To Progress, Sometimes You Must Retreat

Two weeks ago, I had the opportunity to attend (and teach at) the Rocky Mountain Fiction Writers' 2017 Writing Retreat in Colorado Springs.

The retreat took place at the lovely Franciscan Retreat Center, a beautiful, serene location surrounded by mountains and inhabited by lots of fuzzy deer.

The attendees, fellow presenters Anita Mumm and Susie Brooks, and I spent three days working, learning, and sharing our craft and our stories.

Each morning, after a tasty breakfast, most of us gathered for a teaching session--though other attendees set up computers in their rooms, on couches in the comfy lounge, or outside on the retreat center's lovely campus, for private writing time. Afternoon activities included blue pencil critiques, writing classes, and round-table critiques in which attendees both gave and received constructive (and positive) criticism of one another's works.

In the evenings, we gathered in the lounge for readings, talk, and wine (the tasty kind . . . without the "h").

At any hour of the day or night, you could find people writing, editing, or talking through plot points with other writers, either in the lodge or on one of the center's many lovely trails.

 

Did I mention there were deer?

 

 

 

 

We laughed. We talked. We worked on our stories. We let the "real world" slip away for three delightful days . Regardless of the jobs we do or the lives we led below the mountain, for this delightful, peaceful weekend, we were writers . . . first and only.

The atmosphere was encouraging, invigorating, and inspiring--just the thing to shake loose blocks and get the writing gears in motion.

Also, they had deer. Yay, deer!

 

 

 

 

 

Writing is mostly a lonesome art. Unless you write with a partner (and often, even if you do) you probably spend a lot of hours alone at your desk--or wherever you write--creating words in a kind of artistic vaccuum. This doesn't bother most of us - writers are often introverts - but even the most introverted of writers can benefit from time in the company of others who share our peculiar, solitary art.

Hence the title: sometimes, a retreat may provide precisely the atmosphere and inspiration you need to move forward with your writing. Although they do cost money, retreats pay enormous dividends in craft improvement, professional connections, and inspiration. It's easy to let the needs of the world come between you and your writing, and a retreat is often the best prescription for writers suffering from self-doubt or flagging strength.

If you can, I hope you attend the RMFW 2018 retreat--and if you can't, I hope you can take the time to retreat on your own, or with a group of writers close to you. I think you'll find the benefits well worth while.

Have you attended a writing retreat? I'd love to hear about your experience too! 

How to Obtain a Reversion of Publishing Rights (At Least, How to Try)

While wearing my publishing lawyer hat, authors often ask me about how to terminate an old (or unprofitable) publishing contract and obtain a reversion of their rights to the relevant works.

Obtaining a reversion of rights can be tricky, and is always dependent on the terms of the contract (and/or the author's relationship with the publisher). 

Normally, the contract states the terms--if any--under which an author can terminate or obtain a reversion of publishing rights, and if the conditions in the contract are not met, the author cannot terminate unless the publisher is willing to release the rights.

However, the fact that a work is under contract isn't always the end of the story.

Here are the recommended steps for authors hoping to terminate a contract or obtain a reversion of publishing rights from a traditional publishing house:*

1. Review the Contact.

In almost all cases, the contract will state exactly when and how (and by whom) it can be terminated.

If the contract allows you to terminate under the current circumstances, follow the procedures in the contract to request a termination and reversion of your rights. (Note: if you only want to revert certain rights--for example, foreign translations--follow the procedures for requesting those rights only.)

If you have questions, or don’t understand the contract, get help from a publishing lawyer or a literary agent.

2. Ask the Publisher (Nicely) to Terminate the Contract and/or Revert the Rights.

By law, the parties to a contract can always modify or terminate their agreement by mutual consent, even if the contract doesn’t say so.

If the contract doesn’t grant you the right to terminate, you can still ask the publisher to terminate the contract and revert your rights voluntarily. Some publishers will agree to termination, or reversion of certain rights, when sales have dropped so low that keeping a work in print creates more obligations than benefits. Make sure your request is polite and professional—regardless of your relationship with (or opinion of) the publisher.

As my grandmother used to say, you catch more flies with honey than you do with vinegar.

3. Consult a Publishing Attorney or Literary Agent.

If the contract doesn’t grant you termination rights and the publisher refuses your polite request for termination (or reversion of certain rights), seek the advice of a publishing attorney or agent. Sometimes a third party can help negotiate solutions that authors cannot obtain on their own behalf.

However, be aware that in most cases your right to terminate a contract and obtain a reversion of publishing rights is limited by the terms of the agreement. Unless the publisher breaches the contract, you may have no choice but to wait the contract out.

Which brings us to one final, forward-looking step:

4. Ensure all Future Contracts Give You Unilateral Termination Rights and Out of Print Clauses Tied to Royalty-Bearing Sales.

Admittedly, this doesn't help you with the old agreement, but it will ensure you don’t end up in the same situation again.

Tying out of print status to royalty-bearing sales, and giving the author the unilateral right to terminate if the work goes out of print, helps ensure that authors can retrieve their rights if a book stops selling (and stops a publisher from keeping works perpetually “in print” simply by listing ebooks on Amazon).

When it comes to publishing contracts, the best defense is a good offense—negotiating  unilateral termination rights and reversion clauses into the agreement before you sign.

