Re-Post on Why I Left Vanilla Heart Publishing

I have been asked to re-post this story about Vanilla Heart Publishing and their unethical business practices; so here it is.  If you are an author seeking a publisher or if you know of an author seeking representation, please read this and heed the warning.  Vanilla Heart is not the only small press publishing company guilty of these charges.  Do your homework before signing a contract with ANYONE.  Protect your rights and your work from scam artists and liars like Kimberlee Williams and Vanilla Heart Publishing.

In October 2010 I signed a contract with Vanilla Heart Publishing to publish my debut novel, No Easy Way, which was nominated for the 2010 Molly Award by the Heart of Denver Romance Writers. 

In August 2013, eight novels later, I terminated my relationship with Vanilla Heart Publishing on the grounds of a severe breach of contract, misrepresentation, fraud and theft pertaining specifically to Articles #5, #7, #10, and #11 of the contract.

During my stay at Vanilla Heart, I upheld my end of the agreement.  I continued to write novels, producing eight in less than three years.  I continued to submit my novels to Vanilla Heart first, as per our contract she was entitled to a thirty day right of first refusal on all Just Call Me Angel books.  I continued to blog, participate in blog tours, promote and market my work through book clubs, book signings, holding contests and networking via numerous social media outlets (Twitter, LinkedIn, Facebook, Pinterest, Goodreads, Instagram, etc.)  In return for my loyalty, I was lied to, manipulated and used.

Upon confronting Vanilla Heart Publishing with the breach of contract, misrepresentation and fraudulent activity, I was given no apology for wrongdoing nor was there an admission of remorse whatsoever.  Instead, I was sent a list of termination items wherein it was stated that I was “not to discuss the Author’s Group or any information from that group, or discuss Vanilla Heart Publishing, nor speak as an agent or former agent of the publisher, either by verbal, written, or electronic communication with any persons, groups, or agents.” It goes without saying that I did not agree to this and, per the advice of my attorney, informed Vanilla Heart that all statements that are factual, unbiased and can be proven with subpoenaed records, email correspondence or any other written form of communication do not fall into the category of slander or libel and are allowable for discussion in any setting, person-to-person, blog, group format or social media.   

My attorney is now in the process of reviewing back royalty statements from all of the distribution channels and thus far the information I have received from Vanilla Heart Publishing does not come close to matching the real reports in number of books sold nor in amount of money owed.  I sit amazed at how I have been ripped off for almost three years.  It saddens and angers me.

I requested royalty statements from Vanilla Heart at least eight documented times since October 2010.  Every statement was falsified.  Every paycheck came months late.  I never even received a statement for 2012 from Vanilla Heart and the check I received doesn’t match the distributor’s royalty records for the quarterly periods during that time.  Each time I requested a statement or a check I was promised it and then given an excuse as to why it would be late.  The excuses ranged from severe medical issues to a gardening accident and countless laptop crashes, an accountant who allegedly printed the reports too small to be read and the post office that lost checks or statements along the way.  Every excuse added to the sour pit growing in my stomach.  Still, I wanted to believe that everything was on the up-and-up; but, over time,  there were just too many red flags.

Little did I know, but several of the Vanilla Heart authors were experiencing the same frustrations I was.  No statements.  Late checks.  Excuses galore.  The problem was, for a long time, none of us communicated with one another.  We didn’t compare notes and that’s exactly how Vanilla Heart wanted it.  Manipulative phone calls from the Publisher psychologically pitted one author against another.  “She’s the next one I’m getting rid of,” was said to me on several occasions, referring to fellow Vanilla Heart authors.  The Publisher made a point to let everyone know who was in her “Core Group” and who was not.  I was in the Core Group and I think that was one of the reasons it never dawned on me that she might be breaching our contract at all, much less in so many ways.  I was made to feel “special” as if we had more than just a business relationship…as if we were “friends.”  Friends don’t steal from or lie to friends, my mind would justify… but the red flags waved.

It wasn’t until two of the Core Group authors left within a short period of time that I mustered up the courage to start asking questions and digging deeper into what was going on.  I dug out every contract, read through every email, analyzed my notes from phone calls, etc.  Every hour spent researching deepened the pit in my stomach and leant proof to the revelation I didn’t want to face:  Vanilla Heart was guilty.

Guilty of copyright infringement.

Guilty of breach of contract.

Guilty of misrepresentation of intent.

Guilty of fraud.

Guilty of theft. 

