Pity or pitiful?

I happened to read a post about an author whose publisher rescinded their contract when they found out she’d done a DIY after signing a contract with them. From what she says, her contract is being canceled and she has to pay back the advance.

She mentions being “coerced” to accept the terms of her contract and intimates that every author is being taken advantage of. However, since she was deeply in debt, she took the deal. And the advance.

I’m not going to debate the issues of who may or may not be right because none of us have the inside story from both sides. However, I would wager that something exists in her contract that spells out the legalities of what she can and can’t do independently from her publisher. Additionally, she made the conscious decision of earning her livelihood from writing – an insanely difficult thing to accomplish since most authors have other day jobs.

Given her reasoning, I’m nonplussed that she dissolved her relationship with her publisher and lost her $20,000 advance. For a debt-ridden author, this has to be a very tough choice, and it’s impossible for me to judge her for her decision. However, I do wonder whether it was a wise choice in the long run.

Sure, I’m a big believer in karma and that the decisions we make set into motion certain outcomes. But are they necessarily successful outcomes? And if I’m going to get into a philosophical debate with myself, then the beagle better add more tequila to the pitcher of margaritas.

More to the point, I read stories like this and think about all those lovely writers I meet at writer’s conferences whose sole purpose is to land a good book deal. Would they be so quick to walk away from that book deal if they were in the same position? Or would they make different choices in order to preserve the relationship in order to enhance their writing futures?

I could go on for days arguing the phycho-blabbery of those points, but we simply don’t have enough margarita mix to keep me going that long. Here’s what I do know: relationships take work and mutual respect.

Attitude/Gratitude

Publishing goes both ways, and smart editors and authors share mutual gratitude to be working together toward a common goal. As such, each side works to maintain open channels of communication. But there are times when those channels break down, and gratitude on both sides melt like the ice in the beagle’s margaritas, leaving room for Attitude to move in.

The downhill slide usually begins with Assumption. One side may act in accordance with their assumptions instead of looking at the potential consequences of those actions.

The author assumed it wasn’t a big deal to DIY e-pub, and I’m sure she never thought it would put her book deal at risk. But for whatever reason, it did, and this is where her gratitude (remember, she was broke and grateful for that $20k advance) dissipated and attitude took over.

This was avoidable.

  • Why didn’t she consult her agent and editor before pubbing her DIY e-book? Case in point, one of my authors was asked to write an article for a magazine, and he asked if he could use a chapter from his upcoming book. Of course, I told him to go for it. Tra-la! It took him a fraction of a second to email me, and a fraction of a second to email him back. Had there been a problem, I would have cited the contract as to why this couldn’t be done.
  • When she saw how upset the editor was, did she weigh the financial and professional benefits of remaining with her Big 6 publisher against going it alone and all the uncertainty that goes with it? Hindsight can be a three-legged dog who’s rethinking the the intelligence of trying outrun a garbage truck. It’s easy to get caught up in the heat of battle, but when the dust settles, are you like the dog, wishing you had your fourth leg back? Once you cross over the line, it’s mighty hard to go back.
  • Did she allow emotion to cloud her judgement? Obviously, I have no idea. However, her post is extremely emotional – which I can understand – and it makes me wonder if that emotion ultimately served her to her highest and best outcome. She has an agent, who is probably less emotional and, therefore, more reliable in negotiating with the editor. Decisions made during emotional overload can be followed by regret that will follow you forever.

Case in point, I had an author many years ago who was verbally abusive to me. I put up with it for awhile until I had enough. I warned him that he’d crossed over the line, but that just encouraged him until he really went off the deep end. I cancelled his book contract within the hour.

When gratitude turns to attitude, you can’t help but reach a stalemate, an impasse. And when push comes to shove, are you in a position of strength, or have you relinquished everything in the heat of the moment? It’s hard to unburn a bridge because trust is the first thing that goes up in flames. The other side knows you have the potential to take things further than they need to go, so they’ll be wary of you.

It’s possible the editor was an idiot and entirely unreasonable, but it’s rare that editors are arbitrary to the point of cancelling a project. I’m not saying it doesn’t happen, but it’s far from the norm. More importantly, this author comes off like she has a chip on her shoulder – that she was “coerced” into her contract.

