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The Zharmae Publishing Press

dondomat

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Good for you, Folclor!
Don't forget to brag in the bragging thread when the book comes out, so that we may all check it out and stuff.
 

victoriastrauss

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Last month I had the opportunity to look at Zharmae's standard publishing contract, and it's not a contract I'd advise an author to sign.

Among other things, it's an all-rights contract for a publisher that has shown no evidence that it has the ability to market or exploit subrights, it's life-of-copyright without an adequate reversion clause, royalties are paid on net profit (the publisher's net less the costs of "goods, services, and production"), the Agency clause grants the author's agent powers that could extend beyond the author's own agreement with his/her agent, and the Option clause binds the option book to the same terms as the existing contract.

- Victoria
 

Aggy B.

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Last month I had the opportunity to look at Zharmae's standard publishing contract, and it's not a contract I'd advise an author to sign.

Among other things, it's an all-rights contract for a publisher that has shown no evidence that it has the ability to market or exploit subrights, it's life-of-copyright without an adequate reversion clause, royalties are paid on net profit (the publisher's net less the costs of "goods, services, and production"), the Agency clause grants the author's agent powers that could extend beyond the author's own agreement with his/her agent, and the Option clause binds the option book to the same terms as the existing contract.

- Victoria

And this clause (#37):


Title and Series Rights. Publisher reserves all rights in and to the title (including series title, if any), logotype, nom de plume, pseudonym, trademark, trade dress, format, and other features of the Work as published and promoted by Publisher. Publisher shall have the right to request Author to develop sequels or prequels, new or additional titles in a series, or related works using any and all such elements, and may commission or contract with any other person(s) for the preparation of such sequels, series, or related works with Authors consent.


Isn't that more like work-for-hire?

 

thothguard51

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Last month I had the opportunity to look at Zharmae's standard publishing contract, and it's not a contract I'd advise an author to sign.

Among other things, it's an all-rights contract for a publisher that has shown no evidence that it has the ability to market or exploit subrights, it's life-of-copyright without an adequate reversion clause, royalties are paid on net profit (the publisher's net less the costs of "goods, services, and production"), the Agency clause grants the author's agent powers that could extend beyond the author's own agreement with his/her agent, and the Option clause binds the option book to the same terms as the existing contract.

- Victoria

Glade to see I was not the only one concerned...
 

victoriastrauss

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So, given that they seem open to negotiate - which clauses are the scary ones? And are they much different from other small presses?
I think all the provisions I mentioned are a problem. IMO the worst are life-of-copyright with no adequate reversion, and the work-for-hire-style clause Aggy B. quoted.

Many (by no means all) small presses have dreadful contracts, with the dreadfulness varying from publisher to publisher. Sometimes it's because they're mean or greedy, but often it's because they have no experience and don't know a good contract from a bad one.

But there's a larger issue here. Even if the publisher is willing to negotiate some of its problem clauses, you have to think about what it says about its business ethics and/or publishing savvy that it would offer a bad contract to begin with.

- Victoria
 

elindsen

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Scary.

To be honest against something a posted a while back, I would never sub to them again. Their editors have NO idea what writing is, IMHO. I wrote the story in 1st/pres and was rejected because "that's not how you write a book". Now, I know there's tons of controversy with it, but saying I can't write because of it was insulting. It may not be what you'd like to publish and that's fine, but being rude was wrong. Also, in the first scene two vampires joke about blood being spilled. The editor told me "Is this a joke? You can't be serious". Yes, sir. They're vampires, and not Edward types. They kinda like death.

I think, at least that editor or reader, needs a new job and it makes me wonder about the people they hire.
 

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Scary.

To be honest against something a posted a while back, I would never sub to them again. Their editors have NO idea what writing is, IMHO. I wrote the story in 1st/pres and was rejected because "that's not how you write a book". Now, I know there's tons of controversy with it, but saying I can't write because of it was insulting. It may not be what you'd like to publish and that's fine, but being rude was wrong. Also, in the first scene two vampires joke about blood being spilled. The editor told me "Is this a joke? You can't be serious". Yes, sir. They're vampires, and not Edward types. They kinda like death.

I think, at least that editor or reader, needs a new job and it makes me wonder about the people they hire.

I don't think there's any controversy about writing a book in first person, present tense. Some people don't like it: but that's not the same thing as controversy.

As for rejecting a book simply because it was written in that way? Ridiculous. I've read several books which have been published this year which were written in that tense, and I enjoyed every single one.

