The New Never-Ending PublishAmerica Thread (NEPAT)

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smsarber

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I know at least one PA author who had no Internet access (no email, no nothing) when the book was submitted and contract signed. Someone else handled the uploading.

That was probably about two years ago. That author remains delighted.

--Ken
Well I'll be! A person without internet access. Thought that was just a myth. I guess I stand corrected.
 

triceretops

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The Up in Lights and testimonies on the PA board are the biggest draw, pulling the unexpected in likes moths to forest fires. Virtually anywhere you go on the PA site, you read bloviating declarations about how they are the wave of the future and only care about giving authors the chance they deserve. I'd swear the PA site is set up to look like an inviting carnival--thrill rides, bright and shiny lights, snacks and pop, and scores of happy patrons, bustling about. And the red, white and blue theme...well, that is just soooo wrong.

tri
 

Shadowman

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Not sure if there's another way, but, um... don't you have to go through their website to submit your manuscript? And you wouldn't have a contract if they hadn't, er, read (as if they actually do read) your manuscript. So I can't see any author signing a contract without seeing the website.


I got set up with them by an unhonest agent. All I had at the time was an Email machine. It only sent and received Emails. I never got on the net and was able to see their site until like, maybe 4 or 5 months before my book came out. And I had to buy that machine just for the sole purpose of staying in contact with PA. I knew absolutely nothing, about them.
 

circlexranch

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Same deal when you buy anything. Car, house, whatever. Get it in writing, in the contract.

--Ken

Ken is right (as usual!). I am currently involved in a duel to the death intellectual property lawsuit.

The other side says they own it. I say they sold it to a company that has now gone defunct. The crux of the matter is that is a company goes defunct without explicitly divesting itself or assigning its intellectual property, you've got a strong case that it has fallen into the public domain. Companies don't have statutory heirs like authors do.

So, enter the sales contract. The contract conveyed the intellectual property for a certain number of shares of stock in the company. I know the shares were conveyed. Offer, acceptance, execution - the contract is a done tom turkey. Especially since it had one of those 'this contract is the deal, the whole deal, and nothing but the deal' clauses.

I also know, off the record and off the books, that they had a side deal for cash. I also know that the company reniged on the side deal.

So, my opponent is saying the other side defaulted on the contract and so the intellectual property returns to them.

No can do . . . . is my argument. You signed the contract. You took the stock. They got the IP. They didn't pay you the off-the-books tribute. They went out of business. Too bad . . . so sad.

The primary tenet of contract law is the 'four-corners doctrine.' That means that unless the contract is ambiguous, that the only thing that counts in court is what is contained in the 'four-corners' of the document.

Outside evidence, called parol evidence, is not favored unless the contract is ambigiously worded. Contract language is interpreted by the 'plain language' doctrine meaning you give words their most common meaning, not the meaning you thought they had.

The PA contract is slimy and goes right up to the edge. However, in general, they live up to the four corners of the document.

An interesting legal analysis would be if there was 'fraud in the inducement' or 'fraud in the execution' of the contract. Two nifty legal concepts worth discussing. But, not until I've had my morning tea.

Bottom line, the bright shiny website and all the veiled promises have nothing to do with the contract. . . .
 
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circlexranch

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Every once in a while, whether I mean to or not, I say something that makes sense:

Of interest, this little article on 'fraud in the inducement.'

Now, this is Florida. Maryland law would apply. However, it gives a good overview of the legal concept.

BTW, regarding the above post, that is not my only legal point. It is the last one and least important one. I am a mild-mannered criminal defense attorney by day, but was forced to become an intellectual property jock by night and weekends to defend our family company. It's quite the little tale in its own right.
 

brianm

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Same deal when you buy anything. Car, house, whatever. Get it in writing, in the contract.

--Ken

Absolutely, but there is a rather large difference between a writer buying a car and selling the rights to a book.

When he buys a car, he's a consumer and there are consumer protection laws, consumer protection acts, consumer protection agencies, and consumer protection watchdog groups he can turn to for help.

But when he sells the rights to his book, he's doing so as a business entity and those lovely laws, acts, agencies, and watchdog groups can't lift a finger to help him.

