The Horrible Story of Nathan Newauthor

On the subject of marketing and promotion, I’m saddened to hear that some publishers don’t get back to their authors in a timely manner concerning promotional events. Sometimes it’s beyond their control and a matter of bad timing, but if it’s a regular occurrence, that’s really unfortunate. And as an author, you may feel hamstrung in your efforts because there is probably a clause in your contract somewhere that says you have to have all promotional pieces and marketing efforts approved by your publisher.

There is a reason for that clause as illustrated in this story about Nathan Newauthor. Nathan is a soon-to-be-published new author whose book is currently at the press. In his enthusiasm and inexperience and without permission and approval from the publisher, Nathan decides to get very creative with his marketing ideas. Having read a book on guerilla marketing for writers and being encouraged to push the envelope by friends and family (who know very little about the publishing industry), Nathan creates and hand distributes a promotional piece at an event with nearly 1,000 attendees that are HIS TARGET AUDIENCE.

Wa-hoo! Those orders ought to start rolling in.

Here’s what Nathan doesn’t understand.

  1. Although he and his mother thought it looked quite attractive, his marketing piece was very unprofessionally done. It looked like it had been copied at Kinko’s and hand-cut and assembled. Which it had been. Now, let’s think for a minute. Does an ugly promotional piece encourage or discourage someone to go purchase a product? Do the people he gave promo to know that Nathan lovingly slaved for hours to create this? Do they give him an A for effort? No. They think the publisher did it–and if that’s the best the publisher can do, why would they think the “real” book would be any better? Nathan most likely just lost 800 of the 1,000 people in his target audience.

    If Nathan’s publisher had been involved, the promo would have been professionally designed, using appropriate fontage and color and white space and all that other graphic design mumbo-jumbo that most people poo-poo, but which has an actual, measurable impact on the buyer.

  2. Nathan spent way too much money on the project, so he decided to just do a few in color and the rest in black and white. Color says, these people know what they’re doing; black and white says, these people are working out of their garage on a shoe-string budget.

    Had Nathan’s publisher created the piece, it would have been in color and printed at a much lower price. Because we have connections.

  3. Nathan thought it would be great to get advance notice out for his book. Good in theory. But if you market too soon, you lose momentum. Since his release is over a month away, it’s too soon to market to the end customer.

    Nathan also thinks people will pre-order his book. No, they won’t because his name is not J.K. Rowling. They’ll go to the bookstore or website, decide to wait to get the book when it’s available, and then FORGET about it.

    Publishers understand this. We time our advance notice.

  4. Nathan didn’t know (because he didn’t bother to ask) and the publisher hadn’t told him (because it clearly states in the contract that Nathan has to approve all marketing efforts and since he didn’t, the publisher had no way of knowing he was planning something like this) is that there was trouble at the printer and his books are going to be delayed by several weeks past his scheduled release date.

    Publishers know that release dates can be tentative and they plan accordingly. New authors believe the release date is carved in stone.

  5. Nathan thought it would be a great thing to let all the people at this event know about his upcoming release. What he didn’t know is that the event coordinators have a very strict policy against distributing promotional pieces at said event. In fact, if a publisher does that, they are very often asked never to return.

    If Nathan had asked his publisher, the publisher could have prevented this serious faux pas.

  6. Nathan thought he was doing his publisher a favor because the event coordinators are one of the publisher’s largest bulk buyers. But they don’t like what he did. They are not happy. If they are severely unhappy, not only will they NOT buy Nathan’s book, but they may also stop buying other books from this publisher. Nathan thinks he was only promoting himself and his book, but in reality, since the publisher’s name was all over the marketing piece, he was also indirectly representing the publisher, and by default, all of their other products as well.

    Again, the publisher could have prevented Nathan from not only shooting himself in the foot, but also from shooting the feet of the publisher and their other authors.

  7. Nathan thinks marketing and promotion is all fun and games, and that anything goes. As long as he’s paying for it, what’s the harm? What he doesn’t realize is that he’s created a situation that could cause a lot of potential harm, for himself, for his book, for the publisher and for every other author the publisher represents.

