Setting The Captives Free

August 2013  -  Author S.R.Claridge takes a stand against a publishing scam, warning other authors to avoid Vanilla Heart.

By: Michael Duran

 

Ever since the October 2012 release of the controversial S.R. Claridge novel, House of Lies, we’ve been following the author, who up until this month spoke highly of Vanilla Heart Publishing, promising that the sequel to House of Lies would be released later this year.  It seems now all bets are off.

Claridge posted a blog, dated August 20, 2013 entitled “Why I Left Vanilla Heart Publishing” that went industry viral and has us wondering what happened?

Why is she warning other authors to stay away from her former publisher, Vanilla Heart? In her blog she cites breach of contract, misrepresentation, fraud and theft. Those are big accusations and after further digging, what we discovered is that Claridge has the facts to back them up.

In the blog posted August 20, 2013 Claridge states she terminated her relationship with Vanilla Heart ten days prior, citing breach of contract specific to Articles #5, #7, #10, #11.  We weren’t able to get a statement from Claridge at this time, but we did manage to obtain a copy of the Vanilla Heart author contract and substantiate Claridge’s claims against them.  We were also able to talk with several former Vanilla Heart authors who had similar tales to tell.

Breach #1:

Article #5 Copyright: “The Publisher, upon first publication of the Work, agrees duly to copyright it with the relevant authority in the United States in the name of the Author, and to take all necessary steps to protect the copyright under the Universal Copyright Convention.  The cost of the copyright will be at Publisher’s expense.”

None of Claridge’s eight novels held a U.S. Copyright adherent to the contractual terms and neither did many of the other Vanilla Heart authors whom we researched, namely:    Smoky Zeidel.  Melinda Clayton.  Chelle Cordero.  Charmaine Gordon.  Kate Evans.  Anne K. Albert.  Michelle Devon.  Collin Kelley.  Vila Spiderhawk.  Robert Hays.  Malcolm Campbell.  Victoria Howard.  Jeffrey Martin.  Brenda Hill.  Angela Austin.  Marie Hampton.  Lauren Harvey.  Sandy Nicks.  Marilyn Morris.  Misha Crews and  Janet Lane Walters.  Some of their books had been submitted for copyright by the author themselves or by another publisher, but very few were submitted by Kimberlee Williams of Vanilla Heart. 

Breach #2:

Article #7 Royalties and Licenses: “The Author or his duly authorized representatives shall have the right upon written request to examine the books of account of the Publisher insofar as they relate to Author’s Works under contract to the Publisher.  Such examination shall be at the cost of the Author unless errors of accounting amounting to five percent (5%) or more of the total sum paid to the Author shall be found to Author’s disadvantage, in which case, the cost shall be borne by the Publisher.” 

In a complaint filed by Claridge with the Washington State Attorney General’s Office, made public by the State, the author writes that a comparative analysis of the reports given to her by Vanilla Heart and those obtained directly from the distributors (namely Amazon, Smashwords and Barnes & Noble) show a “vast difference” in the amount Claridge earned in royalties and the amount Vanilla Heart actually paid to the author.

Several former Vanilla Heart authors also confirmed that their sales did not match with the amount of money they were paid.  One author stated she never received a paycheck from Vanilla Heart at all.  “I only received excuses,” she said.

Breach #3:

Article #10 Statements and Payments:  “The Publisher agrees to render royalty and sales statements on or about the last day of each of the following months:  February and August for the royalty period prior showing an account of sales and all other payments due, as well as returns, if any.  Payment then due shall accompany such statements or be remitted within 15 business days of the statement, except when the amount due is less than twenty-five dollars ($25.00), which shall be held until the next period.  Shorter interval electronic books royalty payments will be determined by Publisher and once the decision is organized, will be announced in the Author’s Group, however, to receive monthly or bi-monthly ebook royalties, Author must maintain a Paypal account.  Should author choose not to maintain a Paypal account, ebook royalties will be paid with print book royalties at the above-stated terms.”

According to the complaint Claridge filed against Vanilla Heart, the author received only three payments since her first novel debuted in October 2010.  One on 8/24/11, a second on 3/15/12 and a third on 11/14/12.   

Per the contract, Claridge should have received a minimum of six royalty statements and payments from Vanilla Heart and they should have arrived in the months of February 2011, August 2011, February 2012, August 2012, February 2013, and August 2013.

An anonymous source told us that in the two years he was with Vanilla Heart publishing, he “never received a payment on time.”

Another ex-member of the Vanilla Heart group told us that she “never received a statement at all.”  

We sought to justify Vanilla Heart’s lack of payments and late payments by conducting a random search of sales numbers for five former Vanilla Heart authors, using such channels as NovelRank.  It was our intent to prove that these authors had not met the $25.00 minimum as stated in the contract and would therefore have had their monies held until the next reporting period.  Claridge was one of the authors we chose for our research.  What we discovered is that not one of the five fell below the quarterly $25.00 minimum; thus, all five should have received regular statements and payments.

Breach #4:

Article #11 Reversion and Termination, subset (b): “If the Publisher shall, during the term of this agreement, default in the delivery of scheduled statements or in the making of payments as herein provided and shall neglect or refuse to deliver such statements or make such payments, within thirty (30) days after written notice of such default, this agreement shall terminate at the expiration of thirty (30) days without prejudice to the Author’s claim for any monies which may have accrued under this agreement or to any other rights and remedies to which the Author may be entitled.”

