Tuesday, May 22, 2007

The S&S Flap

You've all likely heard about Simon & Schuster's contract rewording that will allow them to retain book rights for the length of the copyright, or in writer terms, basically forever. So it seems that my definition of out of print in the Devil's Publishing Dictionary was a little more accurate than I thought.

Hey, what can I say. Maybe I am psychic.

Everyone is busy sending out alerts to their memberships and writing strongly-worded protests against the proposed change, which amuses me to no end. This practice is not anything new; it's done on the writer-for-hire side of the industry every day. Would you be shocked to know that copyrights to ten of my published novels belong to the respective publishers, not me?

It's true. They will forever be my books, but the rights don't belong to me, nor will they ever revert back to me. I have no problem with that, either, as I clearly understood that condition when I signed the contracts.

That's the key here, folks. If you don't like what a contract says, don't sign it. If enough authors refuse to sign, the publisher will have no choice but to reword their contract.

Should it become a standard industry practice for publishers to retain book rights for the length of the copyright? I think it would be foolish in the long term. Aside from becoming yet another choke-collar authors have to wear (don't we have enough strangling us already?) I think it would eventually lead to publishers exiling 99% of authors to Print-on-Demand Land, which would in turn hurt the booksellers and further sabotage the industry's future.

What's your opinion on the kerfluffle? Should authors hand it over yet again without so much as a whimper? Should we stage sit-ins and chant "Hell, no, we won't sign!" Or is there a possible compromise that could be worked out?

46 comments:

  1. This comment has been removed by the author.

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  2. I think there needs to be some kind of out in the contract. I think Michele Albert suggested something like the subrights on photographs. Make them renewable. I thought it sounded like a pretty good idea. :)

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  3. Zolah4:06 AM

    No compromise. Don't sign. There've been a lot of authors whose first books did not sell particularly well when they were originally published (often through poor marketing, production and promotion on their publisher's part) who move onto a new publisher, enjoy great success and are then able to resurrect those earlier books because the rights have reverted. If the rights never revert, those books might never see the light of day again (publishers stubbornly insisting that since the books are in theory 'available' there's no point in a reprint). If they do bother to reprint, these books could make a lot of money for a publisher who no longer has anything to do with the author and under contract terms which are unlikely to be to the author's advantage (since they may have been negotiated decades ago). That's only one of several sticky circumstances I can think of. I'd rather never be published again then just roll over on this one. If I want my book to be POD I'll bloody well arrange it through Lulu - at least that way I'll reap most or all of the rewards myself.

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  4. Compromises require leverage. What one author won't sign, another will.

    My, ain't I hopeful this morning!

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  5. Yoke or broke?
    This situation might make a number of writers view e-pubs ( not self-pubs) more favourably, since their contracts, as I understand it, are usually time limited. If S&S hold to their intention buckle and thong, they might be giving the e-pubs a default boost.

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  6. With any luck, this development will further decrease the greedy middle(wo)men's ability to make a (dis)honest living.

    Net-based book buying is on the increase, and one book vendor is as good as another on the Web; I have no problem buying my books directly from the author via Lulu.com, simultaneously increasing the author's share of the profits.

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  7. What I think will happen is one of S&S's bigger authors will say, "Take it out, or I walk." And if enough of THOSE, the ones who impact the bottom line by merely sneezing, push back, out it will come.

    My guess is S&S is testing the waters. They know it's not going to fly, but when you go to the extreme, you really do find out how far you can go.

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  8. I would ask for reworded terms, such as reversion of rights when sales fall below a certain minimum at which point it would be considered "out of print". It would be a point of negotiation, and one I would rather walk away from a deal on than sign.

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  9. Should mention here that works for hire pay a LOT more in exchange for all rights forever. I'd consider work for hire because of that. You're compensated for the fact that you'll never be able to make any more money on that book.

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  10. Jordan wrote: I think there needs to be some kind of out in the contract. I think Michele Albert suggested something like the subrights on photographs. Make them renewable. I thought it sounded like a pretty good idea.

    If we have no other choice (as so often is the case) I was thinking something along the same lines, more link a ten-year renewal sign-off by the author. The publisher can hang onto the book rights for ten years, then the author has to sign off before they can have it for another ten. At least that way the rights aren't gone forever.

    I get some of my rights back next year, and as one of the books is OOP, I'd like to release it as a free e-book. If I worked for S&S, I couldn't do that. It'll be interesting to see what happens with this.

