The Blog of a Historical Romance Author


EC’s remand motion #notchilled

October 24th, 2014

This litigation is getting complicated enough that I’m going to start separating it out into threads and giving each separate thread a letter. Some of these threads will close out relatively swiftly; some may be around for a very, very long time.

A. The claim by EC against DA alleging defamation.
B. The motion for a temporary restraining order by EC (discussed here).
C. The removal of the case to federal court.
D. The counterclaim by DA against EC alleging abuse of process.

I’m going to be referring to these separate threads for a while. I’m separating them out like this because you can (mostly) treat them as independent. You don’t have to know what is happening in A to understand what is happening in C or D.

Today, Ellora’s Cave filed two motions: a motion to remand to state court (this has to do with thread C) and a motion to continue the hearing for the TRO (this has to do with thread B).

Thread B: the motion for the temporary restraining order.

Where we are: EC filed a motion for a TRO when it filed its suit. The state court decided it needed a longer hearing to decide the matter. That longer hearing was originally scheduled to be heard in state court on October 27th; when the defendants removed to federal court, a hearing before the federal judge was scheduled for October 29th. 

The easy one to discuss is the motion to continue. That motion basically says, in plain English: “We have a hearing scheduled for October 29th at 1:30 PM. I have another hearing scheduled at the same time and so cannot attend. Also, I think we need to schedule a discussion of my remand motion before we talk about the TRO. Let’s reschedule.”

This is fairly routine. The TRO hearing will almost certainly get bumped. Not a big deal.

What to expect next: The court will probably recalendar the TRO hearing.

Thread C: The removal to federal court.

Where we are: EC originally filed the law suit in state court. The defendants removed the lawsuit to federal court under what is known as “diversity jurisdiction”–meaning that the defendants are from a different state than the plaintiffs, and the amount is large enough to be serious. There are a lot of reasons to prefer federal courts: judges know federal law (including first amendment law), harsh penalties for dilatory discovery, uniform procedural rules so that the out-of-state counsel isn’t at a disadvantage.

Ellora’s Cave has now moved to remand the case to state court. They claim:

Defendants waived their right to removal based upon diversity jurisdiction because of their clear and unequivocal intent to proceed with this case in the State court. Because these actions were clearly inconsistent with the Defendants’ right of removal, remand to the State court is appropriate.

(Motion to continue)

Here is EC’s full memorandum in support. Notice what they are not arguing: they are not disputing any of the jurisdictional requirements–that is, they don’t dispute that the parties are from different states or that the amount in controversy is greater than $75,000. They are claiming instead that DA availed itself of the proceedings in state court and so waived the right to remove.

Here’s the general rule on waiving the right to remand:

The law is clear that a defendant may, by making affirmative use of the processes of the state court, waive the right to remove the action to federal court. California Republican Party v. Mercier, 652 F.Supp. 928, 931 (C.D.Cal.1986). The basis for this rule of law is that it is unfair to permit a defendant to experiment with his case in state court, and, upon adverse decision, remove the case for another try in federal court. Bolivar Sand Co., Inc. v. Allied Equipment, Inc., 631 F.Supp. 171, 172 (W.D.Tenn.1986). Any intent to waive the right to remove, however, must be evidenced by “clear and unequivocal” action. Bedell v. H.R.C. Ltd., 522 F.Supp. 732, 738 (E.D.Ky.1981) (footnote omitted).

Rose v. Giamatti, 721 F. Supp. 906, 922 (S.D. Ohio 1989).

Translation for the lay person: You get the side-eye if you start in state court, you start adjudicating the merits, you start losing, and then you try to go to federal court as a do-over.

This motion gets the “you gave it the old college try” pat on the back, but I doubt it’s likely to succeed.

Let’s talk law. Rose, one of the cases cited by EC, is not very helpful for the plaintiffs. In Rose, the defendants participated in a two-day evidentiary hearing regarding a temporary restraining order. That went badly for them; they then tried to appeal that order in state court, and got smacked down. Only then did they try to remove to federal court. The court in Rose explained that “a fairly bright line exist[s] between submitting a case for decision on its merits, and engaging in preliminary proceedings relating to temporary restraining orders or preliminary injunctive relief… The latter [is] not a conscious choice to submit the merits of a controversy to a state court for determination.” Id. at 923. Translation: showing up to talk about a TRO does not waive your right to remove to federal court.

That doesn’t look good for EC.

(As a sidenote for those reading this without legal training: if I say Rose, italicized, I refer to the case. If I say Rose, not-italicized, I’m referring to the plaintiff in that case, who was Pete Rose, the baseball player. Thank you, baseball–now let’s get back to Ellora’s Cave.)

EC’s lawyer valiantly tries to save the day with this argument:

Unlike Rose, here the Defendants expressly, and unequivocally, requested in a motion and agreed order a “full airing of the issues at a preliminary injunction” before the State court. This was no simple request for a continuance; Defendants explicitly requested to take full advantage of the State court proceedings for an adjudication on the merits before seeking removal to this Court.

(Memo at 6.)

The problem EC has is that in Rose, the court found that the defendants had not waived their right of removal. There, the plaintiffs actually had a full airing of the issues at a preliminary injunction hearing–which surely is about ten times farther along the path of availing themselves of the state court than merely agreeing to such a hearing. It’s utterly absurd to imagine that DA agreed to schedule a preliminary injunction and so bound themselves to the state court’s decision on the merits, but in Rose, the defendants showed up to a hearing on the preliminary injunction but never agreed to that hearing.

While counsel tries to point out that DA has made discovery attempts in state court (this affidavit by the lawyer; these emails back and forth between counsel for the parties, as well as a subpoena issued to Google in state court), the emails cited clearly state that the transcripts are “for the hearing” on the preliminary injunction, and we already know that “discovery . . . conducted . . . for purposes of the preliminary injunction hearing,” Rose at 923, will not bar removal to federal court.

