The Daily Square – She’s Broken Edition

March 14th, 2008 · 9 Comments
by Kassia Krozser

  • Small House Protests Vanity Label by RWA
    The latest in a long time of publishers who feel, well, RWA owes them something. In this case, the fix is clear…and, well, fair to authors. We say this one goes back to the publisher.

File Under: The Daily Square

9 responses so far ↓

  • Marion Gropen // Mar 14, 2008 at 1:13 pm

    Re: Small House Protests Vanity Label by RWA
    I think you’ve erred in your comment. The RWA’s labeling of Tsaba as one of the thousands of subsidy/vanity/POD publishing companies is potentially damaging. It’s also an error.

    I’ve seen the Poynter sample contract. It’s ordinary publishing boiler plate. If you don’t know me, you have no reason to believe me, but if you compare it to standard boiler plate, you’ll quickly see the truth.

    There are small presses that whine on about unfairness. That’s not the case with Pam and Tsaba House. They just get down to work making good books, and marketing them well. They may be small now, but I don’t expect that to last long at all.

  • Kassia Krozser // Mar 14, 2008 at 7:17 pm

    While I still disagree with RWA’s position vis a vis self-publishers and vanity presses, especially as defined in this latest policy (I think that this will have to be revisited as the market changes over the coming years), the rules and definitions laid out were fairly clear. The RITA is a major contest for RWA and they do not disqualify books on a whim.

    Whether or not the language used is “standard boilerplate” is not really relevant if the boilerplate language includes clauses that allow the publisher to charge authors in a way that violates the definitions of self/vanity publishers created by RWA (after much discussion, you can be sure). I have never seen the sort of language discussed in the PW article in a book contract — and do note that Poynter offers a magazine writer agreement in the same package.

    If Tsaba is using the wrong agreement from the package, that can be remedied, though it might be too late for this year’s RITA. Since I’m not going to buy a CD of agreements to verify the exact wording in the various samples — and then review Tsaba’s specific agreement with the author in question, I have to believe that RWA was not acting in a capricious manner. Or, if Tsaba submitted the wrong contract for review to RWA (maybe the actual agreement signed by the author was different and did not contain this language?), that can be remedied.

    It’s fantastic to see a small press succeeding on the merits of good books and good marketing. Truly.

  • Marion Gropen // Mar 14, 2008 at 8:07 pm

    I should say, up front, that Pam Schwagerl of Tsaba House is on some of the publishing listservs that I’m on. So I have some information about how she runs her business, because it has come up in discussions in those lists.

    She has a contract that covers both the fiction and non-fiction parts of her list. This is adjusted to fit the particular book. RWA got boiler plate, for obvious reasons.

    The PW article wasn’t particularly specific, as must happen in those daily bulletins. That has led to some confusion. For example, the “back matter” it refers to is an index. I don’t know of any major non-fiction house that does not have a contract allowing them to charge the author for preparing an index.

    For whatever it may be worth, Pam, like most small presses, has never invoked any of these clauses. But, you know as well as I do, what can happen when you don’t cover even the most unlikely events in a contract.

    I’m not going to say whether RWA is capricious or not. It certainly has a growing reputation for being so with smaller presses, but I’ve never dealt with them.

    But they’ve made a tactical error. They made a completely understandable mistake in assessing THIS small publisher, and instead of looking carefully at it, and changing their mind, they look like they’re circling the wagons and digging in.

    It’s natural for them to do so. I understand completely why it happened, but they need to grab their courage with both hands and fix their mistake. It’s only fair.

  • Kassia Krozser // Mar 14, 2008 at 9:30 pm

    I’m still not convinced. While I can see your argument that the contract provided — let’s call it a basic contract or template as I am presuming it’s modified to meet the specific terms of each deal — covers both fiction and non-fiction, you don’t state whether or not the clauses in question relate specifically to non-fiction publishing. If they do, then I can see your point. But if they don’t or are unclear, then I get to my next point.

    What’s at issue here is a contest. Every contest has rules. The rules for this particular contest — and again, I have issues with some of the language because I think it does not reflect the reality of how certain publishing ventures work — are clear. RWA, first and foremost, must protect its members. In the past decade that I’ve been a member, more than a few small presses have gone under. There have been messy issues dealing with rights as bankruptcy courts get involved, etc. There have also been issues relating to generally unscrupulous or unprepared business practices (that sounds less awkward in my head — I am referring to publishers with wonderful intentions, but no ability to execute). While RWA can be dealt with on very human terms, the reputation its developing when it comes to small presses comes from experience (I do agree that serious missteps have occurred and, frankly, much of what has happened comes from internal personality conflicts that naturally sway opinions; neither side of this 10-year old argument has been particularly heroic).

