The Danger Challenging Professionalism

by Janis Patterson

I make a goodly portion of my income by writing, and I believe a lot of you do too. We are professional writers, and I think most of us are proud to be called ‘professionals.’ Professional has long had a meaning of “behavior, attitude and level of skills” with an ability to demonstrate “a conscientious, courteous and business-oriented manner.” (definition thanks to resume.com)

I wonder just how long that will last, because the rot is setting in and if we aren't careful it can spread. A large writing organization which has always touted itself as being a professional organization underwent a train wreck in December of 2019, the results of which jangle in the writing world even today. It involved charges and counter-charges of racism, some of the most vicious and vulgar language and name-calling I have ever heard anywhere and, according to some, the exodus of almost half its members and the disaffiliation of a number of its chapters.

When the dust cleared, even the much-respected yearly award program had been scrapped, re-formed and re-named. Torturous and much-publicized reconstruction of the entire organizational structure resulted in a practically new organization to which they happily gave the secondary appellation of 2.0. Some members were ecstatic, some were not.

While such violent and vulgar methods were lamentable, it is not unknown for organizations to reinvent themselves, though usually not in such uncivilized ways.

It is what came next that put the term ‘professional’ at peril. After the new rules and contest requirements were put in place - without any mention of removal for problematic content, note - and heartily trumpeted throughout the genre writing world, the contest was opened. Entries were made and judged and the winner selected.

Then the proverbial noxious substance hit the fan.

Although the winning novel had followed all the rules, had entered with proper protocols and been weighed by a number of trained judges, a smallish but very vocal segment of the membership raised holy hell, sending howling protests resonating through the organization’s forum. Anyone who dared question this recension of the award was immediately labeled a racist and told they weren’t wanted.

The problem? The book - an historical story - started with a (real) tragic event where the US Army waged war on some Indians (Native Americans? Aboriginals? First Nationers?). The hero (fictional) was repulsed by the action, yet as he was a US Army officer he followed orders and did his duty. Fast forward a couple of years; the hero has changed because of what he has seen and is doing good things, meets the heroine and love ensues.

So why the kerfuffle? According to the objectors, the book glorifies the massacre of Indians. Because the hero took part in the action, he cannot be redeemed, he does not deserve a happy ending, he should be damned by God, vilified and tormented forever in this world and the next. Even the idea of God’s love and redemption came under fire from the objectors. (Which, if you think about it, sort of parallels the fate of Confederate soldiers - it makes no difference what good you did in the last 50-60 years of your life, all that is counted and that which damns you forever is that you served 4 years in the army of the Confederacy, a belief which is equally illogical.)

Now I believe in liberty - you should be free to believe what you want to believe, you can read the book or not read that book or any book, you can say what you want to about it, you have the freedom to make your own choices. I have my opinions, you have yours. That’s the way things should be.

Not now. The screams from the objectors became so strident and insistent that IN SPITE of the book having fulfilled every requirement of the contest, IN SPITE of having been judged by a number of trained judges, IN SPITE of the contest rules having been clearly stated when the contest opened, the organization made the decision to ignore their own rules, ignore that the book had fulfilled all mandatory regulations, ignore that it had been judged best by judges trained by them, with the result the award was rescinded and taken away.

Just how professional is it for an organization - which prides itself on calling itself professional - to decertify a book which has fulfilled all the rules they themselves wrote after a long and arduous and very public couple of months? In effect, they wrote a contract and then based just on the feelings of some of the members simply ignored it.

How can anyone ever trust them ever again?

I don’t care about the content of the book, and I don’t care about the feelings - PRO or CON - of the members. What I do care about is the utter disregard for legality and the sanctity of their word. Professionals know once a contract is set, it should be fulfilled. Contest rules are a contract, and to change them after the fact is both dishonest and dishonorable.

Who is to say even if they fix this situation by writing other rules that they will live up to them the next time? Or what is worse, institute a draconian rule of censorship in which only approved subjects can apply? What’s to keep them from simply ignoring the new rules if the resultant winner in the next contest offends someone? If they behave in such a blatantly unprofessional manner this time, there is no guarantee they won’t do it again next time. Or the next time. Or the time after that.

Professional writing organizations should be just that - professional, honest, and true to their contracts. Otherwise they should not be called or regarded as professional.

There Are Rights and Then There Are Rights...

by Janis Patterson

Early this year I was talking with a dear friend of mine, a very successful romance writer who is so successful that she has her own Kindle World. For those who don’t know what KW is, it’s sort of a legitimized fan fiction scheme. A world is based on a popular book/series. People who want to write in that world can – as long as they follow certain contractual restrictions. If accepted by a Kindle committee, the book will be published, with half the income going to the original author. A different concept, but so far, so good.

To a point.

As I said, I was talking with my friend and we agreed that it would be a fun thing for me to come play in her world. She’s a multi-NYT, USA bestseller, so it would have been good for me. I wrote a book – and had a marvelous time doing it, as her fictional world is set in one of my favorite places in the real world, so it was sort of like a mini-vacation. Then, while finishing the book, I thought I should take another look at the KW rules before submitting, as I had only glanced at them before.

What a shock. Copied from the KW ‘how it works’ page :

You will own the copyright to the original, copyrightable elements (such as characters, scenes, and events) that you create and include in your work, and the World Licensor will retain the copyright to all of the original elements of the World. When you submit your story in a World, you grant Amazon Publishing an exclusive license to the story and all of the original elements you include in that story for the term of copyright. This means that your story and all of the new elements must stay within the applicable World, and you can use only this platform to write about them. (Emphasis mine.)