*Note: These tips apply only to traditional publishers, and in situations where the publisher is NOT in breach of contract. If the publisher IS in breach of contract, consult a lawyer or literary agent immediately.

Note also: Author-publishers should always be able to terminate any contracts or publishing arrangements at will, subject to payment of fees owed and other pre-existing legal arrangements. If you self-publish, make sure your contracts give you all the power when it comes to termination.

How to Identify & Avoid Some Common “Bad” Publishing Deals

Business-savvy authors must learn to recognize and avoid a wide variety of scams and legal but inappropriate publishing deals. Some of the most dangerous ones remind me of my law school contracts professor’s warning that a person can make as good a deal, or AS BAD A DEAL, as (s)he is able.”

Some publishing offers are very bad deals indeed. 

Not all traditional publishers are out to take advantage of authors, but sometimes it's difficult to tell the "good" from the "bad" (not to mention the "ugly") unless you know specifically what to look for:

 

BEWARE OF “WE PUBLISH, YOU PAY” OFFERS.

The publisher, not the author, should be responsible for all the publishing costs in a traditional publishing deal. Author-publishers (aka, self-published authors) bear the costs - but also receive most (if not all) of the profits. 

Beware of any contract that claims to offer a "traditional" deal but requires the author pay for some or all of the costs to produce the book. Often, the costs are not stated, outlined, or detailed up front, leaving the author on the hook for undisclosed (and often enormous) sums. Even where costs are listed, they usually exceed the amount the author would have to pay to self-publish the work - in which case, the author is better off publishing the work himself or herself, as an author-publisher.

Remember: a contract that calculates royalties on “net receipts,” defined as “amounts received by the publisher less the costs of editing and publishing the Work or less the Publisher’s actual costs to publish and sell the Work” is actually requiring the author to pay the publishing costs. This is not a traditional publishing deal.

A potential exception to this is an up-front, disclosed, properly drafted “hybrid” publishing arrangement, where the author and publisher understand and accept the cost-sharing terms.

In a hybrid arrangement, the author does share the publishing costs, but also receives an equivalent share of the benefits and increased control over cover art and other parts of the publishing process.

However, legitimate hybrid publishers are always up front about the fact that the author isn’t being offered a “traditional deal.” Anyone who tries to tell you that the “author pays” model is a “traditional publishing deal” is trying to take advantage of your ignorance.

 

BEWARE OF “WE PUBLISH, YOU BUY” OFFERS

A publishing contract should never require the author to purchase copies of the finished book.

Traditional publishing contracts often permit authors to buy finished copies, usually at a discount. However, traditional contracts don’t ever require the author to purchase books at any price.

One publishing “offer” I seeing a lot requires the author to purchase several thousand copies of the finished work—and to pay for them in advance!

Consider: if you contract to buy five thousand copies of the finished work, how many copies does the publisher have to sell someone else to make a profit?

NONE

Unsurprisingly, these publishers generally make no effort to sell the books they publish to anyone other than the authors.

NEVER sign a contract which requires you to purchase copies of the finished work. 

 

BEWARE OF CONTRACTS WITH MANDATORY PAID MARKETING COMPONENTS

These contracts include a “mandatory marketing agreement,” requiring the author to pay the publisher (or an affiliated marketing agency) thousands of dollars to market and advertise on the author’s behalf.

This is not a traditional publishing deal, and it’s not a good deal, either.

Once again, the author pays thousands of dollars, up front, for normally-unspecified “marketing.” Where services are specified, they usually include only in-house press releases, trailers for the publisher’s own YouTube channel, writing Facebook posts, and other things the author could do for him-or-herself for free.

As with “We Publish, You Buy,” this type of publisher doesn’t make the bulk of its money from selling books. They make it from unsuspecting authors.

 

So: Never sign contracts requiring you to pay the publisher out of pocket, and if you suspect your publishing deal isn’t quite as fair as the publisher claims—don't be afraid to walk away.

The publishing "life" you save will be your own.

Photography & Writing Research: Shoot First, Ask Questions Later

Whether you're writing historical novels, contemporary fiction, or even fantasy, research photography is a skill worth developing (see what I did there...). Not only does it help with research, but photos also help writers connect with readers, supplement and inspire blogging content, and provide a library of images writers can use with articles and online.

I've already written a post about the importance of shooting "B Roll" images, but today I thought I'd offer a few tips on getting the most from your research photography.

1. Shoot EVERYTHING.

Those of us who grew up in a time when cameras used "film" and photos cost money to develop and print often forget that pixels are effectively free - and it costs no more to shoot a thousand photos than it does to shoot a dozen.

During my recent research trip to Japan, I shot over 10,000 images (in 3 weeks' time). While you may not need that many images, it's easy to delete unwanted photos after you return - and hard to go back in time to capture things you missed. Err on the side of capturing more, and sort/file/delete when you get home.

2. When possible, use maps & signs for context.

Historical and other sites often give out free maps detailing the location and sights of interest. Shooting a photo of the relevant portion of the map before you photograph the location - or even just photographing the sign at the entrance to the historical or other site -  can help you keep track of the photos when you return.

