Pub Rants

Category: Publishing Deals & Contracts

Publishers, You Want An Edge On the Competition?

by Kristin Nelson

STATUS: TGIF and blogging early as I actually want to leave the office before 7 pm tonight.

What’s playing on the iPod right now? OVER THE HILLS AND FAR AWAY by Led Zeppelin

Then let me throw this idea out there before all of you jump on the 25% of net band wagon so as to be like every other publisher out there offering substandard e-royalties.

Three years ago when I had a hot project (as in I’m getting pre-empts, potentially going to auction, going to have my choice of publishers), if Random House was in the mix, I’d lean their way. Why? Because RH had decent royalties for eBooks (at 25% of retail—which I know doesn’t match ePublishers but for a NYC major, not bad). Obviously other factors were in consideration such as marketing plans, other royalty structures, escalator break points but I think you can see where I’m going here.

This was 3 years ago (maybe even longer) when eBook sales might have added up to 10 copies total in any given 6-month period (SF&F or major authors excluded).

I could see the change a-coming; it was just going to be a matter of time.

So RH, you used to have a strong leg-up—which this year you’ve taken away from yourself. I can’t help but think that’s short-sighted.

You want an edge on the competition? Well then, why are all you publishers racing to do the same short-sighted thing?

Tell you what. Come to me with strong trade paperback royalty escalators, solid e-royalties percentages with escalators, decent audio percentages (downloadable or otherwise), etc. and I’m open to talking about non-outrageous advances or dare I say it? No advance at all if we can truly do a shared equal risk on a no returns basis (a la Vanguard Press and Harper Studio).

Maybe I’m alone on this (but I doubt it), I’m totally open to discussing less on the front end for a larger share of the back end.

But what I hear from publishers is the same low advance spiel with no change on the back end. And you’re wondering why I’m not leaping out of my chair with joy. I often hear that agents are to blame for demanding crazy advances etc. but have publishers asked themselves lately what’s been offered in return? Given an alternative, agents could be persuaded to think outside the box. Not given any viable alternative, then we have to stick with business as usual in order to best represent our clients.

Two to tango, certainly, as I’m thinking that “business as usual” won’t suffice for either publishers or agents as the publishing model rapidly changes…

And since it’s Friday and sheesh did I get off on a rant there, a gratuitous Chutney-in-the-snow shot from this morning. She HATES wearing her fleece. Can you tell? She won’t even look at me. Grin.

No Imeem file available.

Contract A Go-Go

by Kristin Nelson

STATUS: It can stop snowing now…

What’s playing on the iPod right now? I’D RATHER BE WITH YOU by Joshua Radin

I first caught wind of the contract changes from Macmillan via Richard Curtis’s blog about the changes they want to try for in e-royalties.

Oh boy, here we go again. Great, a battle because a publisher wants to do LOWER than that 25% of net that publishers as of late have been trying to push as “standard.” I long for the Random House days of 25% of retail…)

Then Publishers Lunch had a note about it, thank goodness.

Macmillan had sent a letter out to agents regarding the changes but for some reason, I, and just about every other agent I know (and folks that’s a lot), had not received this letter despite all of us having numerous clients with the Macmillan Group.

Small oversight I’m sure. When I emailed their contracts director, she mentioned that the letter was going out in waves to agents as their email list was long. Okay, fine. I’m a little annoyed but when I asked for the change letter and the sample of new contracts, it was sent immediately.

So now I’m in the process of reviewing. Macmillan had planned on implementing these new contracts on Nov. 9. Today I got an email that agents can respond until January 4, 2010. Good to know.

And first off I want to give Macmillan kudos for being totally upfront about the changes they want to do. Unlike, cough cough, Simon & Schuster last summer with their out of print clause and, cough, cough, Penguin Group with clause 9.ii.b. back in March.

So they are least being transparent but if the e-royalties are any indication of things they want changed, it looks like more contract battles ahead…

Agenting 101: Royalty Statements: Lack Of Detail

by Kristin Nelson

STATUS: Interestingly enough, I’ve got more film interest for one of my clients. This will be the fourth of fifth deal we’ve done in this year alone. Go film!

What’s playing on the iPod right now? HOLDING BACK THE YEARS by Simply Red

Just this month I received a royalty statement that only had the following info on it:

Total copies in print
Copies printed during period
Copies shipped during period
Total copies paid during the reporting period [note: because royalties are based on net—not retail price—which is sometimes true for smaller independent houses)
Total copies returned during the reporting period
Net amount earned during period.

That’s it. That’s all that is on the statement.