I could say a lot more about this, but it wouldn’t really change what I think. I don’t even think this one is remotely close, and I say that without having the benefit of hearing from defendants in response.

My conclusion: EC isn’t going to try to contest the jurisdictional amount, this motion to remand will almost certainly be denied, and we are in federal court from here on out.

Huzzah, federal court!

What to expect next: DA/Jane will almost certainly file a memorandum opposing a remand. The court will decide if it wants to hold a hearing on this or simply decide on its own, and we should get a decision from the court. That decision will almost certainly seal off this thread once and for all, and we can move on to the many, many other issues.

I have not talked about threads A or D recently, even though we have an answer from Dear Author (in thread A) and a counterclaim from Dear Author (which is the start of thread D). The reason I have not done this yet is that the answer is from Dear Author alone, and not from Jane in her personal capacity. Some things Jane will say in her answer will be duplicative. Some things she says will, I suspect, not be (which is why they didn’t file together). I’m waiting to have all things in hand before saying what I think. But if you want to come to your own conclusions, the answer from Dear Author is here, and the counter claim is here.

One last thing: I said in this post that Ellora’s Cave could not win this without spending at least $75,000. If you can’t tell from the litigation thus far, I’m going to up that amount to at least $150,000. Notice that of the things I listed that EC would have to do to win in my prior post we’ve now added at least 10 items–include fighting removal to federal court, joinder motions, motions to dismiss based on the CDA… So the irrationality of Ellora’s Cave runs, at this point, to 300 BookBub ads. And it’s been less than 30 days. Just keep that in mind.

EC won’t get to trial–the most they can hope for is a blaze of glory at summary judgment–but that’s what is on the line at this point. So my question from before stands: Why is Tina Engler economically irrational?

~ divider ~

The exciting world of the TRO! #notchilled

October 22nd, 2014

A brief recap of where we are in the EC/DA litigation.

  1. Jane wrote a post about Ellora’s Cave and whether it continues to be a viable business.
  2. As a result of that post, Ellora’s Cave filed suit against Dear Author, alleging defamation. EC also asked for a temporary restraining order (“TRO”) against Jane. (Note that I use the words “Jane” and “Dear Author” throughout to refer to the defendants.)
  3. There was an initial, brief hearing on the TRO in state court, at which point the state court decided that evidence would need to be presented. That hearing was set for October 27th.
  4. On October 20th, Dear Author removed the case to federal court on diversity jurisdiction grounds. (Diversity jurisdiction basically means that if one party is from one state and the other party is from another state, and there’s a lot of money at stake, parties can choose to go to federal court instead of state court.)
  5. EC again refiled its motion for a TRO in federal court.
  6. The TRO hearing in federal court is set for October 29th at 1:30 PM.
  7. Last night, Marc Randazza, Jane’s lawyer, filed an opposition to the motion, alongside seven exhibits (Exhibit A, from Jane, with a correction regarding the name “Red Rose Publishing”; Exhibit B, from an editor; Exhibit C, from an author; Exhibit D, from an author; Exhibit E, from an editor; Exhibit F, from an editor; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC.)

This blog post discusses the memos in support and in opposition to the motion for a temporary restraining order.

This is an exceedingly LONG piece. I’ve actually cut stuff out of it. My goal is not to rehash the TROs, but to try and make what is happening understandable to a lay person. I am not unbiased: I admit to strong free-speech preferences. Also, I think Ellora’s Cave is not the most professional outfit on the planet. These biases may color my outlook so please take that into account.

I’m going to start with a brief description of what has happened:

  • Ellora’s Cave wants Jane to take down the blogpost (and maybe other things).
  • Jane does not want to do that.
  • EC’s lawyer says that the blogpost is defamatory and serves no purpose and should be removed.
  • Jane’s lawyer says the blogpost is substantially true, was well-researched, and is of vital important to the romance community.
  • Jane’s lawyer says the judge should only grant the injunction if EC posts a bond equivalent to the harm the injunction would cause DA: namely, $150K.

Here’s my take:

  • On the basis of the exhibits currently available to the court, someone has to be lying.
  • In general, I think a judge would be extremely unlikely to squelch speech at this stage when there exists evidence from multiple people stating that the blogpost is substantially truthful.
  • EC is missing proof of a vital part of their case–namely, that Jane acted with actual malice–and I don’t know how they will ever be able to prove it, but they seem to think that proving that Jane dislikes EC is proof that she acted with actual malice. No.

For those who want a longer explanation for what I think about this–I have a much, much longer discussion below the fold. It ranges over issues like the relative skill of the lawyers, when to be dickish, et cetera.

Read the rest of this entry »

~ divider ~

Why is Tina Engler economically irrational? #notchilled

October 12th, 2014

When I first started the #notchilled hashtag, I said that I was going to use it to tweet harsh things that I believed were true. Here is a conclusion that I think is demonstrably true, but also extremely harsh: Tina Engler is economically irrational, and an economically irrational person is absolutely frightening to have in charge of a company.

No, I’m not going to talk about the Streisand effect, nor do I even refer to the dismal probability of success that this lawsuit has. I’m talking about the fact that it makes absolutely no economic sense to pursue the lawsuit at this point.

Here’s the thing: You can get some schmo of a lawyer to file a barely competent complaint for very little money–my guess would be under $5,000. And this is not always a terrible tactic (in the economic sense; it can be morally bankrupt even if economically sensible), because most people don’t have the money to respond to a lawsuit and so they back down very easily.

Winning a lawsuit defended by competent counsel is a completely different affair. [1]

If Ellora’s Cave intends to keep up with the suit–responding to discovery, filing for protective motions, writing responsive briefs in reply to motions for summary judgment–it’s almost certainly going to have to spend as much as Jane. And the Dear Author war chest is around $75,000 at present and still growing (Jane’s $20,000 + $53,000 to date in the DA fund + money donated outside the DA fund). As this is America, each party pays for its own attorney.

