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Ex Nihilo

A little while ago, a friend of mine said, “You know what death is like?”  “Not having died,” I said. “No.”  “Nothing.”  “Come again?’  “It’ll just be one big nothing,” he said. “Do you remember what you were like before you were born?”  “Nope.”  “Death will be just like that. Going back to that nothing.”   […]

The post Ex Nihilo appeared first on Waiter Rant.




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Universal Book Solutions: Anatomy of a Book-to-Screen Scam


Posted by Victoria Strauss for Writer Beware®

Selling film rights to Hollywood is among writers' most fevered dreams. And where there is something that writers want or need, there are always sharks waiting to take advantage.

The Hollywood book-to-screen "marketing" package was pioneered by Author Solutions, way back in the early 2000s. All the Author Solutions imprints offer it, including the imprints AS runs for publishers. Here's what the package looks like, from AS imprint Xlibris:
  • Hollywood Ticket: coverage by a "professional reader." Cost: $999.00.
  • Hollywood First Act: a synopsis, "critical analysis", and "45- 60-second teaser Book Video" for "catching film executives' attention". Cost: $2,999.00.
  • Hollywood Director's Cut: an 8-10 page treatment by a "professional screenwriter", plus "consideration" by Author Solutions' "first-look Hollywood partner". Cost: $3,899.00
  • Hollywood Producer's Pick: this is the big kahuna, a full screenplay written by a screenwriter, plus consideration by AS's first-look partner. Cost: $16,299.00. Note that the screenplay is based on "your approved Hollywood Treatment", which you must previously have purchased--so the real cost of this option is $20,198.00.
Although a handful of other assisted self-publishing companies have offered similar packages over the years (here's the one from Bookstand Publishing, for instance; Outskirts Press also had one for a time, though it seems to have been discontinued), Author Solutions hasn't faced a lot of competition in the high-priced Hollywood dream exploitation business--primarily, I'm guessing, because of the cost and coordination involved in providing the coverage, critiques, treatments, and screenplays to the authors who buy them.

That's changed recently, though.

An explosion of book-to-screen "services" has hit the internet, courtesy of the Author Solutions copycat scams that I've been writing about so much lately (there's a complete list in the sidebar). Author Reputation Press, Coffee Press, Dream Books Distribution, Media City Publishers, Paramount Books Media, Book Art Press, New Reader Media, BookVenture, Pearson Media Groups, MatchStick Literary, and more all offer some version of the Author Solutions book-to-screen package, either on their websites or in their (extremely aggressive) phone and email solicitations.

The value of any book-to-screen package is highly debatable, regardless of who provides it. Vendors of such "services" play on authors' dreams of making it big, while failing to provide any kind of realistic information about the extreme unlikelihood of success. Most books never sell or option film rights (they're among the subsidiary rights least likely to be exploited, even for successful authors with top-flight agents), and it's far harder to sell a screenplay than it is a book manuscript. For most authors, the most probable result of buying a book-to-screen package is a smaller bank account.

And that's assuming that the vendor actually provides the advertised services, and doesn't just take the money and run. Author Solutions, at least, does seem to produce the coverage, etc., it sells, in a reasonably literate manner (you'll see some examples if you read on)--though of course, like paid reviews, the critiques and coverage are likely to be customer-friendly--that is, unrealistically positive.

The copycats, on the other hand...they don't exactly have the greatest track records for quality, reliability, or service. Or honesty.

An example: Universal Book Solutions, which styles itself "a Book-to-Screen Marketing Professional, with years of experience in working for motion picture projects for producers, agents, directors, and major studios in Hollywood." As usual with the Author Solutions copycat scams, there's no information that would allow you to verify any of these claims--no list of owners or staff, no company history, no examples of successful projects. That's no accident, of course.

