Court Proceedings Against Fantastic Books Publishing - An Explanation.
To begin with, it is important to make clear that I am writing this post in the full knowledge that Mr. Dan Grubb of Fantastic Books Publishing and his associates have threatened to sue me for libel at least three times. In light of that, you will perhaps understand the dryness of tone.
The detail of this post is as factual and accurate as I can make it. It refers directly to court documents to back up points where relevant. These can be produced should evidence be required.
This dispute came amount over two issues: 1) The amount of copies of Elite: Lave Revolution Fantastic Books Publishing sold and 2) The amount of royalties paid to me for each of these books in each category of publication.
A contract, dated September 2013 was signed by both parties to allow the publishing of Elite: Lave Revolution with a specified percentage royalty per book. The percentage of royalty of ebooks was of cover price and where appropriate an “Operating profit” of cover price minus third party seller costs (e.g. Amazon). 10% of this cover price was to go to a nominated charity of my choice, EDS UK.
On February 3rd 2015, Fantastic Books Publishing produced a royalty statement, for the period from first publication or Elite: Lave Revolution to end of December 2014, that did not give the number of books sold, it simply gave an amount of money and what percentage of this came from what format of book.
I requested to know the number of books sold as this is what my contract was based on (and what I expected to see in a royalty statement, according to Publishing Law: Third Edition by Hugh Jones and Christopher Benson, pages 85-86).
Mr. Grubb referred my emails to someone signing as “Anne Marie Strand”, allegedly a marketing employee of Fantastic Books Publishing. It was mentioned later in court (9th of June 2016) that this person does not exist and is “just an email address”. This was stated by Mr. Grubb in the recorded court transcript. I can only assume that the person replying to my emails was either Mr. Grubb or someone else from his family.
“Anne Marie” asserted that a number of books were sold and later gave a breakdown of which countries these books were sold in. The total of the books in the breakdown was different to the original total supplied and did not match any calculation of royalties based on the terms of the contract, in that the amount of royalties due on the numbers given by “Anne Marie” did not correspond to the amount of royalties paid.
“Anne Marie” explained that this was because a number of overheads had been taken from the sales before splitting the remainder between the publisher, author and charity. This contravened the terms of my contract. One of these overheads was the formatting of the ebook, which I did myself.
So, I was being charged for work I had actually completed myself.
At this point, I contacted Mr. Grubb directly via email and pointed out that this calculation was not as per the contract signed and detailing my concerns.
Mr. Grubb was “shocked and appalled” by me raising this as an issue, but admitted no error. He stated he would send a new amended contract. He also stated that as the system for reporting sales was being upgraded and I would receive a more detailed breakdown of royalties in future statements.
I pointed out that signing a new contract would not retrospectively cover the books already sold, for which there was already a signed contract, which he had written and should honour. I sent an email detailing the paragraphs of the contract that set out the royalty terms, the number of books sold (as per the information I had from FBP) and added a suspected additional 61 books sold via Amazon and detailed the amount of royalties owed. These came from estimated figures by Novelrank (http://www.novelrank.com), which also proved later to be a substantial underestimate. I requested a detailed screenprint of Amazon sales of my book. This can be achieved by logging into the KDP (Kindle Direct Publishing) account, selecting the relevant title from a list and generating a sales report as a line graph, list, or exported Excel compatible spreadsheet. I have done this myself. It takes longer to print than it does to calibrate on the Amazon site.
At this stage, I began to make detailed calculations of figures related to sales and the different categories of my book available, including signed copies of each different type. I also attempted to work out sales numbers based on the royalties paid, but could not reconcile this with the amount of units (and percentages) mentioned in the royalty statement.
A further message to Mr. Grubb explained that I required a breakdown of royalties and figures as per my contract. I made it quite clear that if this was not forthcoming and my contract was not honoured, I would take legal action. At this stage I had not added in the Kickstarter sales, but I made it clear that if legal action was required, this would be included.
I sent a further letter detailing what I believed were the royalties owed including the Kickstarter details.
At this point (April 2015), Fantastic Books Publishing withdrew Elite: Lave Revolution from sale.
With no further progress on my requests, I sent a formal Letter Before Action for royalties owed making clear the details, but also stating that I would prefer to resolve the differences reasonably and would listen to any constructive proposals. This was a consistent offer at each stage of the discussion (before and after).
Mr. Grubb terminated the contract between us on the 11th May 2015, acknowledging that a breach had occurred, but implying that this breach was mine. There has been no explanation of what he believed I had done to invalidate the terms of our agreement.
At this point, I started court proceedings.
A second royalty statement for the period January to June 2015 (actually April) was produced by FBP. It also did not contain any sales numbers. It was identical in layout and structure to the first royalty statement.
Court arrangements for a hearing are left to the claimant to indicate a location for the hearing. I elected to be courteous and suggested Northampton, as this is the court that deals with online claims and would be a distance for both parties to travel to. The court however, decided to allocate the case to Bedford. Mr. Grubb objected to this and requested the hearing take place in Hull. I agreed to this and in all subsequent arrangements, made myself available on every day suggested by the court. The first court hearing took place on 4th of January, 2016. Both defendant and claimant are required to submit paperwork prior to the court hearing. One of the documents submitted by Mr. Grubb was a solicitor verified report from Amazon of the number of copies of Elite: Lave Revolution sold. These were higher than the original numbers supplied by FBP and even higher than the estimate from Novelrank. The actual total number of Amazon ebook sales (alone) were 619, as opposed to the original number given by Mr. Grubb of 260. As a result I revised my claim (upwards) to take these numbers into account.
