Thursday, November 19, 2015

How about that book contract and what it really says...

Posted: 18 Nov 2015 08:13 AM PST
Posted by Victoria Strauss for Writer Beware

Recently, the New York Times published a fascinating three-part series of articles on arbitration clauses, and how such clauses "buried in tens of millions of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court." (You can also listen to an interview with the articles' author on NPR.)

The articles deal mainly with consumer and employment contracts, in which, according to the Times, arbitration clauses have created "an alternate system of justice" where "rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients." But arbitration clauses are increasingly common in publishing contracts, too--as well as in the Terms of Use of some major self-publishing platforms. And most authors don't understand their implications.

What's an Arbitration Clause?

Here's one example, drawn from a contract I saw recently:
If any dispute shall arise between the Author and the Publisher regarding this Agreement, the Publisher and Author will first attempt to resolve such dispute through mediation, and, if that fails, such dispute shall be referred to binding arbitration in accordance with the Rules of the American Arbitration Association, and any arbitration award shall be fully enforceable as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, the parties shall have the right to conduct reasonable discovery as permitted by the arbitrator(s) and the right to seek temporary, preliminary, and permanent injunctive relief in any court of competent jurisdiction during the pendency of the arbitration or to enforce the terms of an arbitration award.
They don't all include such dense legalese:
Recognizing the expense, distraction, and uncertainty resulting from litigation of disputes which may arise under this Agreement, AUTHOR and PUBLISHER agree that AUTHOR and PUBLISHER shall submit any and all disputes arising in any way under this Agreement to the American Arbitration Association for final disposition in accordance with its rules.
Where will you find an arbitration clause in your publishing contract? Anywhere. It may appear under a separate caption (for instance, "Arbitration and Dispute Resolution") but more often is buried under other headings, such as "Reversion and Termination" or "Miscellaneous", where it can easily be glossed over.

How Arbitration Clauses Limit Your Rights

Arbitration is often portrayed as an easier, more friendly method of dispute settlement, allowing the parties to avoid the hassle and expense of litigation. But as the Times points out, this reasonable-sounding explanation leaves out some darker truths.
  • Arbitration clauses are binding, and supersede your right to go to court to settle a dispute. If you sign a contract with an arbitration clause, you are waiving your right to legal action.Many people don't realize this.
  • People often assume that arbitration is similar to appearing before a judge. But, says the Times, "arbitration...often bears little resemblance to court....Winners and losers are decided by a single arbitrator who is largely at liberty to determine how much evidence a plaintiff can present and how much the defense can withhold."
  • Arbitrators--many of whom are retired judges--are supposed to be impartial, but often they're not. Plaintiff and defendant choose an arbitrator from a list supplied by the arbitration company; for obvious reasons, defendants prefer to choose arbitrators with a history of defendant-friendly rulings, and plaintiffs, who may not have that inside knowledge, may not know enough to object. In turn, arbitrators feel pressure to favor defendants, since this makes it more likely they'll be chosen--and paid.
  • Arbitrators' decisions are hard to challenge. Courts have proved reluctant to reverse them, even where they are obviously unfair.
  • Arbitration can cost you, even beyond any judgment that may go against you. In addition to travel and filing fees, you may have to pay the arbitrator.
  • Christian organizations sometimes require Christian arbitration, such as that provided by Peacemaker Ministries. Prayer and scripture may be given preference over law and evidence. (I've seen publishing contracts with Christian arbitration clauses.)
  • Increasingly, arbitration clauses include bans on class actions. "By banning class actions," says the Times, "companies have essentially disabled consumer challenges to practices like predatory lending, wage theft and discrimination....Corporations said that class actions were not needed because arbitration enabled individuals to resolve their grievances easily. But court and arbitration records show the opposite has happened: Once blocked from going to court as a group, most people dropped their claims entirely."