    Tsaba may totally have their act together when it comes to the business end of things, but if you look at from RWA’s perspective, a certain degree of caution is warranted, given what the organization and its members have experienced. I still believe there is a way to compromise, but I stand by my statement that the organization did act out of caprice. Whether we like them or not, the rules are pretty clear, and it sounds like the contract — even if the clauses in question are meant for another type of book or are never expected to be invoked — does not conform to those rules.

  • Kassia Krozser // Mar 14, 2008 at 9:40 pm

    One final thought — you’re saying that RWA made a completely understandable mistake in evaluating this particular publisher. This implies that the organization should be required to take publisher at its word when faced with written evidence to the contrary (never minding intent of the language). I once sat across the table from a man who assured me that the “intent” of a particular deal was something other than what the actual, signed agreement said (and, noteworthy, while he indicated that this same intent carried through to subsequent agreements, none memorialized this apparent plan). I couldn’t find a single person — other than this man — who remembered this being the intent. Not a single note in a file that contradicted the agreement.

    While I could sympathize with his plight (knowing that he was trying to play me — he’s not a stupid person and was just doing his job), bottom line was that the contract said what the contract said. That’s what I had to rely upon. Likewise, if RWA were to rely upon assurances from publishers in the face of written evidence to the contrary, well, as a member, I would be very unhappy.

    I would say that RWA made an understandable assessment, not mistake.

    And, yes, as one who tends to criticize the organization frequently, I do find it interesting that I am strongly supporting this position.

  • Marion Gropen // Mar 15, 2008 at 1:03 pm

    The problem is not about entering the contest, but about being denied admission to the approved list of publishers, because the RWA has decided that this is a subsidy press.

    The problem also is that the RWA looked at the boiler plate for a publisher that puts out both fiction and non-fiction, and didn’t RECOGNIZE standard non-fiction boilerplate.

    Let’s face it, fiction is a relatively small fraction of the total publishing pie. Even if the RWA is all about a particular type of fiction, those who are setting themselves up to judge whether a publisher is legit or not ought to either KNOW about other types of publishing or be willing to reach out to others’ expertise.

    In this case, Pam, recognizing what was happening, provided them with a looong list of IP attorneys that they might consult. They could have called any one of these well-known practitioners, or contacted any other expert, and would have avoided this whole mess.

    This isn’t about contests, or even about one small press with a strong track record, but about whether or not the RWA and similar organizations are applying their standards with reason or out of ignorance.

    If Tsaba were completely out to lunch, truly knowledgeable observers like Gene Schwarz and Victoria Sutherland at Foreword, and Claire Kirch at PW, wouldn’t be weighing in. Nor would old pros in the small press field (and frequent thrashers of subsidy houses) like me, Bob Goodman, Pete Masterson, and the many others commenting all over the ‘Net.

    Tsaba is nothing like a subsidy. We’ve been around the block a few times, we KNOW the difference here. If the RWA wants to tell its members that it will only recognize publishers with sales above a certain level (say $100 million/year), fine. But by calling a small press a subsidy house, they made a defamatory mistake.

  • Kassia Krozser // Mar 15, 2008 at 10:26 pm

    Whether or not fiction is a small piece of the publishing pie is irrelevant — fiction is the only pie as far as RWA is concerned. And protecting the membership’s best interests are critical.

    Now to get to the so-called “approved” list. What is Tsaba’s goal here? To enter the RITA (you don’t have to be on the approved list to do so, but there are still rules), as indicated in the PW article? To get an author into PAN? To hold appointments at the conference? To, well, be on the list?

    RWA has, for better or worse, its criteria for the list. It is a professional organization serving a diverse membership. It has also seen more than one small press (print and electronic) fail. It is very clear that, despite the craziness involved with developing the “approved” list, that small press is represented.

    While you can cite experts who are weighing in on this subject, the fact is that RWA makes its own definitions (as do all professional writing organizations). The criteria we’re discussing is that the publisher not charge the author for certain services. That is something that is very important to RWA members. All the experts in the world cannot change the fact that the membership of a particular organization, for the purposes of doing business as that organization, have created a definition. When we’re unhappy with the way things are run, we take responsibility by putting like-minded individuals in positions to affect policy change. Are you really suggesting that it is defamatory to create and publish a definition of “subsidy” that meets the criteria defined by an organization’s membership?