Until someone sends me an updated memo, I have to go on the assumption this is still a somewhat free country, and we’re not forced to sign any book contract that we don’t believe in. She got $20k for her book, and were I in the financial straights she was/is, I’d find a way to make it work. As of now, she’s working without a net, so is she to be pitied or merely pitiful?

What would you do?

15 Responses to Pity or pitiful?

  1. Marisa Birns says:

    Would have spent the seconds needed to ask if DIY publishing was allowed. Of course I probably would have known the answer ahead of time because of the careful reading of the contract before signing.

    And, yes, finding a way to make it work would be #1 on my to-do list.

  2. Kim Kircher says:

    All too often authors act out of desperation rather than a point of deep thoughtfulness (well, this is true of everyone, not just authors). Sounds like she didn’t think it all through. Perhaps she hadn’t read The Essential Writer’s Tackle Box. If she had, she probably wouldn’t have found herself in this predicament. Just saying.

  3. NinjaFingers says:

    The best explanation I heard was that the publisher may have been concerned that her collection would be of poor quality and scare readers off, and thus hurt sales on the main book. She claims that she didn’t violate her contract because it was in a different genre.

    I can’t judge on that because I haven’t seen the contract, but I would love to hear the editor’s side of the story. I find it hard to believe, as she claimed, that they demanded she somehow remove all references to it on the internet, as any sane publisher would know that was impossible.

    From my reading, they asked her to wait until the novel was published before posting the ebook. I don’t think that’s unreasonable at all…I do understand that a 20,000 word advance as all she might get for two years may have struck her as a problem, but we only have her word on the two years, too.

    And from her blog post…there was so much anger there that I wonder if the real route of all of this was a fight with her editor. A professional incompatibility. Maybe the editor wanted her gone because they simply couldn’t work together.

    I can’t judge on the quality of her ebook, but I will say I’m not against self publishing if the writer either edits very well or gets somebody else to edit very well and takes steps to ensure that the story or book is of reasonable quality. I even tossed a reprint up myself to see how it would do…but again, a reprint, so somebody was willing to publish it once, and I feel I did that one right. If I posted a new story, though, it would have to be professionally edited…and at a going rate of $100 a pop, I’ll need more money to consider that. It’s all about what you’re willing to risk. But if a publisher told me ‘Please don’t do anything DIY until the book is out’ then I would agree to that. I understand the potential bottom line reasons for it.

    (I AM against self publishing badly, which is what most people do, sadly, and it makes it a lot harder for the people who do it right…they get lost in the noise. I think technology really has made publishing a little too easily. I do keep remembering an old sci-fi story, either Analog or Asimov’s, set in the future. In that future an ‘editor’ was not somebody a publisher hired to select and improve books, but somebody readers hired to help them find good books. I wonder if we might end up hitting that future…but not for a while, as print is far from dead and unlikely to ever die completely).

  4. Having read her post, it seems like there could have been several different endings. It sounded as if the publisher didn’t know about her previously e-pubbed book, which I find hard to believe. It also sounds like the editor came out aggressively at the start, which made it easy for her to be just as emotional. If there had been cooler heads at work, they could have made everyone happy. Pen name, anyone? The bottom line is, either it’s in the contract that she cannot submit other work to anyone, including self-publishing, until her book is out, or it’s not. If it’s not in the contract, the publisher has no basis. If it is in the contract, she should have read and obeyed, or not signed.

    And, yes, it works so much better when everyone communicates, early and often.

  5. wasn’t the DIY e-book a collection of previously published short stories so already edited etc.. and quality not an issue?

  6. Claire Ryan says:

    I don’t agree with the characterisation of this author at all. Granted, we only have one side of the story here, but the facts as presented suggest that her publisher is being unreasonable and, might I say, asking the impossible.

    1. They call her on two self-pubbed collections. One she proves was published before she signed the contract; they immediately home in on the second one. If they’d done their homework, they wouldn’t have brought up the first at all.

    2. They started out by acting unprofessionally, and according to the author, they accused her of blatantly betraying them with Amazon. If that’s true, we know their motives for why they’re going after her (it’s probably nothing to do with the contract).