    You don't see class action bans (or at least I haven't, yet) in contracts from publishers. But some self-publishing platforms' arbitration clauses do include them. That Author Solutions'Terms of Use would ban class actions (see Clause 13.3, Mandatory Arbitration/Class Action Waiver) is hardly surprising, since they've been a target (and changed their TOU as a direct result--compare their 2012 agreement to their current one)--but I'll bet that few KDP authors are aware that the same ban appears in Amazon's TOU (bolding is Amazon's):
    10.1 Disputes. Any dispute or claim relating in any way to this Agreement or KDP will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The United States Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. ... You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration you and we each waive any right to a jury trial. You or we may bring suit in court on an individual basis only, and not in a class, consolidated or representative action, to apply for injunctive remedies. You may bring any such suit for injunctive remedies only in the courts of the State of Washington, USA.
    Lulu's TOU also includes an arbitration clause with a class action ban. By contrast, Kobo Writing LifeSmashwordsDraft2DigitalBookbaby, and IngramSpark don't have arbitration clauses at all (though some do qualify authors' ability to seek legal redress, such as requiring them to waive the right to a jury trial or restricting the amount of damages they can claim).
How to Protect Yourself?
Unfortunately, you don't have many options. It's a rare publisher that will be willing to amend its arbitration clause--let alone agree to delete it. As for Terms of Use, they are not negotiable; it's take it or leave it.

Things to look for in an arbitration clause: language that ensures you can go to small claims court for qualifying amounts; that the chosen arbitrator must have publishing expertise; and that if the parties can't agree on an arbitrator within a reasonable period of time, either party can proceed to court. Be sure, also, that arbitration will be conducted by an established group, such as the American Arbitration Association. A nonprofit like the AAA is preferable to a for-profit, such as JAMS, another major arbitration firm.

If your contract includes a Christian arbitration clause, see if you can get the publisher to substitute non-religious arbitration. If they refuse, seriously consider walking away.

How likely is it that you'll have a legal dispute with your publisher or self-publishing service, much less cause to unite with other authors in a class action? In the general run of things, not very. But as regular readers of this blog know, you can never say never. You owe it to yourself to understand how your publishing contract, or your self-pub platform's Terms of Use, does or does not restrict your right to legal redress.

Monday, October 26, 2015

National Black Book Festival 2015 in Houston

Roland Martin, News Commentator and Author

Akua Fayette

My cousin Donna Walker

My friend Alice Horton (right) and her  friend 

My friend Janis Kearny

With Tezlyn Figaro

Tuesday, October 13, 2015

Do you think you have a legitimate reason to terminate your publisher's contract?


Posted by Victoria Strauss for Writer Beware

Writer Beware often hears from authors who've signed up with bad or inexperienced or dishonest publishers, and are desperate to get free. They write to us wanting to know how they can break their contracts and regain their rights. Unfortunately, there's usually no easy answer to this question, even where the publisher has clearly breached its contractual obligations. Too often, I have to tell people that they are probably stuck.

That said, here are some general suggestions, which may or may not be applicable to your situation, and may or may not work for you (obligatory disclaimer: I'm not a lawyer, so what follows should not be construed as legal advice).

1. First and most obvious, check your contract for a termination clause. If there is one, invoke it per the instructions. Beware, though, of termination fees, which some publishers use as a way to make a quick buck off the back end.

2. If there's no termination clause, try approaching the publisher and simply asking to be released. A publisher may refuse or ignore such a request--but sometimes it will recognize that an unhappy author isn't an asset, and may be willing to let him or her go.

If you take this approach, don't dwell on the problems you've had with the publisher. Try to keep your explanations as neutral as possible--such as saying that you don't feel you have the time or resources to help promote your book, or pointing to falling sales. If you feel you must mention problems, do so in a factual, businesslike manner, without recriminations or accusations. Especially, don't mention any negative information you may have found online or heard from other authors. As large a part as this may play in your desire to be free, your request is about you and your book, not other authors and their books. Bringing others' complaints into the picture is likely to alienate or anger the publisher, in which case it may be much less disposed to pay attention to your request. (In some cases, it may become twice as determined to hold on to you.)

Another thing not to do: informing the publisher that it's in breach, and that you're terminating the contract yourself. This doesn't work for two reasons. First, even if you're correct and the publisher has breached its obligations--and even if the contract includes a provision for termination due to the publisher's breach, which not all contracts do--you, personally, have no way to enforce a termination. The publisher can simply deny your allegations, or stick its metaphorical fingers in its metaphorical ears and go right on producing and selling your book.

Second, you may consider the contract to be null and void, and your current publisher may not have the resources to sue you if it disagrees--but if you want to re-publish, you'll have problems. Another publisher won't be interested in a book whose rights aren't unambiguously free and clear. Even self-publishing services require you to warrant that you have the right to publish.You must be able to show some kind of formal rights reversion document--which you won't be able to do unless your publisher actually consents to let you go.