A sensible person might also wonder about the quality of written materials produced by a "Book-to-Screen Marketing Professional" that puts out website text like this (English-language lapses are one of the markers for the copycat scams):


Here's how UBS's slightly more literate email pitch begins (I've seen two of these now, and they're identical):

The email goes on to detail the services on offer--news release, coverage, treatment, and screenplay--in language that has been lifted directly from the Xlibris (and other Author Solutions imprints) book-to-screen package. As further inducement, a bunch of glowing--and conveniently unverifiable--quotes are appended at the end. Turns out that these too have been lifted, though from a different (and, in its way, equally questionable) source.


Anonymous testimonials are the best kind, right?

Last but not least, UBS includes several attachments--supposedly, examples of its work:


"Sample coverage" is this. Looks surprisingly literate and detailed, doesn't it? But wait. Here it is again...on the iUniverse website (the book was published by another Author Solutions imprint). Ditto for UBS's "sample treatment:" here's what UBS sent. Here it is at iUniverse (which also published the book in question).

(As for The Little Prince screenplay, I can't find any evidence of it online, but given all the other borrowing, it's sure to have been snitched from somewhere.)

So...a plagiarized book-to-screen package, promoted with plagiarized text, further promoted with plagiarized testimonials, and finished with sample documents produced by others and falsely presented as UBS's work. If you hand over your money to these folks (neither of the authors I heard from went far enough into the process to get a price), what do you think the odds are of getting any of the promised products?

Universal Book Solutions claims a Florida address (per a Google search, it's a private residence in what looks like a condo community), but has no business registration in that state. Its web domain was registered just last February. As for Allen Gardner, Project Manager, guess where he's located.
UBS is an especially egregious example of this increasingly common scam. But as noted above, there are many others, and they are aggressively soliciting authors, especially those who have published with Author Solutions imprints, small presses, and pay-to-play companies like Christian Faith Publishing and Page Publishing. Be on your guard, and if you hear from a company that wants to take you to Hollywood--for a price--remember that if it sounds too good to be true, it probably is.

For a much more realistic discussion of the book-to-screen process, see Jane Friedman's excellent article, How a Book Becomes a Movie. Scroll down to the final comments to see one from a writer who was solicited by Universal Book Solutions.




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Vanity Radio: Why You Should Think Twice Before Paying For an Interview


Posted by Victoria Strauss for Writer Beware®

In a super-crowded, hyper-competitive marketplace, one of the main challenges for book authors is to stand out. And where there's a need, there are always unscrupulous operators waiting to take advantage. The internet is awash in worthless schemes and outright scams designed to profit from authors' hunger for publicity and exposure.

I've written about a number of these--Hollywood book-to-screen packages, the hugely marked-up PR options offered by Author Solutions, the plague of marketing scams originating in the Philippines. Others to watch out for include book fair display packages (publishing industry expert Jane Friedman has a good article on why these are not worth your money), pay-to-play book review services, and what I'm going to talk about in this post: vanity radio.

What's vanity radio? In the "writer beware" context, it's radio air time that you, the program guest, have to pay for. Such schemes have been around forever in various forms, aimed at experts and creatives of all kinds, from services that explicitly sell pay-to-play interviews, to show hosts that charge interview fees to defray the fees they themselves have to pay their platforms.

The main selling point is the promise that your interview will be heard by a large and eager audience, giving wide exposure to you and your book (see the pitches that I've pasted in below). But vanity radio is primarily online radio, delivered via platforms like Blog Talk Radio and Spreaker, and streaming services like iTunes, iHeart Radio, and SoundCloud. Online radio listenership is steadily rising, but unless there are subscriber lists (as on YouTube, for instance), there's usually no way to determine the audience for any given host or show--or to authenticate any listenership claims the show may make. Lots of people may be tuning in...or no one at all.

As a result, the only verifiable benefit authors may receive for their money is an audio or audio-and-video clip that they can post to their websites and social media accounts. Whether that's worth it when it costs $99 or $150 or $200 is debatable enough. But when the price tag is four figures?

As always in the realm of junk marketing aimed at writers, Author Solutions has been both the pioneer and the primary practitioner. All its imprints sell vanity radio in some form: here's AuthorHouse's offering, for instance (just $1,099!). iUniverse's is identical. Xlibris and Trafford currently sell teasers rather than interviews (for significantly more money), but through 2017 they too hawked interviews.