This only makes sense as a rational response if Ellora’s Cave expects that the damages in this case will exceed the amount they will have to spend on attorneys’ fees.

So what are the chances that Ellora’s Cave will come near that $75,000 mark?

The complaint itself only asks for “…an amount no less than $25,000, plus punitive damages.”

We can guess at how much they might be able to claim. They are (supposedly) losing money because they are losing contracts with authors as a result of Jane’s blogpost. How much do they make on contracts with authors? Well, in the words of Ellora’s Cave:

…the drastic drop in sales has resulted in large net short-term variable production losses and slow and often negative return on investment for EC on almost every new book we publish, with the exception of a handful of the highest sellers.

So by their own claim, Jane’s blogpost has caused Ellora’s Cave to lose contracts that lose them money. If that’s the case, Jane did Ellora’s Cave a favor.

I don’t see how Ellora’s Cave can prove damages of $5,000, let alone the $25,000 claimed in the suit. And that’s to say nothing of the $75,000 minimum mark to make this case economically rational–even if it had no effect on their reputation.

So why is Tina Engler pursuing an economically irrational case?

If Ellora’s Cave were flush with cash, I might not be so critical. But that does not appear to be the case. Whether authors, artists, and editors have been paid or not, Ellora’s Cave shows all the hallmarks of a business with serious cash flow problems. There are the multiple unpaid tax liens. They let almost all their contracted editors and cover artists go. They no longer have a person doing social media. By their own admission, they are losing money creating the products that are their bread and butter. And that’s not even counting signs like this lawsuit, filed in 2011, claiming that Jasmine Jade failed to pay on the lease of business equipment and owed $180,000.

Given all of that admitted evidence, Ellora’s Cave’s choice to spend $75,000 on a lawsuit is particularly bizarre. Do you know what a publisher could do with $75,000 to help turn things around? They could:

  • Hire a consultant to advise them on the current state of the digital marketplace.
  • Buy 150 BookBub ads in the erotic romance category.
  • Repackage all their old books where their cover no longer meets Amazon’s current standards–something that is almost certainly a factor in their current situation.
  • Repackage the backmatter to cross-sell all their books.
  • Run giveaways to bring readers back to Ellora’s Cave books.

I’m sure we could come up with a lengthy list of all the ways to spend $75,000 to save a company that is, by all appearances, struggling with a cash-flow problem that appears to be an existential threat.

Instead of actually trying to survive, Ellora’s Cave is earmarking whatever liquidity it has to prosecute a lawsuit that is ruining its online reputation, making it so that bloggers and readers actively try not to publicize their books, and which will almost certainly be revenue negative.

So someone tell me: Why is Tina Engler choosing to spend her $75,000 on a lawsuit that amounts to little better than a fit of pique, instead of saving her business? And why should any author ally themselves with a company run by someone whose decisions are not based on business savvy?

[1] In order for Ellora’s Cave to win this lawsuit, they’re going to have to have a full evidentiary hearing on the temporary restraining order, a lengthy discovery period, motions for protection orders within discovery, various motions for subpoenas (which will be fought vigorously if EC tries to get the commenters’ personal information) and motions to quash subpoenas, depositions, motions for summary judgment on multiple grounds, jury selection, the trial itself, motions for directed verdicts… Once you go from “threatening” to “prosecuting” attorney hours go from on the order of thousands to on the order of tens, if not hundreds of thousands. And this is not counting in the many, many things that could happen–for instance, denying or granting the temporary restraining order is appealable, so add the cost of litigating at least one appeal.

 

~ divider ~

A note about confidentiality clauses #notchilled

September 30th, 2014

A brief update of what is going on:

1. Jane Litte of Dear Author was sued for defamation by Ellora’s Cave, after she signal-boosted news from Ellora’s Cave authors, editors, and cover artists saying that they were not getting paid, along with other warning signs of impending company failure.

2. Today, there was a hearing regarding the Temporary Restraining Order (TRO) that Ellora’s Cave asked for in order to scrub evidence of Jane’s post from the internet. That hearing was inconclusive: the judge decided he needed to hear evidence about the truth of the claims that Jane made.

3. Jane has asked for people–specifically editors, cover-artists, and authors–to come forward who are willing to testify that they have not been paid.

I have seen multiple times (in emails and on the web) the statement that many people who would like to come forward feel that they are bound by the confidentiality clause in their contracts, and so cannot speak on this issue.

I had a long post up about potential ways to deal with this, but decided that posting those things publicly might not be the best choice at this time. And so I am just going to say three things instead.

(A) If you think you know something that can help, e-mail Jane (jane@dearauthor.com). If you are afraid you can’t testify because of the confidentiality clause, tell her that.

(B) I feel that with (A) you need to know that your interests and Jane’s interests do not align perfectly, and I’m sure some of you know that. So here’s an option B. If you are an author, an editor, or a cover-artist who would testify as to the truth of the statements Jane made, but for the confidentiality clause, contact me. If there is enough interest from those who would testify but are afraid for confidentiality reasons, I will look into finding a lawyer to accompany you to the hearing–someone whose job it is to represent your interests, and to make sure that you’re speaking up to the maximum allowed without putting yourselves at risk. But in order to do that, I need to know who you are. E-mail me at contact@courtneymilan.com. You do not have to tell me anything except that you would be willing to testify as to the truth of the statements Jane made, but feel that you cannot except for the confidentiality clause.

(C) I don’t know the terms of the confidentiality clause. But there is one thing that I know for sure–silence breeds fear. And no matter how broad the confidentiality clause is, there are some things that it can’t prevent you from saying. So if you’re an Ellora’s cave author, editor, or cover-artist, and you would speak up but you’re afraid, say that much. Go on twitter. Post it on your blog or your Facebook page. “I’m an Ellora’s Cave author, and I’m afraid to speak up.”

