an unfortunate account of my first time in publishing
If you asked me how I am feeling right now, the answer would be sad but simple: broken.
I feel raw and edgy. I’m an emotional wreck. In the past writing has been a solace but I have not written lately. Instead I’ve been pouring all the energy I have into trying to preserve my community, my link to it and myself, pretending that I can just keep going. I can’t.
At least, not with this untold story on my shoulders. I’m exhausted and overwhelmed but aware that I need to make a statement, something that offers context and my voice to the now public dispute with a local South Australian poetry organisation, which started with a few simple questions about a contract and ended in more complex ones about conduct and copyright infringement.
I have been avoiding talking about my ex-publisher and our unhealthy relationship, partly because it’s still visceral. I am not feeling particularly strong.
I might not be able to talk about it without spilling stress or tears at times, but I know I need to say something, and now, before all that is being said becomes as indelible as ink.
Breaking Up: an unfortunate account of my first time in publishing
It begins, as I’m sure many tragic romances do, with poetry and the moon.
In December 2012 I won a competition to have my first short collection of poetry, writing love songs to the moon, published alongside the work of two other word-smitten women. We had won on the merit of our submitted manuscripts, anonymously chosen of course.
This was my first substantial publishing opportunity and I was pretty green. I wanted it to go well, so from the start I started asking relationship and publishing-related questions.
They were mostly ignored.
In late January 2013, the editing process began. By March the edits were finished and work started on the book layout. I knew that by now we should be getting a publishing agreement. I didn’t have one and the organisation was generally being unresponsive.
When they did get in touch, it was to apologise for a lack of communication and to announce that a launch date had been set for the book. Our new contact also mentioned that printing options were being investigated. There was no mention of a contract.
I was so cautious about using the ‘c’ word that I wanted to avoid it at first. I didn’t want to offend, or appear annoying, but I knew we needed one. So, scared as I was, on April 2, 2013, I sent them an email:
“What I would really like from FS is a written agreement that clearly lays out obligations and responsibilities of the poets and of FS, to assure clarity for all involved. This should occur as soon as possible and definitely before printing. It may seem I’m asking a lot, but I’ve learned in my practice as an artist that these professional measures are important to protect me and my work.”
This was met with genuine surprise: “has nobody got you to sign the standard contract…I’ll try to obtain it”.
An old agreement was sent to me as a reference while I waited. I read it carefully and looked forward to the real thing. After three weeks, and a few more requests, I was given a simple one-page contract. I was elated, it felt real. I eagerly read it through and found there were a few issues.
While I did not disagree with the stated terms, the contract contained drafting errors, like the wrong book title in one instance, and some of the terms were a bit unclear to me. More serious, however, was that it didn’t mention the Intellectual Property (IP) arrangement for the book. There was no clear statement about the copyright ownership or the licence arrangements for the publisher to publish the book.
I knew that a writer’s permission must be signed off on before printing their words and that the IP arrangement needed to be stated. I didn’t know at the time, but the wording of an IP clause is actually pretty specific. For instance the difference between “license” and “assign” is the difference between temporarily allowing your work to be used and handing over complete copyright ownership; i.e. renting out your house or handing over the deed.
At the time I did some quick book contract research, which involved hunting down my copy of the Australian Book Contracts guide put out by the Australian Society of Authors (thanks TAFE, you were right, this would be an essential resource). According to the most basic contract guidelines it was clear that we needed more clarity on some terms and that we needed the IP arrangement stated.
Two days after receiving the contract I raised my concerns. I even provided some possible solutions. I felt that if we kept things simple we could sort it out in an hour. It was April 24, 2013. (Thirteen months later, I had seen many hours pass.)
I received no response.
Five days later, I woke to an email with the final book proofs, which needed to be approved by that afternoon. I checked whether I had asked for an agreement to be signed before printing. Yes, I had, but still no final document.