    3. The publisher already rejected the collections before. The author has every right to try to sell her rejected work elsewhere. Literary agents online have mentioned before about unscrupulous contracts where an author is restricted from pitching their work to anyone else, even if the publisher decides not to take it, and the consensus seems to be that this only makes sense in the context of a series of books. Forcing an author to only deal with them regardless of the nature of the book or whether it’s already been rejected by them is unethical.

    4. They demand that she not self-publish anything until her book with them is out. As she earns a living by writing, this is tantamount to asking her to willingly cut off part of her income for two years just to keep them happy. It also demonstrates a woeful ignorance of the speed at which the Internet moves.

    5. They went behind her back and tried to get her agent on their side. Again, if the facts are accurate (offering a little more incentives, ‘adopt the right spirit going forward’), it suggests that they’re being really slimy about this.

    6. They’re asking the author to delete her collection from Amazon. Fair enough; this is possible. Asking her to delete all Google hits mentioning her and her collection: not possible. They might as well ask her for the moon on a plate, and I think they know this. She can’t fulfill their demands even if she wanted to.

    My opinion of all this is that a major publisher is using their contract as an excuse to do one of two things: bully the author into leaving Amazon and dealing exclusively with them, or bully the author into giving back their advance so they can drop them and their book. I think they realised that this author was self-published with Amazon and they decided that they didn’t want any of their authors to have that kind of freedom; that they wanted to send a clear message to any prospective authors that if they dare to self-publish with a competitor that arguably offers better terms, they have no hope of a book contract with one of the majors.

    It’s anti-competitive behaviour that damages an author’s ability to maximise their income from their work. If we’re viewing this as a business venture – and I assume most authors should be, at this point – they’ve put her, a business partner, in Catch-22 situation. If I were faced with a company that did this kind of thing, I’d seriously reconsider any future dealings with them.

    (Bear in mind that this is based only on the facts at hand from the author’s account; until proven otherwise, I’m willing to take that as truth. I’d like to believe that her publisher isn’t so belligerent, and I hope I’m wrong because I’m also chasing that book contract, but this unfortunately rings true based on other accounts I’ve read of the publishing industry’s failure in general to adapt to new business models. And this is no reflection on Behler, of course. I think Lynn’s already demonstrated that she’s on top of this kind of thing.)

  7. We can’t begin to guess who is right or wrong between the author and her editor because we aren’t privy to the contract. That’s why I limited my comments to how this could have been avoided. But I will say that no one held a gun to this author’s head and forced her to sign anything. She has an agent, and she should have been crystal clear about the consequences of signing that contract.

    I’d like to comment on this whole “I make my living from writing.” Given what the author has stated, she was in financial straits. If she was making her living from her writing, she wasn’t doing a very good job of it, was she? I’m not blaming her, but rather, I’m pointing out the facts as she has presented them on her blog. So since she was hurting – and determined to make her living from writing – she signed a contract for a $20k advance…certainly much more than she’d been getting from her other writing gigs, it sounds like.

    Given that she now has $20k sitting in her pocket (less her agent’s fee), wouldn’t you think she’d do more to protect her book deal? You can’t sign a contract and then cry that you didn’t know. “I didn’t know” isn’t a defense. If there truly is a breach of contract on the editor’s part, then I daresay I would see something about a lawsuit. Trust me, publishers don’t put themselves in a situation they can’t win. By process of elimination, this means that the publisher is doing everything by the book…and the contract…which is why they’re demanding she refund the advance.

    My opinion is that a major publisher is using their contract as an excuse to do one of two things: bully the author into leaving Amazon and dealing exclusively with them, or bully the author into giving back their advance so they can drop them and their book.

    How do we know this? We only have one side of the story – the aggrieved party – and she’s hardly impartial. Furthermore, a publisher doesn’t request a refund of their advance unless they have a clear-cut case of breaking the contract.

    think they realised that this author was self-published with Amazon and they decided that they didn’t want any of their authors to have that kind of freedom
    Where is your foundation for this speculation? They already knew she had pubbed with Amazon before, and signed her anyway. I can assure you that what an author does on their own time AND stays within the contract stipulations is of no concern to any publisher.