On August 10, 2013 under the guidance of my attorney, a termination letter was sent to Vanilla Heart Publishing.  A complaint was filed with the Washington Attorney General’s Office and DCMA Take Down Notices and Perjury Statements sent to every distributor that carried my books under the Vanilla Heart imprint.  All books in all formats were pulled from the market.  The distributors worked quickly to make this right, as their policy is first and foremost to protect the intellectual property of the author. 

I want to give a shout out to the employees at Amazon, Barnes & Noble, Smashwords, All Romance Ebooks/OmniLit and Payloadz who were amazing in getting my attorney the information we needed (and I deserved) and in helping to protect my intellectual property rights going forward.  These people were absolutely amazing and I am grateful to all of them. 

My publisher used to call Amazon “Damazon” and always told me how slow and non-responsive they were.  That must have been a lie too…because after this experience, I would dub them “Amaz(ing)on.”

So, why am I writing this blog?  Because I feel a moral obligation to warn other writers who are as naïve as I was and can become easy prey.  The warning signs were there, but I didn’t see them…or I choose to look the other way.  Don’t make the same mistake I did.  

As an author, you deserve to have your books registered with the U.S. Copyright office.  You deserve a signed contract on every book.  You deserve to have timely statements and timely royalty payments and those statements and payments should match down to the penny.  You deserve a publisher who will protect your rights and who will not breach your contract.  You deserve a publisher who will conduct business in an ethical and moral manner, not hide behind excuses and outright lies.  You deserve better than Vanilla Heart Publishing.

In the past two months, seven authors have left Vanilla Heart… all of which were a part of the “Core Group.”  Some of us have found other publishers who have picked up our work.  I’ve signed with Global Publishing Group and my books will be back on the market in all formats by the end of the week. Others have decided to self-publish and still others are so shell-shocked they haven’t decided what to do.  What happened to us wasn’t fair and it wasn’t right, but we are all dedicated writers and will come out on top.

The moral of the story is:  Stay away from Vanilla Heart Publishing.

~

Doing My Part

I’m receiving tons of email regarding my leaving Vanilla Heart Publishing (VHP).  People are asking questions and sharing their experiences with VHP and with other publishers as well.  At first, I felt inundated and overwhelmed by the barrage of email; but now, I feel grateful because each one gives insight and I find myself learning through other’s experiences.  I’m thankful for those lessons, so keep writing.  I will do my best to respond in a timely manner, but please forgive me if my responses come slowly.   In addition, when many of you ask the same question I will try to answer it here, in blog format, so that others can benefit from the information as well.

Several of you mentioned that Vanilla Heart (and a couple of other publishers that I won’t name here) never signed your contracts and that when you sought an attorney you were told that they could not go after a breach of contract when a contract never existed.  This is a statement of truth, but there is a loophole.  I will only speak of VHP and not the other publishers mentioned in email because my experience is limited to VHP.  

VHP never signed their contracts so that they could never be in “breach” of their contracts.  This is a manipulative ploy in and of itself.  Kimberlee Williams banked on the fact that new authors wouldn’t know any better…and it worked for her up until this year when about 14 authors grew wiser.  She banked on her cunning ability to manipulate new authors with empty promises, lies and fear tactics; but here, in the details of the law, is where truth is found:

VHP’s contracts are Bi-Lateral Agreements, which means both parties (the author and the publisher) are signing that they are in agreement with the terms of the contract.  In essence, they are both committing to do what the contract indicates they will do.  A Bi-Lateral Agreement is only binding in a court of law IF it is signed by both parties.  So, when an attorney says they cannot go after a breach of contract because a contract never existed, they are referring to the Bi-Lateral contractual agreement.

Hear me on this part, because this is every author’s ticket to freedom:  IF the publisher never signed the Bi-Lateral agreement and never rendered a copy of the signed agreement back to the author, the contract never legally existed.  Thereby, the author’s rights were never given to the publisher.  Thus, any of the author’s work that was published by the publisher and from which the publisher benefited financially falls under Copyright Infringement.

Copyright Infringement is a federal offense; a much bigger charge than a breach of contract. Every attorney (particularly those with literary field expertise) will take an infringement case, especially when you’ve got contracts and email correspondence to substantiate your claim.  In addition, if the publisher financially benefited from money gained via Copyright Infringement, that's called theft and it's another federal offense.

That’s the loophole and it’s just step one.

In the case with VHP, this puts the publisher in the position of either admitting to Copyright Infringement OR (if they want to pretend the contract was valid) admitting to a severe breach in contract involving artifice to defraud, fraudulent activity, misrepresentation and theft.

Either way, it doesn’t bode well for a deceitful publisher.