I was suspecting the organisation, or my current contact at least, felt a bit affronted by my requests for information and contract queries. I didn’t want to push, so I waited a few days before I asked again for an updated contract. Instead I was told to sign the original that had been provided to me earlier. It was May 4. I raised my outstanding questions and was promised a response “asap”. The books were printed. Another author asked for the reviewed contract. Then, one week before the official launch, we were all told the contract wouldn’t be ready in time for that either.
The “correct priority”, the organisation said, had been given to printing the book, and “all this agreement business” would be sorted out afterwards. In an email on May 18 2013 the authors were asked to proceed in good faith. We were told that the organisation would honour the terms of the agreement offered. So we put our trust in the organisation and kept going.
Three weeks after the launch, distribution began to local bookstores that had requests for stock. I helped with this process in good faith.
I knew the organisation well; I’d been a member for 8 years, I’d even had a brief stint on the committee, and so knew to keep my expectations within the bounds of its capacity. I didn’t think I was asking too much, but I did acknowledge that the organisation was in a place of learning so I leant a hand wherever I could.
By July I found myself asking questions that should have been answered by a publishing agreement. Clarifications mostly, around author purchases: How much? How did royalties play into this for the other authors? What was the process?
Part of the problem was that there were two similar but seemingly contradictory terms in that original document. For clarity, let’s call it the ‘draft contract’. There was confusion amongst authors on what the contradicting terms meant and to further the confusion, answers I had recently received from the organisation were suddenly being overridden.
By August the organisation had changed representatives at least three times and its communication style had started to ring loud alarm bells. I didn’t know what I could rely on. It appeared that some of the terms in the draft contract might also be changing. Royalties were one example.
As there had been no mention of a contract since the May 18 email, and books had been selling without licensed IP for two and a half months, I wanted to clear the matter up. On August 13, 2013 I sent a letter to the organisation, with support from the other authors, to clarify the terms of this relationship of ours.
There was nothing particularly controversial about this letter, except that it asked for a clear response by a specific date. This seemed reasonable, as the contract had been “under review” for three months and clarity seemed to be in everyone’s immediate interest.
Instead of the pro-active approach I would have expected from any organisation, their representatives began to act more aggressively.
It seemed that there was a real change in attitude towards me. The organisation suddenly started treating me like I was a troublemaker. I was singled out. There were accusations that money was “paramount” to me, and that I had refused to sign a contract, when the reality was the opposite; I wanted to sign into an agreement, now, more than ever.
In an email to all authors, the organisation suggested that if authors were “now willing to sign” the draft contract the issue could be resolved quickly. Authors were told that it had been reviewed “based on consultation with industry experts”. If, however, we wanted a reviewed document, the organisation would be looking at reducing royalties.
The nature of our agreement was definitely in chaos.
Alongside this, I received a personal email from someone in a management position within the organisation. It began by saying that the individual “could have done without” my request for clarity, as they’d been busy working a “real job”. It then promised that “you … WILL[sic] get your royalties”, before filling me in on some fascinating history and stating that “you’ll be the first group of New Poets to EVER[sic] receive other than a token $50 – if that; some haven’t received a red cent”. The email closed by asking me to “leave off with [my] stand-over tactics” and was followed by four separate p.s’s that, in parts, suggested I had gone from being “grateful and sincere” to “this”, stated that the views were the author’s own but also suggested the other board members would feel “similarly slapped”, gave me advice on self-publishing to make money and ended with a comment about the work the organisation was doing to benefit “people like you”.
After a string of emails, in which I filled this person in on the issues and my personal intent, we sorted things out. At the end of our exchange, they said: “Thank you for maintaining your civility in the face of my barely disguised anger.”
To which I replied: “No worries, I really do appreciate you saying that. As I said, I do not want to see this cloud any associations.”
I only reference this email now because the tone and hostility evidences the general attitude being displayed toward me, and it seemed, that existed within the organisation.
Here we find ourselves at around the middle of the story, before the real harm started to occur.
What I found most shocking then, and still now, is the attack on my character and integrity, especially where I have been accused of being motivated by greed. This hurts on both personal and professional levels so with this in mind I want to stop here briefly and address the recurring suggestion.
