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

The thing that is really sad about this is that Davenport is clearly an intelligent and talented woman, and yes, she made a mistake, but instead of sorting it out, she had a hissy fit, which just seems to have made everything worse.

aruna said:

It does make sense. The faster you write your novel, the faster you get the signature advance, the delivery advance, the publication advance. The more novels you write, the faster these advances pour in. If, for instance, she could produce three chapters and synopsis of a new and publishable book, say within two weeks, she could possibly be looking at the first advance payment by the end of this year.

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Ah. Gotcha. I can see that. Guess I'm still caught in the rut of 'but I need to make rent next month' way of thinking. Coupled with the fact that for me, while it would be great if it happened for me in that time frame, the reality of the situation suggests not to bank on that.

If she could make it work? That'd be golden, except, as you noted:

aruna said:

That is, IF she had not burnt her bridges with Penguin. As it now stands, she'd have to look for a(nother) new publisher. Again. But with all this stuff now online and freely googleable, it's questionable if another publisher will have her.
She has outed herself as "difficult". She has dissed the publishing industry, in particular the Big Six, openly. She has taken an open stand for self-publshing, and more or less chosen her route.

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Yeah. Not going to argue that this is a 'you made the bed' situation. I wish her well, though.

bearilou said:

But if the timeline to get paid writing novels is long, how is writing novels faster going to get her money faster? This is not making sense to me.

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Hypothetical situation: I wrote one book, four years ago.

This year, I get a royalty check for the book I wrote four years ago (say, £10,000. meh. That's probably high, but let's say it's a best seller)

Total yearly income from books: £10,000

Situation two: I wrote a book a year for the last four years.

This year, I got:
A royalty check from the book I wrote four years ago (£10,000)
The final installment of the advance for the book I wrote three years ago, that's just been released (£20,000)
The middle installment of the book I wrote two years ago, that's just finished edits and rewrites and is about ready to go to press (£20,000)
The first installment of the advance for last year's book, which I've just finished and sold to a publisher (£20,000)

Total yearly income from books: £70,000

Or something like that.

I'd agree with the short stories idea, but I thought (perhaps erroneously) that copywriting for ads agencies and PR firms and writing articles for newspapers (do people read paper papers any more? I know the local papers I used to read have been seriously hit and aren't what they used to be) and magazines a different writing skillset than fiction writing?

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Words is words. I think most people who are good with language and can write a decent sentence could probably bridge the gap from books to articles etc, or at least learn to be a chameleon out of necessity. I don't know this lady's situation, but it's at least a possibility if she doesn't want to look for a "real" job.

ETA: Aruna beat me to it. Goshdarnit.

What I get from her posts is she doesn't want to do anything else. She wants to be a writer, a writer who gets paid massive amounts of money for doing little work. I haven't read her work but I'm presuming, based on awards, she is a very good writer. Perhaps there lies the problem. She seems to think she deserves more than the publisher is willing to pay. Maybe she's right, maybe she isn't but if she wasn't happy she could have walked away. She said she didn't have a choice, but she did. She had a choice between signing the contract and not signing it. She signed it, the agreement was made and she should have accepted it with dignity considering she is pretty damn lucky to be in a position to be offered a contract of that magnitude.

Now instead of 80,000 and the possibility of more if she earned out the advance. She has no manuscript and only received the 20,000 that is possibly already spent considering the financial problems she spoke about. It simply doesn't make sense to me that a person would put themselves in that position and throw their dummy out of the pram when offered a way to negotiate out of it.

Psychomacologist said:

ETA: Aruna beat me to it. Goshdarnit.

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Ah, but you gave a practical example; makes all the difference!

Psychomacologist said:

The thing is, she's clearly a very good author whose novels have always sold well in the past. She's won some big awards.

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No, she's not. She might be a good writer; but her books have not necessarily sold well in the past and judging from her comment that her latest advance was half that of her previous advance, I'd guess that her sales have not been good at all.

Alternatively, freelance as a copywriter for ad agencies or PR companies. Sell articles to newspapers or magazines. Sub short stories to paying markets on a regular basis. It's not great money but it's better than contemplating suicide because you can't pay the bills.

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Psychomacologist said:

Words is words. I think most people who are good with language and can write a decent sentence could probably bridge the gap from books to articles etc, or at least learn to be a chameleon out of necessity. I don't know this lady's situation, but it's at least a possibility if she doesn't want to look for a "real" job.

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Writing articles and so on requires a completely different skill-set to writing fiction. Many writers can do it, but many others can't.

If you turn it round, and suggest that someone who can write a decent article must therefore be able to learn to write a decent novel, then perhaps you'd see the problem here.