    In order to satisfy my bullshit-o-meter, I need a lot more red meat that fully backs up her claims. What I do know is that one does not pocket $20,000 and then bite that same hand when she does something wrong. You either act like a professional and communicate with your editor and agent, or you face the consequences.

  8. Claire Ryan says:

    Thank you for replying to me – I do appreciate your insights, and I’m happy to say I’ve learned a lot from reading your blog.

    I get that no one forced her to do it. But, again, this looks pretty shady – if they knew she had self-published, why bring up the book that she had published before she signed the contract and try to use that against her?

    To be honest, are we to assume that both her and her agent didn’t notice that the contract excluded future self-published works? Of course, the flip side of this is that she did know and decided to take a chance on self-publishing a rejected work – but, again, why would she do this in the full and certain knowledge that it would put her book contract and substantial advance in danger?

    It’s not really fair to say that, because she wasn’t making much from writing, then it’s okay for the publisher to demand she cut off that potential revenue. It can potentially shut down a marketing avenue as well, even if the money isn’t in it. And considering that most publishers expect authors to do their own marketing, it’s potentially hurting their own revenue for the book they bought.

    Most of my speculation on this comes from knowing that we’re seeing more and more authors turning away from the majors and going it alone, and that usually means publishing on Amazon. Upcoming authors notice that the terms are better over there and they do the same, even though only a small fraction are successful. This clearly cuts into the potential source of new books for the majors and raises the possibility that their current authors will leave them, so they have a motive to keep them exclusive and away from Amazon. Hence why I think that this smacks of bullying, and them sending a message that going with Amazon is a bad idea for an author who wants to do business with them.

    (See http://gigaom.com/2011/03/01/book-publishers-need-to-wake-up-and-smell-the-disruption/ and http://www.techdirt.com/blog/casestudies/articles/20110915/16242615971/author-dumps-publisher-book-launch-party.shtml for example. And Barry Eisler turned down an advance to self-publish, if I recall right. JA Konrath, Amanda Hocking, etc etc.)

    I don’t know for sure. There are a lot of questions here that won’t be answered unless we know the terms of the contract. But on reading her account, I can’t help but feel that a lot of it rings true. My opinion is influenced by other reading in the same vein, of course. I suppose we’ll know one way or another if a lawsuit does actually happen?

    The other question hovering over all this is whether the publisher should have started it at all, regardless of them being in the right or not. I’m not sure that it’s possible for an author’s work in an unrelated genre to cannibalise sales of a new book. From a marketing perspective, they may have missed an opportunity to sell to a pre-existing fan base, or to work out a deal with the author to use her self-pubbed work as a loss leader for their book. Any thoughts on that?

  9. NinjaFingers says:

    Right. I actually wonder if this isn’t a conflict over what constitutes a ‘competing work’. Hard to tell who’s truly in the wrong, but…I can’t have a lot of sympathy for the writer.

  10. This past weekend, the owner of a handbag (with one of her books adorned on aforementioned bag) told a group of future authors that her publishing company retains the rights for both traditional and e-publishing avenues.

    If I was under contract with this publisher, you betcha I would have picked up the phone and not put it down until said publisher was in the loop.

    Knowledge is power and good communication makes for happy partnerships.

  11. awparker says:

    All the above aside, I definitely believe the best policy is to have a good understanding up front rather than a misunderstanding later. Obviously we didn’t have a meeting of the minds about what the contract should, would or did say. Not knowing the facts, I can’t say who is at fault, but the moral that comes to me is that we all need to be better at reading and writing a contract.

    As an author, there are some things that will make me walk away from my dream publishing deal. If it violates my moral code, I’ll cry all the way home, but I would not sign. If the deal involves hurting others, I would walk away. If the deal isn’t fair to both sides and can’t be resolved so that both sides benefit, I would walk away.

    Understanding how the promise a person makes effects his life is am important part of being human. Most of us would walk away from a deal if we knew it would hurt the publisher and we understood the relationship of covenant.

    Sorry for the long winded bit.