From the first moment I entered my manuscript into the competition I was motivated by something other than money. I entered my work thinking how special it would be to have my first collection published by the local community I so cherished.
If money was my motivation I would have called an end to this relationship much, much sooner. By this stage the time I’d invested outside of my role far outweighed any payments I would possibly receive. I wanted a book, not a bank cheque.
Even so, it is worth mentioning here that work has value, whether you’re a writer, an artist or a plumber for that matter. I had been offered a payment rate and it was fair for me to request that that rate be honoured. So even if they were money-based, my concerns wouldn’t have been wrong, or deserving of hostility. Acknowledging worth, as much as it may be a big, bold and scary thing to do, is not a crime, or worthy of punishment.
You wouldn’t expect a plumber to fix those leaking pipes for free, right? For anyone who hasn’t noticed, it is socially acceptable nowadays to pay the writers.
For me, this situation has always been about ethics, integrity and the desire to be treated fairly. Increasingly it became about the desire to prevent my experiences from happening to others. As hard as it was to voice my disagreement, I did so for those reasons.
During this time I kept supporting the organisation, at times to the direct detriment of myself. At some point, I decided I couldn’t afford to continue to do that and had to front up to some hard decisions. I had to weigh up my personal values against my community values, and try to find balance between them. I was holding off from making those hard decisions, but they were looming.
By September 2013, the questions authors had raised in that controversial email of August 13 remained unanswered, we were up to about our fifth representative and a revised contract, though promised, was still yet to be supplied. Word was starting to get around, and some of it was getting back to me. I had been contacted personally by phone and email by the organisation and was doing my best to guide those communications back into group emails with all authors. I was trying for transparency with the organisation and discretion with the public.
On September 2, the then representative told me over email: “I’ve now looked at this contract from as many sides as possible, and spoken to various professionals … what I don’t have is the original problem … in your words.”
It seemed to me that information wasn’t travelling clearly within the organisation. I mentioned the rising anxiety as I passed on referenced copies of all author contract queries thus far. I was reassured momentarily with the line: “what I can say for sure is that we are addressing all of the points you raised”.
Then I didn’t hear anything.
Without warning, on September 27, I was refused access to books. I was told over Facebook that: “No more books will be supplied to the New Poets until an agreement is signed, and all outstanding money is reconciled.”
The other authors had to hear it from me. We hadn’t been given a contract we could sign nor accounts to pay, but when I tried to appeal to better reason I was denied any flexibility.
What I was experiencing were very unusual responses from the publisher of an artist who was simply trying to normalise IP license arrangements. I knew arts organisations, big or small, did not normally treat artists in this way.
Up against all this, I couldn’t help but feel I had been swept up in something quite unreal.
Early October 2013 a lot of things happened and the story gets even more confusing. The two key happenings were: 1) a revised contract was offered which still lacked the requested clarity, disappointing for a one page document six months overdue, and 2) I asked the organisation to stop sales and distribution of my work until matters were resolved. They refused.
I didn’t know it then but my work would remain unlicensed and on sale for another eight months or so. I would never regain access to the book, and I would never receive any money made from my work.
By now, I was at emotional breaking point. I wanted a break-up, one that didn’t divide a whole community, but I was struggling to figure out how. And I didn’t just have myself to think about, I was also factoring in the potential impacts on the other two authors in the book. We were in regular contact, I kept them informed and in mind. I decided to seek independent advice on mediation and conflict resolution options. I told the organisation that I would be in touch once I had advice, until then I would be stopping direct communication.
A day later on October 11 another representative was presented, this time from outside the organisation. I decided to give this indirect contact a chance. Instead of aiding a resolution they offered a convoluted approach, made demanding requests for information the organisation already had and their tone grew quickly aggressive. I did my best to remain informative and polite. I was juggling this situation while both sick and setting up my first major art exhibition, I informed them this was the case. After three days of intense emails I again halted contact, stating that I was seeking advice and would get back to the organisation.
