Writer Accused of Breach of Contract for Self-Publishing a Completely Separate Book

ghost said:

It's probably part of the termination clause. Until she returns the advance, the book still belongs to them. So if she keeps the money, they keep the book.

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Very interesting. My termination clauses never said that. I'd like to see that termination clause.

Suppose she keeps the advance and they "keep" the book. What do they do with it? The contract only grants a publishing license, not a copyright. They terminate the contract, so there is no contract, so there is no license. And she still has the copyright.

So, suppose the termination clause does not actually terminate the license one way or another. What do they do with it? Publish the book? With her name as author? What if it earns out its advance?

I'm not arguing with anyone here, or don't mean to be. I just wonder how it works.

This story smells very wrong to me. There's a lot we're not being told here, I'll bet.

This is not how publishers work.

Al, if the contract is terminated then part of that would probably be conditional on the writer returning the advances paid so far. It's possible that the author concerned has already spent that advance, and so is going to struggle to pay it back promptly. Until then, that book will be in limbo: the publishers won't want it, but it won't be hers to resell.

I would guess they shove it in the metaphorical drawer. "You can't publish it, and we're not going to."

Alitriona said:

Wow, I can find it in me as a struggling writer to feel sorry for someone who would claim to be 'coerced' in signing a contract for apparently 80 grand from a big six. Really? As a struggling writer, I would chomp a bite out of the editors hand for that.

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Never mind $80,000, if I was offered an advance of $20,000 I would be dancing around the kitchen!

Me too... as I said above, take the money, let them publish the book and hold off on the self publishing for later. Maybe learn a lesson to be more careful about contract clauses next time.

If she thinks that self and ebook publishing are on the rise then she may be right, however this is not the time to risk all on them.

Old Hack said:

This story smells very wrong to me. There's a lot we're not being told here, I'll bet.

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I agree. I think we're only getting part of the story.

And for the record, I have contracts with two different Big Six publishers, and neither one complained when I self-published my collection. In fact, both editors thought it was just spiffy and made for good promotion.

Anaquana said:

A friend linked to this on Twitter.

Kiana Davenport is claiming that her Big 6 publisher "went ballistic" when they found out that she had self-published a collection of short stories after she had signed a contract with them for a completely unrelated novel.



Not knowing what exactly her contract says makes it difficult to say whether what the publisher demanded was correct or not. Anyone else care to share their insights?

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Sounds like she has a 'non compete' clause in her contract which she broke.

Maybe the author has been wronged in some way here, but if she has, I can't tell through all the hyperbole. Especially when she talks about signing a contract with a five-figure advance for her novel as if someone was torturing her.

When the Cooks Source story broke, Monica Gaudio simply repeated exactly what was exchanged between her and the magazine and that showed who was in the wrong right away. She didn't need to build it up, it spoke for itself.

I too would like to know all the facts in this situation.

Alitriona said:

Wow, I can find it in me as a struggling writer to feel sorry for someone who would claim to be 'coerced' in signing a contract for apparently 80 grand from a big six. Really? As a struggling writer, I would chomp a bite out of the editors hand for that.

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Yeah... this is what it is to me, too. I'm finding it really difficult to sympathise with this author because she's complaining about a pretty sweet deal, as far as I can see. I mean, $80,000 isn't exactly a fortune - but at least she has a publisher (a Big Six pub, no less) willing to publish and promote her novel, and a tidy little advance and an agent repping her works. Some writers struggle for years and never get any of these things. She had all of them, and she basically turned her nose up at the pro-publishing deal so she could keep self-epubbing anthologies of her previously already published short stories.

I mean, she's not even self-publishing anything new. If she believes in e-pubbing so much, why didn't she e-pub the novel instead of subbing it to pro-publishing houses?

I don't think she'll be holding any bake sales soon.

It sounds more like a hissy fit on her part than anything else. This isn't her first time on the bus, she's been under contract before.

It'll be interesting to see how this plays out. Based on what I've read so far I'm not feeling too sorry for her.

Bubastes said:

Her three novels were published by three different houses. I don't know if that means anything.

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It could mean quite a few things.

1. Her agent was incapable of negotiating multiple-book deals for his client. Or similarly, editors were unwilling to offer for multiple books.

2. The books didn't sell well enough for editors to justify exercising their option clause, so new books had to go elsewhere.

3. The author was too difficult to work with and they chose to not buy more of her books.

Or, you know, a lot of other reasons. But these were the first that jumped to mind.

Well, I wouldn't self pub anything under my main pen name
unless:
it was a book which originally sold under that name and had reverted,
I did so with the full knowledge of the publisher who has sold my work under that name.
This is because:
Times are hard and you don't want to wreck a relationship with your publisher who will have invested in your name.( For well established authors who have always sold to a variety of publishers this is less of a problem.)
Works published under that name have been professionally edited, type set, illustrated, designed etc I don't want to dilute my own brand by putting out something less professional.
The great thing about self pub is you can publish books that don't fit with your usual output, why not take the opportunity to reinvent yourself?
I appreciate that mileage will vary but it does depend not just on the contract but on the relationship you have with your publisher. If they are putting out a book priced at £7.99 and you are selling one at £.99 - you can see why they might be irritated.

I've been scanning through some of the comments on the author's blog post, and she's said several times that she wrote her post to warn other authors about not protecting themselves in writing (although she used all caps). It sounds like she knows she was in the wrong and did, in fact, breach her contract (even if she did it without realizing).

Alas, in this country, when you sign your name to a legal document you make yourself responsible for the content, even if you don't read it in its entirety.

Possibilities:

1) Author was having so much fun e-publishing her backlist that she blew her deadlines.

