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Pitfalls for Self Publishing Authors

There are publishers in the traditional sense who curate the books they publish and there are companies that provide printing services for self publishing authors without curation who pretend to be traditional publishers. Be wary of printing contracts styled as publishing contracts. The business models are entirely different. Printing contracts can be misleading in describing their services and their obligations in exchange for the payments they receive. And, because of this, self-publishing authors should take care they understand the terms of these contracts and be especially on guard for terms that tie up copyright. Distribution is more than merely offering books through Amazon. Printing contracts calls for the author to pay the printing and other costs associated with a menu of services (which of course is not found in traditional publishing). Some of these agreements, the one’s least advantageous to authors take exclusive rights for a stipulated period of time. The less disadvantage (but no less inexpensive) take nonexclusive rights. It is a good idea to review all contracts carefully, but with particular care with printing/distribution service contracts.

An unhappy author who contracted with PublishAmerica (a printing service company that styles itself as a traditional publisher) without considering the consequences of disadvantageous terms states on her website:

I did not research PublishAmerica thoroughly before submitting my manuscript to them. I took my information strictly from PublishAmerica’s own website. After my contract was signed and my book was well into the publication process, I decided to do a Google search just out of curiosity.
I soon found myself confused and frightened by the negatives I encountered. I really didn’t know what to think. Had I made a mistake by contracting with PublishAmerica? How was I to really know?

PublishAmerica describes itself as “the Nation’s number one book publisher!!” And as a “traditional book publisher.” It is far from being the first and is certainly not the second.

The genesis of this Note on contracts is an offer from PublishAmerica to its published authors brought to our attention by one of our readers to revert rights granted in its “publishing contract.” To put the matter in context, the author granted “publisher” exclusive rights for 7 years. The contract contains no provision for reversion of rights, but provides for reassignment to author (reversion) for a fee:

24. When in the judgment of the Publisher, the public demand for the work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and destroy any or all plates, books, sheets and electronic files without any liability in connection therewith to the Author.

If “publisher” elects to discontinue manufacture for lack of “public demand”

the Publisher agrees to notify the Author of such decision in writing, and will offer to transfer to the Author the work and its rights in the copyrights thereon, the plates (if any), the bound copies and sheet stock (if any) on the following terms F.O.B. point of shipment: the plates at their value for old metal, the engravings (to be used only in the work) at one-half (½) their original cost, the bound stock at one-half (½) the list price, and the sheet stock at cost of gathering, folding, sewing and preparing for shipment, all without royalties.

Only if the author agrees to pay a fee for reversion will PublishAmerica “offer to transfer to the Author the work and its rights in the copyrights.” The offer is made in an e-mail:

Dear [Author]

Your book … has shown no sales for longer than a year.

At this time you may want to have your book’s publishing rights reverted back to you.

We can arrange that.

Go to http://www.publishamerica.net/service/ReturnRights.html and instruct us to return the rights to you. In the Ordering Instructions box, write your name and the title of your book. You will receive the termination documents by mail. There are no strings attached to this termination except the $199 processing fee that covers our administration costs and our de-listing obligations
to vendors and/or wholesalers. You must choose a shipping option to activate your rights return
instruction.

Thank you for having been a PublishAmerica author, or for sticking around if that’s what you
prefer!

–PublishAmerica Author Support Team

The likelihood of “public demand” is remote after an initial period. Much depends on the author’s own initiatives – a promise by someone calling itself “publisher” that “[s]ales promotion, advertising and publicity shall be at the Publisher’s election and discretion” is illusory. A promise of performance at a party’s “election and discretion” is not an enforceable. If there is continuing “public demand” it is up to the author:

17. ***The Author agrees to actively participate in promoting the sales of the said literary work in his home town area and elsewhere, by making himself available to media interviews, book readings and/or signings, and other public sales promotion appearances.

In essence, the right of reversion is transformed into a right of “publisher” to discontinue manufacture and all the other services “promised”, so “offering” reversion is simply another source of income to the “publisher.”

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