When visiting Fushimi Inari Taisha (Shrine), south of Kyoto, I climbed to the top of Mt. Inari and took almost a thousand photos. To make it easier to remember where I took them, I also photographed the "station signs" that hang at each of the sub-shrines and stopping points at intervals along the route:

So even months later, I know these torii sit just outside Station 13:

Whether I'm working on a novel, writing a blog or article about my experiences in Japan, or simply offering context for a photo I want to post on social media, using the map or local signs to anchor the photos helps me remember where and why I took them.

3. Shoot your subjects from multiple angles.

During my research trip, I stayed in a Buddhist temple and slept on traditional Japanese bedding - a futon with a buckwheat-hull pillow. I deliberately shot multiple photographs of the futon, alone:

In the context of the room:

And from multiple angles:

...to ensure I had the photos needed, for writing research and for blogs about futons and Japanese temple lodgings. Shooting multiple shots from different angles let figure out which photos to use, and in which contexts, after I came home.

(The Takeaway: Don't waste valuable time sorting photos on your trip. Shoot many, and sort them later.)

4.  Crop duplicate photos to highlight details.

Taking extra photos of the futon in the temple also gave me at least one I could crop for a blog about traditional Japanese pillows stuffed with buckwheat hulls:

Creative cropping helps you turn one image into several (either by using extras or by duplicating the original and cropping it in different ways).

 

5. Remember to wait for a "clear" shot without strangers, or to crop (or blur) their images out.

In some countries, it's illegal to photograph strangers or to share their images without permission. Even in the U.S., permission is required in order to use photographs of identifiable people in many contexts (there are exceptions, but "on my author website where I also promote my books" is generally not among them). The solution: crop or blur photos to remove the images of strangers before you post them.

I shot this original image (note that I blurred the faces before posting it) to show the way a temple nestled up against a mountainside:

Here's the same photo, cropped to remove the people:

With a little practice, and a creative eye, it's easy to build a library of research photos that meet a variety of writing and social media needs.

Have photo tips to share? I hope you'll add your thoughts in the comments too!

Copyright Rules for Settings

In my day job as a publishing lawyer, I often get asked how copyright impacts an author's ability to use a specific setting in works of fiction. Like many other copyright questions (and, honestly, every other question a lawyer gets asked), the answer is "it depends."

Fortunately, the applicable rules are fairly straightforward and easy to analyze.

The key to understanding how copyright (and infringement) relates to settings is remembering that copyright law protects an author’s unique expression, but does not protect either facts or the “building blocks” of expression.

A setting which is unique, or created entirely by the author, receives far more protection than settings based on historical events or real places…but that’s not the end of the story.

A setting (like a character or other elements of an author’s work) receives increasing protection as the author "creates" it with more distinct and original detail.

Entirely fictitious settings--like J.K. Rowling's famous Hogwart's School of Witchcraft and Wizardry or the "Battle School" that appears in Orson Scott Card's novel Ender's Game--receive the highest level of protection, because they are entirely fictitious, and the authors' own creations. You cannot use someone else's entirely fictitious setting without permission. Doing so is copyright infringement.

Semi-fictitious settings--like the version of the shogun's palace I created in my second mystery, Blade of the Samurai--receive protection to the extent of their original, creative elements. I based my shogun's palace on a real place (Kyoto's Nijo Castle), and although I can't claim copyright ownership of the Nijo Castle layout, it would infringe my copyright for someone to copy the fictitious details I layered onto the building and grounds to create my fictitious version.

"Real world" settings - for example, the Oval Office of the U.S. White House -- receive less copyright protection still. As with other settings, the copyrightable elements are only those which the author creates; the factual or historical details can be used (or re-used) by anyone.

Let’s take a closer look at some important key components:

Copyright Law Does Not Protect Historical (or other) Facts.

If you write a historical novel based on the explosion of the Hindenburg, you can’t prevent other authors from using that topic. You cannot prevent them from using the Hindenburg as a setting, and you can’t claim infringement if the real historical figures who appear in your novel also appear in another author’s work.

Copyright Does Give (Limited) Protection to Unique Expressions of Historical Events.

You can protect the unique, creative way in which you describe and express historical events, but the closer your expression comes to duplicating historical facts, the thinner the protection you receive. For example, you can’t stop another author from using  the actual newspaper headlines that appeared on the day the Hindenburg exploded. However, if you create a fictitious newspaper, and write a fictitious headline, you can prevent other authors from using that portion of your work.

Fictitious Locations Based on Genuine Ones Receive More Copyright Protection Than Real-World Locations.

Actual facts about real-world locations can't be protected by copyright. If you set your novel at the Empire State Building, and describe it accurately, you can’t stop other authors from doing the same. You can stop copying of the creative elements of your work, but not the use of facts.

The level of protection increases if you use a fictitious building based on—but different from—a real one. Consider Nakatomi Plaza, the office building in the movie Die Hard. Nakatomi Plaza isn’t real place; the building the director used in the film is called Fox Plaza, and it’s located in Century City, California. By fictionalizing the building, the scriptwriters allowed themselves not only more leniency in constructing sets, but also ensured that no one could legally duplicate those exact descriptions for use in another work.

Completely Fictitious Locations Receive the Highest Level of Copyright Protection.

