Saturday, October 15, 2011

Breaking The Silence on Aspen Mountain Press Part Two

Today's post will be much shorter.  The past couple of days have been very wearing on me. And I do have a business to run instead of forever worrying about what's going on with Aspen Mountain Press.

Here are Aspen Mountain Press's and owner Sandra Hicks's responses today.

1) Today the Aspen Mountain Press website went back online.  None of the out of contract books were taken down.  The site has not been updated.  AMP authors believe that after being served with a DMCA notice and having the site taken down, AMP has just moved to a new host.  

2) After her post of yesterday morning (that you can see here on my blog) where she assured the authors that she had the money to pay the authors, today she told an author that she actually has NO money to pay the authors and that she isn't worried about criminal charges because she hasn't done anything wrong.

3) One author received a rights reversion in the mail today, but when the site went back up all of her books were still on it and still offered for sale.

Okay, let's just be blunt here.  I'm not sure what happened to Ms. Hicks to such a degree that yesterday, she claimed there was money for all the authors but today, she claims there is none.  Unless I get a sizable check in the mail in the next couple of days for the salary and royalties I'm owed, I'm going to assume the funds that AMP should be holding for its authors in a standard royalties arrangement, money that does NOT belong to AMP but belongs to its writers and editors who are owed money, has been used for purposes other than what they are intended to be used for. 

This is October.  Third party sites usually pay 45-60 days after the end of the quarter for those quarterly sales.  So AMP was paid in May for the first quarter; August for the second quarter; and should be paid in November for the third quarter.   AMP authors and staff should receive royalties 45 days after the end of the month that is the pay period.  So July should have been paid in September, August in October and so forth. So at this moment, in addition to all the AMP website payments--also paid 45 days after the end of the pay period--AMP authors are unpaid for one quarter and soon to be TWO quarters of third party sites, THREE months of AMP web sales and Amazon sales, PLUS any unpaid royalties from previous pay periods.

Where exactly DID those thousands of dollars of sales go?  The last quarter I did editor royalties for before we took over, a royalties quarter missing over a hundred already-released titles on third party sites, the sum of AMP royalties for the quarter were substantial. The months of June and July, the senior staff put all those books up for sale on the third party sites (hours they never got paid for) and AMP posted an average sales increase for that month in the double digits. Significant double digits.  I can put together a fairly accurate estimate of royalties for both those quarters and probably low ball it in the process.  If I were really ambitious, and I may be, I could just go through the AMP sales records in my possession from my tenure as managing editor this summer and figure out EXACTLY how much AMP got paid. 

I think there needs to be an accounting for those funds IMMEDIATELY.  We are NOT talking about small change here. We are talking about six months of sales on third party sites, three months of sales on Amazon and the AMP website and for the first of those two quarters I have the figures sitting right in front of me. So, let me reiterate: I KNOW HOW MUCH ASPEN MOUNTAIN PRESS WAS PAID FOR THE SECOND QUARTER OF 2011.  I can hazard a VERY good educated guess about what AMP was/will be paid for the THIRD quarter of 2011. Actually, I know how much Aspen Mountain Press was paid for all of 2010 and half of 2009 too. 

And if the owner of AMP does NOT have the money--then where is it?

We may never know. 

Regardless of what happened with the money issues, these facts are patently clear:

1) AMP authors have still NOT been paid the royalties due them.
2) AMP staff members have NOT been paid the royalties due them.
3) The AMP website miraculously returned to the Internet today, which couldn't have happened if the owner  was incapacitated.
4) When the site went back up, AMP still had the out of contract books still offered for sale.
5) Even authors who received letters of rights reversion in the mail today are STILL seeing their books offered for sale on the AMP website.