Recently, however, AS's leadership in the realm of predatory marketing services has been challenged by a flood of scammy imitators. These copycat ripoff factories have adopted vanity radio in a big way, and they aggressively hawk it to authors, both on its own and as part of costly publishing and marketing packages. Here, for instance, is an offer from Book Vine Press (cost: $1,500):

From Author Reputation Press (cost: £1,500):


From Parchment Global Publishing (cost: $1,499):


The copycats re-sell the services of a number of show hosts (there's a list below), but the three personalities noted above--Kate Delaney with America Tonight Radio, Ric Bratton with This Week in America, and Al Cole with People of Distinction--make the most frequent appearances on the copycats' websites and in their email solicitations. Delaney and Bratton have substantial, legit resumes in TV and radio; Cole is a bit harder to research, but he too seems to have a sizeable track record as a talk show host.

What, if anything, do they know of the reputation and tactics of the copycats that are re-selling their services? I contacted all three for comment last week. Cole's assistant responded in email that "Al Cole knew nothing about this....Our office will certainly look into this." As of this writing, I haven't heard back from Delaney or Bratton.

Given that the copycats routinely charge an enormous markup on products they re-sell (see, for instance, this warning from the Combined Book Exhibit, whose book fair exhibit packages many of the copycats re-sell for hugely inflated prices; the copycats also seriously jack up the fees for paid book reviews such as Kirkus Indie and BlueInk Reviews), it seems a fair bet that the interviews' hefty price tags are substantially inflated as well.

Apart from the question of such interviews' value for book promotion, that seems like reason enough to avoid them.

******

Author Solutions copycats that sell interviews from the individuals mentioned above:

BookVenture, ReadersMagnet, Maple Leaf Publishing, Parchment Global Publishing, Rustic Haws, Branding Nemo, Creative Titles Media, Paradigm Print, Stampa Global, Books Scribe, Matchstick Literary, PageTurner Press, EC Publishing, WestPoint Print and Media: Ric Bratton

LitFire Publishing, Author Reputation Press, ReadersMagnet, BookTrail Agency, Book-Art Press, Box Office Media Creatives, IdeoPage Press, Book Agency Plus: Kate Delaney


ReadersMagnetAuthor Reputation Press, Rustik Haws, URLink Print & Media, Workbook PressParchment Global Publishing, BookWhip: Al Cole


BookTrail Agency: David Serero

BookTrail Agency, Book Agency Plus: Angela Chester


UPDATE 1/9/19: Parchment Global has added the disclaimer in red to its solicitations for Al Cole interviews (it might want to do some proofreading):


I don't know if this was at Mr. Cole's behest (remember, he's the only vanity radio host who responded--if not very expansively--to my request for comment) or is just CYA by Parchment Global itself, but hey--it lets me know that the scammers are still reading my blog.

Do I believe Parchment Global has stopped taking a cut? What do you think?




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How Predatory Companies Are Trying to Hijack Your Publisher Search, Part 3


Posted by Victoria Strauss for Writer Beware®

In my first post about the ways that predatory companies attempt to ensnare unwary writers who are searching for publishers, I discussed fake publisher-matching websites. In my second, I exposed the scammy Google ad tactics of vanity publisher Austin Macauley.

In this third post, I'll talk about an equally insidious practice: providing misinformation or even outright lies about traditional publishing, in order to make self- or vanity publishing appear superior.

Yesterday on Twitter, someone tweeted this chart, which purportedly compares traditional publishing and self-publishing.


If you're even slightly savvy about publishing, the inaccuracies are easy to spot. Trad pubs often pay royalties on retail price (not "net sales"), or pay a higher percentage (higher royalties are especially common in the small press world). Trad pubs that pay advances don't withhold them from less popular authors, and they don't require authors to make "certain minimum orders" or to buy thousands of copies of their own books. And while it's often true that smaller traditional publishers don't provide much in the way of PR or marketing support, and larger houses invest more marketing in more popular books and authors, they don't simply ignore 95% of their output (this makes no sense; what business markets only 5% of its products?)

