When a book fails to resonate with the marketplace, the publisher bears the cost of returns, production, and marketing for example. Never does the publisher come back to the author and say, your book didn’t sell, you owe me $5,000. It is only after years does the publisher come back to an author to recover advance paid versus no book delivered.

As far as an author not being paid well, it depends on how much you produce. Working for a publisher I have handled up to 150 books a year. I produce, I get paid. It’s a really novel concept. If you think it’s better pay being at the publishing house than being an author, work the 16-18 hours a day with constant pressure of being downsized in a merger or if the titles you work on don’t perform well in sales and reprint like the Dickens.

Here’s 2 articles to set the scene for you:
http://davidgaughran.wordpress.com/2012/11/28/simon-schuster-joins-forces-with-author-solutions-to-rip-off-writers/
http://accrispin.blogspot.co.uk/2012/11/archway-publishing-simon-schuster-adds.html

I hadn’t heard about the Kiana Davenport case so I’ve done some reading this morning. Firstly I’m gobsmacked by Penguin’s idiocy in the way they handled the situation, and won’t defend it in the slightest. That certainly gave me pause for thought. I think this blog has some good advice for those who are concerned about the issue:

http://kriswrites.com/2012/02/23/the-business-rusch-competition/

But I would also say that Davenport comes across as a bit naive and I’m not sure she handled the situation that well either. Nor do I think jumping from one corporate behemoth to another is necessarily the solution (Amazon really don’t care about authors either…). We’re at an interesting point for publishing where the way an author can find success is changing massively. In the past you really had to get the first publication right, and to build a buzz in the rights bits of the media and so on, or the book flopped and there were no second chances. In that situation publishers needed to be control freaks about how they managed the PR and other publications of the author’s work. And up until a couple of years ago an author being self-published could well have been something that trashed the PR side of things (it’s really only the last couple of years that that has turned around).

Having said that, Kristine Rusch asserts in that post that if she’d signed a non-compete clause, her publisher wouldn’t have let her publish any short stories. Now, I accept that by not signing she made sure they couldn’t stop her, but I don’t agree they necessarily would have – because short story publication can clearly be something that helps to build an author’s rep before the first novel.

So there are loads of cases where publishers don’t react as hysterically as Penguin did with the Davenport case. But what publishers probably need to do now is learn that the path to success isn’t as monolithic as it once was and that self-publishing is now part of the way to build an audience, especially for genre fiction, but increasingly it might work in other areas too.

So my final thought – yes, do take the non-compete clause seriously. Penguin’s idiocy is enough to convince me I was wrong to say otherwise. As a publisher I would still want one in some cases, but I would accept it if the writer negotiated for it to be 1) severely time and/or subject limited 2) taken out of the warranty (it’s not in ours anyway but it seems it is in some) 3) not disguised in a first option clause or similar – for the latter I’d suggest that if a publisher won’t take it out you get a realistic time limit added.

Thanks to all for the persuasion on this.

The post was essentially trying to point out, without any sort of judgment attached to an author’s role or the relationship between authors and publishers, that publishers need to communicate better. With everyone. And be more proactive in doing so.

1 I did say a slightly stupid casual thing, mea culpa.

2 Lots of stuff in contracts doesn’t ever get invoked. BUT you’re right, all contract clauses have the potential to become important, so if you have concerns with them it is worth taking them seriously even if the chances are that they will never be invoked.

On a few questions:

“Who reviews your contracts periodically?” We did pay a lawyer to review it about five years ago and we changed a few words, but the basic legal situation doesn’t change terribly fast.

“Who makes the decisions when somebody does want to negotiate new language?” The editor negotiates it but the MD approves. It’s pretty simple but dull. Contracts aren’t rocket science as I’m sure you know and there is almost always a precedent somewhere in the files if you take a whlie to search them.

“Who decides when and how to enforce contractual clauses and/or defend allegations of breach?” This kind of stuff happens incredibly rarely. If we really needed a lawyer, we’d get one, but it hardly ever happens.

“If none of this is done by lawyers, it might make you seem friendlier, but it really just makes it *more* likely that things will go totally pear-shaped in the event of a later dispute. ”

Alternatively it just means we don’t take it all uber-seriously and get stressed about it. I accept not all publishers are like that though.

“There is nothing more intransigent than a layperson convinced that their interpretation of a contract is correct and that the other person’s interpretation must therefore just be wrong.” Interesting point – I actually had an anxious author call me once to check a project he was
working on didn’t count as breaching his competition clause. I reassured
him but also advised him that contacting a publisher to ask that kind of
question could backfire – though I think it would honestly be more likely to go wrong because someone legally uncertain didn’t have the confidence to say “no, that’s fine” in writing as most people in publishing have no real training and there are some whose main concern is to avoid being blamed for anything.

That was the other thing I was thinking about when I said “don’t take the competition clause too seriously” – I also meant, don’t give your publisher any choice in the matter if you can help it, even if you have a competition clause. A bit cavalier maybe but as an author that would be my strategy – just do it and tell them to get lost if they start whinging. Most publishers don’t really want to get caught sueing their authors, look at the flak Penguin got for asking for those advances back the other week.