Start Media Buys Whiskey Creek Press, Imposes New Contract Terms

Edited to add: Jarred Weisfeld of Start Media has responded to this post, clarifying some of the issues raised below.

In early June, Debra Womack, owner of Whiskey Creek Press, announced in a letter to authors that the publisher was in the process of being acquired by Start Media (a company that has recently acquired two other small presses, Night Shade Books and Salvo Press).

As part of the acquisition process, Start is asking all current WCP authors to agree to and sign an offer of new terms as follows on page two below. We are offering you the non-refundable sum of $1 and other good and valuable consideration, payable to you if and when the sale of the company to Start is completed (expected to be by the end of June 2014). Upon closing you will also receive a payment from WCP of current royalties and/or advances or any other sums owing to you by WCP for sales up through and including April 30, 2014.

Writer Beware has received a few reports about WCP over the years: a setup fee for taking books to print (a policy that was apparently discontinued some time ago), and a $500 fee for early termination of its 3-year contract (always a red flag, since such fees don’t benefit either writers or publishers, and can be used abusively). Per the discussion at this anti-WCP blog, some authors have also apparently had recent trouble with substandard editing, missing royalty payments/statements, and poor communications by the company.

Even so, WCP seemed relatively stable. So the abrupt announcement of a sale–with no explanation as to why–came as a major shock to authors. So did the terms offered by Start Media.

WCP’s contract includes this clause:

If the Publisher sells its assets to another publisher who does or plans to market and promote books of the type and genre of the Work, the successor publisher will be bound, as a minimum, to the same terms delineated in this agreement.

In direct contradiction to this, however, the letter of agreement Start Media is asking authors to sign imposes some substantially different terms. WCP’s contract term is 3 years from publication; Start Media’s is life-of-copyright. WCP’s ebook royalties are 35% of the net download price; Start Media’s are 25% of net (“all monies actually received”). There’s also a troubling gap between April 30, when WCP ceases to pay royalties, and July 1, when Start Media’s new royalty rate kicks in. What happens to books sold in May and June?

Understandably, WCP authors are upset and angry. Many are refusing to sign–despite the fact that no explanation has been provided, either by Womack/WCP or Start Media, of what will happen to their rights if they don’t. (I’ve contacted Ms. Womack to ask this question; I haven’t heard back yet, but if I do I’ll update this post.)

One of the things WCP authors are most concerned about is Start’s life-of-copyright grant term. I’ve heard from authors worrying that Start is asking them to actually transfer their copyright, and from others outraged that Start will hold their rights until 70 years after their deaths.

I do understand that life-of-copyright sounds scary. But it is also the subject of a lot of misunderstanding. Contrary to what many people seem to believe, life-of-copyright grants are extremely common in the publishing world, particularly for larger publishers, though small presses use them as well. I don’t consider them ideal for small press or digital-only contracts–a limited term of 3 to 7 years is preferable–but, leaving all other issues aside, Start Media isn’t out of the mainstream in asking for a life-of-copyright grant term.

The intent of life-of-copyright contracts isn’t to seize authors’ rights (no transfer of copyright is involved, unless that’s specifically stated) or to hold them in a death-grip until long after authors are dead (how likely is it that a single publisher will even be in existence 70 years after you kick the bucket?). Rather, life-of-copyright is intended to enable the publisher to to continue publishing for as long as a work sells in decent numbers. Once sales diminish–as, for most books, they inevitably do a few years after publication–the contract should be terminated and the work taken “out of print”.

In the old days of print only, publishers had a strong incentive to take books out of print and off the market, because they didn’t want the expense of holding boxes of non-selling books in their warehouses. Nowadays, though, books don’t need to have physical existence in order to be available for sale–so it’s actually in publishers’ interest to keep them available indefinitely. If a publisher has a deep backlist, they can make money even from books that sell only a handful of copies.

To prevent this, a good life-of-copyright contract should ensure that the author can demand–and receive–termination of his or her contract once sales fall below a specific minimum (for instance, fewer than 50 copies sold in the previous 12 consecutive months). With such language, a life-of-copyright contract is acceptable. Without it, a life-of-copyright contract is a “beware.”

Here is Start’s reversion language.

2• Revision [sic] of rights: If the Work shall be declared out-of-print, or sell fewer than twenty five (25) copies in all formats in any calendar year, or the Publisher shall have stopped selling the Work in all formats, including reprints or editions licensed to other publishers in the United States and if, within six (6) months of a request by the Author the Publisher fails to inform the Author in writing of a plan to reprint, repackage, do a new edition, or license an edition to another publisher in the United States, then this Agreement can be terminated by the Author in writing. After receipt of the termination letter, Publisher shall have an additional two (2) weeks to reconsider its options (a total of 6 months and two weeks) and notify the Author of its decision. If the Publisher still fails to inform the Author of an intention to keep the Work in print in the United States, all rights shall revert to the Author, subject to any grant of rights made by the Publisher prior to the termination date, and any third party licenses will remain in effect for the duration of its contract and Publisher shall be entitled to collect its royalties.

So there is a minimum sales threshold, below which authors can demand reversion. However, this is qualified by two things: the publisher’s ability to slap a new cover on the book (or something similar) and call it a “repackage”; and, more problematic, its ability to “reconsider its options” once it has received a termination request. In effect, whether to honor the 25 copy minimum sales threshold is left entirely to the publisher’s discretion. Authors, therefore, can’t count on low sales triggering reversion.

Even if there were no other issues, this makes Start’s agreement a “beware,” as far as I’m concerned.

Unfortunately this analysis is largely moot, since WCP authors’ deadline for signing up with Start was June 23 (I wish I’d written about this sooner, but I’ve been out of the loop for much of June, as you can tell from the absence of posts here, and only heard about the WCP sale this week). I’ll be interested to hear from WCP authors–both those who signed up with Start and those who didn’t–either in the comments here or via email.

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As a side note, WCP’s recent contracts include this ominous clause:

XVI. Defamation. Should the Author, or Author’s agent, defame Whiskey Creek Press, Publisher has the expressed right to remedy the matter in a court of law. The Publisher also has the right to terminate this agreement, in part or in full, if defamation is proven. The Author will be responsible for full payment of damages and customary legal fees as a result of legal action stemming from defamation. This does not apply to any issue between Authors.

Writers, where you see a clause like this in a publishing contract–and I’ve seen a few–it all but guarantees that complaints about the publisher exist.