In response, on October 15 I was again singled out from the other authors, with a hostile email. It ended:
“I am prepared at this stage to pursue an agreement with the three of you, however if the other authors will meet to discuss and resolve this matter and you choose to exclude yourself from this process then there is little more that can be done in your situation.”
This time, I didn’t respond. Instead I sought advice and mediation was set up immediately. I could breathe for a minute. But, just when a resolution was looking promising, it failed.
By the start of November 2013 I was seeking copyright information and advice from a range of sources. I was learning that my situation was potentially as complex as it felt and didn’t come with any quick or easy answers.
The advice was clear – I needed to speak to a lawyer.
On November 26 the organisation posted me an offer. This offer contained factual errors and didn’t state the IP license clearly. It called for neither party to speak ill of the other, but didn’t address the harm already caused by the organisation. And it meant I would need to maintain a relationship with them in order to access books. All of this was to remain confidential.
I was worn out and didn’t even know how to begin to approach this offer. Thank god, and all the superhuman deities, a lawyer was willing to give me advice.
On December 5, 2013 I sent the organisation what I, and the lawyer, thought was a very reasonable offer to conclude the entire publishing saga. Basically I would license my IP (stated correctly) to the organisation for use of my work, be paid the royalties they had offered, and remaining books would be distributed between all authors at no cost. I also mentioned an apology might be in order. This offer meant a clean division of assets, providing some compensation to authors for the treatment received, and importantly an end to the relationship, allowing everyone to move on. I asked for a response by December 12.
There was no response.
So I followed it up. On December 18, the organisation rejected my offer by simply restating their own.
I explained that their offer was not acceptable to me because it imposed a continuing relationship, didn’t acknowledge the organisation’s conduct and didn’t address statements made about me by the organisation. I asked them to reflect on these points and reconsider.
Again I asked the organisation to stop selling my work until matters were settled. With the lawyers help, I told the organisation they had no legal authority to sell further copies of my work and withdrew any that may have been implied.
The organisation responded by again rejecting my offer without explanation, and again refusing to stop selling my work. In the email, on December 21, they wrote: “We reject your attempt to revoke licence … To attempt to revoke license now because we will not provide you with the remaining copies for free is unacceptable.”
They then went on to quote the approximate costs of my revoking licence, saying the organisation might seek compensation for that loss from me if necessary.
This was followed by the claim that by maintaining references to the book on my website, including a quote from the competition’s judge, I was “currently using the benefits bestowed as a result of the competition”. I wondered how my discretion had been so misinterpreted. This representative also seemed to think I had won on “good fortune”, not merit. It seemed to me the organisation was becoming as confused as I was about how we ended up here.
While not having access to the book meant I had been unable to actively promote it, I had remained discrete about the dispute in public and kept all online promotion in place. This was something I thought the organisation would appreciate, and something that would help to facilitate a mutually agreeable solution. This last email highlights the most excruciating element of this whole experience: it felt like no matter what I did, or didn’t do, it was seen as either self-serving, an insult, or both. I knew I couldn’t facilitate a solution on my own, I needed the organisation to start negotiating, but I was keenly aware that the power imbalance wasn’t doing me any favours.
At this point I could not personally deal with the organisation or it’s representatives any longer. It was impacting my health.
So, on February 14, 2014 the lawyer stepped in on my behalf. At first he simply asked where the organisation agreed and disagreed with my seemingly reasonable offer. We thought if they outlined where and why it didn’t suit them we could negotiate on those terms and get this settled. At this point I was still trying to negotiate getting an IP licence in place, for the organisation’s sake and for other authors in the book.
The organisation didn’t respond. They never did explain why my offer was unacceptable.
Meanwhile the book remained on sale in bookstores and at the organisation’s events. I had become so stressed by the impacts of the dispute that I decided, regretfully, to reduce my involvement in the local writing community, not an easy task, or choice, for someone co-directing a spoken word organisation. But, more word was getting around and I couldn’t deal with being approached by those who had heard one side of the story. Some ventured to comment on it but wouldn’t actually talk with me about it, and I didn’t speak because I didn’t know what to say or how to clarify what was happening.
