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| Knowing the truth about contracts can be the difference between life and death of your literary career. |
IN THE LAST 3 WEEKS, I have had the misfortune of being contacted by over 27 authors who are currently in a business relationship with a publisher who has failed to live up to their end of the agreement between the two parties and now they feel trapped because they "THINK" that they are in contracts that they cannot get out of. Let me CLARIFY some things for you:
First of all, a common misconception is the belief that if someone sends you a copy of a contract "VIA EMAIL" and you agree to it, by clicking a box, or typing your signature and sending it back, that it constitutes a legal and binding agreement here in the United States.
"IT DOES NOT."
Contracts can be sent back and forth by email for the purposes of clarifying the contents and resolving disputes, but for ANY CONTRACT to be "LEGAL AND BINDING":
YOU NEED TO HAVE A PRINTED COPY SO THAT YOU CAN PHYSICALLY SIGN IT, "IN INK," IN THE PRESENCE OF A NOTARY WITH A VALID PHOTO I.D.. THE NOTARY MUST THEN SEAL THE DOCUMENT WITH THEIR VALID REGISTERED NOTARY SEAL FOLLOWED BY THEIR OWN SIGNATURE - AS A THIRD PARTY WITNESS TO THE SIGNING. - THAT CONTRACT IS THEN SENT BACK TO YOUR PUBLISHER TO BE KEPT ON FILE. BOTH SIDES SHOULD HAVE COPIES IN CASE THERE IS EVER A BREACH OF CONTRACT BY EITHER PARTY. IT MAY BE THE PUBLISHERS CONTRACT, BUT ALL CONTRACTS CONTAIN LIABILITIES THAT EFFECT BOTH SIDES.
PERSPECTIVE:
For those of you who have ever bought a home or bought a car, you may have filled out the loan documents online or over the phone, and they were able to tell you whether or not you were approved or denied over the phone, but the deal was not sealed until after you went into the dealership or the bank and sat down and put your signature on about 7-15 documents. That document is called a contract. And this is no different.
Be clear on this one point: It does not matter what is said in a phone call or in an email between the parties. If the contract is not PRINTED OUT ON PHYSICAL PAPER and then PHYSICALLY SIGNED BY YOU IN INK and then has A NOTARY'S SEAL, along with their official signature;
"THEN THERE IS NO 'CONTRACT' BETWEEN YOU AND YOUR PUBLISHER."
"PHYSICAL CONTRACTS, PROPERLY SIGNED IN INK AND NOTARIZED BY NOTARY'S ARE WHAT IS RECOGNIZED IN A COURT OF LAW AS LEGAL AND BINDING." - PERIOD.
For the 27 authors I spoke to about the other publishers who are either neglecting their duties or obligations as publishers or are simply thieves looking for a way to earn money from your hard work, this is a simple matter. Your books fall under the category of "INTELLECTUAL PROPERTY." Simply find a lawyer in your state who specializes in "INTELLECTUAL PROPERTY." They love cases like this. Because litigation is quick, swift and fierce. The judge will demand that the Publisher produce the "ORIGINAL DOCUMENTED CONTRACT" for his review. He will then outline all of the responsibilities and obligations of the publishing company. The publishing company will then have to provide physical proof of everything that was promised as outlined in the contract. Any and all evidence will have to be time dated and time stamped, such as receipts, bank statements, royalty reports, expense costs an receipts for printing costs, for press releases, advertising, et cetera.
"FAILURE TO SHOW THE JUDGE OR THE COURT THE REQUIRED PROOF FOR ANY OF THE THINGS OUTLINED IN THE CONTRACT QUALIFIES AS BREACH OF CONTRACT. AND THE ENTIRE CONTRACT IS MADE NULL AND VOID."
Someone suggested to me that they had a contract that was worded in a way that if one part of the contract was not met, that it did not negate the rest of the contract. - That may have been the intention of the writer of the contract, but fortunately for us, THAT IS NOT THE WAY THE ACTUAL LAW WORKS. AND NO JUDGE WILL HONOR THAT CLAUSE. - You have the ability to word contracts as you please, but even agreed to contracts have to fall within the RULES AND CONDUCT OF THE ACTUAL LAW. And the law has been designed so that if ANY part of a PHYSICAL CONTRACT has been violated, that the ENTIRE CONTRACT is made null and void. Contracts are made and agreed upon in the spirit of good faith. If any part of that contract has been violated, "GOOD FAITH" has gone out of the window. That is why the entire contract is made void.
Again, this only applies if there actually is a physical contract. For those of you who have been mislead into believing that you have some legally binding agreement "VIA EMAIL" your case will never make it this far. No physical contract means there is no case. Plain and simple. Now this doesn't mean that your Publisher tried to trick you. Some really just do not know or understand the legal difference or what is actually required by law. They may have well been acting in good faith simply not knowing any better. It still however doesn't change the fact that "THERE IS NO PHYSICAL CONTRACT BETWEEN YOU."
So you can make this very simple. If you like your publisher and want to stay, simply contact them and tell them that you need to SOLIDIFY THE BUSINESS ARRANGEMENT BETWEEN THE TWO OF YOU BY SIGNING A REAL CONTRACT, ON PHYSICAL PAPER, SEALED AND SIGNED BY A NOTARY.
For those of your who are unhappy with your publisher, simply dissolve the relationship between you. Let your publisher know that you want to go your separate way, hopefully as friends. If they say NO and claim to have ownership over your publishing rights;
DO NOT HESITATE TO IMMEDIATELY GO TO A LAWYER WHO SPECIALIZES IN INTELLECTUAL PROPERTY!
Sue the publisher for breach of contract, withholding royalties, neglect in promotion, advertising, no press releases, not supplying you with copies of your own book, arranging book signings, failure to provide proper tax forms, W-9's or 1040's. Then contact the IRS. Inform them that this publisher has failed to properly pay you royalties and that you believe that your monies are being illegally handled and withheld. The IRS will immediately launch a full fledged investigation into the Publishers PERSONA & BUSINESS finances going back a minimum of 7 years. They are swift and unyielding. NO ONE WANTS THE IRS IN THEIR BUSINESS.
So if you have legitimate gripes with your publisher, please do not think that you don't have a foot to stand on. Especially if they have not done what is required of them. And most of all, DO NOT BE SILENT ABOUT ANY OF IT! - Take to SOCIAL MEDIA and let others know that you have been taken advantage of or lied to or stolen from. Don't allow others to be tricked or manipulated like you were. Help to shine a light on this madness so that we can help real authors promote their good work and get properly compensated and recognized for the work that they do. No one deserves to be lied to or tricked or manipulated or robbed. It's time we stand up and shut folks like this DOWN!
Legitimate publishers will be able to read this and smile giving a nod of approval simply because they know that this is how they have always conducted business. And because they have conducted their business properly, they have no reason to fear anything from anyone. Anyone else who has a problem with anything that I've written, it is because they have not been conducting proper business the way it is suppose to be conducted. And they don't like having this light shined upon them. Understand this; business is business. And you do not get to just MAKE UP THE RULES AS YOU GO ALONG. There are standards that are meant to be either met or exceeded. If you fail to do that, if you fall short, then there are penalties that are meant to be paid. Some in cash. Some in prison time. That is the true cost of doing business. So you either come correct or risk paying the price of trying to take advantage of others. - PERIOD.
Remember, WRITING YOUR BOOK, is just the beginning. Once written, your book becomes a BUSINESS. Treat it as such. If you take care it,...it will take care of you. Blessings to you all. - Adrian Milan, PUBLISHER.
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