(I know you know this, Ken, but you know me. Anytime I get an opportunity to drive home the point about learning the business of writing before jumping into it, I will. :D)
 

smsarber

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Not sure if there's another way, but, um... don't you have to go through their website to submit your manuscript? And you wouldn't have a contract if they hadn't, er, read (as if they actually do read) your manuscript. So I can't see any author signing a contract without seeing the website.
I just figured, with libraries having internet access, it would be difficult to have an excuse not to have seen the site. I was wrong. Sorry.
 

roncouch

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The Up in Lights and testimonies on the PA board are the biggest draw, pulling the unexpected in likes moths to forest fires. Virtually anywhere you go on the PA site, you read bloviating declarations about how they are the wave of the future and only care about giving authors the chance they deserve. I'd swear the PA site is set up to look like an inviting carnival--thrill rides, bright and shiny lights, snacks and pop, and scores of happy patrons, bustling about. And the red, white and blue theme...well, that is just soooo wrong.

tri

Tri is absolutely correct. I fell for PA's bait - hook, line and sinker. Even though an attorney friend reviewed the contract, and suggested I not sign it, I did - the rest is history. As mentioned in earlier comments, I was inspired to write a book, and, upon completion, had no plans of publishing same. Just for kicks, I did an internet search, and was drawn to PA's invitation like a moth to flame. My 198 page book was written, and published in less than five months from conception. The only editing was mine, and was totally inadequate. I had a brief opportunity to approve the manuscript. Thinking PA would also edit the manuscript, I did a brief re-edit, (read two or three pages) found one typo, asked PA to correct it. They did. To this day, I've not read my book in its entirety. It has syntax errors, etc. A very talented friend of mine purchased the book, and commented, "the book was not edited worth a damn." One day, I'll edit my book the way it should have been, highlight the errors, and provide this information to anyone interested.
It became apparent I was expected to actively market my book. I did have a radio interview, one newspaper ad, book signings at two book stores and a library signing. One Knoxville, TN radio station actively advertised my book for one month. I soon tired of marketing, and did not make up the PA suggested marketing kit. Making book markers, business cards, and other gimmicks simply is not my forte. I did read and participate in the public and private PAMB. Some folks are pragmatic - others rather delusional. There appears to be a cult-like mentality with some PAers.
There are some very talented authors who choose to remain with PA. I'm one of the lucky ones who lost no money, and will probably make a few bucks.
I'm still waiting to hear from a commercial publisher on my second book.
Obviously I've learned from my PA experience.
Ron
 
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gordo

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Brianm wrote: "..... it is extremely important that writers seek the advice of legal counsel before entering into a publishing contract."

If writers follow his advice, it is unlikely they will ever sign a publishing contract with PA.
If writers don't follow his advice, they need to assume responsibility for their own carelessness, stop blaming others, and move on.
 

smsarber

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Brianm wrote: "..... it is extremely important that writers seek the advice of legal counsel before entering into a publishing contract."

If writers follow his advice, it is unlikely they will ever sign a publishing contract with PA.
If writers don't follow his advice, they need to assume responsibility for their own carelessness, stop blaming others, and move on.
Maybe so, but none of us are perfect. PA talks a good game to someone with no experience. They sell dreams, then deliver nightmares.
 

brianm

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Maybe so, but none of us are perfect. PA talks a good game to someone with no experience. They sell dreams, then deliver nightmares.

Very true. Additionally, many people do not have the extra cash they need to pay for legal counsel. And when I say legal counsel, I mean an attorney who specializes in these types of contracts not a friend who just happens to be a lawyer who handles DUI cases.

The best protection for a new writer is research and study. Know the business you are getting into and always assume the other guy is trying to take advantage of you.

I pick fly s**t out of pepper when I review a contract. Do the same thing and never sign something you do not fully understand. Whether it be a car loan, a credit card agreement, or a publishing contract.

Just like many ex-PA authors, I had to learn this the hard way. Not in publishing but in another field of the arts. Many years ago, I ended up on the streets eating beans out of a can until I finally called my father and asked for money. I will never forget the feelings of anger I felt nor what my father said to me when he found out I had paid a scam company thousands of dollars because they had promised me they were a new, exciting, and revolutionary agency that could guarantee my success. I had stars in my eyes, but ended up learning a hard lesson. I guess this is part of the reason why I spend a great deal of my time in these threads. I really dislike what PA is doing to my fellow writers.
 

circlexranch

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Here are the elements of 'fraud in the inducement' from the courts in Maryland. Okay, folks, match up what you know about PA, with this legal standard:

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

The elements of the tort of fraud which appellee was required
to establish were set out in the landmark case of McAleer v.
Horsey, 35 Md. 439, 452-54 (1872). See Ellerin,
337 Md. at 238-39, 652 A.2d 1117. A person claiming fraud must establish:

1) that the defendant made a false representation to the plaintiff, 2) that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth, 3) that the misrepresentation was made for the purpose of
defrauding the plaintiff, 4) that the plaintiff relied on the misrepresentation and had the right to rely on it, and 5) that the plaintiff suffered compensable injury resulting from the
misrepresentation.