Yet another reason to avoid this press, I think.
 

traveo2343

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Hello All,

I'm glad there is yet renewed controversy around TZPP and our contracts. Always an interesting subject to discuss.

elindsen: If you would please tell me which Editor responded to you so that I can address that, it would be greatly appreciated. We aren't in the business of being rude in our rejections, which is often times a reason that rejections are form letters.

+++

victoriastrauss: It's a pleasure speaking with you again, I've mentioned this before in our direct email correspondence -- It is the right of the Author to negotiate their contracts on their own, or in conjunction with their Agent or Attorney, or other trusted advisor. I'm not in the business of pre-negotiating a contract in a fashion akin to negotiating with a union which is what you were attempting to accomplish with me.

Our contract reflects our philosophy of working with an Author over the long haul, which is the main reason that we maintain the right of first refusal in our contracts. I have and will continue to strike that section on first contracts with authors who prefer to test our relationship prior to committing to that aspect in future contracts.

As far as Net Profit, Victoria you are correct in that we account Net Revenues according to GAAP -- U.S. Generally Accepted Accounting Principles. Which is how accounting is done in the United States thus, Net Revenue is Gross Revenue minus Cost of Goods, Services, and Production.

Previously in our original contract there was no effective means to revert rights as reversion was based on out of print status, but the contract was written to define in publication as being listed on our catalog and simply available for sale on Amazon. After our very lengthy discussion and per your recommendations, many of which I enacted in the current version, was the major change in sales volume as a large determinant in whether or not a book could remain in publication with us or at all. In Publication is still defined as being on our catalog, but the contract remains in effect so long as we maintain a stable sales volume of 25 units annually according to the boilerplate. Thus far, all authors have asked me to increase this to 100 units which I have agreed to without question or hesitation.

As we are not buying the copyright in a transfer type contract, this is not, and has never been a work-for-hire situation. #37 is a standard clause and details our rights with items that we specifically develop and promote that are/would/could be unrelated to the author. It also gives us the express right to ask the author to write more books in a particular series or featuring particular characters. The author is always free to decline. Even if we were to pay for a ghostwriter to do the work, the Author still has to give consent.

Additionally, as we don't tend to work with too many Agents, the Agency clause is always stricken when an agent is not involved. When an agent is involved, is standard language and is not meant to jive with their own contracts with authors. Your suggestion that the agency clause goes too far is a personal opinion, in my view -- Agents have never once had a concern with that clause even in our original contract version.

The option on the next work that meets our minimal criteria for publication is bound by the same terms as negotiated in the original contract. Thus far, when offering a second or third contract to our already signed authors, I have offered the most current version of our contract and generally re-opened negotiations with that author on certain points. This is an on-going relationship, I need to be sure that both sides are happy, and getting the benefit of our relationship's fullest potential.

+++

>> I would be interested in a larger discussion on how you view TZPPs business ethics and publishing savvy. I will concede that we are a young press, not simply a newer publisher. Many of our Associate Editors are new recent graduates in the last 3 years, and our Imprint Editors possess 8-12 years experience on average. Thus many aspects of how we do business are not influenced by larger, long established publishing houses. And that may be part of much of the contention here...We don't generally view the world in the same light that other publishers do. So as far as publishing savvy, we get better the more we do, and I continually update our contract and use newer versions whenever I can. I suggest that Publishing Savvy is not of any worthwhile conversation in light of this. But our Business Ethics are.

In your opinion what does our contract say about our business ethics?

That we're not committed to our authors? -- No, we operate a pure profit share model at all levels, the author's success is our direct success.

Perhaps overzealous? -- Maybe, I certainly am an enterprising individual and that facet permeates in other aspects of how I do business.

Greedy and Mean? -- Yes. The drive for success is based in large part on greed in my humble opinion. I wouldn't do business with anyone who wasn't greedy. Thankfully most authors are greedy, otherwise they wouldn't all ask for an advance knowing I won't give one. That's a good sign in my view. Now mean...this is hard to justify. No one likes being mean, but I would say that ruthless is a better term in business. You want someone who is ruthless on your side. They tend to get things done. <<


I look forward to more conversation on this and many other of our controversies soon.
 

victoriastrauss

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As far as Net Profit, Victoria you are correct in that we account Net Revenues according to GAAP -- U.S. Generally Accepted Accounting Principles. Which is how accounting is done in the United States thus, Net Revenue is Gross Revenue minus Cost of Goods, Services, and Production.
I'm not familiar with GAAP principles, but this method of accounting is not standard in publishing contracts. Royalties are typically (and much preferably) based either on a book's list price or the publisher's net income (list price less wholesalers' and retailers' discounts). Deducting production costs seriously reduces the amount on which the royalty is calculated--good for the publisher, not good for the author. "Goods, Services, and Production" is even more concerning, since none of those items are defined in your contract. In essence your authors have no idea what royalty they'll be receiving.

