By Sarka-Jonae Miller
May 29, 2015 (San Diego’s East County) --Cortina Jackson asked a question about a potential instance of piracy and possibly fraud in the comments of last week's column about planning a series, increasing readership, and the benefits of indie publishers vs self-publishing. Here is the question:
I have recently encountered a situation that has really been disheartening to me, and was wondering if you could offer some insight or advice. I was approached by a magazine publisher who offered me the opportunity to advertise in her magazine by writing an article, and doing a radio interview to publicize my book. She even said that she could sell my book in her online bookstore. I had to pay a fee to do this. After paying her, she did not initially post the article, and I did not hear from her for 3 months. I ended up reporting her to the Better Business Bureau, and within a day, my article appeared, and my book was available in her online magazine. However, I never gave her permission to sell my book, this was never negotiated, there was never a contract. I noticed that my book is being sold as an eBook, but I never gave her my eBook file. She stated that she had been selling it, before it even appeared in the publication, and that she had sold 4 copies already at $35.00 +shipping cost. (Shipping cost for an eBook?) Also, when I click on my book, I noticed that the sale goes directly to her PayPal account. When I asked her about this, she stated that she pays out the profits every other month. I am not alerted when I receive a sale, which is troubling. Basically, she can state that she sold 4 when in reality it could have been 40. This is shady and illegal pirating. It is hard to get straight answers from her, when I am able to speak to her at all. I usually have to email in order to get a response, so luckily I have a lot in writing. I have two questions: Is it possible that anyone could download my eBook, and then sell it, and profit from it? My next question is, what can I do at this point to stop her, and anyone else going forward, from selling my book without permission? – Cortina Jackson
Too many times I've heard about authors being cheated in some way and each time it makes me angry. Many authors go through the unfortunate experience of finding some website that is selling their book without their permission. I have seen Between Boyfriends on several piracy sites. I've seen books by famous authors like John Grisham being offered for free online (no, I didn't read them).
Sometimes these sites have bought your book, broken the digital rights management lock, and are selling your work or giving it away. Other sites aren't even selling your work, just making it look like they are so that when customers purchase they never get anything. These are the worst because some customers think the author is in on the scam. In some instances though, there were simple misunderstandings or behavior that appears shady but is not illegal.
In the piracy issues described above, a simple cease and desist letter might do the trick, assuming you can discover where to send the letter. However, these pirates are rarely scared by such letters. They might remove your book and they also might ignore you. Sometimes, they simply shut down their piracy website and open up another.
In Cortina's situation, things are more complicated because there might have been an expectation that the woman would sell the book since the offer was made. Was it expressly rejected? Is there something in the advertising agreement that mentions the e-bookstore? Untangling these issues by yourself can make your head spin.
Sadly, it is not uncommon for authors to be deceived third-party distributors who agree to sell their books in their e-stores or through brick-and-mortar stores but only report a fraction of the sales. I have heard accusations of such abuse from many authors who have worked with small and large distributors. I personally will never take the chance on dealing with any business that is not a large, established seller or a store that I can visit and check sales myself based on inventory I provided, such as Warwick's in La Jolla. They are very author-friendly.
If you want to enter into an arrangement for distribution with an unknown, I first suggest checking watchdog sites like Predators and Editors. The site lists all sorts of frauds and scams that target authors. It's not only people who offer to sell books who you need to watch out for. There are companies masquerading as publishers who charge their authors thousands of dollars for printing and marketing. No legitimate publisher charges authors upfront fees.
Other scams to look out for are people who claim to market, edit, and distribute books. That is not to say there are not fantastic freelance editors, publicists, formatters, proofreaders, and cover designers who provide quality services for reasonable prices, but I'd check watchdog sites first and check references.
If you find yourself in the unfortunate situation where someone has broken their word, is not living up to the terms of a contract, or has failed to provide services as described, I cannot stress enough the importance of seeking legal counsel.
In Cortina's situation, a generic cease and desist letter might not work. We don't know what sort of verbal agreement she might have had with the seller or what in their written communication might be construed as permission to sell. State laws in both parties' home states might be a factor. I have seen authors attempt to handle legal situations on their own and successfully resolve them, but I have also known them to make costly mistakes that weakened their case and opened them up to defamation suits. Common sense does not always match the law, unfortunately.
Self-published authors unfortunately do not have a large publisher to assist them with issues of piracy and illegal distribution. However, not all publishers will take the time to address piracy. I have heard from publishers that although they do not like piracy in general, their opinion is that it cannot be stopped and in a way benefits authors by giving them free exposure. Authors, do not be surprised if your publisher tells you that the company won't take action.
The smart move is to consult an attorney. An inexpensive way for authors to take matters into their own hands is to use LegalShield. It's a legal service that gives members one free phone call per personal legal matter and one free letter. An author in Cortina's shoes could have a phone consultation with an attorney and if the attorney recommends a cease and desist letter, he or she could send it on the author's behalf. A letter from an attorney is much more likely to be taken seriously than a letter from an author.
If a cease and desist letter is not the best course, the attorney will recommend something more appropriate. I caution against taking well-intended advice from people who have been in similar situations as no two cases are the same and there is no substitute for professional help in legal matters.
– Got questions? Want a book deal?
Send questions to Sarka-Jonae Miller through Twitter @sarkajonae, Facebook, and email, or come ask her in person at the Alpine Branch of the San Diego County Library on June 6 at 1PM. She will also share information on how to submit manuscripts to her publisher for consideration.
SJ is a local author, book marketing manager, publicist, and columnist who writes chick lit and steamy romance based in San Diego and Los Angeles. Learn more about Sarka-Jonae and her books here.