Claridge blogged:  “I requested royalty statements from Vanilla Heart at least eight documented times since October 2010.”   She also stated that she received only one statement on 8/24/11, which she has now confirmed does not reconcile with the sales numbers given by the distributors.

The evidence against Vanilla Heart just keeps piling up.

After interviewing several former Vanilla Heart authors, we uncovered an even greater breach:  Copyright Infringement.  Consultation with our legal team confirmed that the contracts Vanilla Heart distributed to their authors were bilateral agreements, wherein both parties enter into a mutual agreement and are only considered legal and binding if both parties sign and remit a copy of said agreement.  Claridge states in her blog that she has never received a signed copy of any contract from Vanilla Heart, and she isn’t the only one.

Six other authors to whom we spoke stated they have never received a signed contract, and several stated they had never received a contract at all.  In her statement to the Attorney General, Claridge wrote, “I never even received a contract for Petals of Blood or for the audiobook version of Tetterbaum’s Truth, much less a mutually signed agreement.”

Simply put, Vanilla Heart did not contractually own the rights to their author’s intellectual property and has financially benefitted through the fraudulent misuse and abuse of said property.  This is called Copyright Infringement and it’s not only a big NO-NO; it’s a criminal offense.

Claridge’s claims against Vanilla Heart for breach of contract are easily substantiated and the question now is will the author, or any of the previous authors, take legal action against their former publisher?  If they do, they are certainly not standing alone, as the number of author exodus from Vanilla Heart and the collective amount of money withheld from the authors lays a solid foundation for a class-action suit.

This month alone (August 2013) seven authors have left Vanilla Heart, but that is nothing compared to the number of authors who have left in years prior.

Read what former Vanilla Heart author, Ryan Callaway, had to say about his experience.

Another former Vanilla Heart author, Mary Quast, wrote, “I terminated my contract but it took over a year to get my rights back. Never did see any money.” 

 

Upon termination, per Vanilla Heart’s contracts, all rights should be immediately reverted to the author.  This is stated in Article #11 (e):  “Upon the termination of this agreement for any cause under this Article or Article 12 hereof, all rights granted to the Publisher shall revert to the Author for his use at any time and the Publisher shall return to the Author all property originally furnished by the Author, or, in the case of electronic materials furnished by the author, destroy the files.” 

Quast’s rights should have been immediately reverted back to her along with all monies owed in royalties.  Any practice less than this is negligence.

A visit to the Absolute Write site reveals more authors sharing their negative experiences with Vanilla Heart, including but not limited to poor formatting, editing and unprofessional finished products.

Last week, Victoria Strauss, who is renowned in the industry for her work and her industry related warnings, (Writer Beware) blogged to warn authors about Vanilla Heart and tweeted that warning to her more than 11,000 followers. 

But will this be enough to stop Vanilla Heart from abusing other authors?

A quick background check would indicate “No.”  Kimberlee Williams, owner and sole publisher of Vanilla Heart,  is running another imprint, Caged Heart Publishing, with a special emphasis on erotica. She ran a previous imprint which she closed in 2002 via filing Chapter 7 and re-emerged under the name of Vanilla Heart Publishing.  Previous business partner, Michelle Devon, (penname Michy Anderson) split from Kimberlee Williams (penname Olivia Faulkner) over business disputes.  

How does Vanilla Heart stay in business? One way is that Williams keeps her former authors from talking via a gag order placed in the fine print of the Vanilla Heart termination policy, a policy that is not part of the original contract and is only given to the author at the time he or she requests termination.  It states:  “In addition, the author agrees 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.”

The fine print in the termination policy carries the underlying implication that the author will not receive their rights in a timely manner if they do not adhere to or obey the guidelines set forth.  Our legal team called this bordering on blackmail.  It poses the question how many ex-Vanilla Heart authors have been blackmailed into silence?  In writing this article alone, several authors either responded with “no comment” or did not respond to our questions at all.  Several others agreed to be quoted but only if they could remain anonymous.  We can only assume this is fear driven from William’s illegal silencing order.

One author, who asked to remain anonymous, said, “I want to tell you what happened but I don’t have my rights back from Kimberlee yet.”  We wrote back to inform this person that contractually, like Quast, via Article #11(e), they legally have their rights back.

How many authors have stayed long-term with Vanilla Heart Publishing? Of the twenty-five mentioned throughout this article and whom we’ve researched, only four remain. That’s a staggering exodus of 84%.

Like a modern-day Moses, Claridge and the other ex-Vanilla Heart authors are learning from their mistakes and leading the way toward redemption, hoping to save other authors from the same fate.

An exodus from any publisher should send a red flag to the industry as a whole, but especially to authors who are seeking a publisher for their work.

Industry veteran, L.Walker wrote, “It is businesses like this that give other small presses a bad name.” 

It would certainly behoove legitimate publishers to work to rid the industry of unethical companies, but that’s a harder process than one might think.  Author Shelley Freedman said, “Authors are afraid their work will disappear forever if they don’t do exactly what their publisher tells them.  By the time they wake up and see they’re being scammed, they’re already trapped.”

“It's ironic that it's Vanilla Heart's apparent bad behavior that enabled its authors to get free,” said Victoria Strauss.  “If there had been no problems, Vanilla Heart could have held on to those authors indefinitely.”

Irony or a miracle? Depends on who you ask.  Either way, it seems Vanilla Heart has buried itself beneath a pile of unethical practices that have come back to bite them and have legally set their captives free.

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