    You will also note that many of the publishers on RWA’s list maintain both fiction and non-fiction lists. It’s possible to publish multiple types of books yet still meet the criteria outlined.

    The contract in question — and you have not offered evidence to the contrary — does not clearly state that the language regarding author payments is applicable to a single type of book. I believe Allison Kelly, as evidenced by her quote in PW, knows that this language is generally used for a different type of publishing.

    But, well, wow, that language is in the agreement, and while I believe that very people enter publishing to scam others (there are, of course, some), it’s there. And it’s not specific. And you know as well as I that management changes at publishing houses. Bankruptcies happen. New overlords take control.

    Being RWA-recognized is not a requirement for publishers (in fact, due to long-standing disagreements about the epub market, many major epublishers have chosen not to participate, yet RWA members continue to publish with them). While I understand your point, I am unclear why RWA should have to bend its standards to suit one publisher when it’s obvious that this is the very rare exception rather than the rule.

    I still see this issue as easily remediable by Tsaba. Obviously, I cannot and do not speak for the RWA, but one thing seems clear to me: this so-called publisher recognition is something Tsaba wants. Being part of the RWA family helps them achieve their goals. A political science professor of mine once laid this out very clearly for all who took his class: winning is easy — all you have to do is follow the rules of the game.

  • Marion Gropen // Mar 17, 2008 at 9:30 pm

    This will be my last post on this issue, because I feel very awkward about how MUCH I’m posting on someone else’s blog, and because this very much isn’t my fight. I’ll just try to correct the flaws in my earlier posts. (I’m a money, operations and contracts type — not a writer or an editor, after all!)

    1. Authors are always responsible for turning in a ms in usable shape (a .doc or .txt file, for example, and all ancillary materials, permissions cleared, yadda yadda yadda). I don’t think anyone has argued that point.

    2. The RWA has taken Tsaba’s requirements that the authors submit a ms in good order, or pay to fix the lack, and made it look as if they were asking to be paid for the things publishers do, such as editing, composition, design, printing and marketing.

    3. The vanity press label can kill a small press UNLESS they are a vanity. RWA should be very careful when slinging such damaging language around. Exclusion from a contest is one thing, labels are another.

    4. Since larger houses ask the same things of their authors, and often have the same language in their contracts, it seems that the RWA is applying their rules differently to small presses. I suspect that they’re doing it with the best of motives, but a little more openness about the real rules might go a long way.

  • Kassia Krozser // Mar 18, 2008 at 10:49 am

    Debate is good. Debate helps. And I do see your points, but still, well, when Tsaba applied for recognition (and this story keeps getting murkier and murkier, though it does seem to be ultimately about an author who wanted to enter contests and her publisher trying to make that possible) the criteria were clearly outlined. From a contracts perspective — and that’s all I’m focusing on — the language exists in the agreement. How it is applied, now or in the future, does not change this.

    I don’t believe that RWA is applying different standards to small presses. As noted, there are more than a few small presses (print and electronic) on their list. While I am sure that there have been other examples, this is the first time I’ve heard about a publisher being excluded on the basis of contractual language. My recollection is that most of the publishers who do not qualify are lacking sales thresholds or other requirements.

    RWA deals with fiction only. It still sounds like Tsaba is using a contract that covers both fiction and non-fiction. Whether or not Tsaba is on the RWA publisher list is only relevant in a few instances. RWA members choose, regularly, to work with publishers who don’t meet so-called approved status because those publishers meet a more important requirement: they help to achieve an author’s goals. As you can see from the actual list, compared to the vast number of publishers out there, relatively few are associated with RWA.

    I’ve seen contracts from many RWA “approved” publishers, and I’ve never seen this language. It might be standard for certain publishers, but it’s really not, to the best of my knowledge, the standard for the publishers that members of RWA work with regularly.

    Do I think the entire publishing business model — including, yes, sharing of financial responsibility — will be changing dramatically in the coming years? Yes. And I also think RWA members will be thinking outside the traditional publishing boxes more and more as opportunities increase. But this is a long time coming, and while Tsaba’s management is clear in their minds about this language and how and when it will be applied, I, for one, would not feel comfortable with non-written assurances (see my example above — I’m not talking about a small press, I’m talking about a major Hollywood player who didn’t get what he considered to be a key point in writing).