Silence breeds fear. Speech–even if the only thing you say is that you are afraid–breaks silence.

~ divider ~

On limited purpose public figures #notchilled

September 29th, 2014

For those who haven’t heard the background story:

Ellora’s Cave has been in the news much over their failure to pay authors, editors, and cover artists, while engaging in significant shenanigans. One of the people who has collated and distributed news about Ellora’s Cave’s failures is Jane at Dear Author, who wrote this post.

Jaid Black and Ellora’s Cave sued Jane for defamation over that post, which has caused an outpouring of support for Jane.

In response to aforementioned support, Jaid Black tweeted:

Screen Shot 2014-09-29 at 7.30.27 AM

That’s true if you’re a private citizen and people are talking about your private affairs. But in this country, we want to make sure that people have the right and ability to talk about matters of public concern, to express their opinion on them, and to speak freely without worry that their speech will be chilled. So if you inject yourself into an issue of public concern, you may be a limited purpose public figure–that is, someone for whom the standards differ.

This is not legal advice–I cannot give legal advice–but I set this out to explain what I am about to do next.

It seems to me that the business of Ellora’s Cave–a multi-million dollar business, one where the owner has sought and obtained media attention from national news media, a business that deals with hundreds if not thousands of authors, editors, and cover artists, and who has thousands if not hundreds of thousands of readers who take an interest in it–is a matter of public concern. It seems to me that Ellora’s Cave and its owner, Jaid Black, by seeking out that media attention, by broadcasting announcements to its authors–announcements that were reprinted and referenced in publishing news ranging from Publishers Weekly to The Passive Voice–is a limited purpose public figure.

And the standard for defamation actions for limited purpose public figures is substantially different than for private citizens. The standard is that the speaker must be acting with actual malice: that is, they must know (or be reckless about knowing) that the statements they are speaking are false. What that means is that if I say something and I have a good-faith belief that what I am saying is true–even if it later turns out to be false–I am not going to be held liable for defamation.

I point this out because I am extremely, extremely pissed off about this lawsuit. I believe that this lawsuit was filed for the purpose of chilling speech–and for the purpose of chilling true speech about a matter of imminent public concern. And I think that despite the outpourings of support, it’s working. This lawsuit is about teaching authors to sit down and shut up, even if their livelihood is at stake.

And I can’t blame people who do sit down, and who do shut up as a result. Because the truth is, knowing that some blowhard will spend $3,000 to put together a shitty complaint to threaten you? That you’re going to have to pay an attorney to fight that bullshit suit, and that if you want a good attorney, that might cost you well into the tens of thousands of dollars? That’s going to shut up a lot of good people. Even if they know they will prevail at summary judgment because it’s a bullshit complaint, having to pay an attorney sucks, and it sucks balls. (For those surmising that Jane may be able to get attorney fees back–I wish it were that simple, but I put the likelihood of that near zero, both from the legal perspective and also from the ability to recover the money even if she got the judgment.)

But me, personally? I can handle a lawsuit. I know I’ll prevail in court, and if push came to shove, I can afford the attorney.

So I’m going to be tweeting harsh things about Ellora’s Cave that I believe to be true, and that I am confident will not be held defamatory under the limited public figure test because they are not made with actual malice. If they sue me, they sue me, and I’ll consider it money well spent.

I can’t give you legal advice about what to tweet. I can’t tell you that tweeting is safe and that it won’t harm you. But I’m going to be tweeting these things under the hashtag #notchilled–because I refuse to have legitimate speech about a matter of public concern chilled by a self-important bag of farts who happens to have access to a lawyer.

If you’re willing to join in, do so.

~ divider ~

Dear Authors United: Stop being gross.

September 15th, 2014

Note: this is a cranky-pants ranting that I probably shouldn’t post, but here we are.

I promise, I’m not going to be that person who fisks every last thing that a certain group posts. And I’m not going to do a line-by-line on the latest letter to come from Authors United. Nor am I the person who constantly defends Amazon (how could I? I have no idea what the heck is going on in negotiations, so I can’t even pretend to know who I should take to task or what they shouldn’t be doing).

But honestly, this latest letter by Authors United is abysmal. Here are the three sentences that stuck with me throughout the day, and in the worst possible way:

“We all appreciate discounted razor blades and cheaper shoes. But books are not consumer goods. Books cannot be written more cheaply, nor can authors be outsourced to China.”

The amount of cluelessness packed into those statements baffles and horrifies me. In one horrifically fell swoop, the authors of that piece imply  that it’s okay for people who create consumer goods to be deeply underpaid. They imply that books, and therefore by extension, authors, are special and better than everyone else around us. And they imply that authors don’t (and shouldn’t) come from China.

Me personally, I understand that I create entertainment. When it comes down to it, I think the single largest threat to my income does not come from the future or ebooks or Amazon–it comes from the possibility of a dwindling middle class, where fewer and fewer people have disposable income to spend on books. So I’m not going to say “Yes, I’m all for cheap consumer goods if it means other people suffer, but not when my livelihood is at stake!” That’s some grade-A bull right there. The best thing for me as an author is the thing that is best for my readers. My economic interests are tied very, very closely with theirs. And so I’m not going to assume that we “all” appreciate the fact that middle class jobs are disappearing in order to fuel my rapacity for the latest and greatest phone. I’m pretty sure we “all” don’t appreciate that.

Second, these words assume that the author is distinct from the person creating those consumer goods. I can pretty much guarantee you that somewhere in America, there is someone working minimum wage who ends every shift too damned tired to create. She has it in her–I know it–to write an amazing book. I want to read it. But being on your feet that many hours a day, constantly dealing with customers, doing the absolute worst that there is to do for minimum wage…that takes it out of you. I think it’s a bigger threat to our literary society that that person isn’t going to have a chance to write. Personally, I wouldn’t dismiss her like that. I wouldn’t act like somehow I’m better than her, and my income should be protected while I’m nonchalant about hers. The only thing that separates me from her is luck. I hope she gets a piece of my luck, because I’m grateful for it every day.