    Because the event coordinators are a major buyer of the publisher’s products, the publisher has to keep them happy. This is especially important in a small market like ours, where there are only so many distribution channels.

    If the buyer is ticked, and the publisher blows it off, they lose credibility with the buyer. If the buyer is really ticked, the publisher may have to choose between Nathan Newauthor’s not-yet-released book and placating the buyer. Since Nathan’s book is one teeny part of the publisher’s product line, and the buyer is a huge part of the publisher’s income, what do you think the publisher is going to do? The choice could literally be between dropping the author like a hot potato or going out of business.

    Worst case scenario: the publisher decides Nathan’s mistake puts them in a high-risk situation, cancels the contract with Nathan, destroys the book, and sues Nathan for loss and damages due to breach of contract.

    Best case scenario: the publisher gives Nathan a harsh talking to, holds the release of the book until everything is smoothed over with the big buyer, and is now very reluctant to consider future projects with Nathan.

Point of the story: Just because an author doesn’t understand why a publisher has a certain policy or clause in their contract, it doesn’t mean there’s not a very good reason for it. When an author disregards that, they are asking for trouble.

Another point of the story [for those of you who still don’t quite understand this concept yet]: Yes, for the publisher, the bottom line IS ABOUT THE MONEY. If we don’t make money, we won’t be publishers for very long.

One last point: If this is too restrictive for you, then you are free to self-publish. No one is preventing you. But if you choose the traditional publishing route, you have to be willing to play by the publisher’s rules.

P.S. This is not a fictional story. It is based on true events, but the names and a few small particulars have been changed to protect the… well, you know.

P.P. S. Fortunately for Nathan, the publisher was able to smooth things over with the buyer and he got the best case scenario.

Selling vs Retaining Rights

Can I ask another question about contracts? Why do publishers want all the rights to my book, worldwide and in every possible format, even when they say they probably won’t use them? For example, my publisher wanted the audio rights even though they said they probably will never put my book on CD. What if I really want it on CD? Do I have any say in this?

One reason publishers ask for rights they probably won’t use is for quality control–to prevent you from selling those rights or exploiting them yourself in a way that would be detrimental to the sale of your printed book.

Since you mentioned audio rights, I’ll use them as an example. Some publishers automatically create an audio version of books they expect will sell reasonably well. Other publishers wait to see how the book is selling before they commit to an audio version. If sales don’t reach a certain level within a certain amount of time, no audio book. But they don’t want you to go out and create your own audio book because if you don’t know what you’re doing and you don’t do a professional quality job then that will act as a detriment to the sales of the printed book.

In addition to quality control, publishers want to control the public’s access to your book in a way that will boost sales, rather than replace them. They want to make back their investment and make money for you. Having your book out there as an uncontrolled e-book or in rampant serialization is not in your best interest.

Bottom line, unless you’re really familiar with the industry and a whiz at contract negotiation, you’re not going to be able to sell these other rights yourself anyway. So in most cases, it’s in your best interest to go ahead and give these rights to your publisher–who may be able to sell them for you. Most contracts have a clause addressing this, splitting the revenue from the sell of rights 50/50, after expenses.

Now, it’s a little different on the national market when you have an agent to represent you. In that case, the agent negotiates for you and separates the various rights, selling them to different entities.

It’s a Small World

One of the comments on my post suggesting you seek legal advice on publishing contracts lamented the lack of experienced attorneys in Utah. That may be the case, but we live in a world connected via the Internet and your options are not limited to the state where you reside.

I did a quick Google on “publishing contract attorneys” and found a long list of sites to peruse, including this site. I’m not promoting or endorsing the site or the firm, but if you’ll note, the site was listed in Writer’s Digest as a good resource for authors. They have a long list of legal articles that contain some good information. Again, I’m not endorsing this, nor giving it a blanket stamp of approval, but from a brief skim of a few of the articles, it seems to be legit and on target.

