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Old 09-11-2011, 06:02 PM   #1
kjk
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http://kianadavenportdialogues.blogs...nary-tale.html

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In January, 2010, I signed a contract with one of the Big 6 publishers in New York for my next novel. I understood then that I, like every writer in the business, was being coerced into giving up more than 75% of the profits from electronic sales of that novel, for the life of the novel. But I was debt-ridden and needed upfront money that an advance would provide. The book was scheduled for hardback publication in August, 2012, and paperback publication a year later. Recently that publisher discovered I had self-published two of my story collections as electronic books. To coin the Fanboys, they went ballistic. The editor shouted at me repeatedly on the phone. I was accused of breaching my contract (which I did not) but worse, of 'blatantly betraying them with Amazon,' their biggest and most intimidating competitor. I was not trustworthy. I was sleeping with the enemy.
The author has posted on MR in the past-but haven't seen her recently.
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Old 09-11-2011, 06:13 PM   #2
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Wow. The publisher must be on dodgy legal grounds here, unless there's an explicit "do not publish anything with anyone else until your book comes out with us" clause in her contract. And I can't believe that there is such a clause.

Hopefully she'll get to keep the advance and perhaps some compensation for breach of contract.
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Old 09-11-2011, 06:38 PM   #3
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On a quick read of the article, her publishers surely don't have a leg to stand on.

They appear to have broken the contract - unless, as pdurant says, there is an (unreasonable) contract clause - -which almost certainly not be legal in UK , don't know about US.
And if the contract is simply for the one novel, as the article would suggest, I think she should sue the socks of them.

If the facts are as they seem, I should think a lawyer would leap at the chance, even no win no fee - could produce some good publicity for them and the author, and bad for the publishers.

Good luck, I hope she comes out of it OK.
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Old 09-11-2011, 06:39 PM   #4
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An illuminating and saddening story. 20K is a big hit to take when you're struggling financially. I don't know that I could have made the same decision, but I hope she does well in self-publishing.

Edit: Also, I agree that the publisher is almost certainly in the wrong legally.
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Old 09-11-2011, 06:51 PM   #5
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It seems like options clauses are common. So maybe the publisher had the option to buy everything.
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Old 09-11-2011, 06:52 PM   #6
Andrew H.
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I wonder what the actual contract says. Are clauses prohibiting publishing other books typical in publishing contracts?
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Old 09-11-2011, 07:53 PM   #7
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Originally Posted by pdurrant View Post
The publisher must be on dodgy legal grounds here, unless there's an explicit "do not publish anything with anyone else until your book comes out with us" clause in her contract. And I can't believe that there is such a clause.
I don't know specifically about publishing contracts but "covenants not to compete" are very narrowly construed at least in the U.S. and are often invalidated for public policy reasons (i.e. the public benefits from competition and you can't contract away your freedom to make a living). So, even if there is a broad boilerplate clause in a publishing contract (thou shalt not self-publish anything), I would suggest talking to a lawyer about challenging it or having the court narrow it. Alternatively, (after legal advice) the author could just ignore the clause as long as she does not self-publish the same book(s) that was specified in the publishing contract.

Last edited by osnova; 09-11-2011 at 07:55 PM.
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Old 09-11-2011, 07:58 PM   #8
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reading the story i notice she calls it the "iNook"
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Old 09-11-2011, 09:14 PM   #9
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Reading the comments on her blog it appears she did have a broad "no publish" or exclusive clause in her contract. It was suggested that her next contract tighten that clause to specific titles and their descendents.

She used Telemachus Press to prepare and distribute her ebook. So they are listed as "publisher" on Amazon. Not a strict self-publish although that may not make a difference in this case. Also, these have been professionally published previously.

Last edited by Fbone; 09-11-2011 at 09:20 PM.
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Old 09-12-2011, 12:57 AM   #10
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It's very difficult to know the merits of either side without reading the contract.

We should also keep in mind that we are only getting her side of the story, and even with her slant it doesn't sound all that impressive.

No one "coerced" her into any contracts whatsoever. If she was in debt, that is her responsibility and no one else's. If she didn't understand the contracts, that is her team's fault.

She likely did have the legal right to publish a story collection before she signed, but clearly it's a sign of bad faith, since she was almost certainly in negotiations with them during that time. If your neighbor offers to sell you a car with 80,000 miles on it, and puts another 10,000 miles on it the week before you hand over the check, are you going to thank them for their diligent efforts in making sure the car rides well?

Not to mention that her plan going forward was to release a bunch of older work, presumably without mentioning it to her publisher. All of this should have been discussed during the initial negotiations.

She also doesn't seem to understand that it's her agent's job to try and smooth these things over. It's not "mind control" for a publisher to try and deal with an agent when these problems come up.

I agree that it's a "cautionary tale," but I don't think she learned the real lesson, namely.... Understand the contract before you sign.
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Old 09-12-2011, 01:12 AM   #11
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Originally Posted by Kali Yuga View Post
She likely did have the legal right to publish a story collection before she signed, but clearly it's a sign of bad faith, since she was almost certainly in negotiations with them during that time. If your neighbor offers to sell you a car with 80,000 miles on it, and puts another 10,000 miles on it the week before you hand over the check, are you going to thank them for their diligent efforts in making sure the car rides well?
From my take of things, it isn't quite that way. The author mentions how the contract was for a novel, and what they'd self published was short story collections. How is it bad faith? In your analogy, its like trying to sell a car, and then the person buying the car gets pissed off you sold a motorcycle last year.
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Old 09-12-2011, 01:37 AM   #12
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The thing that I have wondered about since this was posted is the meaning of this sentence: "To coin the Fanboys, they went ballistic."

I know there's probably some sort of typo involved, but I can't figure out what it is or what the sentence was supposed to say. Or maybe my slang is out of date.

But there's also something very harmonious about the sounds.
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Old 09-12-2011, 02:53 AM   #13
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I gather she had some kind of non-compete clause in her contract, and the publisher is insisting that means "you may not publish anything else, no matter how different, in any place we don't approve of."

We don't know enough of the details of her contract (and I don't expect her to provide them) to know how specific that non-compete clause is, or whether it would reasonably apply to a self-published book of previously-published short stories. Option clauses are a mess--they're part of the whole "you write; we do everything else; eventually you get money" attitude that publishers try to pull off.
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Old 09-12-2011, 02:58 AM   #14
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Quote:
Originally Posted by Andrew H. View Post
The thing that I have wondered about since this was posted is the meaning of this sentence: "To coin the Fanboys, they went ballistic."

I know there's probably some sort of typo involved, but I can't figure out what it is or what the sentence was supposed to say. Or maybe my slang is out of date.

But there's also something very harmonious about the sounds.
I think it was a case of the fingers not typing what the writer thought, but instead a similar word (something I do a lot for some reason, mostly when sleepy).

Either "to quote the Fanboys" or "to coin a phrase", though the former makes the most sense.
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Old 09-12-2011, 03:18 AM   #15
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Cool possible translation

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Originally Posted by Andrew H. View Post
The thing that I have wondered about since this was posted is the meaning of this sentence: "To coin the Fanboys, they went ballistic."

I know there's probably some sort of typo involved, but I can't figure out what it is or what the sentence was supposed to say. Or maybe my slang is out of date.

But there's also something very harmonious about the sounds.
i believe that what she was saying was that the generation that are 'fanboys' (meaning 12 to early 20's) would describe the behavior of her editor as 'going ballistic' (an analogy to a missile being fired).
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