If you think she’s not lonely, that her feelings are less intense, that her struggle to make a living is unworthy and irrelevant…well, I don’t know what to say to you. I have worked crappy jobs. I have worked as an author. There are times it is hard to be an author. But despite those hard times, I never, ever tell myself I would be better off working at any other job in the world. The letter acts like authors don hazmat suits and risk our lives in the trenches. We don’t. We really don’t.

And then we get to outsourcing authors to China? Okay. I understand that the US tends to export entertainment by and large, but it might be useful to remember that the rest of the world exists once in a while. Proportionally, around 20% of the world’s population is from China, so if things were fair and the economy was global there would be 5 times more authors from China than from the US. (There would be as many authors from India as from China, too.) I can’t really understand why it would be bad if someone in China wrote a good book and readers here got to read it. That sounds awesome to me, and I don’t understand how more good books could possibly pose a threat to literature.

Oh, wait. That’s not what you meant to imply, was it? You weren’t trying to say that the Chinese could write good books. What exactly was it you were trying to say about Chinese people? They only produce cheap, shoddy knock-offs? They can copy Western literature, but they have no creativity of their own?

Yeah. I think that’s what you were saying.

My books are consumer goods. I believe this because they behave like consumer goods. When they have better packaging, they sell better. When there is increased word of mouth, they sell better. Sales are elastic with price. I don’t think it cheapens me or devalues my books to admit to basic reality: Books are consumer goods. I can complain about it, and say they shouldn’t be consumer goods, but we are not living in that reality. It would behoove us to stop pretending otherwise.

My livelihood as an author is best protected when the companies that distribute and sell my books understand that my books are in fact products, and try to maximize the amount of money made on those products. I do not feel devalued in the slightest by having someone understand economics and use that understanding to try and maximize my income. Nope; I am delighted that my current publisher takes the side of crass commercialism in the sale of my books, and I suspect that the Authors United folks who have a publisher doing the same feel the same way.

Nor do I think it devalues me or my work to say that my books are consumer goods. They are lots of other things, too: entertainment, insight, a way for a person in a hard place to get through an impossible day. Consumer goods can enrich and educate our lives, and they often do. But they are also still consumer goods. (My current publisher, despite being a hard-headed crass commercialist, also feels about my books much the same way I do. She does not insist I write the trendiest thing. She knows I am an artiste as well as a business woman, and sighs and accommodates me anyway.) (Heh.)

If I were to write a letter to the board of directors of a publicly-held U.S. company, I wouldn’t do something as stupid as telling them to avoid thinking about economic reality. I would hope that among the 900-something signatories, at least one person would have a basic understanding of corporate law–enough to know that the board of directors of Amazon owes the company and shareholders a fiduciary duty to maximize profit. They emphatically are not supposed to indulge in their own views about the feelings of art, nor are they supposed to see themselves as upholding a culture of elitism with a side-serving of thinly-veiled racism. They owe a fiduciary duty to the company. That means they are obligated to think about the economic reality first and second and third and all the way up through the last. You may not like that about corporate America, but it is what we have.

So why don’t we pretend this letter never existed? Quietly delete it. And then go and write a letter about good business practices and the fiduciary duty that the directors owe to the company. That, I suspect, will get read.

You’re authors. I’m sure you can think of something to say.

~ divider ~

RWA Elections

September 3rd, 2014

Some people have noticed that I am running for the position of Director at Large on RWA’s board of directors. This is a brief blog post about that.

Why are you running?

Because people asked me to, and I decided that (a) I might have something to contribute, and (b) despite all outward appearances, I had not yet exceeded my capacity for whacking my head against a brick wall.

Why should I vote for you?

  • Because you generally like the way I think.
  • Because you think I need less time.

Why shouldn’t I vote for you?

  • Because you generally don’t like the way I think.
  • Because you generally do like the way I think, and recognize that if I am elected to the board, I will owe RWA fiduciary duties that will require me to maintain silence on issues relevant to RWA instead of mouthing off about them here or on twitter, and you would rather have me in mouth-off mode.
  • Because you notice that I’ve scaled back my workshop/traveling commitments in anticipation of extra work in 2015/2016, and you want me to come speak with your chapter (note: probably won’t work for more than one or two chapters.)

What is your agenda?

  • To promote the professional interests of career-focused romance writers in all ways that are legal.
  • In general terms, I’m a particular fan of increased transparency and increased inclusion.

If I vote for you, will you do everything I want?

Unlikely.

If I vote for you, will you do anything I want?

Maybe, if you want some of the same things that enough other members of the Board want.

If I vote for you, will you make all the decisions?

No, I’ll be one member of a large Board of Directors, which means there will need to be wide group consensus on any action RWA takes.

How do I vote?

You have to be an RWA general member in good standing. You should have received an email from RWA with a link to the ballot. If you didn’t, check the RWA website for more information.

Who else should I vote for?

There are no ogres on the ballot! Everyone looks great!

That being said, in terms of the board of directors, I do have to put in plugs for two people.

  • Tessa Dare is a very good friend of mine, a brilliant woman, a fabulous writer who has been extremely successful in an entirely different way than I have. (And also, we were both asked and we talked each other into running, but only so long as we did it together.)
  • Carolyn Jewel, whose technological expertise is second to none, who has a great combination of skeptical and open-minded, and who always makes decisions with data.

Will you be sad if you are not elected?

No. I will be faintly relieved.

Will you be sad if you are elected?

No. I will feel anticipatory weariness.

~ divider ~

How to suck at typography

July 30th, 2014

Over the last few months on twitter, I’ve increasingly seen people linking to covers of historical romances and saying something like UGH this does not look right!

Some of those covers actually have great underlying images. The problem in 99.9% of them is that the typography is…not good. There are usually three ways that people end up with typography that is not good.