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  11. Zolah wrote: No compromise. Don't sign. There've been a lot of authors whose first books did not sell particularly well when they were originally published (often through poor marketing, production and promotion on their publisher's part) who move onto a new publisher, enjoy great success and are then able to resurrect those earlier books because the rights have reverted.

    No signing is the only way to put an end to it, but writers are very reluctant to throw down on publishers.

    I've been thinking of all the e-book authors I know who have gone on to do great things in print. Something like this seems more like they'd be penalized for their success.

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  12. I wouldn't sign there. It's not fair to the author--fair, ha! Like life is fair--and it prevents reprints of early works that might not have done as well when first released. Part of the good about becoming more successful as an author is that sales on older works will pick up, too. Hard to do if the old publisher has the rights.

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  13. I’m not a bit surprised. Until writers take the bull by the horns and start making some of their own demands the industry will continue to make the rules, no matter how outrageous, certain that we’re all too hungry to bite the hand that feed us.

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  14. I’m not a bit surprised. Until writers take the bull by the horns and start making some of their own demands the industry will continue to make the rules, no matter how outrageous, certain that we’re all too hungry to bite the hand that feed us.

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  15. Buffysquirrel wrote: Compromises require leverage. What one author won't sign, another will.

    Agreed. According to Dan Poynter's collection of publishing statistics, six million manuscripts have made or are making the rounds (I find it a little hard to believe there are six million being actively subbed.) That doesn't mean that five million, nine hundred and ninety-nine thousand other people are after my job, but as competitive as the industry is, I'm willing to bet a good chunk of them would be willing to sign away their rights just to break in. And how many of those would be better writers with more marketable ideas?

    My, ain't I hopeful this morning!

    Just realistic, never a bad thing.

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  16. Compromises require leverage. What one author won't sign, another will.

    This is true...but when they lose out on the next 'big' author several times, I'd imagine they'd get tired of kicking themselves. I think in general more new authors are going to investigate and research more before signing, with or without in agent. Yeah, there's always going to be those who just sign and squee over getting a contract but I also think the internet is helping a lot of people with the research before you sell deal.

    Along the lines of what others have said, I think if enough big name authors refuse to do it and enough smart agents advise the newbies and the midlisters not to sign it, S&S will eventually see the light.

    I read an article somewhere the other day that S&S made a later comment that they would still negotiate on a contract by contract basis~so I think the negotiating table is still open.

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  17. Bernita wrote: Yoke or broke?

    Thank you for making me aspirate a mouthful of tea, Bernita.

    This situation might make a number of writers view e-pubs ( not self-pubs) more favourably, since their contracts, as I understand it, are usually time limited. If S&S hold to their intention buckle and thong, they might be giving the e-pubs a default boost.

    It'll certainly be a boon to many small and e-publishers, should it be made an industry standard and they decide not to go along with it. I know I'd likely shift my sights in that direction.

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  18. Simon wrote: With any luck, this development will further decrease the greedy middle(wo)men's ability to make a (dis)honest living.

    In defense of the publishers (and yeah, I can't believe I'm typing that) it is a business, and they're wrestling with a quarter to a half of all books published ultimately becoming pulp. I have the feeling that POD is the future for most of us. Betting on that happening is a smart business decision. It doesn't mean it's ethical, especially if they force authors to do it.

    Net-based book buying is on the increase, and one book vendor is as good as another on the Web; I have no problem buying my books directly from the author via Lulu.com, simultaneously increasing the author's share of the profits.

    I'll admit, I was pleasantly surprised by how well my one self-pubbed-for-profit book has sold. It's definitely given me another avenue of income to explore in the future.

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  19. Jim wrote: What I think will happen is one of S&S's bigger authors will say, "Take it out, or I walk." And if enough of THOSE, the ones who impact the bottom line by merely sneezing, push back, out it will come.

    For the bigger authors, yes, I agree. But not for the midlisters or the rookies. They'll still get screwed. We've seen Harlequin doing a form of this for years with author names.

    My guess is S&S is testing the waters. They know it's not going to fly, but when you go to the extreme, you really do find out how far you can go.

    I'm seeing it more as the first step toward turning the majority of their titles to POD only. They can save a lot of money by consigning most of us to PODville. It would definitely heat up the competition and put more pressure on authors to self-promote.

