What can authors learn from the PublishAmerica class action?






The Passive Voice has a piece up now on the PublishAmerica class action currently pending in the United States District Court, the District of Maryland. Here’s the link to the blog which includes a copy of the complaint.  The complaint is the legal paper filed by the plaintiffs which lays out the legal and factual issues in the case. http://www.thepassivevoice.com/06/2012/class-action-suit-against-publishamerica/

The complaint was filed June 8, 2012.  So, this is a brand new case which is just beginning its journey through the legal system.

In my law practice, I have handled a number of class actions over the last fifteen years, so I always find class cases interesting from a professional point of view.

But the PublishAmerica case is one that should be of special interest to any author seeking a publisher.

In the complaint, three persons act as representatives for the class, which is defined as

“All people who are currently under contract with PublishAmerica for the first time for the publication of their literary work(s) and all people formerly under contract with PublishAmerica for the publication of their literary work(s), who have purchased its publication, production or promotion services within the last three years.”

The allegations in the complaint are just that: allegations. As such, they are supposed to be statements supported by facts that give rise to certain legal remedies. In other words, the plaintiffs say PublishAmerica broke the law and now should have to pay the members of the class for the wrongs it did to them.

I’m over-simplifying here, but the gist of the case is that PublishAmerica contracted with authors to provide certain services, didn’t provide those services as promised and required authors to pay for other services. In essence, the plaintiffs accuse PublishAmerica of suckering them into a situation where they became captive to PublishAmerica then had to pay for all sorts of services they did not anticipate or could not have anticipated at the time they contracted with PublishAmerica.

I don’t know if this case has any “legs” under it or not. Only time will tell.

But the point is that there are plenty of publishers out there that make their money screwing authors.

I don’t know how many times in recent years I have talked with authors who have signed with publishers and had to pay tons of money to ever get a copy of their book in their hands. I have had authors tell me that they can’t sell their print books at events because they have so much money in each copy that just to break even they have to ask more for their book than the market can bear. I have talked to other authors who have invested hundreds or thousands of dollars with a publisher and cannot point to a single sale of their book, except for the ones they bought from the publisher and sold out of the trunks of their cars.

When it comes to publishers, authors beware.

Just looking at the PA case from the outside, I think it will come down to this:  What did the contract say that the author signed?

If the contract allows for add-on costs, the authors are probably screwed.

One or more of the allegations also address PublishAmerica’s failure to provide promotion for authors’ books.

If we assume for the sake of argument that PublishAmerica didn’t promote a book as it promised, then we have to answer the question: How much was the author hurt by PublishAmerica’s failure to promote?  Since most books don’t sell many copies, how do the plaintiffs show that if PublishAmerica had run a particular promo, they would have sold X number of books?

And so on.

The bottom line is this:  When it comes to publishing contracts, the devil is in the details. If the first thing the publisher asks you to do is to get out your check book, don’t walk away, run.

Compare the PublishAmerica fiasco to the new world of digital publishing.  Now authors who want to go digital can do so without intermediaries if they wish.  To be sure, most authors will have to pay for certain services, such as editing and professional cover art. They may have to pay for formatting services if they don’t feel competent to handle them on their own. But all of these out of pocket costs are one-time affairs done on a turn-key basis.  When the author has his mobi file and cover art in hand, he is armed for bear.

That makes the PublishAmerica approach to publishing look pretty sorry, doesn’t it?




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