Previously in our original contract there was no effective means to revert rights as reversion was based on out of print status, but the contract was written to define in publication as being listed on our catalog and simply available for sale on Amazon. After our very lengthy discussion and per your recommendations, many of which I enacted in the current version, was the major change in sales volume as a large determinant in whether or not a book could remain in publication with us or at all. In Publication is still defined as being on our catalog, but the contract remains in effect so long as we maintain a stable sales volume of 25 units annually according to the boilerplate. Thus far, all authors have asked me to increase this to 100 units which I have agreed to without question or hesitation.
The contract I saw in early July states that the publisher can decide to terminate publication if sales fall below 100 units, and the author can request reversion if sales fall below 25 units, or if the book goes out of print.

However, per the contract, a book is "in print" as long as it appears in Zharmae's catalog--and the minimum sales threshold doesn't trigger reversion or removal from the catalog, it only empowers authors to request reversion, which Zharmae doesn't have to grant.

IMO, this is not an adequate reversion clause. Dropping below the minimum sales threshold should automatically trigger reversion--otherwise, the author is still dependent on the publisher's good will.
As we are not buying the copyright in a transfer type contract, this is not, and has never been a work-for-hire situation. #37 is a standard clause and details our rights with items that we specifically develop and promote that are/would/could be unrelated to the author. It also gives us the express right to ask the author to write more books in a particular series or featuring particular characters. The author is always free to decline. Even if we were to pay for a ghostwriter to do the work, the Author still has to give consent.
This really isn't a standard clause, at least in a non-work-for-hire contract. Among other things, you're claiming the right to the author's pen name, which isn't something you find outside of WFH.

Also, if I were presented with this contract, I'd be very concerned about the ability you're claiming to commission other people to write sequels, prequels, etc. Sure, the contract states that the author must give consent--but what if the author refuses? I'm not saying Zharmae would do this, but I've heard plenty of stories about publishers that take retaliatory action against uncooperative authors. If you want the author to write prequels or sequels, offer a multi-book contract or include this in the option clause, or discuss it with the author after the original book has been published. If you want to commission other people to write prequels and sequels, offer a straightforward WFH contract that takes copyright.
Additionally, as we don't tend to work with too many Agents, the Agency clause is always stricken when an agent is not involved. When an agent is involved, is standard language and is not meant to jive with their own contracts with authors. Your suggestion that the agency clause goes too far is a personal opinion, in my view -- Agents have never once had a concern with that clause even in our original contract version.
Your Agency clause empowers the author's agent to act on the author's behalf not just for the book that's being contracted for, but for sequels, option works, and "any and all rights" in the work. Depending on the author's agency agreement, this could represent a significant expansion of the agent's role. It's not the function of a publishing contract to set the terms under which the author deals with his or her agent. An Agency clause should relate _only_ to the book or books being contracted for.

You admit above that you don't deal with many agents. Also, for a variety of reasons, successful agents don't typically work with non-advance-paying publishers. So I suspect that your contact with professional agents is fairly limited. Also, the issue with your Agency clause isn't that an agent would take exception to it (and why should they? An expansion of their authority only benefits them), but that an author should.
The option on the next work that meets our minimal criteria for publication is bound by the same terms as negotiated in the original contract. Thus far, when offering a second or third contract to our already signed authors, I have offered the most current version of our contract and generally re-opened negotiations with that author on certain points. This is an on-going relationship, I need to be sure that both sides are happy, and getting the benefit of our relationship's fullest potential.
The fullest potential for an author is the ability to re-negotiate a successor contract. If a debut novel becomes really successful, for instance, it would be a major disadvantage for the author (and a windfall for the publisher) to be stuck with the same terms for a followup book.

I would be interested in a larger discussion on how you view TZPPs business ethics and publishing savvy.
Writer Beware hasn't received any complaints about Zharmae. You have a nice website and many of your covers are attractive. And I do appreciate your willingness to engage in dialog.