J.K. Rowling’s wizard academy, Hogwarts, is located . . . somewhere. Rowling constructed a completely fictitious (and highly creative) setting for her novels, which also means she receives the highest possible level of copyright protection. By making Hogwarts a completely fictitious place, with a layout and description she created, she ensured that it belonged to Harry Potter’s world—her world—alone.

If you copy identifiable details from Hogwarts (aside from ones that would qualify as “basic building blocks of expression”), you may be infringing Rowling's copyright. (Note: Unlicensed "Fan Fiction" is almost always copyright infringement, even if it's not prosecuted by the copyright holders.)

What is a “Basic Building Block” of Expression?

The answer is as simple as sandwich cookies and Oreos. The idea of taking two cookies and putting a filling between them, thereby creating a “cookie sandwich,” is a basic building block of expression—a generic concept.

Anyone can make a sandwich cookie, with any cookie and any filling.

However, if you use a particular recipe of chocolate cookie, with designs on one side, and you fill it with a specific mixture of white, sugary filling, and if you have the courage to stamp the word “Oreo” on the side, you’ve copied something that belongs to someone else, and you may get sued. (In the baking world, the lawsuit would be for trademark infringement. If you duplicate an author’s wordsmithed Oreo, the result is copyright infringement.)

The basic building blocks of expression are generic concepts, settings, and character archetypes: the whodunit mystery, the subway, and the cop.

The farther an author strays from those basic, generic archetypes, the higher the level of copyright protection his or her creation will receive.

Any author can write about “a cop.” An ex-cop who becomes a butcher receives a little more protection. But give that ex-cop butcher a love of tapioca pudding, a pet tarantula, and a vaccuum phobia, and you’re getting into territory nobody else can copy without consequences.

The takeaway lesson? It’s fine to use fact-based settings (and most of us need to, when our works are based in the “ordinary world”) – but know that other authors can use those settings too, as long as they don’t copy your work. The more creative (and fictitious) your settings, the more protection your work receives.

So . . .write the most creative story you can, and use even real-world facts in as unique and individual a manner as possible.

Your copyrights--and your readers--will thank you for it.

A Few Words About Photo Copyrights

The topic of photo copyrights came up during several of my workshops at last weekend's Colorado Gold Conference (one of the best Writers' Conferences anywhere - and if you've never attended one, PLEASE join us next September, when the conference turns 35!). Authors often have a limited understanding of how copyright law applies to photographs - and sometimes don't realize that using photos pulled from the Internet without a license is copyright infringement unless the photograph is in the public domain (or the owner has released it for use by others).

In light of that, I thought I'd take a little time today to review the law of copyright as it applies to photographs (and their use online), and offer tips for protecting yourself and your work from claims that you've infringed a photo copyright.

Copyright attaches to photographs at the time of creation, and belongs to the photographer who shot the image (or, in some cases, the client who hired the photographer to create works for hire). You cannot use someone else's image without a license (or permission), unless the image is released for your intended use and/or has entered the public domain--and you must be able to prove that status.

In other words: you cannot simply pull someone else's photographs from the Internet and use them, even on a blog that earns no money. 

Also, you cannot assume a photograph is released for use or in the public domain because it appears on Pinterest or on someone else's blog or website. (Even sites that claim to offer copyright-released or licensed photos for free can carry some degree of risk, because if a troll uploads a copyrighted image without the author's permission, people who subsequently use that image may be subject to infringement claims. It's rare, but I've seen it happen, with expensive consequences.)

So what's an author to do?

Some authors subscribe to reliable paid photography services that give access to image libraries. For a fee (and, in some cases, for free on a more limited basis) authors can use the images in these libraries for book covers, blogs, and other creative endeavors. Some services work on a "pay as you go" basis, licensing individual images, while others allow authors to pay a monthly (or annual) fee for unlimited image use. Only subscribe to reputable sites, and when using free photo sites, make sure the operators actually check the source of the images they offer.

Some authors stick with images that have entered the public domain, either due to copyright expiration or a confirmed copyright release by the photographer or copyright owner. Once an image has entered the public domain, it's free to use and it isn't copyright infringement to use it for blogs, book covers, and other creative works. The U.S. Library of Congress has an extensive collection of images, many of which are in the public domain and thus completely free to download and use. (Here's a link to their Japanese collection - much of which is in the public domain.) 

When pulling images from any website, BEWARE. Some free image sites are legitimate, but others may contain stolen or copyright-infringing images uploaded accidentally (or, in rare cases, on purpose by devious individuals wanting to cause trouble). When in doubt, don't use the image. You will be legally liable for copyright infringement even if the infringement was accidental.

img_8490

The best solution of all is to create the images yourself. Most people have either a camera or (more commonly) a mobile device that includes a camera. When traveling, or even out and about near home, take photographs of everything from rocks to flowers to automobiles (be sure to blur any license plates you capture - or, better still, take photos where the license plate doesn't show).

 

I refer to this habit of taking photos of various objects and places as "shooting B roll" - and it's a habit every author and blogger should adopt.

In film and television, camera crews shoot a combination of "A roll" - the scenes involving the actors, hosts, or primary subjects of the film - and "B roll" - still and moving shots of background, interesting objects, and other items used in post-production to enhance the film, as well as for bumpers and introductory scenes.