  1. They are doing the typography themselves.
  2. They have hired the typography out to someone who is not good at typography (e.g., they have used a graphic artist to make the cover, but not all graphic artists are great at laying type.)
  3. They have hired someone who knows how to do decent typography, but insist on elements that are not good typography. In other words, the client is creating the problem.

This post is specific to historical romance. That’s because I’ve spent a ton of time looking at historical romance covers, and feel like I can talk about them with some reasonable authority. This post is nonetheless not intended to be authoritative, complete, or to serve as instruction for anyone putting together a book cover.

This is a post that is designed to do one thing and one thing only: Tell people things to do on their historical romance cover to make sure the typography sucks.

Without further ado, here are some of the most effective ways to suck (with suggestions as to how to not suck.)

1. Choose a crap font.

Bad typography: Crap font

This is the biggest one. I can’t tell you how many historical romance covers are ruined by crap fonts. Just about anything you got free on your computer or downloaded from some free site is going to be sheer crap, I’m sorry to tell you. And fonts that are great for the inside of the book–fonts like Garamond or Times New Roman–often don’t do well on the cover for name/title fonts.

As a note, what constitutes a “crap font” in historical romance is not the same thing as a “crap font” in another genre. For instance, Trade Gothic is standard on a number of thrillers. It would look ridiculous on a historical romance. Spend some time looking at covers in your genre to see what kind of fonts people use.

I actually don’t think that the typography above would be absolutely terrible for a certain kind of book.

A great font is not just a great font–it is also a way to brand yourself as an author. Don’t be afraid to spend money on an excellent font. It always annoys me when I see people whining that people won’t buy their book when it’s less than a cup of coffee, but they are unwilling to shell out $50 for an extraordinary font that would brand their books.

(My biggest problem with some of the less-expensive-but-still-professional-looking cover design shops is that they’ve figured out a typography combination that works for them and they keep using it over and over, regardless of the client.

End result? A look that is branded to the cover designer rather than the author.

But given a choice between crap typography and a non-branded cover, I’d say go for the non-branded cover.)

2. Use low-contrast color combinations.

image

Want people to be able to read your title and your cover? Well, don’t use red-on-red color combinations. This one is fairly easy to see, and yet I keep seeing things like this crop up on Amazon. I really have to wonder at people who put out books like the above. What are they thinking?

3. Use too many fonts.

image

Using a small number of fonts allows you to create a cohesive feel to your cover. One or two fonts–three at the absolute maximum, and then only after careful consideration–is all that anyone should ever need to make a good cover. Too many fonts will distract the viewer.

4. Don’t pay attention to kerning

image

Kerning is about the spacing between letters. As a note, this is one of those places where a quality font really matters: a really good font is one where the designer has gone through and specified kernings for every pair of letters. That gives it a professional quality that requires less work on the designer’s part. The random font you got for free off of someone’s website? Probably has crap kerning, and you need to adjust manually.

See that space between the “T” and the “H” in the author name? It just looks weird. And unprofessional. Ditto for the space between the “D” and the “u.” If you look at all these letters, you can see that they subtly feel like none of them are properly aligned.

If you don’t know how to kern a font manually, you’re probably not someone who should be doing typography. If your designer doesn’t know how to kern a font, ditto.

5. Use font effects.

image

You know what? I’m going to go out on a limb and say that if you have any doubts as to your ability to judge typography, you should not use font effects beyond a mild drop shadow. For historical romances, font effects are basically death. I include in this flashy color gradients, fonts on a wavy path, fancy texturing or beveling of the font… You name it, I don’t want it. Font effects are the opposite of tasteful covers. They are harder to read at best, and migraine-inducing at worst. The worst fug in the world comes from font effects.

DO NOT USE.

6. Use all the whizbang.

image

Yay, you spent a ton of money on an awesome font, and now you want to show it off. Your font has whizbang. So much whizbang! You cannot wait to show everyone all your whizbang.

Please restrain yourself. A few bits of whizbang are enough for any one cover. Too much whizbang is hard to read, and that distracts people from the cover itself. You are better off having no whizbang than too much.

7. Don’t balance your cover elements.

image

This is actually a really, really subtle point–the typography above is actually not horrendous. But in this case, it has been centered with a computer and left like that. The end result is that it looks unbalanced. The “The” is hanging over the “Duke” and there’s a large gap that makes it perceptually look like it’s farther away (even though I have set the baselines of all three words to be equidistant). “Dukes” and “Cock” do not appear to be centered with respect to each other. And the elements are placed over the image without any thought as to what will draw the eye on the image itself–note that the eye is naturally drawn to that white spot right by the rooster’s wattles, and the text placement does not logically follow from that spot.

Typography is not just about placing elements over an image; it’s about bringing things together into a cohesive whole.

If you cannot tell why items 1-7 are not great examples of historical romance typography, and you’re thinking to yourself, “Wow, that does look GREAT on a curvy path!” do not do your own typography. You do not have the skills you need. In fact, you are the opposite of what you need, and you need to get out of your own way.

(It’s okay. Everyone sucks at something.)

If you look through a designer’s portfolio and see them using only cheap/free fonts with terrible kerning, do not use them. Et cetera and so forth.

Things you should do if you want to not suck

(Note: I basically banged all these images out over the course of half an hour, and now I’m looking at this and still want to fiddle–especially with moving around the title/author name–but since I am not, in fact, using this for anything except illustration purposes, I’m just going to leave it like this, even though I’d probably still make changes.)

image

 

1. Use typographical elements to draw the eye back to the image rather than send it away.

2. Pay attention to how typographical elements interact with each other–in this case, the “D” and the “C” in the title interlock with each other, and I’ve moved the “The” to give a sense of balance. Rather than having the swirl from the R intersect the middle bar of the “E” as in the above image, I’ve deleted the middle bar, so the elements flow together.