Whaaaat? You own the copyright, but grant them exclusive license to the story and ALL original elements in your story for the life of the copyright? (That is 75 years after your death, in case you didn’t know.) And if you want to write more using those characters they not only have to be exclusive to Amazon, but to KW? Worse still, if Amazon decides to end KW, or pull your book from the canon, your characters and original elements are still under their control. They can vanish from public view forever and contractually you can’t do a thing about it.

Amazon goes on to say :  

We recommend that you do not incorporate an original character or elements unless you want them to become an exclusive part of that World. In short, Kindle Worlds is a place to be creative and explore a popular World, but anything you create will become part of that World. (Emphasis mine.)

And, to be fair, they do say :

If this is not right for you, Amazon has many platforms (including Kindle Direct Publishing and CreateSpace) for writers who want to be creative with original ideas but do not want their work under this kind of license.

What I don’t understand is why would anyone give away their rights for what is pretty much perpetuity like this? Especially for just HALF of the royalties? Amazon even says bluntly that no rights will be reverted before the end of copyright. Period. I know there has been a trend lately among traditional publishers to hold on to (sometimes to the point of refusing to return them no matter what the contract says) or demand longer terms on rights, but I find this is incredible.

Needless to say, I called my friend and said that I would not be putting anything into her world, that I could not simply give away my rights like that. I do intend to publish the book, but I was very careful to scrub it of any reference to her world or her characters, except for the physical location, which actually exists and has been used in books for at least a century. I offered to send her a manuscript copy so that she could be sure that there was no overlap with her work, but she most graciously said it wasn’t necessary. (We have been friends for many years…)

So while I can only goggle at anyone who would simply hand over the rights to their characters and ideas as well as their right to publish anywhere they want, such a rights confiscation apparently is not illegal. The writer has to submit and sign of their own free will, which makes the contract (however unfair I regard it) valid. I don’t have the right to order anyone not to accept such an arrangement (not that they would listen to me) because it’s their business, not mine. All I can do is beg everyone to read the FAQs and the contracts very carefully and make sure they completely understand just what they are signing away and for how long. Then I would remind them that they should do the same with every contract offered them, no matter from whom it comes. If there is the slightest question, they should turn to their agent (if they have one) or talk with an intellectual property lawyer. Or both.

Unfortunately the publishing world – like the world of movies and TV – is just brimming with sharks waiting to gobble up the creativity of the naïve. You the writers are the only ones who can protect yourselves and your creations. Make sure that any choice you make is a good one.

Breaking Up Is Hard To Do

by Janis Patterson/Janis Susan May

But it shouldn’t be.

Like so many other writers I am in the process of trying to get my rights back. Why is it such a hassle?

Most new contracts are written where it seems the publisher controls all the rights forever, with little or no hope of reversion to the writer. Apparently many publishers feel that they own the book instead of just having the license to publish it, and that’s just wrong, especially if they do little or nothing to sell the book. Instead they just sit on it.

A friend of mine has had several books with a major publisher for years now and try though she will, she cannot get the rights back. There is a catch in her contract that she can expect her rights to be reverted only after her book has been on sale for a certain length of time. As her sales had been okay but not spectacular she wanted to try for the gold ring in self-publishing. Every time the magic reversion date comes close, though, the publisher brings out a new, cheapie edition in Rumania or Patagonia or somewhere. It’s a new edition, however potentially unprofitable, and that resets the reversion clock. I guess they don’t want the author to make any money that they don’t control or the ability to put the book on the market where it might be bought instead of one of theirs. Either way it’s a dishonorable practice, whether or not it’s contractually legal.

Even worse is the publisher who has a distinct reversion of rights protocol in their contract, but who simply refuses to acknowledge it. Certified letters are refused, takedown requests are ignored, sometimes even royalties are withheld, but like a dog in a manger they keep the books – usually without doing anything for them. The books are simply held hostage and the author is forced into getting a lawyer to regain her property. I believe that I am facing this prospect now.

To add insult to injury, there are publishers who do not pay the proper amount of royalties earned and, as there is no law that sales figures (from their website or from third party retailers) have to be shown to the writer, the author must just take on good faith that the publisher is telling the truth. The author receives only dribs and drabs as royalties without having a way to check if this is right while the publisher keeps the money. In any other business this would be called theft; in publishing it is sometimes unfortunately business as usual. Sites like Writer Beware and Preditors and Editors are full of warnings about such publishers. And, sadly, it seems that these ‘publishers’ are the worst about reverting rights. Doubtless they feel they shouldn’t have to let loose of a cash cow, no matter what the law says.

Some publishers act as if a writer requesting reversion is a personal attack and respond in kind with rants, threats and tirades over the phone and through email. Sometimes they even go to the extremes of harassment through bad reviews on all the author’s books no matter where they are published or by whom. Such vicious attacks are designed not only to increase the publisher’s sense of power and personal vindictiveness, but to browbeat and punish the author for daring to want to recover her books.

Of course even the legitimate publishers are scared. After decades of being the omnipotent Grand High Pooh-Ba who must be placated and courted by the writer in order to be published, of doing as little as possible for the author while keeping as much as possible of the money (6% royalty, which some houses still offer? Of net and not even of cover? Really?) the specter of the independence of self-publishing must be terrifying. Books go directly from the author to the reader and the publisher is totally cut out of the equation. One of the downsides is the potential for a really big number of really bad books to flood the market, but there are no more gatekeepers. On the other hand, one of the upsides is that there is so much more variety and servicing of niche markets (markets too small to really interest a big publisher) because there are no more gatekeepers.

Publishing is changing, but that does not give the publishers the right to violate contracts and refuse to return authors their legitimate property – their books. The authors write the books and the publisher is only licensed to handle them for a proscribed amount of time. It’s time that all publishers – good and bad, honest and dishonest – realize that without authors there would be no publishing industry and they should be treated with honesty and respect. The author-genie is out of the bottle of traditional publishing and it will never go back to the old ways again.