  12. Who knew that a nekkid guy could carry on so long? Go you, Alan.

  13. Hi Claire. Thank you for your participation in this discussion. I’ll take your questions one at a time:

    if they knew she had self-published, why bring up the book that she had published before she signed the contract and try to use that against her?
    They didn’t. They took issue with the book she DIY’d while her other book was still in production with her editor. Nothing shady about it.

    are we to assume that both her and her agent didn’t notice that the contract excluded future self-published works?
    I have no idea. No one can answer that other than the author and her agent.

    why would she do this in the full and certain knowledge that it would put her book contract and substantial advance in danger?
    A very good question that no one can answer. I’ve seen authors do plenty things without consulting their contracts or their agents, if they have one. I had a case where an agent tried to sell the large print rights to a US publisher – clearly breaching the contract, since we have all the US rights. He tried to make the case that the large print rights were subsidiary rights, but no one was fooled. He had no choice but to back down and kill the deal. It was a dumb thing to do, and he should have known better. Dumb things happen, and it usually comes down to the fact that someone didn’t read their contract.

    It’s not really fair to say that, because she wasn’t making much from writing, then it’s okay for the publisher to demand she cut off that potential revenue.
    I think you may be confusing two separate issues. The publisher has no idea of the author’s financial status. They simply negotiating a book contract by presenting their terms. The agent negotiates on the author’s behalf. The author signs when both parties are in agreement. I think what’s at issue is this assumption that the publisher is being predatory, and I just don’t buy it.

    I believe that if the author was waving her contract around and pointing out where her publisher is in breach, she would certainly have my sympathy. Instead, she’s crying about how her editor is making her take her book down or force losing the book deal and paying back the advance. A publisher won’t demand the return of an advance unless there is a clear-cut breach of contract on the author’s part, and this is what makes my sympathy go right out the window.

    It doesn’t matter what the terms of the contract are – the fact is that she and her agent agreed to them and signed the contract.

    From a marketing perspective, they may have missed an opportunity to sell to a pre-existing fan base, or to work out a deal with the author to use her self-pubbed work as a loss leader for their book. Any thoughts on that?
    They very well may have. We’ll never know, will we? We can go blue in the face with conjecture, but we’ll never be able to know the inside details. The facts are that the publisher enforced their contract, and the author decided to bail, owing $20,000. Considering she was in financial straits, her decision strikes me as odd. But maybe she’ll be better off going with Amazon. Time will tell. My point was that the whole sad affair could have been averted if she’d simply talked to her agent and editor.

    As for the Konraths of the world, I have to work at not rolling my eyes because these guys are doing well on Amazon BECAUSE of their “evil” mainstream publishers. It’s because of all those publishers did for them in terms of distribution and editing that got them to a point where they could make the choice to go DIY. To kick mainstream publishing in the teeth strikes me as exquisitely disingenuous.

    On the flip side, you have Amanda Hocking, who is all too happy to point out how hard it was to maintain her DIY books. Yes, she struck gold, but in the end, she signed a three-book deal with a major publisher because she said she was tired of shouldering all the responsibility.

    I have no problem with those who want to go DIY. What I think is dangerous is those who do so without any understanding of how hard it is and know nothing about the publishing industry.

  14. Claire Ryan says:

    “They didn’t. They took issue with the book she DIY’d while her other book was still in production with her editor. Nothing shady about it.”

    According to her, they initially went after her for the book that had been published before she signed as well as the one published after. It’s part of the reason this doesn’t feel right to me.

    The other thing that really strikes me about this is the demand to remove not only her book from Amazon, but also all mention of it from the Internet. If we’re assuming that the publishers are acting logically and within the bounds of the contract, that’s still an unreasonable demand that she has no hope of fulfilling, even if she were inclined to try to stay with them. That feels like bad faith dealing to me, like they’re trying to drive her away.

    I suppose it’s all academic unless we hear the full story. In the meantime, it makes for interesting discussion.

    Again, thank you for your insights.

  15. According to her, they initially went after her for the book that had been published before she signed as well as the one published after.
    No one can go after you with something you’ve already published. Any editor with half a pulse knows this. I read it that they were taking issue with the e-book she put out while she was in editing…the compilation of stories that she’d sold to other venues over the years.

    all mention of it from the Internet.
    Again, all we have is her word on this. I’ve seen authors say some amazing things because they’re mad…and I have known both sides of the story. I’m not saying this is the case here, but I am saying that what this author is claiming is highly questionable, given my experience in the publishing world and my relationships with editors of big six houses.

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