I do not pretend this is the best historical romance cover ever (for more reasons than one). But it is, at a minimum, not guilty of horrendous fug. And if you are nitpicking things about this cover, yay, congratulations, you may be nitpicky enough that you can do typography!

3. Use a great font sparingly. This font is called Desire, and it is made by Borges Lettering. It is the only font used on the cover for the last three images. (You can see that the font has a lifetime supply of whizbang, should you wish to use it–use with care.) You can get it here: http://www.myfonts.com/fonts/charlesborges/desire/

4. Make sure that the typography and the image interact well. Don’t cover over parts of the image that you want people to focus on; make sure you choose an image that has a lot of places to overlay font with a great color contrast. (This, by the way, is the primary driver of the “girl in a massive dress” cover–because the dress serves as a blank palette to overlay text on.)

All righty. That’s my short course on how to suck at typography. I’m sure I’ve left off a bunch of items, so please feel free to add your own tips in the comments!

~ divider ~

Enhanced editions!

July 7th, 2014

Hi everyone! The enhanced editions of my first five books–Unveiled, Unclaimed, This Wicked Gift, Proof by Seduction, and Trial by Desire, are now available–and they’re only 99 cents each through July 25th.

enhanced

If you want to know what an enhanced edition is, I explain it better here. If you have already purchased these books, and just want the additional content, you do NOT have to rebuy the book just to get it–I don’t believe in making people pay twice, particularly when they’ve been nice enough to buy the book in the first place. The enhanced content is available for free on my website here.

That is, I think, all that you need to know as a reader: you can get my earliest books, with more content, for 99 cents!

Here are buy links, for those who are so inclined:

Amazon: http://smarturl.it/enhanced-amazon
Barnes and Noble: http://smarturl.it/enhanced-bn
Google: http://smarturl.it/enhanced-google
Kobo: http://smarturl.it/enhanced-kobo
iBooks: Unveiled | Unclaimed | This Wicked Gift | Proof by Seduction | Trial by Desire

Authors, have asked me a lot more questions over the last few weeks, and so here are some answers to those questions.

Q. Why are you releasing enhanced editions?

A. Because I can. I know that sounds a little bit ridiculous, but let me put it to you this way–if you had a contract with a publisher for print-only releases, and the contract specifically stated that you reserved digital rights, would you put that book up as a digital edition? Of course you would.

That’s what my contract looks like with regards to enhanced editions. They specifically reserve the right to make enhanced ebooks to me. I had that right, and so I am now exercising it.

Releasing enhanced editions gives me control over pricing, covers, branding, promotion, and back matter. It also makes me more money.

Q. Are you the first person to release enhanced editions?

A. Nope! Publishers have been putting out enhanced editions for years. And authors have self-published enhanced editions before, too. I’m aware of two other authors. Christina Dodd has put out enhanced editions of her Lost Hearts series, with deleted scenes and author commentary, and Cherry Adair has put out enhanced editions of a number of her books–with more material in them than I can possibly list here.

I’m pretty sure that Cherry Adair, like me, is putting out enhanced editions while her publisher still holds an exclusive license to the underlying unenhanced text.

Q. Specifically what in your contract allows you to do this? Can I do this, too?

A. There are two parts to my contracts that allow me to do this. The first is the following statement in the Grant of Rights section of my contract:

(d)  electronic use of the non-dramatic unenhanced verbatim text of the Work, excluding video use (whether in a now known form or hereafter discovered) … Notwithstanding anything to the contrary in this Agreement, electronic rights shall be limited to the display of the text in the Work and shall not include any moving images, sound or any interactive or multimedia elements.

Incidentally, give my agent, Kristin Nelson, a hand for drafting an extremely clear statement. If she’d just left it as “unenhanced verbatim text” or even limited it to “multimedia elements” we might have had to argue about what “multimedia” and “enhanced” meant. As it is, the line about “sound” gave me a really, really clear out: As long as I included audio, I was outside the rights I had granted to my publisher.

The second is something that is not in my contracts, and that is a noncompete provision of any kind.

I don’t know if you can do this. You’ll have to look at your contract. I’ve mentioned here the two things you’ll need to look at–the grant of rights section and…uh, the rest of the contract. In the grant of rights section, you need to look and see if you are only granting rights to the “unenhanced” text, or if you reserve “multimedia” rights or something along those lines. There are probably a thousand different ways to word the reservation, and so there’s no magic language I can tell you to look for.

There are also a lot of authors out there who don’t have an enhanced reservation at all. I’m pretty sure that Harlequin series boilerplate, for instance, will not allow this.

Whether you can do this will depend entirely on what you and/or your agent negotiated.

Q. Will you look at my contract and tell me if I can do this?

A. No, sorry. That’s a job for a lawyer, and I’m not licensed to practice anywhere at the moment, and don’t want to get you in trouble.

Q. Are these self-published?

A. It depends on what you mean by “self-published.” If you look at the publisher listed on the vendor websites, it will say “Entangled Edge/Macmillan.” That’s because I have a distribution arrangement with Entangled Publishing, who in turn has a distribution arrangement with Macmillan.

Why do I have a distribution arrangement with Entangled? I wanted to make sure I was falling under the safe-harbor laid out in my contract–meaning I had to include audio. Self-publishers cannot publish books to Amazon or Barnes and Noble with audio in them, so I have a distribution arrangement with Entangled to send them out.

I produced the files and covers entirely on my own, and granted Entangled a nonexclusive license to distribute them. [ETA: As a sidenote, I asked Kristin to negotiate that agreement as well, and she made sure we stuck to the points we needed to most protect me.]

I could have gone through someone like vook.com to distribute–but I’m getting a much better deal this way.

Are these self-published? I bore all the costs and work of producing the files, so in that sense, yes. Are these distributed through normal self-published channels? No. They are not.