AMP authors need to know and follow through on this one major, unavoidable fact: Aspen Mountain Press is CONTRACTUALLY REQUIRED to present each author a royalty statement for each month's check with the reasonable measures of available technology.  Even if you did not make any sales, Aspen Mountain Press is CONTRACTUALLY REQUIRED to send you a royalty statement for that month. The contract clause regarding this reads as follows: 

XIII. Payments and Statements
Publisher shall pay Author royalties in accordance with a schedule to be determined at Publisher’s discretion but in no event shall payment be made later than forty-five (45) days from the end of the month royalties are collected.  Royalties will be calculated from the first of the month through the last day of the same month.  Payment shall be made by Paypal, or corporate check, to Author or Author’s authorized agent.
Author understands that royalties will be paid in the following month copies of the Work are paid for by consumers, distributors or vendors, not to exceed forty-five (45) days after the end of the payment period.  If distributors or vendors delay payment to Publisher, Publisher is not obligated to pay the royalty until it has been paid by the distributor or vendor.
Publisher agrees to take such reasonable measures as Publisher’s sales technology permits to obtain and include, in royalty statements, information about the number of copies created, shipped, sold, and if appropriate, returned for each Digital / Print Format edition of the Work whether sold from Publisher’s website or through other channels of distribution.

Let me tell you what reasonable measures you have to take to show the sales for a specific work in a given month.  I'll work with one of my books. You go to the spreadsheet, you select the row of the book, you copy and then you--:

   Metamorphosis *editor name* 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0.00 0.00

--paste the numbers into another document.

I timed myself; that took two seconds,

The 'reasonable measure' you need to take, the 'reasonable measure' of technology you need is the following: a spreadsheet, provided by the vendors; a new document or email to paste into; and a computer.

If you want to get REALLY fancy, you paste a line up top that has the column names in it.  Here, let me show you:

Title Editor Amazon-May Sales FW-1stqtr Sales Bookstrand 1 qtr Sales ARE 1st qtr Sales 1PR 1st qtr Sales AMP-May Sales New Release Other CK AMT      
Metamorphosis *editor name* 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0 $0.00 0.00 0.00       

(On a wider screen it lines up better. But this is still not incomprehensible.)

For editor royalties, all you have to do is copy and paste ALL the books/lines under that editor's name--a task I made much simpler and easier by putting BIG RED LINES in between each editor on the spreadsheet.  You don't even have to use a calculator, because I set up the spreadsheet with the formulas needed so the program did the math for you.

 But even without the royalty statements, AMP is in breach of contract for NON PAYMENT OF ROYALTIES for over TWO months at midnight.  Three months is...ninety days, give or take.  AMP will hit that ninety day mark with almost every author and staff member on November 15.

AMP  has resurrected its website and kept for one purpose and one purpose only: to continue to sell books as long as possible. The owner believes that the 90 day clause to address breaches of contract is protecting her--that NONE of these complaints are really problems because she has that ninety day clause.  That is NOT how it works.  The 90 days clause is there to protect the owner against ACCIDENTAL breaches of contract, not flagrant violations of every contract in the company.  And, it seems like she will go on intentionally refusing to release authors who have not been paid in well over 90 days. Here, too, is where the certified and registered letters piling up in her mailbox comes into play.  She seems to think that if she personally does not sign for a certified or registered letter, then the 90 period outlined in the contract for breaches has not been triggered.

She appears to be unaware that the countdown on the 90-day clock started the moment an employee of Mailboxes, who is an agent for her, signed for those pieces of mail.

AMP has used up what good faith it once had.  There is no reason for anyone to believe that AMP intends to pay its authors or staff.  Whether these concerns are intentional on the owner's part or the result of some external factors that prevent her from understanding the potentially devastating consequences to her if she continues to play ducks and drakes with money that is not rightfully hers I cannot and do not know.  

But I do know this: today, AMP took a major step backwards. AMP is  now no longer a publisher. Now Aspen Mountain Press is nothing more than an electronic pirate, capitalizing off the stranded and breached contracts of authors the company is refusing to let go.