Ellerin, 337 Md. at 229-30, 652 A.2d 1117 and cases cited
therein.
----------------------------------

This is the provision that I find interesting because it is broader than some other states:

"that its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth"

Hmmm . . . curiousier and curiousier . . . .

::Takes lawyer hat off now::
 

circlexranch

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Also, what Brian said! I am a lawyer and I nearly fell for the PA kool-aid. I had a series of short stories that had all been previously published, so they were in 'reprint' land. I thought 'what the heck,' and 'it might be fun.' Luckily, the resident lawyer voice in my head said 'seven years is a long time, are you sure you want to do this?' Bottom line, I did my homework and ran screaming for the door.
 

circlexranch

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A couple of other interesting tidbits of Maryland law:

An adhesion contract "has been denned as one `that is drafted unilaterally by the dominant party and then presented on a "take-it-or-leave-it" basis by the weaker party who has no real opportunity to bargain about its terms.'" Meyer v. State Farm Fire & Cos. Co., 85 Md.App. 83, 89, 582 A.2d 275 (1990) (citing Restatement (Second) of Conflict of Laws § 187, Comment b.). Black's Law Dictionary defines the term as a "standard-form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who adheres to the contract with little choice about
the terms." 342 (8th ed.2004).

There is no doubt that the Agreement constitutes a contract of adhesion. Adhesion or form contracts are not the same as an unconscionable contract and do not render the Agreement invalid, per se. See Walther v. Sovereign Bank, 386 Md. 412, 430, 872 A.2d 735 (2005). Instead, as appellants assert, the courts simply examine such contracts with "special care" and "construe ambiguities against the draftsman." Id. at 431, 872 A.2d 735.


""nconscionability deals primarily with a grossly unequal bargaining power at the time the contract is formed. . . nconscionable contract is " 'one that no man in his senses and not under a delusion would make, on the one hand, and as no fair man would accept, on the other. The inequality must be so gross as to shock the conscience.'" (quoting Smyth Brothers
v. Beresford, 128 Va. 137, 104 S.E. 371 (1920) (internal quotation omitted)))."


I think there is no doubt that the PA contract is an adhesion contract. Is it unconscionable as well?

It makes me wish I was licensed to practice in Maryland. Watching PA answer these questions would be highly enlightening . . .
 

roncouch

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(Brian's quote) Just like many ex-PA authors, I had to learn this the hard way. Not in publishing but in another field of the arts. Many years ago, I ended up on the streets eating beans out of a can until I finally called my father and asked for money. I will never forget the feelings of anger I felt nor what my father said to me when he found out I had paid a scam company thousands of dollars because they had promised me they were a new, exciting, and revolutionary agency that could guarantee my success. I had stars in my eyes, but ended up learning a hard lesson. I guess this is part of the reason why I spend a great deal of my time in these threads. I really dislike what PA is doing to my fellow writers.[/quote]

Not only PA, of course. Nine years ago, a good friend had his manuscript published by Minerva Press in London. He became so upset with rejection from American commercial publishing houses, he opted to go with Minerva - a now defunct vanity press. I read my Brit pal's book. It is quite good - well written with a memorable plot. He spent over 30,000.00 on his book and has a garage full of them. He is so disgusted with the publisher (and himself) I doubt he will ever write again, and it's a shame. Yes, in retrospect, he should have got an agent, and should have done many things he didn't do. PA has/had many friends in the vanity press business.
 
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spike

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Maybe so, but none of us are perfect. PA talks a good game to someone with no experience. They sell dreams, then deliver nightmares.

PA is no different than any other con men. No one should be ashamed that they were taken. Unfortunately, all con men are depending on most of the victims being too embarrassed to make a fuss.
 

Sean D. Schaffer

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Perusing this thread tonight, and found this, which sounds like another writer I could name:

Not only PA, of course. Nine years ago, a good friend had his manuscript published by Minerva Press in London. He became so upset with rejection from American commercial publishing houses, he opted to go with Minerva - a now defunct vanity press. I read my Brit pal's book. It is quite good - well written with a memorable plot. He spent over 30,000.00 on his book and has a garage full of them. He is so disgusted with the publisher (and himself) I doubt he will ever write again, and it's a shame. Yes, in retrospect, he should have got an agent, and should have done many things he didn't do. PA has/had many friends in the vanity press business.


This "another writer I could name" would happen to be me. After my experience with PA, I basically retreated into the shadows (except here on AW) and didn't really do much writing.