Bewilderingly, in February, I was also approached by the organisation; they emailed asking to publish a poem of mine in an upcoming book. I politely declined.
Halfway through March 2014 the impact on my wellbeing meant it was time to call it a day. Ten months after the book launch I removed all references of the book from my website and social media pages. I couldn’t try to negotiate that IP license any longer; there was no negotiation happening. I wanted the organisation to stop selling my work. I didn’t want my name connected to, or be seen to be endorsing the book or the organisation. I felt I could no longer support them.
On March 21 my lawyer sent the organisation a new letter. It gave a background to the dispute, outlined the legal implications and asked the organisation to agree to a set of obligations. Their alternative, and mine, was looking more and more like court. Again the direct approach, even from a lawyer, didn’t seem to make any difference. The organisation didn’t respond as asked, instead, after prompting, they replied multiple times to the previous letter. One response received on April 8, 2014 felt particularly dismissive:
“The [organisation] disputes the accuracy of your recital of the events relating to the publication of Ms Indigo Eli’s poems in New Poets 18 and cannot identify grounds upon which the final offer should be reviewed.”
I knew that that IP license was probably ‘grounds’ enough, before even mentioning the organisation’s refusal to stop sales. I was really getting to know what non-negotiable felt like. Yet, I couldn’t see how it was benefiting anyone.
For me, the emotional stress had reached crippling levels. I wasn’t sure who knew what in the wider community, what was being said about me, or when this situation would come to an end. I wasn’t keen on taking the organisation to court, and I wasn’t sure I could afford the trauma or the bill.
We tried one last time to get the organisation to respond to our March 21 letter. Plot twist, they did.
Eventually, nearly two months after they were written, and after making some minor amendments, the organisation said they would agree to the undertakings requested in the letter. Essentially, they agreed to immediately stop sales and distribution, remove all advertising that connected me with the book, and share the letter they’d agreed to, online and in a direct email to members.
I said that if they met these obligations I would not take further legal action.
On May 19, 2014, the organisation signed the papers. It was a hard-won divorce.
I don’t know why the organisation refused to negotiate, or wouldn’t agree to my offer. I don’t really know what they were fighting for, or against. The only part of my offer they ever commented on was that suggestion that they didn’t like the idea of redistributing the remaining stock to authors or, providing “copies for free”.
To my knowledge the organisation ended up giving most of the remaining books to the other two authors at no cost anyway. Which I feel just raises another set of interesting legal and ethical questions. Some books stayed on sale, but we’ll get to that.
For me, this agreement offered: 1) a break-up, the relationship was over – a feat not to be underestimated, and 2) my voice. I wanted to be free to reference my experience to hopefully help others who might find themselves in similar situations.
Dealing with the overwhelming amount of rumour going around would be my next task, and one I’m trying to resolve with this statement.
When a copy of that March 21 letter was posted online by the organisation, as per our settlement arrangement, one individual made it very clear what he thought of me. His comments disappeared after several days, but the weird public tirade in the screenshot below gives an example of the consequences of misinformation:
His opinions, I would assume, are on the most extreme end, but they certainly highlight a problem. There is a lot of hostility and confusion going around about me and this relationship. Members and associates of the organisation, even those whose words I’d think to trust, are sharing misinformation around, perhaps thinking that it’s fact. I’ve been told of this happening both locally and interstate. Some folk are interpreting this settlement very strangely.
It does make partial sense; I decided to remain discreet, allowing only one side of the story to be told. That, I take ownership of. But I fail to see, with the many changing representatives and lack of internal communication I experienced, how the organisation itself can even be wholly sure about what happened. An online response from someone who had been one of the organisation’s committee members during the dispute furthered this view.
Perhaps this transparent account will help to fill gaps, answer questions and clear up some of the uncertainty.
I wish the end of this story was as certain as a signature, but it isn’t. A month after the May 19 settlement agreement was signed I walked unsuspectingly into a local bookstore where a flashing glimpse of the book’s cover hit me right in the eye, and down into the guts. After “all this agreement business” it was still on sale! I didn’t know whether to laugh or cry. My body decided upon a spontaneous stress-dance within the confines of my skin.