So right off, we have some legwork we are going to have to do in order to review this statement. Lots of info missing.

Not to mention, I’m going to have to create a whole separate excel spreadsheet so I can track earn-out. On this royalty statement, the advance paid isn’t listed. So it’s going to be up to the agency to track it so we know when the title has earned out because that info isn’t on the statement.

Also a problem? All sales are lumped together in “total copies paid during the reporting period.” That means there is no break-down of format (as in hardcover, trade paperback, electronic). We didn’t grant translation, audio, or other rights so that won’t be an issue (as we’ll sell separately) but I want to know how many of those sales are eBooks. This statement won’t remotely tell me that. And let’s not even get started about high discount, special sales, export, etc.

Do you see what else is missing? No mention of reserves held. Now maybe this publisher isn’t holding any but I won’t know that unless I ask. Some publishers do hold a reserve but don’t list that info on the statement. If that’s the case, we’ll have to make a note to always ask separately.

And the list goes on. For me, less is not more.

Agenting 101: Royalty Statements: Sales By Account

by Kristin Nelson

STATUS: Mondays are usual frantic but today was quiet. I’ll take it. I’ve got two submissions that need to go out by Friday.

What’s playing on the iPod right now? THE CHAIN by Fleetwood Mac

I began with Random House’s statement because it has a lot of detail, but even RH doesn’t have sales by accounts on their statements.

So what is that? It’s the breakdown of sales for your book via the different accounts such as Barnes & Noble, Borders, Amazon, Indies, book fairs (such as Scholastic) etc.

And the answer is no, royalty statements do not contain that information. However, I’ve certainly requested that information when tracking sales for a certain titles. Editors have also volunteered giving that information when a title is doing particular well and we want to chart where the majority of the sales are coming from. Or, equally important, getting on an account who hasn’t bought in for a title—especially when that book is doing well and it’s in their best interest to carry the title.

As hard as it is to believe (especially looking back now), it took Hyperion more than a year to get Borders to seriously buy-in Ally Carter’s YA novel I’d Tell You I Love You But Then I’d Have To Kill You. I know, in retrospect, seems pretty short-sighted of them to take so long. But Borders only had so much room for new YA titles and so Hyperion had to hound them about how good the sales numbers were to make them pay attention to this debut title.

Obviously now they are staunch supporters of the Gallagher Girls series but the break-down showed us what we needed to do.

We actually also use the breakdowns to see which Independent bookstores are really supporting the series and guess where Ally went on her book tour? A very good use of the breakdowns I’d say.

Agenting 101: Royalty Statements: Reconciliation To Print

by Kristin Nelson

STATUS: Although I’m not in Frankfurt, I spent a lot of today dealing with stuff from Frankfurt Book Fair. We’ve done 40-plus foreign rights deals so far this year. Bring it on! Sara, however, is hugely sad. She loved this project, offered representation but alas, the author had 7 different offers of representation but didn’t choose us. Unhappy face.

What’s playing on the iPod right now? FUGITIVE by David Gray

Ready to get back into the tutorial? Okay, I promised rec to print. First off, what does that mean?

A reconciliation to print is this and seems simple enough to give you the clause that we insist on having in all our contracts so you can see what it is in detail:

Reconciliation to Print clause: Upon Author’s written request, Publisher shall provide to Author the following information as to any particular six month accounting period: (i) the number of copies printed and bound in each printing of each edition; (ii)the date of completion of reprinting and binding of each edition; (iii)the number of free copies distributed; (iv) the number of copies remaindered, destroyed or lost; and (v) the cumulative total sales and disposals; (vi) reserves against returns; and (vii) licensing income, including licensee’s accounting statements.

I will tell you right now that if you don’t have this information, looking at your royalty statement is meaningless.

Why? Because there is no measure in place to compare the info on the statement to what actually happened with the book.

Without the rec to print, your statement tells you nothing. As you can see, I’m not in the camp of less is more and giving more info just confuses authors and agents and wastes everyone’s time by useless questions.

In fact, because Random house gives this info as a matter of course, it takes the least of amount of time for me to review and assess RH statements.

Do I still find errors. Certainly. But then it’s easy to call the royalty department and say, “look, you have an error here.”

And they always reply with “you’re right. Let us correct that and get the corrected statement out to you immediately.” (And just so you don’t think this is an RH love fest, other houses have done similar but I’ve had to ask for the rec to print; however, if an error was found, they’ve corrected it.)