However, I've participated in a good deal of discussion about, and seen several versions of, your contract, and you seem to be very resistant to many of the points that I and others have repeatedly raised. This concerns me, because even though you have made some changes, your contract is still, in my opinion, author-unfriendly.
Many of our Associate Editors are new recent graduates in the last 3 years, and our Imprint Editors possess 8-12 years experience on average.
Experience where? And with what? There are just three editor bios on your website, and they don't offer many specifics.
Thus many aspects of how we do business are not influenced by larger, long established publishing houses. And that may be part of much of the contention here...We don't generally view the world in the same light that other publishers do.
A poor contract is a poor contract, no matter what light you view it in.

Also, if I had a nickel for every time I've seen a small press use this claim to excuse odd or unusual or just plain bad contracts and/or business practice, I'd be able to go on a nice vacation. I'm sorry--I know that's blunt. But this is such a common way of brushing off any kind of suggestion or criticism that it has really become a red flag for me.

- Victoria
 

traveo2343

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Hello All,

As always please feel free to email me directly, or message me on here, I am happy to respond here.

And do follow us @TZPPbooks or me personally @traveo2343


Hello Victoria,

Regarding the Editors, We have 20+ editors in total and 2-3 editors are assigned to each imprint that we publish under, not all of them appear on the website, and the Zharmae website needs updating in many regards. By the time we head into our major book launches across the board in November, the main Zharmae website should have a comprehensive update to include profiles for all of our Staff.

+++

I understand that in a traditional contract Royalties are often calculated on the list price of a book. That method does not reflect actual accounting principles when properly accounted for on a profit share model. I believe that I previously detailed what Goods, Services and Production entailed in a previous response, in case I have not please see the list:

Cost of Goods: Retailer Freight (Distribution charges), Copyright, ISBN x3, Barcode.

Break-even for Cost of Goods is 19 units sold, and Authors, Artists, Staff, and the House begin to earn at this point.

Cost of Services & Production (limited to 50% as mentioned previously): Managing Editorial, Copy Edit, Proofing, Review, Cover and Interior Design, Editorial, Marketing, Research, and Sales.

Net Revenue comes after this, and is what pays the Artist, the Author, and the House.

It is important to not that the actual per book royalty on this model with this form of standard accounting actually gradually increased with each sale, instead of remaining pegged to a fixed price. At unit sales rates above 2500, the per book royalty will often outperform the fixed list price.

+++

Dropping below the minimal sales threshold will not trigger an automatic reversion as that would be counter to TZPPs aim of working with authors over the long term. You are correct that in that instance an author is dependent on TZPP's goodwill; but if an author dislikes working with us enough to request that I revert the rights at that point, then I'm not going to withhold that from them. There likely exists other areas in our relationship that are strained.

#38 discusses remainders, which does allow us to discontinue publication if sales fall below 100 units. #39 defines in-publication as being in the Publisher's catalog. #39.1 dictates that if the author is indebted to us, they cannot revert their rights back (this is in the authors favor as there is very little chance this would be the case under our current contract version). And #39.2 details sales below 25 as being the cut off for Author to revert rights, and I've mentioned previously, when asked we will increase this to 100.

>> I've said this before, we're not for everyone. Authors these days are very guarded of their rights and very skittish where their relationships are concerned. If you're not looking to develop an ongoing relationship with us, we're likely not a good fit to begin with. <<

A key that you miss in your suggestion of a WFH contract is that a WFH has a single point of consideration (ie a one time payment for the copyright) there would be no royalties involved and the writer in that situation would transfer all rights and ancillary rights to the work, the technical author of the work is then the Publisher or other WFH buyer. The simple act of offering royalties negates the WFH aspect. Additionally, we are not paying an advance, why would I then change my model to pay a ghostwriting consideration?

As far as pen names go, those are not protected by anything, and individuals can have similar names or pen names. >> I think that this is an aspect that is a non-issue, as I have no intention of taking the name just to spite an author, and the clause is clear that it is as we promote it, additionally we use this clause in ensuring quality control when chatting with film producers for options.<< If an author refused to do a sequel or refused to consent to a ghostwriter writing a sequel or related work, the contract is very clear on this, I cannot move forward. If I'm interested in working with an author over the duration of their career, then why would their refusal negatively impact their on-going relationship with us?

I understand your feelings on the Agency clause. Again, this is only a concern for an author who has an agent. For those who do have agents, the agency clause if clear that it only applies to works or derivative works which are expressly covered in that particular agreement. The main legal purpose for this clause is so that we can properly account and pay royalties when an agent is involved. I do appreciate your caution, however, this is a clause that is not likely to be amended.

