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

[Anaquana]

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.

So, here is what the publisher demanded. That I immediately and totally delete CANNIBAL NIGHTS from Amazon, iNook, iPad, and all other e-platforms. Plus, that I delete all Google hits mentioning me and CANNIBAL NIGHTS. Currently, that's about 600,000 hits. (How does one even do that?) Plus that I guarantee in writing I would not self-publish another ebook of any of my backlog of works until my novel with them was published in hardback and paperback. In other words they were demanding that I agree to be muzzled for the next two years, to sit silent and impotent as a writer, in a state of acquiescence and, consequently, utter self-loathing.

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?

[BenPanced]

Yeah. Hard to say without knowing both sides.

[Bubastes]

It depends on what her contract says.

[Cyia]

If the publisher contracted for her debut novel, then she put out another before the contracted book hit the shelves, she's, in effect, diluted her own debut status. They're banking on her having a clean slate for sales, but if she puts out a self-pubbed book and it tanks, as most self-pubs do, then that clean slate is trashed.

[Polenth]

Originally Posted by Cyia

If the publisher contracted for her debut novel, then she put out another before the contracted book hit the shelves, she's, in effect, diluted her own debut status. They're banking on her having a clean slate for sales, but if she puts out a self-pubbed book and it tanks, as most self-pubs do, then that clean slate is trashed.

She's not a debut author though. It'd be odd if the publisher didn't know that.

[Parametric]

They want the advance back?

[areteus]

Many people don't mention self pub credits in queries as they rarely help. Also, note that the story says that they released the self pub collection after the contract was signed so this would not be mentioned in any query letter before the offer was made.

To me it sounds like they would not have minded any self pubbed stuff before they signed the contract (legally there is nothing they can do about it) but I suspect this is about controlling the image and output of the author now that they are signed to them. No good if an author releases a badly formatted piece and therefore potentially besmirches their rep as a writer while the publishers are busy building up a publicity machine that hypes them as the next Jane Austen (or feel free to insert another appropriate author here...).

It would be interesting to see how this pans out... personally, in that situation, I would happily roll over and put the short story collection release on hold regardless of contractual agreements. The novel deal with the publisher is likely to be worth more than the self pubbed collection so no sense in queering that deal, plus there is nothing to say that the collection of shorts can't either be submitted to the same publisher for publication later or self pubbed in the future.

[ChaosTitan]

Originally Posted by Parametric

They want the advance back?

If they're canceling due to breach of contract, they have a right to ask for the advance back. And since advances aren't paid in single chunks, she isn't paying back $20,000--just whatever's already been sent to her.


Once you get through the dramatic and emotional language of the post, it sounds like she broke the Competitive Works clause (which will vary depending on the language), or the Right of First Refusal clause by publishing the second collection after signing. And since this is only one side of the story, we don't know exactly what happened.

Agents exist so these types of things don't happen, so I admit I'm curious where her agent was when she was self-publishing the second collection.

[Bubastes]

Originally Posted by Polenth

She's not a debut author though. It'd be odd if the publisher didn't know that.

Correct. She's not a debut author. I did find this letter from her to JA Konrath from back in March, which might shed more light on things:

http://jakonrath.blogspot.com/2011/0...d-writers.html

[Psychomacologist]

So here's what I picked up when reading through her whole post.

1. The stories in the collections had already been published in anthologies or zines:

Most of the stories in both collections had each been published several times before, first in Story Magazine, then again in The O'HENRY AWARDS PRIZE STORIES anthologies, the PUSHCART PRIZE stories anthologies, and THE BEST AMERICAN SHORT STORIES, 2000, anthology.

Bolding mine. So it's not like her work had 'never seen the light of day' - most of those stories had already been published. Some of them more than once. This wasn't good enough, apparently, and she wanted an anthology of all her works.

Is it normal to consider a story that's been published several times as 'rejected' and 'in the backlog'? Because... you know... they've all been published. Some of them more than once. I'd count that as a success, personally. I dunno, maybe she didn't get paid for the other times they were published and that's why she wanted to get some money out of the anthology.

2.

In other words they were demanding that I agree to be muzzled for the next two years, to sit silent and impotent as a writer, in a state of acquiescence and, consequently, utter self-loathing.