Analyzing your rec to print with your royalty statement allows you to assess whether an audit is necessary. Given that so many of the big NYC houses are putting limits on look-back for audit (2 years is unfortunately becoming a sort of “standard”), it’s more important than ever to analyze statements and see what action, if any, is necessary.

And I know most of you are thinking that the big NYC houses would never intentionally hurt an author. Call me cynical but if you believe that, then you haven’t been keeping track of the major lawsuits against publishing houses in the last 10 years. Lawsuits that have been won by the way. Now to be clear, that’s not the norm, but it has happened.

So reviewing and analyzing your royalty statements is hugely important. I’ll also tell you right now that not all agents are created equal in this matter. Some agents just look at the statement and lay back and think of England. Others have whole departments devoted to the care and analysis of statements.

Nelson Literary Agency? We hire an outside gun who has been doing reviews, audits, and lawsuits on royalty statements for 25 years.

And let me tell you, together, we have found plenty of errors that needed correcting—always in the author’s favor.

So, that’s the rec to print.

Agenting 101: Random House Royalty Statement

by Kristin Nelson

STATUS: Statements and more statements.

What’s playing on the iPod right now? POOR UNFORTUNATE SOULS by Little Mermaid soundtrack.

When talking about royalty statement, first off you need to know that not all statements from different houses are created equal.

Today I’m going to begin by talking about the Random House Statements. They are my favorite. The statements are at least four pages long (sometimes longer depending on formats sold) and always contain all the information I need to evaluate if the statement is accurate.

Now this is not to suggest that every other publishing house has terrible statements. That’s not true. They just sometimes don’t contain all the info needed and then we have to request the extra info we need. All the houses, in general, are great at giving you the reconciliation to print info on request—but you have to request it. With RH, it’s all there.

Love that. (Tomorrow I’ll explain reconciliation to print, what it means, and why it’s important to have it when evaluating the accuracy of royalty statements.)

But for now, back to the Random House statement.

Page 1:
For RH, this is the royalty summary sheet and also highlights the ending royalty period. Then the page looks something like this (depending on what rights were sold to the publisher and how many formats have been exploited—by format I mean hardcover, paperback, audio etc.)

There would be four columns for the formats listed:
Current Copies, Current Earnings, Cumulative Copies, Cumulative Earnings

Hardcover
Trade paperback
Mass market
Audio
Electronic book

Then of course the above columns would be filled with numbers. The rest of the remaining sheets in the statement are to show detail for this summary sheet so you can see sales broken down by the individual ISBN numbers for the various formats.

So the next page or pages will have six columns:
Market, Royalty Rate or external market, royalty per Unit or net receipts, current copies, cumulative copies, cumulative earnings.

Then of course all these columns would be filled it with numbers.

But the next page is my favorite at RH—the Print Summary (this is all the reconciliation to print info that’s so necessary to review statements). Three columns for all this info.

Description, Current Copies, Cumulative Copies

Shipments
Returns
Reserves released
Reserves held
No Charge

Total reportable sales

Printings
Returns to stock
Scrapped from stock
Adjustments
Internal Summarization
Inventory

Total Shipments

Then we have the Sales Summary by Market with four columns:

Market, Gross Copies, Return copies, Net copies
US
Canada
Export
Spcl disct
No Charge
Total

Then we have Rate of Movement by Month with three columns

Month, Shipments, Returns
Oct
Nov
Dec
Jan

As agents, we stay on top of print runs done, how many copies in print, what is Bookscan reporting. Does the info we have match up to what the statement is telling us? If not, we are going to have a lot of questions.

In order to grab the columns, I was looking at a statement where only North American rights were sold to the publisher. (In other words, translation was not given to the publisher and the agency kept them to sell separately.) If the publisher has World rights, then that detail will also show on the royalty statement.

That’s all I’ve got time for today. More tomorrow!

Agenting 101: Royalty Statements: Accounting Periods

by Kristin Nelson

STATUS: Cross-eyed from reviewing statements all day.

What’s playing on the iPod right now? OUT OF AFRICA by John Barry

So I have to admit that it’s been a while since I did some nuts and bolts type blog entries. Personally, I find them a little tedious as I LIVE the nuts and bolts of publishing every day. But I don’t want to forget that a good majority of my blog readers have not been published yet and may actually be endlessly fascinated by some nuts and bolts blog entries.

Either that or I’ll bore y’all to tears. Both are equally possible.

Since I’ve been yammering away about royalty statements all week, let’s dig in to this topic. I’ll have to start off a little light because it’s just now occurring to me that this might make a couple of interesting posts and I’m typing this from home (rather than from work where I would actually be looking at a royalty statement).