+++

>>I have said before, and I'll say again, I am greedy and ruthless. I am going do whatever I can to help make my activities successful. It is in TZPP's best interest to put writers onto a contract under terms that are generally acceptable to them, and then to get them onto a regular publication schedule, under similar on-going terms. The terms that we offer in the contract are generous, and the continued success over many years is not going to limit their earning power, regardless of the contract. Fully re-opening negotiations is not likely going to yeild that author a better contract with me, especially if their work does not perform well.

I cannot stress this enough: TZPP and our imprints are not for everyone. We are author focused in how we operate, we are generally accessible and transparent, but we are not for everyone. If you are not interested in working with us over the duration of your career, and you aren't committed to developing your reputation over the course of many books and many years, I'm really not interested in signing you.

I'm looking for the author who writes because they love to write, so much so that all the rest needs to be handled by someone else. We use an economy of scale to help push our authors sub-rights, thus the more we have, the easier it becomes to do so.

I would like to say that overall this is the defining consideration in whether or not you view our contract as poor or good. If your main concern is being tied down to or stuck with us, you will view this as a poor contract. If you are looking to build a personal relationship and have on-going close support with us, you will view this as a good contract. My suggestion is to get a better sense of what your real interest is in working with us or any other publisher. That will determine how you view them.

I understand that much of your concern may stem from the fact that we do work with many first time authors, who may be unused to negotiating a contract and concerned that they don't have the voice to stipulate their terms. I appreciate that, it is a needed service.

You ask me why I keep giving you push back on certain areas of our contract, my answer in short is because it is my job to get the most value out of every contract that we sign.

I relented on major portions of the contract based on your feedback because TZPP was removed from a listing on Ralan.com (after a 2012 Spring Contest winner refused to negotiate with us and didn't understand why I am required to obtain certain information for IRS reporting) who based his decision on whether or not to re-list us on his website on your approval of our contract. David at P&E, though willing to consider our contract himself, also refused to provide a neutral listing of us without your approval of the contract.

That being said, I don't begrudge your personal opinions of our contract. I stand by the Authors right to directly negotiate their own contract. I also encourage you to continue watching us as we evolve. Eventually, you will either find more to dislike about how we do business, or you will find that TZPP really is honest and transparent in it's dealings and not out to screw over it's authors.<<
 

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Dropping below the minimal sales threshold will not trigger an automatic reversion as that would be counter to TZPPs aim of working with authors over the long term. You are correct that in that instance an author is dependent on TZPP's goodwill; but if an author dislikes working with us enough to request that I revert the rights at that point, then I'm not going to withhold that from them. There likely exists other areas in our relationship that are strained.

If you're so willing to hand rights back at the author's request, then why not state in your contract that rights will revert via a trigger that the author can control, like the receipt by TZPP of a certified letter requesting them back? I have no publishing contract experience aside from what I've learned here at AW, but seems to me a clause like that wouldn't change the way you do business anyway, and would be a step toward putting prospective authors at ease.

Otherwise, you're just asking people to take you at your word. No offense, but people lie all the time, especially when there's money to be made.
 

victoriastrauss

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I understand that in a traditional contract Royalties are often calculated on the list price of a book. That method does not reflect actual accounting principles when properly accounted for on a profit share model.
Yes, but you aren't offering a profit share. A profit share is a 50/50 split of profits. You're paying that on ebooks, but on print books you're paying only 15%.
I believe that I previously detailed what Goods, Services and Production entailed in a previous response, in case I have not please see the list:

Cost of Goods: Retailer Freight (Distribution charges), Copyright, ISBN x3, Barcode.

Break-even for Cost of Goods is 19 units sold, and Authors, Artists, Staff, and the House begin to earn at this point.

Cost of Services & Production (limited to 50% as mentioned previously): Managing Editorial, Copy Edit, Proofing, Review, Cover and Interior Design, Editorial, Marketing, Research, and Sales.
This needs to be in the contract, for two reasons: the author needs to know exactly what will be deducted for the purpose of royalty calculation, and also needs contractual assurance that this won't change without notice. In a publishing relationship--regardless of good will on both sides--the only thing that counts is the language of the contract, which, for the author's protection, needs to be comprehensive and precise.