By shooting your own B roll when you're out and about, you're establishing a photo library of images you own, which you can use for any and every purpose, from cover art to blogging and beyond.

img_3921

 

Need a mug for a post on your favorite morning beverage?

 

 

 

 

Done.

 

Don't limit your photographs to family functions, historical sites and lovely landscapes--though they're certainly useful too. 

img_0411

 

Start photographing that B-roll now. It won't take long to build a photo library all your own.

 

 

Like this bowl, you'll be glad you did.

Tips for Pitching Your Novel to an Agent or Editor

With Colorado Gold just around the corner (and other conferences happening around the country throughout the rest of the summer and the autumn), many authors are preparing to pitch a manuscript to a literary agent, an editor, or both. In hopes of reducing stress and helping you land a request for pages, here are some tips for pitching your work to publishing professionals:

1. BE ABLE TO EXPLAIN (AND PITCH) YOUR BOOK IN A SINGLE SENTENCE.

Yes. ONE sentence. No more than a single breath - and that's not negotiable. The longer you talk before the conversation part of the pitch begins (see tip #2...) the less likely the agent or editor is to ask to read your manuscript.

The point of the initial one-sentence "elevator pitch" is to make the listener want to read the book, or at least to ask you for more information. The initial pitch is not the place to explain your protagonist's intricate backstory, six things that happened before the novel opens, or your favorite twisted subplot involving a carp full of angry bees.

Find a way to explain your book in a single sentence. You don't have to tell the entire story--just enough to make the listener curious enough to want to know more. (If you're having trouble condensing or figuring out what to say in that sentence, sign up for a pitch coaching session, ask a friend for help, or read up on elevator pitches in various trustworthy corners of the Internet.)

2. REMEMBER THAT PITCHING IS A CONVERSATION, NOT A MONOLOGUE.

When you sit down with an editor or agent (or ask to pitch them elsewhere at the conference), the opening salvo is a single sentence (or single breath) but after that--if the listener is interested in your work--there's going to be a conversation.

Yes, I know that's terrifying. Yes, you have to do it anyway.

The good news (great news, really) is that agents and editors are human beings, and I have never known one to actually bite an author in public. (Lawyers, like me, are another story. Get your shots before you engage.) Jokes aside: try to remember that agents and editors come to conferences voluntarily in order to find new authors and projects to acquire. They love stories, books, and publishing. . .just like we do. Plan for your pitch to involve a conversation, and try to enjoy it.

3. KNOW YOUR GENRE AND TARGET AUDIENCE.

It's not enough to know your book and be able to pitch it succinctly. You need to follow up by knowing the genre and target audience for your book. (Spoiler alert: "ALL GENRES IN ONE" and "EVERY LIVING HUMAN" are not the right answers.) Every traditionally published book will have to be placed on a specific shelf in a bookstore or library--and you need to know which shelf that is before you pitch to an agent or publishing house.

(Note: author-publishers have a bit more freedom if their plans for the work do not involve library, bookstore, or similar sales. Otherwise, this applies to self-published authors as well, though admittedly not in the agent/editor context.) 

4. RESEARCH THE AGENT (OR EDITOR'S PUBLISHING HOUSE) AHEAD OF TIME.

Agents and editors normally specialize in certain types of books and certain genres. Pitching your dystopian YA romance to an agent who only represents mystery wastes your time (and also the agent's), and offering your erotic graphic novel to a children's publishing house won't end much better.

Most agents and publishing houses have websites. Visit those sites, as well as the agent or editor's Facebook and Twitter feeds (if any) before the conference. Know the person you're pitching and his or her preferences as well as possible, so you know how to pitch your work to best advantage.

5. DON'T RE-PITCH THE SAME PROJECT (UNLESS IT'S TRULY A DIFFERENT BOOK).

This is a difficult one for many authors, especially those for whom it takes more than a year to write a book. However, it's also a serious turn-off to literary agents and editors to hear a pitch for the same project they considered (and, presumably, passed on) once before.

Exceptions to this are:

  • Where the agent or editor asked you to revise and resubmit, and you've finished and polished the project as requested.
  • Where you have revised the project so much, and so thoroughly, that it truly constitutes a different project. (Have someone else evaluate it if you can't be objective.)

Literary agents hear a lot of "repeat pitches" for the same projects, and I've never heard of one changing his or her mind unless the book was truly different. You'll have a much better chance approaching a different agent or editor--or writing a new and even better book! (And you CAN write another, better book. Trust me. I had to do it five times before I found my agent, and although those years were difficult, I learned a lot along the way. If I could do it, you can do it too.)

6. HAVE FUN.

7.  NO, SERIOUSLY. THIS IS ACTUALLY SUPPOSED TO BE FUN.

Pitching your work to an agent or editor means .... (wait for it...) YOU FINISHED A MANUSCRIPT! That's awesome, and something to celebrate! Don't let it go entirely to your head, but be proud of your achievement, proud of your book, and happy about the fact that you have a manuscript to pitch.

Authors often feel frightened of pitching because they find industry professionals intimidating to talk with. (Don't. They put peas in their ears just like you do. On second thought, nevermind. And my mother says "don't put peas in your ears.") Sometimes authors worry that agents and editors won't like their manuscripts. Maybe not everyone will...but no one will if you don't try.

