The Newer Never-Ending PublishAmerica / America Star Books Thread
- Thread starter James D. Macdonald
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First, I still maintain that the contract was induced by fraud and is therefore unenforceable. But the contract is going to be presumed valid until a court or other legal authority says otherwise.
Second, for either side to try to enforce or invalidate the contract, they would have to seek arbitration. The contract's arbitration clause is as binding on PA as it is on the author.
Third, arbitration is not worth the effort unless you are close to the Frederick, Maryland area. The cost to take PA to arbitration would not be worthwhile. You would be throwing good money after bad, because there is no guarantee the book would sell even if you could get the rights back. Similarly, I doubt that PA ever takes anyone to arbitration. Their business model is to quickly get what they can from the poor author before he or she wises up, and then move on to the next sucker. It wouldn't make sense for them to take an author to arbitration to enforce a contract they aren't going to make any money off of anyway.
But the real crux of the problem is that no legitimate publisher is going to publish a book to which PA owns the publishing rights, because if the book became a big money-maker, PA could sue and claim the profits. So in my view, whether or not the author sends the completed manuscript, the book is as good as dead. Write a new one and move on. Harsh, I know, but that is the sad reality.
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I believe that the current PA contracts have dropped the arbitration requirement (after they got burned at arbitration a couple of times), and now specify that any legal redress must be brought in a Maryland court. (So, while PA could take an author to Small Claims Court in Maryland, the author couldn't take PA to Small Claims Court in the author's home state.)
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What this tells us:
Mean (average) books per month: 408.25
Standard error: 58.52
Median: 429.50
Standard deviation: 202.70
Range: 652
Minimum: 17
Maximum: 669
Sum: 4,899
13.42 books per day, including Saturdays, Sundays, and holidays.
We can derive PA's costs. Assuming $300 per title (includes editors' salaries, subscription to Jupiter media, ISBN, etc.), publishing cost PA $1,469,700.
PA's sales, assuming an average 75 copies per title, were 367,425 sold.
Taking the prices from the month of July (chosen because I wouldn't have to do that much typing), the high price was $29.95, the low was $16.95, and the mean (average) price was $21.47.
Assuming the average book was sold to its own author at a 30% discount, but with $1.50 in shipping, that brings PA's gross income for 2009 to $6,073,535.25.
Minus cost of goods sold, PA's gross profit for 2009 was $4,603,835.
What that further tells me is that PA's gross profits have been stagnant for the past five years. Meanwhile, the cost of everything has gone up. Hence the move to cheaper quarters, Willem bailing out, and other symptoms of a company in trouble.
This makes me suspect that Author Solutions, Inc. (AuthorHouse, iUniverse, Xlibris, DellArte, Wordclay, Words of Belief, West Bow, Trafford and maybe some more I've forgotten) is eating their lunch.
Poor PA! They've been darfed.
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Where's the fraud? Everything revolves around the business to business contract and not what a person reads on PA's website that may or may not have induced them to sign on with PA. Additionally, PA has specific verbiage in their contract that addresses this very subject.
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PA is not committing fraud by providing inaccurate or misleading information on their website. It's false advertising and there's a huge difference between false advertising and committing fraud.
~brianm~
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IANAL, but wanted to add: That clause in their contract, when read cynically, specifically outlines that, outside of the contract, they didn't say what they said.
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That's exactly why it's there. And when you sign that contract you agree.
They could have a web page that says that every PA author sells a million copies, gets a date with the Hollywood person of their preference, loses fifty pounds, and becomes the US ambassador to Sweden. But once you sign the contract with that language in it, none of it makes any difference.
They have a lawyer on staff to keep them just this side of the line between Sleazy and Criminal.
For any clause in that contract, look for the absolute minimum that a strict literal interpretation of the contract guarantees, and that's what you'll get. Those things that are supposed to happen "at the publisher's election and discretion" won't happen at all.
Sorry, its been a little while since I was able to post; I have been busy. Anyway, to answer the question, no I did not do any research before I signed on. It goes to say how naive I was before I did so. Needless to say, it will not happen for me again.
FyreDragon
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PA guilty of fraud?
LegalTech.com, an online law dictionary, defines “fraud in the inducement” as “the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act.” That is exactly what I contend PA does. (Just to be clear, I am talking about civil fraud, not criminal fraud.)
PA’s “F.A.Q.” page and their “Facts and Figures” page contain numerous statements that are either outright lies or deliberately misleading, a few of which are:
n “PublishAmerica contacts dozens of bookstors [sic] each day to set up book signings for our authors”;
n “PublishAmerica is NOT in any way a POD, vanity press, or subsidy publisher, and has nothing in common with them”;
n “We want your book, not your money” (and the similar, “We don’t want their [authors’] money. We want their book.”);
n “ . . . bookstores order PublishAmerica books more than 400 times per day, each day, for immediate sale, for stocking, or for a specific event such as a book signing.” (Emphasis added)
n “The author has really only one obligation: to provide us with the completed manuscript. We’ll take it from there.” [says nothing about self-promotion and self-marketing]
Now you might be right that the contract provision would trump this language. But I am not so sure. Judges and juries are not stupid, and the law seldom favors the scoundrel, regardless of what you may have heard or believe. Of course, the ultimate test of whether PA is engaging in fraud—and whether the contract is voidable for that reason—would be in a court of law. But as I have already explained, I have no intention of going to Maryland to pursue arbitration or a court case. From a cost-benefit perspective, it doesn’t make sense.
