ADVENTURES WITH RON, Part II
This is the second part of the Odyssey of R.J. Hore and his faithful monkey (yours truly) on his quest to regain his books from limbo, and wrest his rights from the Zombie publisher.
In our first Installment, we discovered that eTreasures LLC, publisher of R.J. Hore’s Toltec Trilogy, Dawn, Noon and Khan, and publisher of his one off We’re Not in Kansas, had in fact gone Zombie!
It was dead, defunct, rolled up, no longer in business. But somehow, it was still selling his books on Amazon, just not giving him statements or royalties or anything.
So, how to get his rights back? I’m a guy with certain skills for situations like this, I can make a human body disappear in thirty-eight minutes flat, family rates…
I mean, I have other skills, more appropriate skills.
The first thing you do in a situation like this is go to the contract.
Little tip – there’s always a contract. Publishing is basically just arrangements around copyright, and as anyone who reads the Copyright Act knows, any license or assignment of Copyright, to be enforceable, has to be in writing. No handshake deals.
So there’s always a contract in writing. And if it’s not in writing, it’s not a contract at all. Again, handshakes don’t count, even if you spit in your palm.
Of course, people aren’t well organized, if your book’s been around a few years, a contract can get buried in paper, get lost, get hard to find. But there should still be one, it’s just a matter of digging it out.
So I sent Ron hunting the contracts and by god, he found one!
Now, the nice thing about publishing, is that each Publisher’s contracts are mainly just fill in the blanks. There’s generally not a lot of negotiation that goes on.
Publishers are publishing lots of books typically, so they don’t want to pay a lawyer or a manager over and over. They like certainty and consistency, so they develop a pretty standard agreement, usually based on other agreements they’ve seen. The industry itself has various standards that have to be in the agreements. So most publisher’s contracts are standard documents for all their books.
Most writers are so desperate to be published they’ll sign a duck’s ass without looking at it too carefully. There’s not usually a lot of negotiation and detail work going on, and what there is, is typically restricted to a few ‘fill in the blank’ areas. It’s a matter of ‘take it or leave i-“I’LL TAKE IT!!!”‘
Ron had four contracts, but they were all going to be the same. I only needed to look at the one.
Now, you’re looking for two things in this kind of situation.
1) The reversion clause. The clause that says when or how you get your rights back.
Not all contracts have them. Crap, horrible contracts, written by unscrupulous Vampires don’t have them. If you have a book contract, read it, and if there isn’t a reversion clause, head for the hills. Don’t sign it!
If you’ve already signed it, then I know a guy that can dispose of a body in 38 minutes, offers family rates. Just making an observation.
Now, there’s all sorts of reversion clauses, for all kinds of situations. So even if you do have a reversion clause, make sure it’s up to snuff. If you’re a writer, never sign a contract unless you know that you can get your rights back under reasonable circumstances… like you’re asking for them, you’re not getting reports or royalties, or a change of editor, or management, or the publisher is bankrupt, etc.
And don’t buy any guff about getting your rights back if your book goes out of print – in this age of ebooks and print on demand, nothing ever goes out of print. You want something better.
That’s the first thing you look for in a contract. Look for it before you sign. Look at it when you sign. And you look at it when it all goes bad.
2) The other thing you look for is breaches. A contract should have certain obligations from the publisher to you –
You should get royalty or sales statements on some regular basis so you know how many books you sell or don’t sell. You should get royalties now and then, preferably on some regular basis (assuming your books sell).
There may be other obligations. Go through the contract. What is the publisher promising to do, what are they supposed to do.
Watch out for ambiguity – if they “may” do something, it’s not enforceable. Discretion is bad, options are bad, certainty is good.
The point of obligations, is that if an obligation is not followed or carried out, then it’s a breach. Particularly: A breach of contract.
A breach of contract gives you rights against the publisher, options to sue them and compel compliance and disclosure, and even a right to terminate the contract. Terminating the contract gives you your rights back.
Now, not every breach of contract entitles you to terminate, but even where it doesn’t, you’ve got grounds to be such a pain in the butt that the publisher decides it’s easier to just give you your rights back than to fight.
So children – always look for a Reversion clause, and then always look for clear obligations which can constitute breaches. Those are your escape hatches.
ANYWAY I looked at Ron’s contract. Yes, there’s a reversion clause! Also – breaches, royalties, reports, but you figured that out.
The Reversion clause provided that Ron could get his rights back, if the company went out of business, and Ron gave it thirty days written notice.