If you're still nervous, come find me at Colorado Gold or talk to another author who's been through the pitching process and come out the other side. (There are lots of us, and we're glad to talk with you about our experiences.) Pitching isn't easy, but if you go in with the right attitude, it can be educational and fun.

Pitching veterans...what are YOUR top tips for pitching an agent or editor at a conference?

How to Spot (& Avoid) “Pay to Play” Publishing Contracts

In recent months, I’ve seen a resurgence of some terrible publishing “offers” that business-savvy authors need to recognize . . . and avoid.

Although these “deals” are legal if an author signs them, every time I see one of these contracts, I'm reminded of my law school contracts professor’s favorite saying: “You can make as good a deal, or AS BAD A DEAL, as you are able.”

And authors who accept these contract offers are making a very bad deal indeed.

Let's take a closer look:

BAD CONTRACT #1: “WE PUBLISH, YOU PAY”

This contract requires the author pay for some or all of the publisher's costs to produce the book. Often, the costs are not listed in detail up front, leaving the author on the hook for undisclosed (and often enormous) sums. When costs are listed, they often exceed the amount the author would have to pay to self-publish the work - meaning the author could hire a professional cover designer, developmental editor and copy editor . . . and still not pay as much these contracts require.

The publisher, not the author, should be responsible for all the publishing costs in a traditional publishing deal.

There are some legitimate "hybrid presses" that share the publishing costs with the author (and generally pay MUCH higher royalties--at least 50% of gross income--to offset those shared expenses). However, the legitimate ones are vastly outnumbered by the ones who simply want to make a buck off an unsuspecting author's dreams--so always have a hybrid-style contract reviewed by a publishing lawyer who works for YOU before you sign.

Beware: sometimes “pay to play” terms also lurk in the royalty language. A contract which pays royalties on “net receipts” and defines “net” as “amounts received by the publisher less the costs of editing and publishing the Work or less the Publisher’s actual costs to publish and sell the Work” is requiring the author to pay for the publisher’s costs. This doesn’t require payment out of pocket, but it’s still an inappropriate "pay to play" arrangement. 

Any time a "traditional" publisher tries to shift the costs of publishing the Work to the author—either up front or in the royalty share—the publisher is altering the traditional model and asking the author to take on an unfair share of the risk.

Legitimate hybrid publishers are always up front about the nature of the arrangement and the fact that the author isn’t being offered a “traditional deal.” Anyone who tries to tell you that the “author pays” model is a “typical New York contract” or a “traditional publishing opportunity” is trying to take advantage of your ignorance.

BAD CONTRACT #2: “WE PUBLISH, YOU BUY”

A publishing contract should never require the author to purchase copies of the finished book. Most publishing contracts permit the author to purchase finished copies, usually at a significant discount from the cover price. Some contracts restrict what the author can do with those discount copies (for example, some contracts prohibit their re-sale). However, traditional publishing contracts don’t ever require the author to purchase books from the publisher at any price.

One publishing “offer” I see a lot requires the author to purchase several thousand copies of the book and to pay the publisher for them in advance. The author must pay the publisher tens of thousands of dollars up front, but give the publisher full control over cover art, editing, and the content of the finished work. Don't do this. Ever.

Do the math: if the author buys five thousand copies of the finished work from the publisher at $16.95 apiece, how many copies does the publisher have to sell someone else to make a profit? The answer, of course, is NONE—and these publishers often make no effort to sell their books to anyone other than the authors.

NEVER sign a contract which requires a mandatory purchase of the work. Legitimate publishers just don’t work that way.

BAD CONTRACT #3: MANDATORY PAID MARKETING & "AUTHOR TRAINING" 

A few publishers offer unsuspecting authors a “traditional publishing deal” – where the publisher pays publishing costs and industry-standard royalties on sales – paired with a “mandatory marketing and author training contract” that requires the author to pay the publisher (or an affiliated marketing agency) thousands of dollars for marketing and "author training" services.

This is not a traditional publishing deal, and it’s not a good deal, either.

Once again, the author pays thousands of dollars out of pocket in return for unspecified "marketing" and "training." Even if services are specified, they usually include only things the publisher (or its “marketing arm”) can do in-house, like writing press releases, promotional Facebook posts, and other things authors can easily do themselves. Here, too, the publisher doesn’t need to sell any books to make a profit, and authors usually end up paying far more than the value of what they receive. 

Fortunately, authors can avoid bad contracts like these by following a few simple guidelines:

1.  Never sign a "traditional" contract that requires you to pay the publisher money (for publishing costs or royalties). 

2.  Never sign a contract that lets the publisher recoup its publishing costs before calculating your royalty share.

3. Never sign any contract without having it reviewed by an agent or a publishing attorney.

4. If you suspect your publishing deal isn't fair, or if something seems "not right"--be willing to walk away. 

Save your money and your work--because having no publishing deal at all is always better than having a deal you regret.

What Should an Author Expect from an Agent?

In the months between now and Colorado Gold, my guest posts here at the RMFW blog will take a lawyer's eye view at some issues that may be relevant to authors trying to choose a publishing path or figure out who (and how) to pitch their work at conference. Today, we'll kick that off with a little introduction to some the things agents do...and a few they don't.