Once again, watch out for demands for money. I've heard from some writers whose publishers attempted to blackmail them into paying a fee when they requested release, and from others whose publishers required a sizeable termination fee even though no fee was mentioned in the contract.

3. If you're a member of a writers' group, they may be able to help. For instance, SFWA has Griefcom, which will directly intercede in an attempt to resolve the situation for you. Similar services are provided by the National Writers Union's Grievance Assistance program. Novelists Inc. has a legal fund, which entitles members to up to two billable hours of legal consultation per year.

4. If there's no termination clause and the publisher refuses to consider a release request, you can resign yourself to waiting things out, either to the end of the contract term, if the contract is time-limited, or until the publisher declares your book out of print. Obviously this is more feasible for relatively brief terms of one to three years, and less so for longer terms, or for life-of-copyright contracts--especially since so much publishing now is digitally-based, and with digital publishing there's little incentive for publishers to take works out of print. Depending on your situation and your finances, however, it may still be preferable to the final option....

5. Consult legal counsel about your situation, and your options for taking legal action. This is where the issue of breach becomes relevant. A publisher may ignore an author's personal claims of breach, but may pay more attention if an attorney is involved.

If you choose this option, not just any lawyer will do. You want someone who practices publishing law. Publishing is a complicated business, with practices and conventions that are not well-understood by people in other fields; and publishing contracts are unique documents with terms and conditions that aren't found elsewhere. In order to provide effective representation, your lawyer needs the appropriate skill- and knowledge-set.

(This same caution, by the way, applies to hiring a lawyer to vet a publishing contract prior to signing it. I hear from any number of writers whose non-publishing-specialist lawyers gave the green light to a contract that would never have passed muster with a publishing law specialist, or a competent literary agent.)

There are a number of options for low-cost legal services, some of them specifically for people in the creative arts. For instance, many US states have Volunteer Lawyers for the Arts organizations, which provide services geared to helping people who work in the arts. The Arts Law Centre of Australia provides free- or low-cost legal advice and referrals for Australian creators and arts organizations. Artists’ Legal Advice Service helps creators who are residents of Ontario, Canada. Artists’ Legal Outreach does the same for residents of British Columbia, and similar assistance is provided in Montreal by the Montreal Artists’ Legal Clinic. There are also general referral services, such as the American Bar Association Lawyer Referral Network.

You can find more information and links on the Legal Recourse page of Writer Beware.

Tuesday, August 4, 2015

Saturday, July 25, 2015

The history of the Swastika: Good not evil

In ancient times, the symbol of the swastika meant good, until it was stolen by Hitler, like most good things. It was one bad man's adoption of the word that changed the meaning of it.