I had (and still have) no way of verifying the number of ebook, paperback or hardback sales made through Mr. Grubb’s own website. Some of the hardbacks and paperbacks were also sold at a higher cost as I had signed them.
While preparing the paperwork for the court, I found an email from Mr. Grubb which explain some of the costs relating to paper copies of the book, so I revised my claim (downwards) to take into account this new information. I also contacted Frontier Developments, who sent me a detailed breakdown of all books sold through the Frontier website, which had not been taken into account in any of the royalty numbers or statements.
The first hearing was adjourned as some of the required paperwork was not submitted by me. I was advised incorrectly by the court clerk that I did not need to provide a witness statement to my own case, however it turned out I was supposed to do this. The Judge took the opportunity to request that Mr. Grubb supplied actual numbers for the second royalty period as these had never been given (apart from the Amazon figures).
Mr. Grubb requested a six month period to provide these figures. He was given three weeks. I was asked to provide my witness statement in this time.
A new day in court was arranged for the 29th of February at 2pm. However, at 2pm, we were called into a negotiation room to be told the presiding judge was on a training course and we had been double booked.
We were given new dates in April and May to arrange the second half of the hearing. We indicated we would be available for all of these. Eventually, the 31st of May was agreed as the new date.
On the 27th of May, the court phoned me in the morning saying the judge had requested more time to view the documents. A new date was arranged for the 9th of June.
At the close of the hearing, the judge ruled that royalties were due on the ebook sales via Amazon, FBP’s website and Frontier’s website as well as print copies sold via Frontier. He also ruled that the contract covered sales via Kickstarter and that therefore royalties were due on these as well.
No numbers were supplied by Mr. Grubb for the Kickstarter copies of Elite: Lave Revolution so the Judge accepted the figures provided by me. These were calculated according to the cover price, as with all other categories.
The amount of royalties already paid (in the two aforementioned royalty statements) were substantially below the amount of royalties owed on these book sales and therefore the Judge ruled in my favour.
He also ruled that the Defendant should pay expenses and court fees.
It however had come to light that it was not clear exactly how much of the sales cost of the books sold had gone to Amazon as two different royalty rates had been used each month in the sales. With the fact the figure were presented in various currencies and the shortness of the time allotted to the hearing (it was already over running) the judge gave a further week for this figure to be agreed between the Claimant and Defendant. In this time, Mr. Grubb was to provide a figure to us that we should accept or refuse based on our own calculations. If we failed to reach agreement in this time, then this would go back to the Judge to be resolved.
No agreement has been reached as Mr. Grubb has provided no figures, so this has gone back to the Judge.
The categories of sale were as follows:
Ebooks via Fantastic Books Publishing - Cannot verify figures.
Paperbacks via Fantastic Books Publishing - Cannot verify figures.
Hardbacks via Fantastic Books Publishing - Cannot verify figures.
Signed Paperbacks via Fantastic Books Publishing - Cannot verify figures.
Signed Hardbacks via Fantastic Books Publishing - Cannot verify figures.
Ebooks via Amazon - Verified by Solicitor.
Ebooks via Frontier website - Verified by Frontier Developments.
Paperbacks via Frontier website - Verified by Frontier Developments.
Hardbacks via Frontier website - Verified by Frontier Developments.
Kickstarter figures Via Kickstarter - Calculated by posted numbers divided by books offered and calculated according to cover price/operating profit percentages (as per contract).
Given the “errors” in the verifiable figures (i.e. Amazon) from the initial statement to the final figures, there is some doubt cast on whether the unverified figures (i.e. FBP own website and the Kickstarter sales) are correct. It is also worth referring back to the original point I made at the start of this explanation. None of the provided royalties or sales numbers by Fantastic Books Publishing prior to the court action were proven to be accurate. As that is the case, I have no way of knowing that any stated numbers related items sold via the FBP website are accurate unless verified by someone else and I have no way of verifying these numbers.
A number of items were sold at a higher premium because they were signed by me. I did not receive a percentage of this higher fee, just the original cover price. The remainder was kept by Fantastic Books Publishing.
During the development of all the official fiction and its accompanying audio books, I provided additional support free of charge to Fantastic Books Publishing. One example of this is the music used in Elite: Tales from the Frontier, Elite: Mostly Harmless and Elite: Reclamation. This was composed by me. I received no fee or royalty for this work and was happy to donate it to the project because a) Mr. Grubb had agreed a good contract with me and I believed he would honour it and b) Mr. Chris Jarvis was producing the audio books and I have always wanted to support his excellent work.
There are several other examples I could cite.
One final point. Here is a quotation from email correspondence between myself and Mr. Grubb in October 2013. This is a court document. AS is me, DG is Mr. Grubb:
AS - I'd also like to get an idea of your usual agreement on paperback percentages please.
DG - The paperback percentages are exactly the same as the electronic versions except that we work on operating profit. We obviously have to make back the printing costs (in the case of traditional printing) and the PoD supplier will take their share first in the case of the PoD model. What remains is split 45:45:10 with the 10% going to your nominated charity.
We received an acknowledgement forwarded from Mr. Grubb from EDS UK, our nominated charity that they had received a payment of £147.38 from Fantastic Books Publishing. If Mr. Grubb’s statement (above) is to be believed and calculated according to the verified figures that we have, they would be due a payment of closer to £500, based solely on the figures available. EDS UK is a medical charity supporting people with a connective tissue disorder which can result in serious disability and in some cases can dramatically shorten life expectancy. EDS UK works to educate, campaign and ultimately to try and find a cure. An extra £350 might have made substantial difference.
I hope this clarifies the situation for you all. Thank you for your patience in waiting over these matters.