LegalTech.com, an online law dictionary, defines “fraud in the inducement” as “the use of deceit or trick to cause someone to act to his/her disadvantage, such as signing an agreement or deeding away real property. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act.” That is exactly what I contend PA does. (Just to be clear, I am talking about civil fraud, not criminal fraud.)
PA’s “F.A.Q.” page and their “Facts and Figures” page contain numerous statements that are either outright lies or deliberately misleading, a few of which are:
n “PublishAmerica contacts dozens of bookstors [sic] each day to set up book signings for our authors”;
n “PublishAmerica is NOT in any way a POD, vanity press, or subsidy publisher, and has nothing in common with them”;
n “We want your book, not your money” (and the similar, “We don’t want their [authors’] money. We want their book.”);
n “ . . . bookstores order PublishAmerica books more than 400 times per day, each day, for immediate sale, for stocking, or for a specific event such as a book signing.” (Emphasis added)
n “The author has really only one obligation: to provide us with the completed manuscript. We’ll take it from there.” [says nothing about self-promotion and self-marketing]
Now you might be right that the contract provision would trump this language. But I am not so sure. Judges and juries are not stupid, and the law seldom favors the scoundrel, regardless of what you may have heard or believe. Of course, the ultimate test of whether PA is engaging in fraud—and whether the contract is voidable for that reason—would be in a court of law. But as I have already explained, I have no intention of going to Maryland to pursue arbitration or a court case. From a cost-benefit perspective, it doesn’t make sense.
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Courts and judges may feel sorry for you that you signed a lousy contract and didn't seek legal opinion before signing the contract, but they are bound by contractual law and will base their opinions solely on the contents of the contract.
If you can prove PA has not complied with all terms and conditions of the contract, you may have a case for breach of contract.
Quite right.
I appreciate the hard work you put in getting the word out about PA on your site, but be careful you don't get bogged down in PA. As I'm sure you already realize, the best thing a former PA author can do is to learn from their experience and move on.
~brianm~
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At least one current PA author is seeking out other means by which to bring PA to the attention of more offices than just the Maryland AG. Because PA reads these forums, I won't mention the name, but if anyone would be interested in seeing a very well documented website, PM me and I'll provide a link.
Many of our clients at my day job are airport bookstores. In the cases of the ones specifically that are our clients, there is no way that they would ever stock something without a SKU or UPC being added to the individual store, and additionally a purchase order to show that the buyer actually ordered and approved such a thing.
Since this falls within the area of my admittedly limited expertise, I am going to flat out say that none of the books sent to airport bookstores will be stocked. In fact, in my experience, some of the routing guides say that packages without purchase order numbers are refused.
Since this falls within the area of my admittedly limited expertise, I am going to flat out say that none of the books sent to airport bookstores will be stocked. In fact, in my experience, some of the routing guides say that packages without purchase order numbers are refused.
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There's that magically misleading word again. Someone should give their copy writer a dictionary.
HEY, STOOGES--JUST WHEN DID AIRPORT BOOKSTORES TURN INTO A CHARITY????
I'm sure they will NEXT offer to donate PA books to the Haiti quake victims.
After all, those thousands of devastated people have a lot of reading time on their hands while waiting for water, food, meds, and body bags to arrive.
Dear PA writers--have you gotten ANY proof that PA sent your books to Oprah, the Today Show, Stephen King or your relatives who placed orders months ago?
Are you mad yet? You danged well SHOULD be!
This will be true for pretty much any bookstore. No retailer will accept an unauthorized shipment.
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Y'know, reading these emails from PA just reminds me of an experience a friend and I had years ago. We were watching this awful splatter flick from the 70's and just having ourselves a good old time, laughing and shrieking and having wacky fun. About half way through, there was a scene that caused us to stop laughing and just stare at the TV for the rest of the movie in slackjawed silence. I'm starting to stare at these emails in silence because there's pretty much nothing left to say about them.
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My thought exactly. Can't wait to see what happens when Homeland Security visits the PA offices...
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I was waiting for that one, too.
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No, they will not, and they can not. This is a straight-up bald-faced lie.
There is an outside chance that if they send a case of books to Wal-Mart that a new-hire high-school-dropout stockroom boy might make a mistake and put them on the shelf, once, for fifteen minutes, before he's fired.
But airport bookstores? No. No chance in hell. Not going to happen. No way, no how. That's a highly specialized and very competitive area, requiring genuine expertise.
This is false and misleading advertising. This is blatant fraud.
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Gosh, I wonder if CNN or the AP should hear about this.
Anything oddball to do with airports is of concern to them.
It could turn out to be a PR nightmare to PA and a dream come true to the legit publishing industry.
Anything oddball to do with airports is of concern to them.
It could turn out to be a PR nightmare to PA and a dream come true to the legit publishing industry.
There is a Fox News-branded bookstore at our regional airport. There's your news organization to cover it. Just sayin'. 
I can just see this going on at Newark-Liberty. Especially after that bonehead who dodged security to give his schmoopy-schmoopy a kiss.
Hey Stooges, you're idiots - you do know that, right?!?!?
Hey Stooges, you're idiots - you do know that, right?!?!?
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No COVID yet. Still masking.
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It does look like they've crossed the line with this one. "We will ship your books to the airport bookstore" is fine -- the onus on them is to do nothing more than put the books in the mail with the correct address on the front. What the bookstore does when the package arrives is not PA's problem. But "We have figured out a way to get your books stocked in the airport bookstore" and "We will put your books in the airport bookstore" is making a promise they can't keep.
Crazy.
Crazy.