Or:

2) In two months we're going to hear that she's taken a matching advance--a better one!-- from Amazon to publish with them, just like Barry "Author Turns Down Half-Million Dollar Advance to Self-Publish" Eisler.

The more I read about this, the more I realise how little the story holds together.

I might even blog about it. And yes, I think Jim might be right.

James D. Macdonald said:

Possibilities:

1) Author was having so much fun e-publishing her backlist that she blew her deadlines.

Or:

2) In two months we're going to hear that she's taken a matching advance--a better one!-- from Amazon to publish with them, just like Barry "Author Turns Down Half-Million Dollar Advance to Self-Publish" Eisler.

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I tend to be very suspicious of anyone blowing the big self-publishing horn these days.

I'm sure she'll be the poster girl for self-pubbing until the entire story comes out...
... and then she'll stay the poster girl because no one will believe the truth because Publishers Are Evil.

James D. Macdonald said:

2) In two months we're going to hear that she's taken a matching advance--a better one!-- from Amazon to publish with them, just like Barry "Author Turns Down Half-Million Dollar Advance to Self-Publish" Eisler.

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Slight digression, but when this happened, why wasn't it a bigger deal? I remember being just stunned and also kind of smug that the poster boy for turning down a massive advance to self publish simply inked a new deal with a publisher instead for the same figure. After all of the dialogues they posted online on the evils of having a publisher (and posts entitled such lovely things as "Are You Dense", both he and Konrath signed deals with a publisher.

Was it because it was Amazon and so people felt it didn't count? Was it because people want to believe so badly that publishing is dead and self-publishing is the new king?

What happened that it was considered no big deal, and the hypocrisy was never truly discussed? And that further, they still remain the poster boys despite it all?

ChaosTitan said:

I've been scanning through some of the comments on the author's blog post, and she's said several times that she wrote her post to warn other authors about not protecting themselves in writing (although she used all caps). It sounds like she knows she was in the wrong and did, in fact, breach her contract (even if she did it without realizing).

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The thing is, in my (albeit few but in at least one case significant) brushes with contract law, things don't usually start at, 'You're in breach, your contract is cancelled; give us back what you've been paid to date.' They usually start at, 'You're in breach of your contract, stop what you're doing and let's sort this out.'

That's why I think there's lots more here we don't know about.

ChaosTitan said:

Alas, in this country, when you sign your name to a legal document you make yourself responsible for the content, even if you don't read it in its entirety.

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Not sure 'alas' is the right sentiment. I think it's a good thing that folks must abide by their contracted agreements. I feel bad for people (such as PA's customers) who get stuck with a bad contract because they don't understand, but I would hate to have to deal with legal matters if it was easy to simply walk away from a contract when you changed your mind!

Toothpaste said:

Was it because it was Amazon and so didn't count?

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It was this exactly. I'm not sure about Eisler, but Konrath's gone into detail about why he doesn't consider Amazon among those he labels "legacy publishers".

I've been rendered speechless.

Yes, I believe his reasoning is faster turnaround and the ability to self publish on the side.

Well aside from this strange thread, I know of no publisher that doesn't allow for the latter (so long, as we've discussed, there isn't a conflict of interest). And there are plenty of ebook publishers that have fast turnarounds. Or do those count too?

I think Konrath is brilliant at creating the rules and then saying, "No no, what I really meant was this . . ." It's his game. He will do whatever makes him look like the self publishing guru and gets him more sales. And I'm so friggin' tired of all these people admiring and uplifting him thinking that they too are playing the game, not realising they are just pieces in his.

Terie said:

The thing is, in my (albeit few but in at least one case significant) brushes with contract law, things don't usually start at, 'You're in breach, your contract is cancelled; give us back what you've been paid to date.' They usually start at, 'You're in breach of your contract, stop what you're doing and let's sort this out.'

That's why I think there's lots more here we don't know about.

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From the post it sounds as if there was some amount of back and forth about fixing it (that whole remove all hits from Google portion). But I definitely agree that there is a lot we don't know and a lot that isn't being said in public about this situation. And I'm taking the author's version of events with a teaspoon of salt.

Not sure 'alas' is the right sentiment. I think it's a good thing that folks must abide by their contracted agreements. I feel bad for people (such as PA's customers) who get stuck with a bad contract because they don't understand, but I would hate to have to deal with legal matters if it was easy to simply walk away from a contract when you changed your mind!

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Alas may have been the wrong word (and probably required an emoticon to express my internal eye-roll at the author, who seems to think she was given a raw deal, even though she signed on the dotted line without anyone holding a gun to her head).

But yes, it is a good thing contracts are enforced. Very much agreed.

Amazon is willing to pay premium amounts to get exclusive-to-the-Kindle content.

They aren't doing it for the readers, and they aren't doing it for the authors. They're doing it to kill the competition, to drive the Nook and the iBook out of business, leaving them with a monopoly. That's worth a lot of money to them.

Toothpaste said:

. And I'm so friggin' tired of all these people admiring and uplifting him thinking that they too are playing the game, not realising they are just pieces in his.

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Been skimming over the comments to his blog post; torrents of applaus. The first critical comment is at 10.21 AM.

James D. Macdonald said:

Amazon is willing to pay premium amounts to get exclusive-to-the-Kindle content.

They aren't doing it for the readers, and they aren't doing it for the authors. They're doing it to kill the competition, to drive the Nook and the iBook out of business, leaving them with a monopoly. That's worth a lot of money to them.

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Indeed.

Which is why I go further batty when the self-publishing mob get all uppity about the Big Six controlling everything. Aren't they aware that their worship of Amazon will invariably lead to a Big One? One is a wee bit worse than Six in my mind . . .