 

Authors, in today’s world of technology there is no reason why you cannot receive sales reports, royalty statements and payments on time.  In addition, there is no viable excuse for not receiving them.  If you are locked into a contractual agreement with a publisher who is not giving you the information you deserve, take action.  If you sit idly by, you’re hurting yourself and you’re doing an injustice to other authors. 

One woman wrote:  “I know my publisher is cheating me but I’m afraid if I say anything they won’t publish my next book and all of my books will go away.”

I felt that way too.  I was scared.  But…aren’t we all scared right after we finish our first novel and we start to send out queries and submissions?  Aren’t we all frightened that our work won’t be good enough or well received?  But we press on.  We press on…and that’s what you have to do if you’re in a negative relationship with an unethical publisher.  Unethical publishers like Vanilla Heart don’t deserve your talent.  They don’t deserve the right to work with you.

Change can be scary, but it is often necessary for growth.  It’s one thing to be blinded by a lie…it’s another thing to know the truth and make an active choice to live the lie.  

An ex-VHP author wrote in her email:  “At first, I believed the lie.  Then, I hoped it wasn’t true.  Now that my eyes are opened it’s my responsibility to do my part and make sure no one else believes the lie.”

 

Amen!  That's the very reason I blog and try to answer your emails and questions in a timely manner ...because it's my responsibility now to protect new authors from getting caught up in the lie... it's my job to do my part and I'm going to do it. ~

 

 

Before Jumping Into Bed

I received an email over the weekend and in it the writer asked if I thought it was better to self-publish than to sign with a small press publisher.

This is a tough decision and one each writer must make for themselves.

I never wanted to self-publish, not because I thought there was anything “wrong” with it, but simply because I needed a stranger, a publisher, to believe in my work.  I needed that extra-confidence-boost to tell me I was a good enough writer to be published.  So, in 2010, upon completion of my first novel, No Easy Way, I sought out Agents and Publishers.  That’s when Vanilla Heart took interest and offered me a contract.  The fact that a publisher deemed my work good enough to market and promote motivated me to continue to write, which is how I produced eight books in less than three years. 

Other authors don’t need the self-esteem boost that I did.  They feel confident and secure enough to stand alone and thus self-publishing is the perfect path for them.

In the past, self-publishing bore a negative stigma that a writer wasn’t “good enough” to be contracted by a publishing house; but that stigma has begun to fade.  Readers can tell the difference between someone who writes poorly and someone who writes well.  They know that in purchasing a self-published book they run the risk of stumbling upon a lessor quality novel.  However, they also realize that there are self-published authors who write really good books; gems yet to be discovered.  Many readers today are willing to take that risk, especially with the ease and affordability of the Ebook download.  If they download a book for $0.99 and don’t like it, it’s not a big financial loss; but if they get a great one for that price, what a bargain!

If you decide to go with a small press publisher, meaning any publishing house outside of what has now become the Big Five, do your homework before signing anything.  I cannot stress this enough.  Talk to other authors about their experiences with small press publishers.  Interview authors who are currently under contract with the publisher you’re considering.  Ask questions.  Understand that any publisher that is on the up-and-up will be able to give you timely sales and royalty reports and timely payments.  Do not be pressured into signing right away.  A legitimate publisher will not have any reason to pressure an author into an immediate contractual agreement.

Research the Preditors and Editors listing and Writer Beware.  Contact the Better Business Bureau and the Attorney General for the state in which the publisher is located.  If there have been complaints about the publisher, they will be made available to you.  Run a background check on the publisher.  Be thorough.

If you do sign a contract, hold that publisher accountable at every turn for every item.  A legitimate small press publisher will not give excuses for late payments, no payments, late reporting, no reporting, etc.  Except NO excuses.  The contract that you sign is a business agreement and it must be upheld by both parties in an ethical manner.  One lie breaches the agreement.  Period.

One advantage to self-publishing is that the author receives sales reports directly from the distributor and a royalty payment that is never late.  There are no lies or hidden agendas if you go the self-publishing route.  This is a huge advantage to the author and one you should seriously consider prior to signing a contract with a small press publisher because there are many ways in which an unethical publisher can take your money.