It also seems that she is not earning royalties; possibly her previous books may have been critical successes but did not earn out their large advances; that might be the reason for the lower advance this time, and for the quick turnover of publishers.

I went through a similar predicament several years ago, when my publisher did not accept my (4th) option novel because the previous three books had not earned out their advances. And also because I was riding high on writing what I wanted to, and not what they wanted me to. It was a terrible time and I was also high and dry financially for a while. I know the sinking feeling of not having a new contract, and the pressure to write something commercially viable in a two-yearly tact. So I do sympathise. At the time, I thought I was taking a stand for "creative integrity", whatever that is, and thought I was taking the moral high road.

Well, I paid a heavy price. You make your bed, you lie on it. Now I can see that the publisher was only doing what it thought was rght for it at the time. I am much wiser with hindsight, and my warning to her would have been: put that second volume to sleep quick time!

Alitriona said:

It simply doesn't make sense to me that a person would put themselves in that position and throw their dummy out of the pram when offered a way to negotiate out of it.

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I know that's how it looks to me. It was a misjudgment, a miscalculation, a boneheaded move...however you want to catagorize it. The publisher offered a solution that required eating a little crow perhaps, but it was salvageable.

For that kind of money in this tight economy? Think I'd be looking up crow recipes.

Alitriona said:

Now instead of 80,000 and the possibility of more if she earned out the advance. She has no manuscript and only received the 20,000 that is possibly already spent considering the financial problems she spoke about. It simply doesn't make sense to me that a person would put themselves in that position and throw their dummy out of the pram when offered a way to negotiate out of it.

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She doesn't even have the 20k because she owes that to her publisher. And in the meantime she has no book either, because they are retaining that until she repays them.

bearilou said:

But if the timeline to get paid writing novels is long, how is writing novels faster going to get her money faster? This is not making sense to me.

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It's what Doyle and I call "feeding the anaconda."

Getting money out of novels is like watching the bulge that used to be a pig moving down through a snake. Eventually it'll turn into snake dung, but there's a mighty long wait. So ... you feed it a new pig on a regular basis. There are a bunch of lumps moving down the snake. A while down the road, you start getting snake dung on a regular basis.

Maybe the advance is broken up into $20K chunks. Get two $20K chunks a year, for two different books, and you're at 40K a year. Get three $20K chunks a year, and you're at $60K a year. Does it matter if the chunks are for a book you wrote two years ago, a book you're writing right now, and a book you've promised for next year? No, it doesn't.

The ability to write marketable prose is a rare one. If you have it: You can keep your name for the High Art books, you can write a few tie-ins and novelizations under a pseud, and you can ghostwrite some celebrity's autobiography under a serious non-disclosure agreement, and you can do pretty well. If it's your job, if it's your career, treat it as a job and a career. As William Faulkner said, "I only write when I am inspired. Fortunately, I am inspired at nine o'clock every morning."

Which still doesn't address this particular author's problem. And it still doesn't help make the situation as she's described it make any sense whatever.

...and Uncle Jim explains it best of all! Love the snake analogy.

She states in a current post - "There's something important I forgot to say to all of you. It was Joe Konrath who ENCOURAGED me to duke it out with the publisher. To not give in."

Now I don't know if he's just giving her emotional support or actively advising her from a legal POV but this is a sticky wicket for all parties involved.

I do hope she's getting good legal advice from her agent and not depending on Konrath's advice as her sole source. Unless Konrath intends to be responsible for repaying the 20K plus any penalties along the way.

I hope.

James D. Macdonald said:

It's what Doyle and I call "feeding the anaconda."

Getting money out of novels is like watching the bulge that used to be a pig moving down through a snake. Eventually it'll turn into snake dung, but there's a mighty long wait. So ... you feed it a new pig on a regular basis. There are a bunch of lumps moving down the snake. A while down the road, you start getting snake dung on a regular basis.

Maybe the advance is broken up into $20K chunks. Get two $20K chunks a year, for two different books, and you're at 40K a year. Get three $20K chunks a year, and you're at $60K a year. Does it matter if the chunks are for a book you wrote two years ago, a book you're writing right now, and a book you've promised for next year? No, it doesn't.

The ability to write marketable prose is a rare one. If you have it: You can keep your name for the High Art books, you can write a few tie-ins and novelizations under a pseud, and you can ghostwrite some celebrity's autobiography under a serious non-disclosure agreement, and you can do pretty well. If it's your job, if it's your career, treat it as a job and a career. As William Faulkner said, "I only write when I am inspired. Fortunately, I am inspired at nine o'clock every morning."

Which still doesn't address this particular author's problem. And it still doesn't help make the situation as she's described it make any sense whatever.

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I suppose that's what I was ultimately getting at. All the reasons she fell apart aside, saying 'just write another book' in her present set of circumstances doesn't get her money now, which, from what I gather, is needed.