Mismanaged (or mismatched) expectations are a fundamental cause of problems in the author-agent relationship. Before signing an agency contract, authors should understand the business and try to establishrealistic expectations about the author-agent relationship.

Know What Agents Do … and What They Don't.

A literary agent can fill many roles in an author’s world. Some of the common ones include:

- Line editing client manuscripts ("editorial" agents do this, but not usually at the first draft stage).

- Pitching manuscripts to publishers, and negotiating contract offers.

- Consulting with authors about new ideas and series development.

- Discussing short-term and long-term plans for the author’s writing career.

- Marketing advice (but they don't do the marketing - that's the author's job).

- Mentioning clients' work on the agent’s social media feeds.

- Acting as an intermediary between the author and publisher (especially when conflicts arise).

- Selling foreign, translation, and other subsidiary rights, either directly or through sub-agents.

Not all agents fill all of these roles. Investigate agents before you query, and talk with an agent who offers representation (before you sign!) about his or her preferences and business practices.

All agents should review client’s manuscripts, pitch and negotiate deals, and act as an intermediary with publishers on some level (some do more, and some do less). Beyond that, your mileage may vary.

Know What You Want YOUR Agent To Do (Within Reason)

Consider the list in the heading above. Do you want an editorial agent? Someone who’s active on social media? How involved do you want the agent to be in your long-term plans?

Beware the temptation to say “I want it all” (or "I don't want any of this") without more thought. Publishing is a business, and authors need both a business plan and a solid concept of how an agent fits (or, in some cases, doesn't fit) within it. Make a list, and be reasonable...it doesn't much matter whether or not you want your agent to give you a magical glitter-and-book-deal farting unicorn. You're not going to get it. 

Do Your Research, and Find an Agent Who Matches Your Expectations

After you know what you want from your agent, you need to focus on finding an agent who matches your expectations. If you only query agents who aren't editorial, you have only yourself to blame when the agent you sign with doesn't edit your manuscript.

It can be difficult to determine, with certainty, whether an agent's business model matches your own before you receive an offer of representation. That’s okay. “The call” is a perfect time to talk about expectations—the agent’s, as well as yours.

Obviously, authors only get to choose from the agents who actually offer representation. That’s why "doing the research before you query" is such a critical step.

If you're planning to pitch agents at conferences (including this September's fabulous Colorado Gold - registration is open now!) do your research in time to choose your pitch appointments wisely. Don't limit yourself to the conference website. Google the agents and editors, visit their websites, and find the ones who seem like a match for your preferences and your work.

Realize: There is No Magical Ring to Rule the Publishing World. You Won't Get One - And Your Agent Won't Have One, Either.

No matter how well an agent matches the author’s business expectations, we have to remember that no one can guarantee an offer, a publishing deal, or a place on the bestseller list. Sometimes a manuscript doesn't sell, no matter how hard an agent works. Sometimes publishers drop a talented author.

Publishing failures often aren't the agent’s fault - and the possibility of failure even if you do everything correctly is a sad but real expectation authors need to manage.

On the other hand, if the agent isn’t living up to the author's expectations, authors have the right to consider a change. Just make sure, if you make the decision to terminate an agency contract, you make it on the basis of an objective, honest evaluation—what the agent has done (or not), in comparison to industry standards—not on the basis of emotion or unreasonable expectations.

Managing expectations in publishing is a lot like herding cats or nailing Jell-o to a tree. It's a constant process, and it's going to get away from you at times. 

Even so, it’s worth the effort. The better you know the industry, and treat publishing as a business, the more likely you are to find an agent who meets your needs and becomes a beneficial partner in your publishing career.

What do you expect your agent to do for you? How do you manage your "agent expectations"?

 

Tips For Evaluating a Traditional Publishing House

The explosion of small and micro-presses in the United States (and elsewhere) makes it more important than ever for authors to investigate publishers carefully before signing a publishing contract. While even diligent research can't help you foresee and avoid every possible problem, here are some tips to help you evaluate whether or not to accept a publisher's offer:

1. Does the Contract Require the Author to Pay for Anything?

If the answer is "yes," do not pass go, do NOT pay $500...or even $1. This is not a traditional publishing house. It's either a "hybrid press" (where the author shares the costs--and benefits--of publication), a "vanity press" (where the author pays far too much for far too little), or a scam. If you think it's a hybrid press, contact an agent or a publishing attorney you trust and arrange for professional review and negotiation before you sign.

Do not rely on the publisher's word that the contract is "hybrid" or "fair"--and don't forget: a traditional publishing house will never expect the author to pay anything out of pocket (and none of the publishing costs, except for unreasonable changes demanded by the author after the proofs are approved). No exceptions.

2. Does the Publisher Also Offer "Paid Marketing Programs"?

A number of vanity presses have recently started offering "fully traditional contracts" which also require the author to participate in paid "author training programs" and "marketing programs." The marketing contract is an addendum to the "traditional publishing deal" and can cost the author several thousand dollars out of pocket. Legitimate traditional publishers never make authors pay for anything out of pocket, either as part of the publishing contract or in a separate (but required) agreement.

3. Does the Publisher Make Any Claims About Success, Sales, or Reviews?

No legitimate publisher can or will ever promise an author success (financial or otherwise), sales, or good reviews (they can't even promise legitimate reviews, let alone good ones). Any publisher whose website contains statements like "Make extra money writing books!" or "Become a bestseller by publishing with us!" -- or anything else of that nature -- is not a legitimate, traditional publishing house. Run, don't walk, in the other direction.