Not only did my ex-publisher (Vanilla Heart) defraud statements and steal thousands of dollars, but she also blatantly lied about the number of books that were downloaded for free so that she could pocket the money.  I have emails from her to substantiate the falsification of the reports she gave me and the outright lies she told.  For example:  My novel, House of Lies, came with a bit of controversy as three weeks after its release there was a similar murder in the exact area where the story had taken place.  This generated media interest, both negative and positive, and also generated book sales.  Kimberlee Williams of Vanilla Heart told me that someone had gotten a hold of the Smashwords coupon code for House of Lies and 60 copies were downloaded for free.  I couldn’t believe it.  That was royalty money the publisher and I would never see…or so I believed.  After subpoenaing sales records directly from the distributor, the truth was that only 13 copies of House of Lies had been downloaded using a free coupon code. (All 13 of which I identified as contest winners, book club leaders or reviewers because I had given them the free code.)  The other 47 downloads were bought and paid for.  This was money the publisher kept and I never saw.  Unethical.

 

Sadly, it didn’t just happen with House of Lies, but with several of my books from the Just Call Me Angel series and No Easy Way.  Had I never left and had the sales reports sent to me directly from the distributors, I would have had no way of knowing just how deep her deception ran and how much money she had stolen.  Sadder still is the fact that I'm not the only one she defrauded.  

The morale of the story is:  Be careful.  As an author, you’ve poured your blood, sweat, time and tears into your book.  It’s your creation, your baby.  Don’t be hasty to get it out there and settle for something less than what your work deserves.  Look at the quality of work the publisher is putting out.  Are there typos and formatting errors strewn throughout their author's books?  If so, don't sign with them.  That's a red flag.  Are the book covers unprofessional looking?  Are their video trailers novice and unprofessional?  (I don't know the correlation, if any, between video trailers and book sales, but Vanilla Heart's trailers were so awful that I never marketed using theirs and had my own made instead.) 

There are ethical small press publishers.  They’re out there, but companies like Vanilla Heart are sadly giving them a bad name. Companies like Vanilla Heart are tainting the world of small press publishing.   If we turn a blind eye and continue to allow the unethical ones to exist and flourish, we are only hurting the ethical publishers, each other and ourselves.

This is OUR industry and it is OUR responsibility to protect it. 

 

The long and the short of it is this:  If you are in a hurry to get your work out to the masses, then my advice is to self-publish it rather than jumping into bed with a publisher that is literally going to emotionally, mentally and financially screw you. ~

 

 

Criminal Charges

I’ve received some emails wherein people have been asking for specific details (as in the legalities) of what Vanilla Heart Publishing did wrong.  Many of you have asked if the charges against Vanilla Heart are criminal.  Since I’ve touched on the specific breach of contract in previous blogs, I decided to define some basic terminology in hopes of providing clarity. 

Fraud: the crime of cheating somebody; the crime of obtaining money or some other benefit by deliberate deception; somebody who deceives; somebody who deliberately deceives somebody else, usually for financial gain.  Fraud is a felony charge.

Scheme or Artifice to Defraud:  the deprivation of something of value by fraudulent pretenses, representations, promises, trick, chicane or overreaching; it connotes a planning to defraud and/or a pattern of fraudulent behavior.  This is a felony charge.

Copyright Infringement:  to disobey or disregard the copyright; to fail to obey or observe the terms of the copyright law.

Copyright Infringement is a felony.  On October 8, 1992 Congress approved the Copyright Felony Act.  Title 17 of the United States Code defines criminal copyright infringement as willful infringement for the purpose of commercial advantage or private financial gain.  Running a close second to copyright infringement is piracy, also another felony charge.  

Breach of Contract:  a failure to obey, keep or preserve a law, trust or promise; a breach of confidentiality; a breakdown in contractual obligations or relations.  This is usually dealt with in a civil court, when criminal charges do not come into play.

 

Theft: the act or crime of stealing somebody else’s property and/or money.

Just for fun let’s look specifically at what the State of Washington (home to Vanilla Heart Publishing) has to say about theft. 

Definition of Theft

Section 9A.56.020 of the Revised Code of Washington defines theft as the wrongful taking of property or services with the intent to deprive the owner of his property or the services he provides. Theft can be committed by actually stealing the property or by receiving the property from the owner through some act of deception.  This is a felony charge.

Second-Degree Theft

In Washington, a person can be charged with second-degree theft in accordance with Section 9A.56.040 if she steals property or services with a value of at least $750, but less than $5,000, or any public record kept in a public office. The Revised Code of Washington classifies second-degree theft as a Class C felony.

 

Clearly, more than civil charges can be brought against Vanilla Heart.  Subpoenaed sales statements and royalty reports alone are concrete evidence of theft; a felony charge.  That is without even mentioning the breach of contract leading to copyright infringement, artifice to defraud and fraudulent behavior as documented in email testimony by numerous authors and in email correspondence from the publisher. 

I hope this answers some of the basic questions.  ~