I also found this site. I entered “publishing contracts” and selected Utah and came up with a list of 42 attorneys/firms; 26 sublisted under Entertainment Law, and 28 under Intellectual Property. If I personally felt I needed legal help, I would start by calling each of these firms and asking if they have someone experienced in publishing contracts. Ask how many they’ve negotiated, how many they’ve broken, and for a list of happy clients that you can call to talk to. All it costs is your time.

Then I went to Publishers Marketplace and did a search for contract attorneys. This produced a list of attorneys who say they specialize in publishing contracts. While they may not be familiar with Utah law, they will understand publishing contracts in general. You could fax them your contract and they can advise you on potential problems. They may also be able to work as counsel in an advisory relationship to a Utah attorney.

I found all this–and much more–in a quick 15 minute perusal of the Internet.

Note: I have a concern that all this talk about contracts and suing is going to have authors rushing to review their contracts and looking for problems, causing fear and anxiety without cause. Let me say that in my experience, most LDS authors are pleased with their publishers and even if they wish they earned higher royalties (who doesn’t?) they are satisfied with their contracts. Most authors that I know who have had concerns have been able to re-negotiate with their publishers or have been released from their contracts.

If You’re Unhappy…

Geez, I go away for the weekend and you all go crazy on me! I love it. And I thought I’d hit a hot button when I got 6 comments on a post. But we’ve set an all-time record here. And my hit stats are through the roof. Thank you.

A lot of the comments were tangential to my post, and that is just fine. But they did bring up a good question:

What do you do if you’re really unhappy with your publisher but you’re locked into a contract?

I wish the LDS publishing industry was big enough to support agents. An agent’s job is to negotiate with the publisher in YOUR behalf. They are the Doberman whose job it is to protect YOU. Good agents “get” the legal talk found in contracts and can predict how that language will effect you, given various scenarios. They also work with attorneys who specialize in publishing contracts. A competent agent won’t let you sign something that is patently unfair or detrimental to your long-term career.

But we don’t have agents because the industry is too small and so authors are left to fend for themselves. Many LDS authors think that since they’re dealing with LDS publishers they will automatically be treated fairly and honorably, as our religious tenets demand. Many times (I would hope, most times) they are. Sometimes they are not. To be safe, smart authors will have an attorney who is familiar with the publishing industry review their contract before they sign them.

If it’s too late for that and you’re really unhappy with your publisher and your current contract, the first thing you do is try to re-negotiate your contract in a professional manner. Most publishers are reasonable people. If you’ve sold well for them, they’re more likely to work with you to come to some mutually acceptable agreement.

If they’re resistant to your attempts, perhaps you can find another author within the same company who has successfully negotiated their contract and have him/her mentor you. Or find another author who has successfully broken or nullified their contract with your publisher, and discover how they did it.

If you’ve really exhausted all your options for peaceful negotiation, and you’re sure you’re being reasonable* and the publisher is a tyrant and just won’t budge, contact an attorney. Many in the LDS culture are hesitant to sue but if that’s your only recourse then seriously consider it–especially if you’ve been a productive, well-received author and this contract is effectively ending your career. Find a good attorney who specializes in contract law and who has some experience in the publishing industry.

Since ROFR was specifically mentioned, let me say that most ROFR clauses, like most non-compete clauses in the rest of the business world, are unenforceable. Legal ROFR clauses must be reasonably limited by time and/or number of books and/or genre. If yours is not, seek legal help. You may be able to force them to delete the ROFR or the judge may nullify the entire contract. If you know other authors who have that same clause in their contract and are equally upset over it, you might have grounds for a class action suit.

However, a word of caution. If you are not the reasonable one, even if you succeed in breaking your contract with your publisher, other publishers might be leery about signing you. You might want to speak with a couple of other publishers to see if: a) their contract is different; b) they are outraged at the terms of your contract or at least think you have a legitimate complaint; and c) they’d be willing to take you on when you get out of your current contract.

*You have a reasonable complaint if their ROFR commits you to more than two years and more than the next two books. You are unreasonable if you think you should get 20% royalties, or a 50 city book tour paid for by the publisher, or that they will accept your next manuscript without edits, or…