As for author rights...trad pubs do license exclusive rights from authors, sometimes for a period of years, sometimes for the life of copyright (with reversion usually happening well before then). But they don't gain ownership of them (as "all rights are with the publisher" implies), because the author retains copyright--plus, authors can often negotiate to keep some of their subsidiary rights. And although self-publishing is typically non-exclusive, allowing authors to publish on multiple platforms if they wish, they do still have to license publishing and distribution rights to whichever platform or service provider they choose--otherwise, the platform couldn't legally produce and sell their books.

The chart comes from this how-to-self-publish article, which is really just a long ad for PublishEdge, which is (surprise!) a paid publishing services provider.


PublishEdge is a "division" of Zaang Entertainment Pvt Ltd, which, unlike the Philippines-based scams I've been covering so much lately, is based in India. The range of services it sells aren't priced as high as some of the scammers', but there are still plenty of warning signs: no information about who is providing the services on offer (so you have no idea who they are or if they're qualified); no cover or website design samples (so you have no idea what you'd be getting for your money); and this pitch for ghostwriting services, which invites you to "Discover the simple secret to how celebrities and busy professionals get their books published without actually writing", courtesy of "our book writing experts", who (judging from the description of the service) basically type up a Skype interview into a chapter book. Most likely these unnamed "experts" are hired on Upwork or Fiverr or a similar jobs site (holy plagiarism scandal, Batman!).

PublishEdge isn't alone in misrepresenting traditional publishing in order to make itself look more attractive. Among other alternative facts, this chart from Morgan James, a vanity publisher with an author purchase requirement, claims that "many major houses" require authors to buy 5,000 copies or more of their own books (doesn't that make MJ's 2,500 purchase requirement seem appealing?), and that trad pubs provide no PR or marketing support for 94% of their books and authors. (Hmmm. Could PublishEdge have borrowed a little something there?)

Here's another misleading comparison, from Union Square Publishing, a self-styled hybrid (read: vanity) publisher. It too borrows heavily from Morgan James's chart, with several of the same dubious claims. Here's another one--this time from Success Publishing, which sells Chicken Soup-style anthology slots.

This one, from "custom" publisher Momosa Publishing (packages start at $5,900), doesn't tell quite so many fibs, but encourages you to believe that trad pubs cap their royalties at 6%, and don't market their books to libraries. And then there's this from Atmosphere Press, another so-called hybrid, which wants to convince writers that a $5,000 publishing fee will save them from the "raw end of the deal" they'd get from a trad pub, "losing not just their royalties but also the rights to their material and to their control over their art." Not addressed: the likelihood of ever making that $5,000 back.

These are just a few examples; there are many more. If you use the internet as part of your publisher search, you're very likely to encounter them (in some cases, disseminated by self-styled experts who ought to know better). It's a great argument for a step that many writers skip: learning about publishing before diving into the quest for publication. As with all aspects of publishing, knowledge is your greatest ally and your best defense: the more you know about the way things really work, the better protected you will be against the disinformation described above.

Final note: I know that many writers have had bad experiences with traditional publishers--I've had some myself. Especially in the small press world, many traditional (at least in the sense that they don't charge fees) publishers engage in nonstandard and author-unfriendly business practices. There's plenty of discussion of that on this blog. I'm not trying to paint trad pub as perfect, or argue that it's necessarily a better choice for any given writer.

But deliberate distortions like those described above don't help anyone, even if you don't take into account their obvious self-serving agenda. Tarring an entire segment of the publishing market with a broad negative brush--especially where some of the supposed negatives are demonstrably false--is as irresponsible as arguing (as some people still do) that only traditional publishing is a worthwhile path. 




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Beware: Wid Bastian a.k.a. Widtsoe T. Bastian / Genius Media Inc. / Kairos Phoenix Company


Posted by Victoria Strauss for Writer Beware®

Scroll down for updates

Early in 2019, seventeen writers were recruited to participate in a box set of medical thrillers, called (with unforeseen irony) Do No Harm.