I'll also say that this is one of the worst royalty schedules I've seen. It's going to be quite some time before your authors start to earn--especially if, as many small presses do, you pay your editors and designers royalties on the books they work on, rather than a salary.
It is important to not that the actual per book royalty on this model with this form of standard accounting actually gradually increased with each sale, instead of remaining pegged to a fixed price. At unit sales rates above 2500, the per book royalty will often outperform the fixed list price.
How many books have you published that have generated that level of unit sales? Not counting author purchases. I'm also unclear on how a royalty could outperform the list price, since by definition a royalty is a percentage of sales income.
Dropping below the minimal sales threshold will not trigger an automatic reversion as that would be counter to TZPPs aim of working with authors over the long term. You are correct that in that instance an author is dependent on TZPP's goodwill; but if an author dislikes working with us enough to request that I revert the rights at that point, then I'm not going to withhold that from them. There likely exists other areas in our relationship that are strained.
True. But the author has no guarantee of this, and thus no protection if you choose not to relinquish rights.

I'm looking at things from the author's perspective. I'm also sympathetic to the publisher's perspective. Contracts need to be a balance between the interests of both. In this case, it's hard for me to see what interest you might have in holding on to a book that's selling fewer than 25 copies a year. So where would the harm be in automatic rights reversion once sales fell that low?

>> I've said this before, we're not for everyone. Authors these days are very guarded of their rights and very skittish where their relationships are concerned. If you're not looking to develop an ongoing relationship with us, we're likely not a good fit to begin with. <<
Being protective of one's rights and looking out for one's own protection doesn't preclude having an ongoing relationship with one's publisher. These two things should not be set in opposition. Sadly, they often are--at least, by publishers.
A key that you miss in your suggestion of a WFH contract is that a WFH has a single point of consideration (ie a one time payment for the copyright) there would be no royalties involved and the writer in that situation would transfer all rights and ancillary rights to the work, the technical author of the work is then the Publisher or other WFH buyer. The simple act of offering royalties negates the WFH aspect.
No. WFH authors do sometimes get flat fees, but many earn royalties as well. What negates the WFH aspect is that you don't demand a copyright transfer. Basically, there's just no reason at all for you to have this language in your contract.

Looking back through my notes, I see that your original contract did include a transfer of copyright (though this was internally contradictory, since the contract also obliged the publisher to register copyright in the author's name). Possibly this clause is a holdover from that original contract.
Additionally, we are not paying an advance, why would I then change my model to pay a ghostwriting consideration?
Then why include it in the contract? "Publisher shall have the right to request Author to develop sequels or prequels, new or additional titles in a series, or related works using any and all such elements, and may commission or contract with any other person(s) for the preparation of such sequels, series, or related works with Authors consent."
As far as pen names go, those are not protected by anything, and individuals can have similar names or pen names. >> I think that this is an aspect that is a non-issue, as I have no intention of taking the name just to spite an author, and the clause is clear that it is as we promote it, additionally we use this clause in ensuring quality control when chatting with film producers for options.<<
It's not a non-issue if it's in the contract. If you don't intend to take ownership of a writer's pen name, why do you "reserve all rights" to it in your contract?
I understand your feelings on the Agency clause. Again, this is only a concern for an author who has an agent. For those who do have agents, the agency clause if clear that it only applies to works or derivative works which are expressly covered in that particular agreement. The main legal purpose for this clause is so that we can properly account and pay royalties when an agent is involved. I do appreciate your caution, however, this is a clause that is not likely to be amended.
You can properly account and pay royalties without the extra verbiage about sequels, options, and "any and all rights". And no, it's not clear at all that the clause applies to works expressly covered in the particular agreement--because option works, while mentioned in the agreement, are not yet actually contracted for. How do you know, anyway, that the author doesn't have a one-book contract with the agent? Here's the actual language of the clause (my bolding):

"Author hereby authorizes and appoints [Name and Address of Authors literary agent or agency] (“Agent”) to act as Author’s agent in connection with this Agreement, including but not limited to the disposition of any and all rights in the Work, and sequels to the Work, and any options to future work of the Author under this Agreement. Accordingly, Agent is hereby fully empowered by Author to act on behalf of Author, to collect and receive all sums of money payable to Author, and to receive any and all statements, notices, or other communications to Author in connection with this Agreement. Receipt by Agent of any such payments, statements, notices, and other matter shall be a valid discharge of Publisher’s obligation to Author for such matters under this Agreement. This clause creates an agency coupled with an interest as between Author and Agent."