4. Does the Contract Require Authors to Purchase Copies of the Finished Book?

Some small presses' contracts require the author to purchase a stated number of copies of the book upon release. Many times, the author is also required to pay for these books (in part, or completely!) before the publication date, and sometimes before the author even sees the proofs of the finished work. Legitimate presses will never make an author commit to purchasing any copies of the work (though often they do offer authors a discount on copies the author elects to buy).

A little related publishing math: if the author commits to paying the publisher $8,000 for copies of the work at $16.00 apiece, how many additional books does the publisher have to sell to pay for its investment in the book? (The answer is generally, none, especially since these publishers normally publish "Print on Demand," which means the publisher keeps no stock of the printed work.) 

5. How Long Has the Publisher Been in Business?

The answer to this is not a deal-breaker, but it's something to consider. The longer a publisher has been in business, and the more books it produces, the better authors can evaluate the publisher's history of contract compliance, sales and distribution, and successfully published work. It's perfectly fine to take a chance on a newer publisher if you choose...but only if all of the other factors align with industry standards. Also, authors should be aware that working with newer publishers represents a business risk, because publishing houses have high failure rates--so make sure the contract contains appropriate protections for the author (including appropriate termination rights).

Note: new presses that work with experienced counsel, or have experienced editors or publishers at the helm, generally present a smaller risk in this regard. 

6. How Much, And What Kind of, Publishing Experience Does the Publisher/Editor Have?

Again, while not a deal-breaker, authors should be aware that many small publishers open with great intentions, but little or no practical experience in traditional publishing, sales, and distribution. This creates enormous risk, both for the publisher and the author. Before signing with a small press, always ask about the publisher's experience, distribution program, and how many books they have in bookstores outside their local area. Also, publishers without much practical experience tend to have a more difficult time negotiating contracts and complying with contract obligations--not from malice, but because they simply don't understand what's involved in running a traditional publishing house.

7. What Do Other Authors & Industry Watchdogs Have to Say?

Never, ever sign with a publishing house unless you've researched both the house and the publisher/editor with industry watchdogs like Publisher's Marketplace, Writer's Digest, Writer Beware, and Preditors and Editors. Pay attention to what you see there, too. While lack of a listing may suggest the publisher is legitimate, it also might indicate a publisher is simply too new for the watchdogs to have flagged its bad behavior. For maximum safety, don't sign with any publisher unless you can actually confirm legitimacy and positive ratings with industry watchdog sites.

Also: always talk with at least 2-3 other authors published by the publisher before you sign a contract. Ask the publisher to give you authors' names and contact information, or find them online--make connections through friends, if you can. If authors won't speak with you honestly (or tell you the contract won't let them talk about the press), move on. Don't ever commit yourself and your work to a press that doesn't get glowing reviews from its authors--no matter how big or experienced the press.

8. What Do the Publisher's Other Books Look Like?

You have seen their other books, right? In print? On Amazon ("look inside" should be enabled, and you should actually do it) or in bookstores. Find them. Hold them--on an e-reader if they're ebook only. Look at the font, the production values, the covers, and then ask yourself: is this what I want my book to look like? Would I be proud if my name was on this cover?

9. Where Are the Publisher's Other Books Sold? 

Many small publishers don't have distribution arrangements, and even if they do, that may or may not translate to actually having books on shelves in stores. Ask where the publisher's books are sold. Confirm it. This isn't a deal-breaker, one way or the other, but you need the information to decide whether this is a house that will be able to support your work the way you want them to.

10. How Many Books Does the Publisher Release Each Year?

Again, not a deal breaker, just something smart authors evaluate. Sometimes a lower number works in your favor, and sometimes larger numbers work against you. Sometimes, it's the opposite. Generally speaking, the more books a publisher releases each year, the fewer resources the publisher has to dedicate to each individual book. That's especially true when you consider that many publishers dedicate the lion's share of advertising time and resources to A-list titles by authors who already have a substantial following.

11. Does Anything Else Seem...Odd?

Trust your instincts. They're better than you think. If anything seems "odd" or "not quite right" about the publisher, remember: you're better off with no publishing deal than signing a deal you later regret.

12. Even if Everything Else Looks Good, Consult a Publishing Lawyer or Agent Before You Sign the Contract.

Starfleet regulations don't allow a compromised captain on the bridge...and every author is compromised (to one degree or another) when it comes to evaluating a publishing deal. Always consult a lawyer or an agent before you sign a publishing contract, particularly if you're not experienced reading and negotiating legalese.

I can't promise these questions will save you from signing a publishing deal you regret, or protect you against every predatory or inexperienced publisher. That said, if you keep these in mind, you'll have a much better start when evaluating prospective publishing houses for your work.

*Disclaimer: This post does not constitute legal advice, create an attorney-client relationship between the author and any person, and is intended for educational purposes only. Author makes no representations that this post is complete or contains all relevant information required to protect authors when choosing a publishing house, escaping from zombies, or trying to avoid a swarm of lawyers wielding bee-infested carp. Your experience, legal rights, and favorite cupcake flavor may vary.