The buy-in: $750, with net income from sales going to two designated charities, and participating writers receiving a pro-rated share of any net income above those contributions. The goal: through cooperative marketing efforts, to get the set on the USA Today bestseller list.

Here's how the opportunity was presented to potential participants (this is from an email that was shared with me):


In other words, right off the bat, authors were being primed not to expect to make money.

Helming the endeavor was a five-year-old PR company called Genius Media Inc., owned by a man called Wid Bastian (full name: Widtsoe T. Bastian). Per this long 2017 discussion on KBoards, one of Genius Media's not-so-genius MOs was to cold-contact writers by form email and offer glowingly-described Kindle Unlimited promotions. "For you, my estimate on an eBook promo is 10,000 plus downloads and 700 plus sales, positive ROI right out of the gate and huge page read income."

The cost: $2,000.

KBoards members urged caution, especially after expert analysis of Genius's claims indicated that its promotions weren't as successful as it advertised, and information offered by a writer who'd paid for a promo suggested that Genius was violating the TOS of the advertising platforms it used. Also noteworthy: this post from a writer who bought two promos from Genius, and lost money on each one. "That is what Genius Media told me to expect, that the first promo would not show a profit, but that by the second or third promo, they would show a profit." (The writer bought a third promo.)

As it turns out, these concerns were a sign of things to come.

Do No Harm was published, as promised, and made the USA Today bestseller list, also as promised. On October 3 (or possibly October 4), it was unpublished--three (or possibly four) days after the contractually-stipulated end date of September 30.

Per the contract (which you can see here), final reporting and payment was due to authors "no later than December 1". December 1 came...and went. Bastian promised anxious authors they'd get everything by December 15.

One day past that deadline, they did receive a report...but not from Genius Media. Between early December and December 16, with no notice or warning, a company called Kairos Phoenix had purportedly acquired Genius. Other than its business registration--in Wyoming, just like Genius's--and hometown--Logan, Utah, again just like Genius's--Kairos was a black box, with zero web presence. It had incorporated less than a month earlier, on November 22. (You can see the report here.)

That wasn't all that was suspicious. Here's Kairos's financial breakdown:


In other words, USA Today bestselling box set Do No Harm hadn't just failed to make a profit, it had lost money. But...where was the revenue from the $750 buy-in fees--which, with 17 authors, totaled $12,750? (Kairos's explanation: it wasn't included because it was "ordinary income" for Genius Media. "As stated in the contract, the fee was paid to 'participate' in DNH Collab by the author and for no other purpose".) Where were revenues for the days the set had been on sale past the unpublish deadline? (Kairos: "The contractual period for DNH Collab was strictly defined in the contract" as September 30, so any revenue past that date was "irrelevant".)

Equally troubling, why were there more than $15,000 in expenses--three-quarters of which were for "labor"--when the contract stipulated that expenses were not to exceed the total of the buy-in fees? According to Kairos, this wasn't really an expense cap: "This provision was specifically and intentionally included in the contract language to avoid the possibility of a 'cash call' – Genius Media asking authors to contribute more to DNH Collab to achieve the goal of making USA Today Bestseller status. No 'cash call' was ever made in the DNH Collab."

Here's the actual contract wording, though (my bolding):
For the purposes of the USA Today Bestseller Medical Thriller Author Publishing Collaborative Boxed Set program, Genius Media shall not incur any publication and promotion expenses of any nature in excess of the fees paid under the terms of its author agreements and shall have no power to obligate [redacted] or any other author for any publication and promotion expense above author fees paid whatsoever.
There's a "cash call" prohibition and an expense cap. But Kairos wanted writers to believe otherwise, so it could inflate expenses and ensure a loss.

It was obvious to Do No Harm participants that Kairos was taking the money and running--avoiding the substantial payouts it would otherwise have to make by retroactively interpreting contract language, and also enabling Bastian himself to claim he was blameless because of Genius's supposed takeover by an unrelated company. (No one was under any illusion that Kairos Phoenix was anything other than Bastian in a different guise.)