    It took me seven years to hit the Times and I have an enormous backlist. What if I decided to move all my series to another publisher willing to do more to promote the books? Under the S&S rule, I couldn't. For an author like me who has more series than byline recognition, moving would be professional suicide. Which means S&S wouldn't just own the book rights, they'd own me.

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  20. Charlene wrote: I would ask for reworded terms, such as reversion of rights when sales fall below a certain minimum at which point it would be considered "out of print".

    I like that idea a lot, Charlene. Throws the ball back into the publisher's court and puts some of the performance pressure on them.

    Should mention here that works for hire pay a LOT more in exchange for all rights forever. I'd consider work for hire because of that. You're compensated for the fact that you'll never be able to make any more money on that book.

    I've made very decent flat fees for some of my WFH work, so I can second that. You can negotiate for royalties, too -- I get them on one WFH series just like any other writer would.

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  21. Anonymous12:11 PM

    While I'm still far, far away from negotiating any contracts, I think this is a very important issue. As you pointed out, Harlequin has benefited nicely from republishing materials by Jenny Cruisie, Tess Gerriston and more because the company kept all the rights. Both Cruisie and Gerriston have commented recently on this -- not sour grapes, but a good perspective from authors who have been through it.
    Unfortunately, I think this is going to be a hard issue to fight. Even if the big names can negotiate out of it, I believe S&S will keep it in as a blanket policy, figuring many people will not bother to bring it up, others will be so happy for a contract they won't dare, and the few that do will in essence compromise for something in the middle. In any event, S&S can only benefit.
    I'll stop here before I start waxing-nostalgic for the 1920's and unions.
    JulieB

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  22. Anonymous12:13 PM

    I hope that didn't post twice. I've had a hard time posting all week long. I think it has to do with the word verification, but I don't know what is wrong, and I don't seem to have a problem anywhere else.
    JulieB

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  23. The whole thing scares me a bit. There's so much in PubLand that new, untried authors have to worry about, and yet usually we never know what to look for. It seems such a shame that it can't all just be about the writing and the story.

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  24. Anonymous3:37 PM

    I've seen this issue discussed in a lot of books and articles about negotiating contracts with publishers over the years. This appears to be something that every publisher tries to sneak by with every so often, usually with new authors, I would assume. All S&S is doing is coming out of the closet and admitting in public what they've been already been trying to do for years.

    While publication is certainly one of my goals, slavery is not. It's my book. I had the idea. I did the work. It belongs to me. Don't like it? FOAD.

    Carter

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  25. While I'm personally not for this kind of publishing agreement, and like to see the works remain the property of the authors, there is responsibility on the side of the author to not sign a contract that they don't agree with. Saying later that the contract is unfair is not a terrific defense. And of course, other alternatives will always be available .. with different results as far as sales go.

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  26. With all the things that my agent changed on the original boilerplate from my publisher, this doesn't bother me. Should I ever sell to S&S, I have the utmost confidence he can get the clause removed or see to it that I am compensated accordingly. If not, I'll worry about it then. I have too much other crap going on right now.

    Authors, as a general rule, have little say so in such matters. The publishers hold the cards, and the money. I really don't think that S&S gives one whit about how authors, especially aspiring, new, and midlist, feel about this. It's a business decision, nothing more, and publishers look out for themselves. That's why you need agents, especially if you're selling to a major publisher.

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  27. Interesting point on the work for hire contracts. If this catches on, it will essentially make all writers work for hire writers.

    In the short-term, publishers would win. Over the long-term, I believe publishers would lose. Why?

    Once the books' sold, the writer's out of the picture. There's no incentive for them to promote the book; there's little incentive for them to write an even better book next time (although, they could demand a larger fee); and eventually, a publisher will break with the new tradition and offer a contract similar to the ones in danger of disappearing -- because there's an incentive for a writer to "hit the big one" and achieve "beyond-their-wildest-dreams" rewards.

    I think this contract will hook unsuspecting newbies (and there are millions of them out there who don't use the Internet to learn the things we learn here -- just sit at a conference or in an author panel Q&A sometime; you'll hear newbie questions that will make you wince) with either no agent, poor agents, or who are desperate to be published and push ahead anyway. (Hey! Competition for PublishAmerica).

    S&S has indicated they're open to negotiation. It sounds like they've changed their going-in position, and it will catch unwary authors and agents at least for a little while.