For me, in the end, this isn't about the money. I honestly believe that many AMP authors would be willing to forgive their back royalties in exchange for the rights to their books. For me, this is about the books and the authors who are trapped by this publisher.  Whether the owner's intentions are good and she just can't face up to the amount of work that's needed to rectify the problems at AMP or whether she is intentionally withholding funds and causing hardship for her authors and staff is no longer the question.

The question is: how can  these authors and their intellectual property be freed from a non-functional publisher?


Sharon M.Bidwell said...

I've just checked. My out of work contracts are back up. I've not been paid. I've not had regular statements, if any for months. This publisher has breached contracts. I'm still waiting to hear anything personally from the owner. You're completely right in that AMP can no longer be considered as anything better than a Pirate site, illegally selling books it does not have the right to.

Mr. Smith said...

I can see the outrage in your post. I feel it as well. Thank you for bringing this matter to the attention of writers at large.

I feel that in this culture the writes of writers have been greatly abused and ignored in the publishing industry. We are like cattle or some other livestock commodity and that means we are fatted, herded, and eventually sent in for slaughter.

If she gets away without having to pay off her authors it will be tantamount to intellectual rape.

That being said, calm down. Justice could still be done, and if she does not pay her authors, she will at least end up on the shit-list a Pred&Ed.

Aline de Chevigny said...

Well I for one WANT my royalties paid.

Sloane Taylor said...

Celina, thank you for another excellent post. You're right, Sandra Hicks, owner of Aspen Mountain Press has become a pirate.

Personally, I don't care about the money. What I've never had I don't miss. Well, at least not a lot.

What I do care about is regaining the rights to my ten books. The only way I can see this happening is through legal action. My preference is the FBI.

Lex Valentine said...

I would keep hitting whoever hosts the site with DCMA notices until she can no longer find a company that will keep the site up. Hand in hand with that, I believe the authors in toto need to bring legal action against her for monies owed. I'm sure it's well beyond small claims action and the idea of taking it to the FBI because of the near pirate like actions on the part of Sandra Hicks may have some merit. You may also want to contact her local police (even if they don't do anything) to file a report of theft and embezzlement.

If she's a mother, why would she risk her child like this? She's clearly facing some kind of legal action and perhaps even criminal charges. If her depression is so bad she cannot function to send emails how is she mentally capable of caring for a child? If she's that unstable maybe Child Protective Services needs to know that she isn't capable of working (by her own admission) so they can look into whether her child is being cared for properly. And maybe the threat of legal action, criminal charges, and an investigation into her fitness as a mother (based on her own emails re how her depression has made her incapable of functioning on a day to day basis) will spur her to do the right thing finally.

Play hard ball. I think she's used up whatever get out of jail free cards she ever had with all of you. Take back your rights on your own and send her legal notices that she's in breach of contract and any further sales of your books on her website constitute piracy on her part which is subject to criminal charges against her. Whether she gets those notices personally or not, if someone signs for them, she has. Then you all can prove to the FBI or local authorities that she has been served and is now nothing more than a common criminal.

My sympathies are with all the authors and staff caught in the obviously illegal actions of this woman. I don't think any of you should feel an ounce of sympathy for her. Hit her with every bit of ammo you can. For once, I'd like to see one of these cheating publishers get what they deserve. Good luck to you all.

Lex Valentine said...

Another author I know said the state attorney general in the state where she resides should be contacted about the books she's selling that out of contract and/or authors have requested their rights back for. Hopefully, that's another recourse you all may have.

Alaina said...

You guys need to band together and get a lawyer to represent you en masse. And yes, contact the state's attorney general where Ms. Hicks lives. It's past time for trying to convince her to hold up her end. You need to bring actual legal action against her. She is a criminal and the law is on your side in this.

Best of luck to everyone.

Billi Jean said...

Why shouldn't authors want their royalties? Why should they be above this and simply want their books? I think they should be paid, have their books and sue her for breach of contract. Either band together, or go individually to a lawyer and sue her. It's quiet simple, now that the cat is out of the bag, why wouldn't she be taken to court? It's completely bizarre to me why this hasn't been done yet...