The Swastika: A Sign of Good Luck Becomes a Symbol of Evil

Pages 14-15
The Swastika Flag
The swastika is a very old symbol with use widespread throughout the world. Sometimes referred to as a “Gammadion” “Hakenkreuz” or a “Flyfot,” it traditionally had been a sign of good fortune and well being The word “swastika” is derived from the Sanskrit “su” meaning “well” and “asti” meaning “being.” It also is considered to be a representation of the sun and is associated with the worship of Aryan sun gods. It is a symbol in both Jainism and Buddhism, as well as a Nordic runic emblem and a Navajo sign.
By definition, the swastika is a primitive symbol or ornament in the form of a cross. As the illustration below shows, the arms of the cross are of equal length with a section of each arm projecting at right angles from the end of each arm, all in the same direction and usually clockwise.
swastikaWhen Adolph Hitler, the frustrated artist, was placed in charge of propaganda for the fledgling National Socialist Party in 1920, he realized that the party needed a vivid symbol to distinguish it from rival groups. He sought a design, therefore, that would attract the masses. Hitler selected the swastika as the emblem of racial purity displayed on a red background “to win over the worker,”
Hitler had a convenient but spurious reason for choosing the Hakenkreuz or hooked cross. It had been used by the Aryan nomads of India in the Second Millennium B.C. In Nazi theory, the Aryans were the Germans ancestors, and Hitler concluded that the swastika had been “eternally anti-Semitic.”
In spite of its fanciful origin the swastika flag was a dramatic one and it achieved exactly what Hitler intended from the first day it was unfurled in public. Anti-Semites and unemployed workers rallied to the banner, and even Nazi opponents were forced to acknowledge that the swastika had a “hypnotic effect.”
“The hooked cross” wrote American correspondent William Shirer “seemed to beckon to action the insecure lower-middle classes which had been floundering in the uncertainty of the first chaotic postwar years.” The swastika flag had a suggestive sense of power and direction. It embodied all of the Nazi concepts within simple symbol. As Adolph Hitler wrote in Mein Kampf,  “In red we see the social idea of the movement, in white the Nationalist idea, and in the swastika the vision of’ the struggle for the victory of the Aryan man.”
The Bremen Incident
One of the first actions Hitler carried or after becoming Chancellor in 1933 was to abolish the Weimar Republic flag. On April 22, 1933 he decreed that the national flags of German would be the old Imperial red, white, and black tricolor and flown in conjunction with the swastika flag. These flags were to be flown together on all merchant ships, which led to a serious incident with diplomatic consequences.
On the night of Friday, July 26, 1935, several hundred Communists took part in an anti Nazi demonstration on a pier in New York harbor as the German liner Bremen was about to depart for Europe. They attempted to board the liner and were fought by 250 policemen, detectives, and crew members. Thirty of the demonstrators gained the forelock of the vessel and tore down the swastika flag flying there and threw it into the Hudson River. In the short fierce struggle with the police, a detective was badly beaten before the Communists were ejected.
Meanwhile, there was savage fighting on the pier and in the adjacent streets. The police used their batons freely on the heads of the Communists and after a time the demonstrators we drawn off. The police arrested four men alleged to be the assailants of the injured detective. Three others were arrested for disorderly conduct.
The injured detective and two of the rioters were taken to the hospital. Ten of the Bremen’s crew also were treated for cuts and bruises. The liner departed on time, and 20 policemen sailed with her as far as the quarantine station to guard against the possibility that other Communists might be concealed on board and start a new attack. The Bremen’s commander, Captain Ziegenbein, commended the police’s work. The police officials, however, blamed the ship’s officers for taking too lightly a warning they had sent them hours before the riot occurred.
The indignities inflicted upon the German flag by the American anti-Nazi demonstrators on board the Bremen resulted four days later in an emphatic protest being delivered to the American Acting Secretary of State by the German Charge d’Affaires in Washington. It was pointed out to the German diplomat, however, that the insult had been aimed at the “Party” flag and that the National flag had not been interfered with: a very fine distinction in the circumstances but one which precipitated the Nuremberg Flag Laws of September 15, 1935.
The whole question of the German National flag was resolved seven weeks later during the Seventh Reichsparteitag Congress held at Nuremberg in September 1935. This annual occasion was used by Hitler to publicly announce that the red, white, and black swastika flag of the Nazi Party would henceforth be the National flag of Germany. The incentive to solve the unsatisfactory arrangement of flying two flags together representing the nation had been thrust upon the Fuhrer as a direct result of the Bremen incident. The official use of the swastika flag came simultaneously with the increased use of racial policies.
The Swastika Flag’s use as the National Flag was a symbol of the acceleration of the Nazi’s anti-Semitic agenda which included the September 15, 1936, “Law for the Protection of German Blood and Honor.” These laws revoked the Jews’ citizenship in the Reich. Jews could not vote, marry Aryans, or employ “in domestic service, female subjects of German or kindred blood who are under the age of 45 years.”
Jews found themselves excluded from schools, libraries, theaters, and public transpor-tation facilities- Passports were stamped with the word “Jew.” Name changes were disallowed, but Jewish men had to add the middle name “Israel,” Jewish women the name “Sarah.” Jewish wills that offended the “sound judgement of the people” could be legally voided. Furthermore, Jewish businesses were taken away from their owners and placed in the hands of German “trustees.”
The Bremen Incident led the Nazi’s to raise their banner of hatred as a national symbol while making the Jews into “second class subjects” of Germany. The Jews were then treated as the untermenschenHitler believed they were. 

Tuesday, July 7, 2015


Ome year ago the Arkansas Pioneer Branch of NLAPW (National League of American Pen Women) celebrated our 70th Anniversary and one of our very special guests was our distinguished Govenor Mike Beebe.

Chilly Willy the Hoodie Wearing Bully

Bullying is a great problem and seems to be getting worse. Do you know a bully? Have you ever been bullied or have you been a bully.? Did you know that 70% of school age children report some form of bullying, with verbal being the most prevalent, and a stunning 14% of bullying among students are violent cases? A huge percentage of students miss school everyday because they are afraid because of bullying.

Check out my newest book, a narrative about young lad who was a big time bully.