Authors were furious. On December 22, two of them, Christoph Fischer and Dan Alatorre, went public with their experience. Others posted warnings on Kairos's corporate business listing.

Do No Harm isn't the first time Bastian has run this scheme, either.


The box set in question appears to be Tales From Big Country, which was published around the same time as Do No Harm. A third set, Galaxia, was pubbed in September, with profits supposedly going to the Well Aware clean water charity. I've been told that Bastian is recruiting for other sets, including a collection of thrillers.

So who is Wid Bastian, a.k.a. Widtsoe T. Bastian?

His LinkedIn profile ("EXPOSE your new book to develop your author brand and sell more books!") identifies him as the owner of Genius Media, and also of an ebook promotion program called Book Dynamite. In an earlier profile on a freelancers' job site, he describes himself as a "published novelist and screenwriter" (more on that below) who "makes most of my daily bread as a ghostwriter." He also has an IMDB profile, presumably because of his efforts to make a film of the life of Greek Orthodox priest Fr. Themi Adamopoulos.

Genius Media's website has been taken offline, but traces remain in the form of cached pages, and here's how it looked in January 2016, courtesy of the Internet Archive (more recent versions haven't been archived). The company has a D+ rating from the BBB. Bastian also owned or was an officer with at least three other companies during the early to mid-1990s: Off & Flying, Prospex Interntaional [sic] (yes, it really was registered with a typo in the name), and Nevada Pension Investment Fund. Both Off & Flying and Prospex had their statuses "permanently revoked" a few years after incorporating. All three are long dead.

There is also a Widtsoe T. Bastian who pleaded guilty to 13 felony counts including embezzlement, money laundering, and bankruptcy fraud in US District Court in North Carolina, and in 2005 was sentenced to one hundred and forty-four months in prison and restitution of more than $3,000,000. Nothing I can find online directly connects Widtsoe T. Bastian of Genius Media to Widtsoe T. Bastian of North Carolina, so it may be a different person. But Widtsoe T. Bastian is quite an unusual name, as a websearch will make clear.

Finally...I can't say "what goes around comes around", since this pre-dates the ripoff that's the subject of this post, but it certainly seems like a case of advance karma: Bastian's own 2010 novel, Solomon's Porch, was published by none other than Tate Publishing & Enterprises, a notorious vanity publisher that scammed thousands of authors and a multitude of staff, and whose owners pleaded guilty in 2017 to an array of felony charges very similar to the ones described in the previous paragraph.

Tate authors suffered terribly at the hands of their unscrupulous publisher, but Wid Bastian is one Tate author I can't feel all that sorry for.

UPDATE 12/31/19: PACER was down yesterday, so I wasn't able to do a case search. I did so this morning, and here's what's there for Widtsoe T. Bastian:


Some of the listings are redundant, and several cite court documents without any links to those documents. But there's enough available to paint a tangled picture of a 1995 Chapter 11 bankruptcy in Nevada involving several companies in addition to the three mentioned above (the case was finally closed in 2002); a 1999 indictment in Nevada "on charges related to the operation of [Bastian's] venture capital firm"; failure to appear in a Nevada court in 2001; and a 2002 arrest in North Carolina, leading to the plea of guilty on 13 felony counts referenced above.

In 2012, Bastian was placed on probation or supervised release, and jurisdiction over his case was transferred to US District Court for Utah. His probation ended on May 4, 2015.

UPDATE 2/21/19: I'm featuring this comment from yesterday, as it's more indication of a pattern (the commenter has shared documentation with me that confirms what they say below):
In 2013-15, I hired Mr. Bastian as a ghost writer and later co-author of a novel we wrote together called Henry and Tom, sold through Amazon/Kindle Direct Publishing (KDP).

In mid 2015, Mr. Bastian embezzled money from a joint bank account we opened to pay for marketing campaigns for Henry and Tom. Rather than pursue embezzlement charges, I hired an expensive lawyer in Washington DC to transfer all rights for Henry and Tom to me in exchange for a $4K payment to Wid and a non-disparagement clause for both of us. This seemed at the time like the most expedient and cost effective way to deal with all the problems Mr. Bastian had caused.