After a three-year pity-party, I'm finally able to write with confidence again, and I feel like I am back in the ball-game. But all the garbage I went through because of my experience, has taken an intense toll on my body and my mind. I'm sure I'll be okay, as I am getting back into the right attitude about the whole scenario. But the truth remains: had I done my homework on PA before I submitted my book to them, I very well might never have signed with them. Although I stated in a post a few months back that I was desperate when I signed with them, I don't believe I stated WHY I was so desperate. I had been told my work was not good enough by people I now realize did not want me to succeed, but at the time I thought they were my best friends and would never steer me wrong. At the same time, they told me PA would give me the same treatment a company like Tor or Baen would have given me, so I ordered a Big-Gulp of the Kool-Aid.

Those people, thankfully, are no longer in my life. And now, the healing is almost accomplished. But all the years of hurt and anger that followed my 2003 submission to PA, really could have been averted, I think, had I just listened to the people PA told me not to listen to. Something called 'Common Sense' eluded me that fateful November day, and I almost quit writing because of it.

But I thank the Lord that I never truly gave up on the Craft, because now the light at the end of the tunnel is shining brighter than ever. I will be a success, because like others have pointed out over the years, "There is life after PA." There was a time I didn't believe that was true, but that time is behind me. :)
 

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I just figured, with libraries having internet access, it would be difficult to have an excuse not to have seen the site. I was wrong. Sorry.

I got their address from the Christian Writers Market book. I sent a query and later a hard copy of my manuscript. They were still America House at the time. By the time they responded on the Internet they were called Publish America. This was only days after 9-11. I assumed that was the reason for the name change. I checked out their web site and assumed that the red, white, and blue was a 9-11 thing, too.
 

kullervo

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That is quite a journey, Sean, and brings up a topic I'd like to mention briefly, re: the idea that work is "not good enough." Writing, as you mention, is a craft, and yet we often fail to recognize that it is a craft that can take enormous time to master. Any fully-literate person can manage the mechanics of writing, but creative writing is another skill indeed. Yes, there are young writers of astonishing talent who seem to have emerged into the world with all the craft a writer could hope to have, but they are few and far between. For most of us, learning to write well is a much different experience.

When I started writing novels twenty years ago, they were terrible. Really, truly bad. And I got better at writing very, very slowly. I have a novel coming out on Tuesday, and I am speaking at the Southern California Writers Conference this afternoon. It is the twelfth novel I wrote. I hope I can reassure some folks that being and hearing "not good enough" now does not mean they will not be good enough later. I was not a naturally gifted writer. I was not even a good writer. I am now. I have learned my craft and continue to learn. I will get better, and I find that exciting.

Writing is a skill to be learned, not a born-in trait like eye color. We are all at different places along that road.
 

smsarber

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I got their address from the Christian Writers Market book. I sent a query and later a hard copy of my manuscript. They were still America House at the time. By the time they responded on the Internet they were called Publish America. This was only days after 9-11. I assumed that was the reason for the name change. I checked out their web site and assumed that the red, white, and blue was a 9-11 thing, too.
Creepy!
 

Pagey's_Girl

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.... By the time they responded on the Internet they were called Publish America. This was only days after 9-11. I assumed that was the reason for the name change. I checked out their web site and assumed that the red, white, and blue was a 9-11 thing, too.

Maybe it's just me, but I find that offensive on PA's part.
 

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Maybe it's just me, but I find that offensive on PA's part.

I'm not saying the web site is red, white, and blue because of 9-11. I am saying that I was contacted in the days after the attack and told that my MS had been accepted. I checked my records to see how they knew about me (since I had sent out so many queries). After a couple of emails I found out PA and America House were indeed the same company. That was when I checked their web site.

The three name changes are the main reason that I only used a small amount of seed money to buy my books and bought them from a bookseller so I would get a higher profit and make back my seed money. That was a practice they put a stop to about a year after I broke contract with them. I made a modest profit off of my books instead of a loss and had a little fun with TV and newspaper interviews, but I never, never trusted them.

If it hadn't been for that 9-11 coincidence and several news reports about how publishing houses were in a flux because of terrorism, I'm not sure I would have ever agreed to PAs contract. Who knows, I might have bought into it anyway. Who had heard of PA back then?
 

smsarber

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I'm not saying the web site is red, white, and blue because of 9-11.
Well don't be deluded; of course it had something to do with our country's tragedy. Just like any effective advertising they used a bold "attention-getter". And post 9-11 there was no more sure way to grab attention than our colors, our flag, or a portrait of Bin Laden with a bull's-eye between his eyes. Publish America makes its money from illusion, and will do whatever it takes to draw in clients. They are BS artists of the highest caliber.
 
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