I will continue to send you all my warmest sympathies, but I hope that some justice will be served here. Everyone needs paid -- and their books back/off her site.

best of luck to you all,

billi jean

Author P.A. Moore said...

It might be time for you all to get out of cyberspace. Call/email her local/regional newspapers and television stations, tell them your stories and invite them to do a report about the implosion of Aspen Mountain Press. Royalties due, pirated books, the whole mess. Start with her local/ regional papers because it would be story about a small business person gone "wild". E-publishing is big so I think it would be a great story. Perhaps the national media will pick it up. Then get your new stuff up on Amazon or whereever so folks can know where to buy your books legitimately. $ $
Good Luck.

Samantha said...

Thank you again Celina. I also made another related post on my own blog highlighting my personal experience. As I commented there, as you and we, by extension, speak out, I feel we are the OCCUPY group of the publishing world. Only when we band together do the injustices stop. Thank you for being our moral compass.

Anonymous said...

These blogs have been very sobering reading.

But surely the time for just blogging has past. Don't you have any consumer protection laws in America? Here in New Zealand and operator like this would have the Serious Fraud Office on their tail in a heartbeat.

There must be somewhere you can lodge a legal complaint to get the ball rolling.

Even something as simple as lodging a complaint with your local police of theft and piracy could start the action.

Or band together and bring a class action...but you need to do something.

The idea of going to the news media has a lot of merit. This is the sort of dirty laundry they love to hunt out...and hard

Celina Summers said...

Hi Shirley--

I wanted to address your comment, mostly because I've been hearing a lot of this in the past week or so. Consumer protection laws have no bearing on a writer's contract with a publisher. And while some authors may be owed substantial amounts of money--and several staff members including myself--for most of AMP's authors, we aren't talking about major amounts of money. AMP authors have empowered themselves throughout these past few months in a manner I haven't seen yet. Many options are being discussed by them in privacy, as they should be.

What I am speaking specifically about in these blogs is not the money so much as the intellectual property violations occurring as the result of the breaches of contract AMP has committed with its writers.

There is no contract that cannot be renegotiated. As a writer and a fairly savvy one, I never thought to negotiate the sections involving breach of contract. Never. Writers need to learn the business of publishing. We need to learn to determine if a contractual clause is beneficial or detrimental. We need to learn to ask for what we want.

There is more to our business that just turning out manuscripts. At the small press level, a writer must act as his own agent. That means taking the time to READ a contract BEFORE signing it and to understand what each and every clause of that contract means.

I am just as guilty as anyone else of being incapable of looking past the joy of being signed to the technicalities of what I put my name to. That's why when we built Musa, we had experts take a look at our contract to make it as author friendly as possible.

Anonymous said...

Bring her kid(s)into this is a little much if you ask me. What she's doing isn't right and we all know this. Questioning if she's a good mother or not based on her business practices is a bit out there. That's my two cents.

Celina Summers said...

"Bring her kid(s)into this is a little much if you ask me. What she's doing isn't right and we all know this. Questioning if she's a good mother or not based on her business practices is a bit out there. That's my two cents."

I completely agree. While I have a huge problem with what's been happening to AMP authors and staff, I also am concerned with what's happening to the owner and her family. Mentioning kids in something like this is a low blow. Just my two cents worth too.

Savanna Kougar said...

My one book with AMP is no longer available at Amazon or AllRomanceEbooks. Given that, I am taking my rights back regardless. Let her sue me [personally, I have nothing worth taking]. If everyone simply takes their rights back, how far will she get suing us all?

I'm not concerned that other small publishers will blackball me, given I've never done anything to dishonor a contract.

Anonymous said...

I'd only just recently learned of the AMP debacle a few days ago. My only question is why haven't you guys come together and sued this company? With the number of complaining parties, it would seem that a class-action lawsuit would be in order. Surely some shark-toothed lawyer would love to sink his/her teeth into a juicy lawsuit this would be.