Q. Are you worried that your publisher is going to sue you?

A. Not really. We’ve kept them in the loop throughout, and they’ve had the chance to raise objections before now, which they have not done. My contract is really clear on this point, so they don’t have grounds to sue me. And they’re not unreasonable.

That being said, my budget for this project included a phantom legal fund. Just because something’s extremely unlikely doesn’t mean that it is impossible.

Q. Are you worried that someone is going to get sued over enhanced ebooks?

A. Yes, which is one reason I don’t want to look at anyone’s contract (I mean, aside from the fact that the unlicensed practice of law is generally frowned upon). There are potentially tens of thousands of books out there that have an enhanced ebook reservation in them.

I think that there’s a huge opportunity here for authors, but I also think there is a huge risk involved, and I want to emphasize the risk in addition to the opportunity. I think there are very few authors who are positioned as well as I am: on the one hand, my contract is from my limited experience unusually clear on this point; on the other hand, I have legal resources available to me that are, to say the least, uncommon.

Q. Are you worried that your publisher is going to be unhappy about this?

A. Not particularly. But if I were still publishing with them, and wanted to continue publishing with them, this would not have been a particularly prudent course of action.

Q. Where did you get the idea for this?

A. From Joe Konrath, at the end of this post. And yes, I’ve known that I could (and likely would) make enhanced editions since before I self-published my first work. I’ve been planning these ever since April of 2011.

Any other questions? You can ask me in the comments. (I may be in and out quite a bit today, but will get to comments as I can.)

~ divider ~

RT’s Giant Bookfair

May 18th, 2014

Yesterday was RT’s Giant Bookfair. It was easily the most intense signing I’ve ever been at. Authors rubbed shoulder to shoulder (literally), books taking up all available table space, with a line of readers that snaked through much of the building. The waits were immense.

Some self-published authors are talking about one specific thing: that is, the separation of authors into two rooms on the basis of criteria that would not have been obvious to readers. Authors who were selling nonreturnable books–typically, authors from digital-first presses and self-published authors–were selling books on consignment, whereas the other books were being sold by a bookstore.

(For those following along at home: Most authors know what is meant when we say a book is “returnable,” but readers probably don’t. So just to make it clear, many publishers make their books available to bookstores on a “returnable” basis. That means the bookstore can order in 20 copies of a book to see if it will sell well. If it does, yay for everyone! If not, the bookstore can send back the copies they didn’t sell for credit. They do this to convince bookstores to take a chance on authors without having to take an enormous risk. From a book fair perspective, it could be very expensive to order nonreturnable books that are not sold at the book fair. There is little other avenue to sell those books–so ordering those books, and having to eat the cost of them, could easily make a bookfair unprofitable, and then we wouldn’t have them at all. Instead, authors with nonreturnable books bring those books on a consignment basis.)

That meant that the authors needed to bring those books, have them checked out, determine the sales of books afterward, and fill out paperwork as to how they were to be paid. I believe RT handled those sales. By contrast, a bookstore was handling the sales for the books that were returnable. At the RT Giant Bookfair, for administrative ease, authors with nonreturnable books were put into a separate room. This saves a little time because then RT staff would automatically know if an author needed to be checked in/checked out. From the reader perspective, I believe that these books had to be paid for separately, too. (I didn’t go through the paying lines and so cannot say for a fact that this is true, but I’ve heard it more than once now.)

(Another not-so-sidenote: I refer to this as a “separation” because that is in fact what it was. I do not think it’s appropriate to use civil rights language to describe what happened. There is a difference between business arrangements that are entered into voluntarily, and irrational, debilitating animus that is based on immutable personal characteristics. Also, there is a difference between separating people on the basis of irrelevant facts like race, and separation on the basis of legitimate, administrative reasons. It’s really uncool to appropriate the struggles of minorities to describe a voluntary choice to get 70% royalties on digital books. I don’t really want to have that debate, though, because I have Been There Before and it Rarely Does Any Good. So I’m putting my thumb on this particular issue: I reserve the right to disemvowel comments that go there. If you want to engage in appropriation, you can find other venues to do it.)

This separation was not explained well to readers or volunteers–unsurprisingly, since most readers/volunteers don’t really know or care whether the books they buy are “returnable” or not, since that’s a distinction that matters only to the bookseller.

Naturally, people made up their own explanations for the divide. Rumor has it that someone claimed that the authors with returnable books were “real authors” and that the authors who were selling their books on a consignment basis were “aspiring authors.” As far as I can tell, this appears to have been one misinformed volunteer, rather than the official RT Convention description. It was not something that I saw or heard, and I do not think it was widespread.

Several readers had difficulty finding me because it was not made clear that there were TWO giant rooms full of authors, and while there was a list stating what room each author was in, if you’re looking for 15 authors, it gets confusing to plot out a course between them unless you sit down and plan everything right from the start. The end result was that a division made on the basis of administrative ease led to chaos and confusion. It meant that it took readers much, much longer to navigate the Bookfair and find the authors they were looking for, and even longer to pay for those books.

While I understand the administrative reasons that gave rise to the separation, the end result was hurt feelings for authors, and–far more importantly–confusion, hassle, and hours-long waits in line for the readers who had come to this event to get signed copies of books from their most beloved authors.

I hope RT will strongly consider the possibility that a separation based on administrative reasons that are not immediately visible to readers created more difficulties than it solved. One possible solution is to scrap the consignment system and have authors with nonreturnable books sell their own books directly, using something like Square.

Despite these administrative issues, I still really enjoyed the signing. I sold every book that I brought. I met many people I had only interacted with online, and others who have just read my books on their own. Thanks to every reader who came to find me, to the wonderful authors sitting next to me who took this whole thing in good humor, and to the RT volunteers and staff who put in a tremendous day of work to make a signing of 700 authors come together.


Courtney Milan writes historical romance novels like the ones you see to the right. She still remembers bits and pieces from her old lives, where she was (variously) a scientist and a lawyer.

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