Sure, you may hardly ever actually work with agents. But that's no excuse for a bad Agency clause.
We use an economy of scale to help push our authors sub-rights, thus the more we have, the easier it becomes to do so.
What subrights have you sold to date? What arrangements do you have in place to access foreign markets, the film world, etc.?
I understand that much of your concern may stem from the fact that we do work with many first time authors, who may be unused to negotiating a contract and concerned that they don't have the voice to stipulate their terms. I appreciate that, it is a needed service.
But in this case, apparently, quite useless.

Look, I don't think you have ill will here, or an active intent to exploit your authors. You did change some of the more dreadful aspects of your earlier contract, and I acknowledge that. But I do think you may not properly understand your own contract, or at least the implications of some of its language. It's clear you don't want to make further changes, and that's your right, though I think it's regrettable. I'm actually glad we're having this exchange, so authors can make up their own minds.

- Victoria
 

veinglory

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Regardless of the context, an net contract with broad phrasing where the author is paying any of the publishing costs is a deal killer for many authors. I literally stop and walk away right there. Too much shenanigans under the bridge to even think about playing that game again.
 
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traveo2343

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Hello All,

justbishop: The reversion trigger as you mentioned already exists in the contract. The Author need only send a letter stating that as sales have fallen below 100 units they wish to terminate our contract. The contract requires that I will not "unreasonable withold that request." The key here is the wording, this allows me to deny that request if I can provide reasonable justification to decline. In most cases I would not be able to justify a declination, but in some, I suppose that I could -- herein lies the concern. If I remove the word "unreasonably" from the language then this becomes a non-issue in that at the authors request, I would be obligated to provide a letter of reversion.

+++

veinglory: Authors who work with us, don't come out of pocket for anything they publish through us. The one caveat to this is in dealing with Non-Fiction writers (excluding Memoirs and Literary Fiction) where their specificity can require us to work with Artists and outside vendors we don't already have contracts with -- but Non-Fiction is a bit of a different ball game, and their are other numerous expenses that go into the production of non-fiction that are non-existent in fictional work.

+++

Hi Victoria,

I agree it is a wonderful thing providing authors the opportunity to review this exchange and decide for themselves.

You do bring up many good points...

I will make a a few more broad updates to the contract this weekend, and I will post here when I have updated it to our parent website www.trgmholdings.com

The current contract does stipulate that royalties are accounted for via GAAP principles and I will clarify how net revenues are defined. I will also have a link to this discussion posted on our submissions guidelines page.

The back-list is something that is built up over time, and is the main reason for holding onto a title that may occasionally fall below that 25 unit threshold. I will remove the word "unreasonable" from that clause in the contract, giving the extra protection to the author.

The royalty rate on print books is about average at 15%. eBooks and licensed rights are both 50/50 split. I may not have been clear in my response, the royalty percentage rate may be flat in the contracts, but the actual fiscal amount paid increases with each sale, as the cost associated with production is minimized via economies of scale.

I've said before, using eBooks as the model, which is where we place our ROI emphasis as print books are expensive -- the break-even point for an author to begin seeing royalties is 19 units at a list price of $4.99. I've said before if we can't sale 19 units we have no business publishing books. :)

I am hesitant to place numbers into the contracts, I don't like making any provisions non-negotiable. I am willing to place the 50% allocation on Cost of Services into the contract, but it would become a non-negotiable point. My concern is that where numbers are concerned most authors consider those negotiable. I'm more inclined to abstain including that and have the authors trust us. But I would like your feedback on this.

If you rather I include it and simply make it apart of the short list of non-negotiable items, please tell me.

I have no intention of limiting our ability to ask for a sequel or prequel and have it be a derivative work in the series. >>Again, I don't see this as an issue, the author has the final say in whether or not to approve this request.<<

Regarding the pen name, see my peronal note: "we use this clause in ensuring quality control when chatting with film producers for options."

I will review the agency clause again.

We have been discussing on-going relationships with several fill producers, and we have been actively looking into bringing many aspects of the ancillary rights in-house. This does not change that fact that our ability to solidify rights licencing on behalf of our authors is better when economies of scale is employed. Buyers like to have choices.

+++

I will again review the contract. After this review I doubt that I will be reviewing it again for the next year or so.
 

elindsen

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elindsen: If you would please tell me which Editor responded to you so that I can address that, it would be greatly appreciated. We aren't in the business of being rude in our rejections, which is often times a reason that rejections are form letters.
I'm sorry I don't remember. It was well over a year ago.
 

traveo2343

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elindsen: If it was over a year ago, chances are it was by an Editor who is no longer with us. I did forward your comment to all of my staff who were just as mortified as I was.

