be paid royalties for all book sold up until the Agreement termination date – after which no books are to be sold, of course. Otherwise, the obligation of the Publisher to pay royalties appears to expire with Agreement. I think I commented on this previously.



    As always, I’m not a lawyer; I just decide when my company needs to consult with one. And ya'll who got this Memodandum need to consult one!

    Julianne


    P.S. ....... PunishAmerica?


    -------------------------------------------------------------------------------------------------------------------------
    Looking at a bit from the amendment that's being sent around.

    Section 3. Par. 20 of the Publishing Contract shall read as follows: "20. Author hereby agrees that the Publisher shall have the right for the duration of this Agreement to negotiate for the sale, lease, license or other disposition of the said literary work in all hard and/or soft cover or reprint editions in book form.

    ...

    Approval of all terms, provisions and conditions of any and all contracts in connection with any such sale, lease, license or other disposition shall be given by the Author upon the recommendation of the Publisher; and, for that purpose, the Author agrees to duly execute any and all contracts, assignments, instruments and approved papers submitted by the Publisher.


    "And and all contracts ... submitted by the Publisher" seems to cover a lot of ground, as does "or other disposition." If the author signs this, he/she seems to be agreeing to "all terms" sight unseen, without negotiation or the ability to refuse or object. This, it seems to me, gives entirely too much power to the Publisher. What's to stop PA from adding a clause to one of the contracts that they'll recommend that will grant PublishAmerica all rights forever to the work, and in addition that the author shall sell his house and car to Larry Clopper for the sum of one dollar?
    __________________
    Viable Paradise Workshop
    A week with working writers and acquiring editors
    Last edited by CaoPaux; 06-13-2008 at 08:12 PM. Reason: removing oversized sig images

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