Obviously I can’t share specifics about any given statement (as that is client confidential) but I can certainly tell you about what is generally on royalty statements (or is missing) and what information agents end up digging for.

So flex your fingers and kick off your shoes; we are diving back into some Agenting 101 entries that I’ll need to bookmark on the sidebar.

Because it’s a little late in the day (and I really need to finish up a client manuscript read), let’s start with something simple.

The accounting period.

This is a lovely and archaic system that publishing houses have in place despite all our digital technology. I imagine that at one time, this sort of accounting period made sense. In today’s world, it’s a relic and I wish it was like a dinosaur and would become extinct.

The traditional NYC Publishing houses do reporting in 6-month increments. For ease of explaining, imagine a royalty period that begins January 1, 2009 and ends on June 30, 2009.

Six months.

Then the publishing houses, and this cracks me up, get four months (oh you read that right—4 months) to generate and mail that royalty statement (with a check if monies are owed). Why four months is necessary in this day and age is rather a mystery. Or maybe not a mystery. Publishing houses want to hold on to your money for as long as possible. (As an aside, I love Holt Uncensored and Pat Holt’s idea of revolutionizing the royalty system by making online royalty accounting available for authors). Brilliant—but then there would be no reason for taking four months to mail you the statements.

But I digress. So if you have a royalty accounting period that ends on June 30, 2009, the author is going to have a royalty reporting period of April/October (October for the June-ending statement and April for the December-ending statement).

All information on the statement will be for sales (in all formats) from that six-month period. So when you get the statement, you’re already months behind in knowing current numbers.

Got that?

Tectonic Shift

by Kristin Nelson

STATUS: Halloween is going to be here before we know it. I’m not sure I’m ready for it to be the holiday season soon.

What’s playing on the iPod right now? UNDER PRESSURE by Queen (with David Bowie)

Or to quote Malcolm Gladwell, we may have reached the tipping point. As I mentioned earlier this week, October is a big royalty statement month here at the agency. All the publishing houses have different royalty reporting periods but the good majority of statements come in February/August, and April/October. In the last week, we’ve received a ton of statements.

And it’s always a happy time because with statements comes money.

But that’s beside the point. What I wanted to highlight tonight was that I’m reading a ton of statements from different houses, different authors, and different genres.

I’m noticing one big change. The amount of eBooks being sold in any given accounting period has risen dramatically.

I’ve been watching this for years. Four years ago, any author that sold more than 50 books in the electronic form (in one accounting period) was blowing it away and mostly I’d only see high numbers from our SF&F authors.

Now I’m looking at titles selling 500 to 1000 copies (and certainly sometimes more) in electronic form regardless of the genre. Even this time last year the numbers were not running nearly this high.

The tectonic shift is happening and it’s all clearly spelled out on paper—although one has to wonder how long those paper statements will last…

Money For Something!

by Kristin Nelson

STATUS: Speaking of foreign rights, Frankfurt Book Fair is almost upon us.

What’s playing on the iPod right now? MONEY FOR NOTHING by Dire Straits
(of course)

It’s days like this where I just love being an agent. Imagine getting a check for let’s say (and I’m making this number up) 25k out of the blue.

One of my clients got a five figure check that she wasn’t expecting—all because of foreign translation sales after earn-out for her titles.

Happy Holidays indeed! Or course being the pragmatic agent that I am, the first thing out of my mouth was pay your estimated taxes on that. Now. Don’t wait.

I know; I should have let the client celebrate a little.

Can’t think of a better reason for selling the heck out of the foreign translation market for any title.

Money for nothing and your chicks for free!

(our catch phrase here at the agency when we get what we call “gravy” money.)

Not Lost In Translation

by Kristin Nelson

STATUS: Just working.

What’s playing on the iPod right now? I WILL FIND YOU by Enya

When writers are starting in this biz, they probably don’t think too much beyond that first US sale, but selling translation rights can be as equally important (which is one of the reasons I think that agents will always prove beneficial even in an all-digital publishing world).

I have an author who is selling tremendously abroad. So much in fact that the author’s foreign publisher was contracting for future books even though the US publisher had not committed to those same books.

We ended up being able to use the foreign deal as leverage to get the US publisher to reconsider this author’s series and buy the next book for US publication. Not only did the US publisher buy in, they decided to repackage the books to give them new life in the home market.

Borders loved the new look and decided to take a floor display. Needless to say, this is all helping to build new momentum for a series of books that could have easily been written off.

And all of this wouldn’t have happened except the author’s books were selling so well abroad. The foreign push reinvigorated the US stuff.