I thought this matter was concluded until recently when Amazon/KDP informed me that a debt collection firm had placed a lien on Henry and Tom due to a bankruptcy filed by Wid Bastian/Genius Media Inc. KDP is currently sending my royalties to the collector per the lien. I have filed formal complaints with Attorneys General in Connecticut, New Jersey, and New York in an attempt to have the lien removed in states where the debt collectors are registered. I have also filed formal complaints against Wid and Genius Media Inc. with the Attorney General of Utah and the County Attorneys Office in Providence, Utah.

I think blogs like this are creating awareness of the depth and extent of Wid’s continuing criminal activities so we can all work together to stop him from doing this to others and get him to face justice.
You'll note a reference to a bankruptcy. Wid Bastian filed a Chapter 7 bankruptcy petition on January 13, 2020.


A number of victims of his box set schemes are listed as unsecured creditors; if you're one of them, you should have received a snail mail notice, but if you haven't, and are wondering if you're included, here's the Certificate of Notice, with all Bastian's claimed creditors.

The bankruptcy filings also confirm what everybody already knew: Kairos Phoenix was Wid Bastian. The reason he set up this company probably won't surprise you, either.




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What You Need to Know About How California's New Law AB-5 Affects Writers


Posted by Victoria Strauss for Writer Beware®

Scroll down for updates

Last year, California passed a new law, AB-5, intended to make things better for gig economy workers, such as Uber and Lyft drivers, by forcing these companies to provide employee protections and benefits for their freelance workers.

However, the narrowly-written law, which went into effect on January 2, has created unintended consequences for freelance writers, most of whom are independent by preference. If they sell 35 or more pieces to the same company in a year (which can easily happen with short blog posts or  product reviews), the company must treat them as employees rather than freelancers and pay payroll taxes as well as unemployment and other insurances. Even before the law went into effect, companies were laying off California freelancers and seeking replacements in other states.

Book writers may be affected too, under certain specific circumstances.

The article below was originally published by the Authors Guild; I'm re-printing it with permission. This is an issue all writers need to be aware of, as similar laws are under consideration in other states, including New York and New Jersey.

******

We have been receiving inquiries about California’s new law AB-5 and similar pending legislation in other states that require companies hiring individuals on a freelance basis for labor or services to treat them as employees, unless the individual’s work falls within one of several exceptions. Laws like AB-5 (which goes into effect on January 2) are meant to aid gig economy workers, such as Uber and Lyft drivers, who work for a single company and have no employee protections. They are well-intentioned pieces of legislation, but unless they are narrowly written, they can go beyond protecting gig workers and disadvantage many traditional freelancers who wish to remain independent by overriding existing state agency law.

To be clear, the Authors Guild fully supports employment protections for freelance journalists and authors, and will be lobbying for collective bargaining rights in 2020. Like Uber drivers, writers have no benefits and are often paid less than minimum wage. But forcing writers to work as employees, especially on a state-by-state basis, is not the way to go about it. The situation in California speaks to the importance of deliberation, careful drafting, and getting buy-ins from the various industry groups. Similar “gig worker” bills are in the works in New York and New Jersey. The new draft NJ bill includes a strict, sweeping version of the ABC test. Those working closely on the bill are concerned that freelance journalists will in many cases be treated as employees. We will watch the bill and do our best to ensure that the necessary protections for freelance journalists are added.

* The NY bill attempts to exclude freelance journalists, and we have provided comments to the drafters to make it clearer.* (correction 12.30.19)

AB-5’s 35-Submission Cap

As many of you are aware by now, much of the debate surrounding AB-5 comes down to its 35-submission cap applying to the contributions of freelance journalists, editors, and photographers. When the bill was being negotiated, a coalition of writer and photographer groups, including the Authors Guild, was able to get an exception for freelance writers. Unfortunately, Assemblywoman Lorena Gonzalez, who sponsored the bill, added a cap of 35 pieces per company—meaning that once a freelance journalist or editor submits 36 articles or jobs for the same company in one year, the freelancer must be treated as an employee and the employer must pay California State unemployment and employee insurances.