    I like the suggestion of renewal. But I'm concerned about a publisher being able to "own" an author. About that point, writing risks becoming sweatshop labor in a company town. Writers could "unionize" and protest against "scabs," but that would be a very ugly devlelopment.

    Thanks, Sheila, for writing the most interesting post I'm seen on this subject yet.

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  28. This whole POD Is Our Future thing depresses me, mostly because I'm a bloody traditionalist, but more than that, it's just another odd stacked against debut authors. Fun.

    I'm pretty far out from negotiating contracts myself, but this is something that I hope gets dropped. A rather forlorn hope, it must be said, but there you are. Not ever giving an author back rights to what should be their intellectual property smacks of taking advantage of the masses of See Contract, Sign Contract folks. Business sense? Maybe. But I don't like it.

    If this double posted, I'm very sorry. My computer's being mildly demented this evening.

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  29. Jason wrote: Part of the good about becoming more successful as an author is that sales on older works will pick up, too.

    As long as the books are in print, or the publisher brings them out again as reprints. In a way S&S is hedging all its bets by proposing to retain book rights until they become public domain and the profit well runs dry. They never have to renegotiate royalties, terms, or otherwise invest in a writer more than what is specified in the initial contract. Very cost-efficient, no-brainer way of padding the bottom line for the next 75 years.

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  30. Jill wrote: I’m not a bit surprised. Until writers take the bull by the horns and start making some of their own demands the industry will continue to make the rules, no matter how outrageous, certain that we’re all too hungry to bite the hand that feed us.

    Some of this happens without writers even hearing about it. I'm still wondering when everyone in NY thought it was okay to hold back one-third of author advances and make them payable upon publication. I didn't even get a memo on that one.

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  31. Shiloh wrote: I think in general more new authors are going to investigate and research more before signing, with or without in agent. Yeah, there's always going to be those who just sign and squee over getting a contract but I also think the internet is helping a lot of people with the research before you sell deal.

    I think (hope) that the writing community has become better educated and more biz-savvy, thanks to the internet.

    Along the lines of what others have said, I think if enough big name authors refuse to do it and enough smart agents advise the newbies and the midlisters not to sign it, S&S will eventually see the light.

    Agents are the key here. Just as major publishers have great power over us, major agents have a certain amount of influence with the publishers. If the agents cave into S&S, then I think we all go down.

    I read an article somewhere the other day that S&S made a later comment that they would still negotiate on a contract by contract basis~so I think the negotiating table is still open.

    How generous, thoughtful, and forthright of S&S to back-pedal so rapidly.

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  32. JulieB wrote: Even if the big names can negotiate out of it, I believe S&S will keep it in as a blanket policy, figuring many people will not bother to bring it up, others will be so happy for a contract they won't dare, and the few that do will in essence compromise for something in the middle. In any event, S&S can only benefit.

    You've nailed it perfectly, I think.

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  33. JulieB wrote: I hope that didn't post twice. I've had a hard time posting all week long. I think it has to do with the word verification, but I don't know what is wrong, and I don't seem to have a problem anywhere else.

    It's here, not you. Something is wonky with comments, but I've got Tommy checking into it.

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  34. Nicole wrote: The whole thing scares me a bit. There's so much in PubLand that new, untried authors have to worry about, and yet usually we never know what to look for. It seems such a shame that it can't all just be about the writing and the story.

    Some argue that it's the reason we need agents to represent us. Some say it's part of the game. But it scares the established authors just as much as it does the newcomers to the biz.

    All we can do is be cautious. An agent helps, but whether you have one or not, read every single word of any contract you're offered -- twice -- and if you don't understand something, have an authority independent of the publishing industry explain it to you (like an attorney familiar with publishing contracts.)

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  35. Carter wrote: I've seen this issue discussed in a lot of books and articles about negotiating contracts with publishers over the years. This appears to be something that every publisher tries to sneak by with every so often, usually with new authors, I would assume. All S&S is doing is coming out of the closet and admitting in public what they've been already been trying to do for years.

    I've seen a lot of variations on the same theme, and plenty of the same in WFH contracts. This is nothing new. It's interesting that they decided to go public with it the way they did, though. It mght look like a lame duck, but I definitely smell fish. :)

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  36. Katie wrote: While I'm personally not for this kind of publishing agreement, and like to see the works remain the property of the authors, there is responsibility on the side of the author to not sign a contract that they don't agree with. Saying later that the contract is unfair is not a terrific defense. And of course, other alternatives will always be available .. with different results as far as sales go.