And I guess why I'm sort of chafing under the comments here. "She will just have to buckle down and get a job. She should just write another book." Easy to say in theory, harder for an individual to execute in real life when the wolf is at your door.

In the end, though, it simply gives weight to your advice. 'Finish a book, polish it till it shines, get it out there, and start the next book.'

bearilou said:

And I guess why I'm sort of chafing under the comments here. "She will just have to buckle down and get a job. She should just write another book." Easy to say in theory, harder for an individual to execute in real life when the wolf is at your door.

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Well, I've had the wolf at my door for the last seven years, and I still managed to finish six books. (None of them sold -- yet.) Sometimes you just have to stop moaning and get on with it.

Sheryl Nantus said:

She states in a current post - "There's something important I forgot to say to all of you. It was Joe Konrath who ENCOURAGED me to duke it out with the publisher. To not give in."

Now I don't know if he's just giving her emotional support or actively advising her from a legal POV but this is a sticky wicket for all parties involved.

I do hope she's getting good legal advice from her agent and not depending on Konrath's advice as her sole source. Unless Konrath intends to be responsible for repaying the 20K plus any penalties along the way.

I hope.

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I just googled him and now see why he'd be advising her in this manner. I have a very bad feeling about this...

Bubastes said:

Painful, but understandable. The agent shouldn't lose money on a deal they put together simply because the author was stupid.

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If the agent agreed to a stupid contract, he/she should. Most agents insist that contractually, advances that must be repaid are repaid out of "first receipts," meaning that until the book is resold, the author doesn't have to repay a dime. I also seriously doubt that the writer in this case got $80K in advance. Her publishing history doesn't seem to warrant that much, and these are hard times in the industry. There are more holes than story in the writer's story.

Sheryl Nantus said:

She states in a current post - "There's something important I forgot to say to all of you. It was Joe Konrath who ENCOURAGED me to duke it out with the publisher. To not give in."

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Wow.

Old Hack said:

Wow.

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My thought exactly.

Originally Posted by Sheryl Nantus
She states in a current post - "There's something important I forgot to say to all of you. It was Joe Konrath who ENCOURAGED me to duke it out with the publisher. To not give in."

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Old Hack said:

Wow.

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My thoughts exactly.

aruna said:

Well, I've had the wolf at my door for the last seven years, and I still managed to finish six books. (None of them sold -- yet.) Sometimes you just have to stop moaning and get on with it.

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Not arguing that sitting and wringing hands is unproductive. I think where I'm missing in all this is it's still an easy pat answer to give someone that doesn't yield immediate results.

I'm not arguing that despite all this that she's going through that she shouldn't do this or that or that she should have done something else.

But if I have books written but not sold, how is that paying the bills now?

It's been said 'well, she just needs to get out and get a job!' Not saying that she shouldn't or that she won't need to. But it's not as simple as stepping out and getting a job first time out the door. Or in a year of searching. Or in three years of searching.

I'm balking at this 'all you gotta do is' attitude. It's not an 'all you gotta do is' situation. Not even in the best of times.

I need the money. Well, all I gotta do is write a book! Well, I still have to sell it. It still needs to get bought, the advance still has to come in and the royalties still have to get collected...all of those roadmarks down the road don't happen in three months, normally.

'You can't sell if you don't have a book' is not what I'm baffled by. I get that. I'm so onboard with that I'm a certified cheerleader for it.

I'm baffled by the implication that all you need is a book and the rest takes care of itself if you're persistent. In the long term, yes. But as a fix right now, no it doesn't. The armchair quarterbacking going on about her current money situation is really distressing if the practical 'tips' being offered are not very practical for the immediate timeframe.

The only 'all you gotta do is' advice I'd offer her is to not listen to someone whose obvious interest is in promoting his own agenda for epublishing and that is apparently hurting her in the short term and possibly long term.

I didn't mean to be flippant about her financial situation. I didn't want to imply that it is easily solved.

aruna said:

I didn't mean to be flippant about her financial situation. I didn't want to imply that it is easily solved.

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I think the bigger problem she has now, financial problems aside, is taking advice from someone who has an obvious agenda in talking her into her decisions. That's a real mind boggler right there.

bearilou said:

I think the bigger problem she has now, financial problems aside, is taking advice from someone who has an obvious agenda in talking her into her decisions. That's a real mind boggler right there.

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I agree. What irks me even more is that the person giving the advice doesn't appear to truly care about her situation. Agenda-driven people rarely care about the individuals they claim to help.

bearilou said:

I think the bigger problem she has now, financial problems aside, is taking advice from someone who has an obvious agenda in talking her into her decisions. That's a real mind boggler right there.

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Quite.