I don't see how a ban on self-pubbing translates to "muzzling" - she's obviously had some success previously in getting her short stories published, and I doubt her publisher will prevent her from carrying on with that. Right? I mean, they can't stop her subbing shorts to other paying markets and nor are they trying. Or have I got this wrong? Does a novel-publisher usually frown upon their humble writers making pennies by subbing short stories to cent-per-word zines? Are they that mean and territorial?

3. She thinks that her self-pubbed work on Amazon won't injure sales of her pro-pubbed novel b/c the subject matter is different and doesn't resemble her novel.

Since CANNIBAL NIGHTS in no way 'resembles' or would 'injure' sales of the book I had sold them (an entirely different subject matter)

... although it would mean that anyone searching Amazon for her novel would also find her self-pubbed anthologies with their rather unprofessional looking (no offence) covers. Maybe the stories inside are good and would earn her a few fans who might wait for the novel. Or maybe they're not that good and would put people off. Or maybe they'd give people a completely wrong idea of what subject/genre her novel will be in, so that they expect one thing and then get put off when the novel is something completely different.

Regardless. It'll show up on an Amazon search for her name.

So I don't know what to make of this. But I do know that this author threw away a publishing deal with a major publisher for the sake of keeping an anthology of already-published short stories up on Amazon. I really can't fathom why anyone would do that. This author seems to think big pubs are the devil and epubs are the shiney new heroes of the writing world:

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.

I dunno. Traditional publishing is beneath her, maybe? I doubt she'll make $20,000 dollars on her self-pubbed anthology. But you lie in the bed you make, I suppose.

[Cyia]

Originally Posted by Psychomacologist

I doubt she'll make $20,000 dollars on her self-pubbed anthology. But you lie in the bed you make, I suppose.

Depends on how many lookie-loos she gets from people who have been tweeted her story. It wouldn't surprise me if Konrath doesn't mention it again on his blog, too, which could mean an uptick in sales to "show" her former publisher that they can't beat the deal she'll get with self-publishing.

[Psychomacologist]

Originally Posted by Cyia

Depends on how many lookie-loos she gets from people who have been tweeted her story. It wouldn't surprise me if Konrath doesn't mention it again on his blog, too, which could mean an uptick in sales to "show" her former publisher that they can't beat the deal she'll get with self-publishing.

Well CANNIBAL NIGHTS is $3.45, so she needs to sell 5800 copies to make back the portion of the advance that was paid. Doable?

[virtue_summer]

Yeah, I'm not feeling all that sorry for her. She talks about publishers and editors like they're evil incarnate, talks about how she thinks print is dead, and then complains because her print deal with a publisher is in trouble? In the letter to Konrath, especially, she says she signed this deal out of desperation, wanting the money, then got annoyed it would take a year before the book was published (shouldn't she have known that beforehand, since she'd been published before?) and that she wouldn't get all the money at once (again, shouldn't she have expected this?).

Anyway, she ends up pretty clear that she doesn't believe in print, thinks the "digital revolution" is where it's at, wants to publish her own books and basically just seems annoyed that the print publisher wants their money back when they think she's breached her contract. Personally, I'm not sure she hasn't, but I'd leave lawyers and, you know, people who've actually read it to figure that out. Either way she sounds like a nightmare to work with.

[IceCreamEmpress]

Writer accused of breaching contract for doing something which may or may not be a breach of contract? Somehow, I find this not the shocking outrage she seems to want me to.

Seriously, checking with her agent and/or her attorney first would have been wise. Before you sign a contract, you should know what it permits and doesn't permit.

[Psychomacologist]

Originally Posted by virtue_summer

Either way she sounds like a nightmare to work with.

I'm thinking the "nightmare to work with" aspect is probably what caused the publisher to cancel the contract. Whether or not she actually breached the contract, it sounds as if she threw her toys out of the proverbial pram a little bit there.

[juniper]

Originally Posted by ChaosTitan

If they're canceling due to breach of contract, they have a right to ask for the advance back. And since advances aren't paid in single chunks, she isn't paying back $20,000--just whatever's already been sent to her.

On her blog she says: "and demanding back the $20,000 they had paid me as part of their advance."

So the 20k was just part of the advance, the part they'd already paid? The whole advance was more?

And Konrath, commenting on her letter to him, calls that shameful? "Kiana's latest advance for her upcoming novel is a shame. And though she says her self-pubbed ebook collection is selling well, her current rank is so-so."