Many full-time writers today patch together a living from different sources—and they want to keep it that way. Because of AB-5, California freelance journalists writing 35 or more pieces for a single company fear losing clients to writers in states with laxer laws. Indeed, some publications have already stated that they will not hire California freelance writers because of the new law. 35 articles might seem like a lot, but there are plenty of writers who write more than that. Writing a short weekly blog piece for a client could easily put a writer over this limit.

Another problem with treating writers as employees and not freelancers is that employee-writers do not own the copyright in their work; instead, the employer is considered the “author” under copyright law and automatically owns the copyright in its creation. Of course, as most major publications today insist on an assignment of copyright anyway, the practical effect, unfortunately, is the same: the writer gives up copyright. Still, freelance writers who assign copyright can reclaim it after 35–40 years, which is a benefit that employee-writers lack.

Does AB-5 Apply to Book Contracts?

Authors have raised alarm that AB-5 will apply to book writers as well. The Authors Guild has been reviewing the bill from that perspective since it was first introduced. We were assured by those working on the bill that trade book authors are not covered, and we do not see a basis for disagreeing since the bill clearly states that AB-5 applies only to “persons providing labor or services” and authors provide neither “labor” nor “services” under standard book contracts—they instead grant copyright licenses or assignments. Additionally, royalties—even in the form of advance payments—are not considered wages. It is difficult to imagine how a court would conclude that a typical book contract is for labor or services.

Writers with Service-Like Obligations Should Get a Legal Opinion

There are, however, some book-writing agreements that could be considered service agreements and arguably would fall under AB-5, such as work-made-for-hire agreements and contracts where the author has ongoing obligations and the publisher has greater editing ability or control over the content. Authors and writers working under multi-book contracts are most likely to encounter such a situation. These authors’ contracts should be reviewed by an attorney to determine whether they are subject to AB-5. Publishers and authors who want to be certain to retain a freelancer relationship should be careful to make sure the contracts are written as simple license grants and not as services agreements. For instance, the agreement should be written as a copyright grant of a defined work without interim or ongoing obligations, and remuneration should be in the form of royalties and advances against royalties. The writer should also have full control over their work and use their own workspace and tools. As a general rule, it is also recommended that freelance editors and journalists have written contracts that allow them to work when and where they want with no oversight other than approval of the finished work product.

If you have such a contract and are an Authors Guild member, remember that we do review members’ contracts for free. You can send us the agreement using our online form, and our legal team will get you comments and let you know if you need to revise the agreement.

UPDATE 1/16/20: Washington (State, not DC) is contemplating a bill like this as well. From the comments, below:
WA should be on your watchlist, too. An AB5-like bill was just re-introduced in the Senate there, even though it had been defeated last year. It, too, requires writers and other freelancers and independent contractors be hired as employees when their works contribute to the normal business of their clients. The bill ignores a study of independent contractors that was prepared by the Dept of Commerce after the bill's defeat. The study documents that 3/4 of the independent contractors in WA don't need or want the employee benefits touted by the bill's advocates. Between their own efforts and those of their families and friends, they're doing fine. Read the study yourself then write to Sen. Karen Keiser about your opposition to being made employees against your will.

The study: https://app.leg.wa.gov/committeeschedules/Home/Documents/26113?//20902
Senator Keiser: karen.keiser@leg.wa.gov
A similar law may be in the works in Illinois.

UPDATE 1/20/20: This article from Digiday explores the negative impact that AB-5 is already having on freelancers and publishers in California.




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In October, the Supreme Court heard a case that was painfully ironic, considering the Kavanaugh hearings the nation had just been subjected to: a challenge to the United States’ extremely restrictive sex offender registry laws. While opinions on the case Gundy v. United States, which challenges the Attorney General’s ability to retroactively impose registry requirements, have yet […]




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Doraaaa




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Have Some Initiative