So let me get this straight – the company ceases to exist, and after the company ceases to exist, all Ron needs to do is send a thirty day notice letter to the nonexistent company, and he’s free.
All he has to do is notify a nonexistent company? How do you do that?
And just for the record, how does a nonexistent company hold rights? Wouldn’t all its contracts dissolve automatically when one of the parties ceases to exist?
In my line of work, you see strange ungodly things in contracts… and in my bathroom. I’ve learned not to let it bother me.
The problem was that the company was a Zombie. It had books all over Amazon. Amazon wasn’t just going to give Ron his books back from Zombie eTreasures LLC, just on his say so.
Look, Amazon is not in business to be anyone’s friend. Amazon’s just in business to be in business. Their job is making money, not mediation, adjudication or therapy. They don’t care about your relationship with your publisher. They don’t care if you’re having trouble with your publisher.
They don’t want to know. They don’t want to get involved, and they won’t. Not unless it’s absolutely clear cut, totally certain, obvious and ironclad.
So we had to jump through the hoops.
The company was gone, but the officer/director was still there, the address was still there.
I drafted up a letter for Ron to send. The letter asserted serious breach of contract warranting termination for failure to provide reports or royalties. The letter also invoked the reversion clause – living the official thirty days notice.
I had Ron send it to the address of the former corp, addressed to the corp’s name (see what I did there?), AND to the name of the officer/director just in case the corp wasn’t accepting mail.
Most importantly, I had him send by registered mail. They have to sign for registered mail. You get a signature receipt from registered mail that proves it was delivered.
That way it didn’t matter if the letter disappeared into the ether, didn’t matter if there was no response or acknowledgment. We didn’t need it. We would have proof that the letter directed to the address of the corporation, and to the name of the corporation and its officer/director was officially received…. by someone. And that’s all we needed.
There was no requirement in the Reversion clause that they had to agree or to do anything, all that was required is that we give them thirty days notice, and to be able to prove it.
At the end of the thirty day notice period, rights were automatically terminated. It was ironclad.
Now it was time to go to Amazon.
1) We printed of the contract, with special attention to the reversion clause;
2) We printed off the letter to eTreasures LLC;
3) We copied out the Registered Letter receipt;
4) We printed off the Company search that showed the address of eTreasures, the name of its officer/director and the fact that the company was dissolved.
We turned the whole thing into a pdf package.
Then I drafted a brand new letter for Ron to take to Amazon with the pdf package. The letter basically said – We are the author of these books, our name is on it and here’s the contract with the publisher. The company is dead. Here’s the reversion clause. Here’s the notice of termination. And here’s the proof that the notice of reversion was given. The books are mine. Please take them down and stop giving my money to eTreasures.
Now you would think that would be it.
The problem is you have to get it to the right person or place in Amazon. They don’t actually have a department of ‘giving people their book rights back.’
So you have to go into Amazon and find their customer service department.
The first person you talk to or write to in Amazon, they’re going to be the low end entry level customer service person. They won’t have the authority to actually do anything, much less what you want. They’re there to just take the obvious service requests, talk about goats or something, and respond to the most common questions from a list of answers written on a shaved goat on their desk.
By the way – don’t talk to them. I mean sure, if you have a simple administrative problem, go ahead and talk. But for something like this, put it in writing and make sure you have a copy. Who knows what happens to a conversation or how it gets recorded or remembered.
But something in writing? That has power. And it has a date attached to it. And it has a specific request or assertion that must be answered.
Also, when you’re putting things in writing, don’t be vague – give names, titles, ISBN numbers, relevant dates, web page links, whatever you need. Avoid confusion. Be specific.
Anyway, entry level guy – will do nothing for you. But your only point of entry is entry level guy. You talk to entry level guy, because on his list of instructions, written on the shaved goat, is a direction that if he runs into something complicated, he can shove it upstairs. That’s what we wanted, the referral up to the next level.
We go to the next level – we go through the whole song and dance again. We argue. They promise to look into it, which is English for “this is out of my league I need to pass the buck.”
And hopefully, next level person does a little due diligence, checks the Amazon records and files on eTreasures LLC and R.J. Hore, verifies what he can, and kicks it upstairs, or to a specialist, or to some dusty office in the Amazon basement with a post it note on the door that read ‘Department of Giving People their Books Back’ which is so low status that their goat is loaner and they have to shave it themselves.
We go through the whole song and dance again. Our file is bolstered by the previous correspondence. But finally, we’re in the right place.
They take the eTreasures Books down. Ron truly, officially and finally has his rights back.
My job is done! Or so I think.