Tuesday, April 5, 2016

Linda's Write Spot: From Book Marketing Buzz

Linda's Write Spot: From Book Marketing Buzz: Friday, March 11, 2016 New Librarian Of Congress Must Promote Our Cultural Heritage President Barack Obama may have a hard...

Saturday, March 12, 2016

From Book Marketing Buzz

Friday, March 11, 2016


New Librarian Of Congress Must Promote Our Cultural Heritage



President Barack Obama may have a hard time appointing a nominee to the United States Supreme Court to replace the recently deceased Justice Antonin Scalia, but he just nominated someone to replace another Reagan appointee -- for Librarian of Congress.

James Billington retired in January after serving nearly 30 years as the Librarian of Congress.  President Obama just nominated Dr. Carla Hayden, an African American woman to replace interim director David Mao.  She could become the 14th Librarian of Congress – and the first professional librarian to serve on a full-time basis since Lawrence Q. Mumford retired over 60 years ago.

The American Library Association hailed the selection.  Hayden served as their president from 2003 to 2004.  She can make double history if approved – first woman, first African American to hold the post of Librarian of Congress.

Two decades ago she was the first African American to receive Library Journal’s Librarian of the Year Award.

Though the recently retired Librarian of Congress was criticized for sitting on the sidelines while the digital revolution swept through the book world and society at large, Hayden vows to bring modernization to libraries.

One immediate issue she’ll need to deal with is a proposed bill made by two lawmakers last year to remove the Copyright Office from under the purview of the Library of Congress.

She will also be forced to get things done in a faster time period.  She will be the first to hold her position under a term limit. Her 10-year stint won’t compare to the prior 13 librarians that have ruled since 1802 -- each serving an average of 17 years.

Though the library was established by Congress in 1800, it wasn’t until 1802 that President Thomas Jefferson appointed the first Librarian of Congress.  It wasn’t until 1897 that Congress was given the power to review and approve of the nomination.

The interim head earns $184,000 annually. There are no official rules as to who qualifies to be the head librarian.  The position has been held by politicians, authors, lawyers, businessmen, poets, historians, and librarians.

The duties of the Librarian of Congress are numerous and significant. He or she doesn’t just oversee the collection of books, but also the collection, cataloguing and preserving of films, recorded sounds, images, and other pop-culture items.  It has a huge repository of newspapers and magazines as well.

The Librarian is charged with running the world’s largest library, managing a staff of thousands. He or she oversees the Copyright Office, appoints the U.S. Poet Laureate, and determines three-year exemptions form the Digital Copyright Millennium Act. 

In short, our cultural heritage is being entrusted to the next Librarian of Congress.  He or she could determine how and which information gets saved, promoted, and made available to the public.  Our books and information, culture and media are not to just be left in the control of Google, Amazon, The New York Times, Netflix or Harvard University.  The Librarian of Congress is a very important position that I hope the American public will become more familiar with.

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?

GETTING OUT OF YOUR BOOK CONTRACT (MAYBE)

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.