Even if 20k was the whole advance, that doesn't sound so bad to me ... but I'm not a full-time, writing-only-writer. So relying on that to feed your family and pay your bills, yeah, I guess that would be tough.

Probably why most writers have other jobs, too, or some other means of support.

[Cyia]

If she's being paid in quarters, as she says, and was paid $20K up-front, then her advance was $80K (unless it's a multi-book deal).

[Al Stevens]

Last week, I received from their lawyers an official letter terminating my contract with them, "...for permitting Amazon to publish CANNIBAL NIGHTS, etc...." and demanding back the $20,000 they had paid me as part of their advance. Until then, this publishing giant is holding my novel as hostage, a work that took me five years to write. My agent assures me I am now an 'anathema' to them.

I must have missed something. If the publisher terminated the contract in writing, how can they retain rights to the novel? Surely she didn't send them the only copy.

Since she does not identify the publisher, her agent, or the title of the work in question (which of course, she shouldn't), the cynic in me makes me wonder whether this is a fabricated grab for publicity to promote her e-books.

[James D. Macdonald]

Something does not smell right about this. I'd like to have a lot more information.

[ghost]

Originally Posted by Al Stevens

I must have missed something. If the publisher terminated the contract in writing, how can they retain rights to the novel? Surely she didn't send them the only copy.

Since she does not identify the publisher, her agent, or the title of the work in question (which of course, she shouldn't), the cynic in me makes me wonder whether this is a fabricated grab for publicity to promote her e-books.

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.

[Diana_Rajchel]

I used to think that finding a publisher meant that the publisher would then have a right to all the books that I produced. I also was very naive back then, and digital wasn't even a concept at the time. Do publishers every ask for rights to other works, or demand control over release of other material? Is that something a professional writer would allow?

[James D. Macdonald]

Originally Posted by Diana_Rajchel

Do publishers every ask for rights to other works, or demand control over release of other material? Is that something a professional writer would allow?

The answers would be no, no, and no.

Depending on the option clause, the publisher might have the right of first refusal on your next work but -- you should write that option as narrowly as possible if your agent can't get it removed entirely.

Thus, rather than "next work," the option should be "next young adult mystery set in Chicago featuring detective Robert Fintuckel." That protects the publisher in case your Fintuckel mysteries take off, so you can't jump to another publisher to continue the series after they've done all the work of promoting and marketing the brand, while at the same time protecting your ability to make a living by writing and selling other works.

I've just gotten done putting my entire backlist of short stories up in ebook form, without a peep from my Big-Six publisher(s), even though I have several books under contract and forthcoming with them. Something is distinctly odd in the story we're hearing.

[Bubastes]

Originally Posted by Al Stevens

Since she does not identify the publisher, her agent, or the title of the work in question (which of course, she shouldn't), the cynic in me makes me wonder whether this is a fabricated grab for publicity to promote her e-books.

She is represented by Zachary Shuster Harmsworth, and it appears the book is The Last Tattoo (the title might have changed since then) to be published by Riverhead/Penguin:
http://www.zshliterary.com/?id=13
http://www.shewrites.com/profile/kianadavenport

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

Kiana Davenport is the author of three novels about Hawaii, House of Many Gods (Random House), Song of the Exile (Ballantine), and Shark Dialogues (Atheneum), and the recipient of several Pushcart and O'Henry prizes. She is currently working on her upcoming novel about the Civil War, The Last Tattoo.

[Al Stevens]

Originally Posted by Diana_Rajchel

Do publishers every ask for rights to other works, or demand control over release of other material?

No demands. Everything is negotiable. My contracts had a first right of refusal on next book irrespective of subject, which I always X'd out. They didn't mind.

[Alitriona]

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.

I imagine the publisher wasn't happy about her berating their meager advance on Konrath's blog. At the end of the day even if the publisher isn't named now, when the book would have come out everyone would know who she is complaining about. It's not professional behaviour and in my opinion is deliberately or non deliberately damaging to the publishers reputation to suggest the deal they offered would be potential factor in her ending her life.

This lady's issues seem to extend a lot further than a cancelled contract and I honestly hope she gets the help she needs. I don't think this is a clear and simple case of a broken contract with a big meany publisher over a short story collection and I hardly think we have anything near the full picture.