If you have an experience like that with us again, do not hesitate to email me directly.
 

traveo2343

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Hello All,

I have made some significant changes reflecting your commentary and changes in how we are conducting business, as well as new developments that have occurred in business partnerships and those we anticipate solidifying over the next 6-8 months.

The contract has been Updated, unless I have significant push back from authors I will revisit this contract again in May 2014 when all other contracts are slated for review.

You can find the updated contract at: http://trgmholdings.files.wordpress.com/2013/08/imprint-spa-2013.pdf

This is going to please some in certain areas, and displease some in others. That is just how the dice roll. As always I welcome feedback and discussion here.

I will check back here once more Sunday evening, and again in a few weeks.
 

LindaJeanne

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I'm far from an expert, so correct me if I'm wrong but...

Wouldn't your options clause allow you to bind an author to this same contract for the rest of their career, if you chose to do so? Since the "same terms" would include the same option clause on the next book, ad infinitum.
 

Gary Compton

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Victoria, do you have a link to a publishers contract that is acceptable on behalf of both parties.

Cheers

Last month I had the opportunity to look at Zharmae's standard publishing contract, and it's not a contract I'd advise an author to sign.

Among other things, it's an all-rights contract for a publisher that has shown no evidence that it has the ability to market or exploit subrights, it's life-of-copyright without an adequate reversion clause, royalties are paid on net profit (the publisher's net less the costs of "goods, services, and production"), the Agency clause grants the author's agent powers that could extend beyond the author's own agreement with his/her agent, and the Option clause binds the option book to the same terms as the existing contract.

- Victoria
 

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So I joined up here after doing some googling of Zharmae to see what they're up to. I entered their short story competition and was accepted as one of the runners up, which gave a token payment (which they did honor) and promises a physical copy of the book once it's out. The second has not occurred yet, but the problems with their distribution I was told cross over to the printing front, so no physical book exists yet. I'm interested to see what happens with their relaunch.

Here's what I can say about the company with my experiences:

1. They do care. Their first contract was a bit oppressive, which people noted on here back in 2011. When authors complained, they didn't try to stick it to the author, they changed their short story contract drastically to be something concise and sensible for the project. It still asks for a little more than you see in most contracts, but as Travis mentioned, it's negotiable. I've found they're actually pretty conciliatory in negotiating as well.
2. They're very approachable. I'm 2nd drafting my first novel after I've put a bunch of short stories and a fairly popular self-pubbed comic out there. I'm not sure what I want to do with it, whether I want to try to hit the big publishers or go with a small publisher like Zharmae (I don't want to self-pub, know that). There seem to be pros and cons to both. Travis not only has taken an interest in my career and book to talk to me about it after having published a short of mine, he listens to my pretty constant status updates and is pretty patient with it. He's also given me editorial feedback from Zharmae editors before I've even finished or submitted. That's pretty darn cool.

On a lack of advance for novels: I'm finding more and more that these small press publishers are doing just that. I have a really good friend who runs another small press (Panverse Publishing) and their deal is pretty similar with a royalties only scale. Knowing him well, I can tell you he's putting his heart and soul into the editing, copy editing, and cover choices. He finds reviewers for his books, has a street team of folk to bump those reviews on amazon and works hard for his authors. There's both hours and money that he spends to get each book off the ground. Now I don't live close to Travis to be able to see his day-in-day-out work, but from conversation on the internet, he seems to have a similar work ethic to my other friend for his press. I don't think every small press will be that diligent, but from what I've seen they're both on the right track generally speaking.

On Marketing: This is the real mystery. Do they have a marketing strategy that works? I don't know. And this is something they'll likely not give you the 100% nuts and bolts details of without a contract, because if you could just mimic their strategy no problem, why would you want a small publisher? I think this is a watch-and-see over time for both my friends at Panverse and Zharmae. Their effectiveness on this front is what will make or break the companies long term, but from what I said above, I do hope they both succeed.

Hope that info helps.
 
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Thedrellum

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Hello otomo, and welcome to AW!

I just wanted to say that, regarding your novel, I don't see any reason why you shouldn't start at the top and work your way down. What do you have to lose by trying to get an agent and/or submitting to those major publishers that take unagented submissions?

As you said yourself, the two small presses you know of are in a wait-and-see period. One main advantage of larger, trade publishers is that they've already proven themselves and their ability to sell.

Good luck, though, whichever path you choose.