    I think a little self-policing by the industry wouldn't hurt. We all know too many newcomers to the biz who get scammed with their own ignorance and desperation into signing bad contracts.

    It also wouldn't hurt for the industry to stop treating authors like the enemy. We're not.

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  37. Tam wrote: I really don't think that S&S gives one whit about how authors, especially aspiring, new, and midlist, feel about this.

    I know for a fact that not everyone who works for S&S is thrilled about this decision. I'm hoping they'll voice their discomfort with the proposal to higher ups (not that I'm hinting or anything, you understand.)

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  38. Jean wrote: I like the suggestion of renewal. But I'm concerned about a publisher being able to "own" an author. About that point, writing risks becoming sweatshop labor in a company town. Writers could "unionize" and protest against "scabs," but that would be a very ugly devlelopment.

    I've been trying to make sense out of how this will be good for the industry all day, and I can't.

    Imagine being forced to choose between a term of indentured servitude, where you at least have hope and something to work toward, or a lifetime of enslavement with no end, ever. That's bad enough. Now take indentured servitude off the table because the guy in charge has to make sure he wrings every drop of profit out of you before you drop dead.

    I don't get it.

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  39. Miri wrote: This whole POD Is Our Future thing depresses me, mostly because I'm a bloody traditionalist, but more than that, it's just another odd stacked against debut authors. Fun.

    You'll figure a way to work with the system in place. We all do. And then maybe the next generation of writers will change it for the better from the inside out. Someone has to.

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  40. Lynn said: It also wouldn't hurt for the industry to stop treating authors like the enemy. We're not.

    Amen, sistah. Amen.

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  41. Jason wrote: Part of the good about becoming more successful as an author is that sales on older works will pick up, too.

    Lynn wrote, in response: As long as the books are in print, or the publisher brings them out again as reprints.

    Well, I was thinking about how Stephen King and Dean Koontz have seperate paperback publishers and how all those works--especially Dean Koontz with his 9,000 pen names--wouldn't have been possible to be re-released with the new company and (in Dean's case) his actual name if he were with S&S with this contract.

    In a way S&S is hedging all its bets by proposing to retain book rights until they become public domain and the profit well runs dry. They never have to renegotiate royalties, terms, or otherwise invest in a writer more than what is specified in the initial contract. Very cost-efficient, no-brainer way of padding the bottom line for the next 75 years.

    Which give midlist writers, up-and-comers, and struggling beginners a big middle finger and the shaft.

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  42. I'm not an author, nor am I am aspiring author. Here's my problem with it: Even now, if a publisher goes out of business and the author doesn't have the rights to a series (for example), the series stops. As a reader, that is really rather annoying. I know that in some instances an author just can't come to an agreement with a publisher. That is understandable. There is just a high level of frustration for a reader if you're invested in a series and the last book doesn't come out because the author doesn't have rights to the book and can't take it elsewhere.

    So I really think that S&S doing this (if other publishers follow suit) will really hurt more than the authors. It will hurt the readers as well.

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  43. Gerri6:37 PM

    Work for hire is a vastly different animal than selling your book to a traditional publisher. WfH authors know up front that they're not going to own their words, and that the copyright isn't going to go under their name. If I'm doing a WfH, I'm going to expect a nice pay check, and that's it.

    However, my books based on my ideas are MY Copyright. Not giving it over in perpetuity. Screw that. If my books aren't selling, I want those rights back, tyvm, so that I can do something else. Not playing that game.

    S&S are taking exploratory steps over a line they shouldn't even be considering crossing. They need to be thwapped, and thwapped hard for trying to screw authors like that.

    Agents are definitely necessary. Leverage is good. Having someone on your side is good.

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  44. My agent and agency went to bat for me over this clause (with another publisher). It took months of negotiation, during which the contract was in the air, and I was writing a book that might end up not selling, because we were not going to agree to that clause.

    The agency lawyer won a big one in my favor, the clause came out, and I got the deal. Would it have come out if I had been unpublished, or if I hadn't had a really good agent? I really doubt it.

    Would I really have refused to sign the contract and let the nicest chunk of money I've been offered in my career go in order to own the books myself?

    Yep.

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  45. Anonymous11:38 PM

    This comment has been removed by a blog administrator.

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  46. Above SPAM comment deleted. This idiot snotted all over my week.

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