I took a moment to breathe. Then I took a photograph and later posted it to Facebook.
I was hoping this small and simple public action might work to tidy up those loose ends, those loose books.
But, a week later, on June 23, 2014, I went back into the same bookstore and found the book still on the shelf. There it was, my unlicensed work still for sale.
It was the perfect analogy for what I felt the relationship had offered me thus far: a big bawling blow of disappointment. Was I expecting too much of the organisation to be able to follow through with their agreement?
It was hard to campaign for laughter over tears. And the stress, well…
Despite the perils of navigating an emerging writers nightmare, I do not regret standing up for myself or the other authors. Even now, I’d write my number on anyone’s arm if they needed help doing the same.
In June the organisation was informed that my work was still on sale. They didn’t respond for a month; not directly to my lawyer or indirectly by removing the book from sale. But they did respond in the end, last week they emailed saying they didn’t know they had any outstanding distribution in any bookshop. They offered to check on it if we told them where it was. It wasn’t hiding. I came across the book in a store the organisation’s management had set up distribution with themselves, they even held an event there and used it to plug the book, as you do. I went along, did my bit, it got a little strange and uncertain afterwards but I thought we’d find our feet.
We didn’t find our feet, but surely we’ve found something. All I wanted was a one page contract in one hand, and a published collection to be proud of in the other. I didn’t get that, but I have learnt a lot about placing expectations and the virtues of transparency and good record keeping.
It is sad to think though, that the only ‘book’ I have to show for all this effort is a two-inch thick pile of printed correspondence, a double-edged dialogue, bound by a straining bulldog clip.
Perhaps it’s clear now why I haven’t been writing; I’m running low on love songs.
So that’s the story
… or what I could fit and juggle into it. Perhaps it’s longer than most people will read. But it’s out now, my voice, there for those who need it, there to answer all the questions I could foresee (If there are others I’ll try and answer them). If anything, let this sweeping out from under the carpet be a conversation starter; about the necessity to value artist rights and fair treatment or about how we relate to each other in this business of writing. We can, and do, do better.
My experience has not been normal. My recount here is one example, from one author, regarding one publisher, at one point in time … yes, it went the way of the worst-case scenario; Murphy had a field day, the Keystone Cops were on a roll and the light at the end of the tunnel, when lit, was often a gosh-darn train. But, please know that publishers, and poets, are not to be feared. They can make relationships work. They can woo the moon and bind it together between consensual covers. So please, don’t fear poets and don’t fear publishers. Don’t fear artists or organisations. Just fear stubborn ignorance and suffocating silence.
I’m going to swallow that advice as well. And I’m going to try to mend what is broken.
But for now, I’m going to make another cup of tea to calm the nerves, cast my eyes over a little slapstick in the hope of boiling up some laughter, drift off to sleep when I can, and try to find some long-lost normality.
To those who supported me through this
I want to thank you big big! You are warm candles in the dark. I am appreciative for the resources and advice of organisations like Arts Law and the Australian Society of Authors and am tremendously grateful to the polite and dedicated lawyer who stepped in pro-bono to help me through.
Above all, I’m just grateful that it’s over.
To those who bought books
Thank you for supporting new and contemporary writing, particularly the work of the other authors and myself. I’m sorry to share that the book contains my unlicensed work. Yep, there’s a little black market in your bookshelf.
I’m working on ideas to transition this experience, and the books in question, into something creative and hopefully more positive for everyone. Perhaps we can play with this. So keep an ear out, you and your books may be invited to contribute.
I’d love to think a similar thing would never happen to anyone else but I know that’s idealistic. So if you ever find yourself needing support research your rights and give one of those organisations a call.
For authors and publishers just starting out, research this stuff now! Don’t wait until it’s too late, or rely on someone else to know for you. Even, just tickle your fancy with a little more fact than fiction. Discover your worth, there’s a lot of it.
Falling without floundering: an artist’s guide to conflict resolution, Indigo Eli, Australian Author Online