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?