The latest kerfluffle to hit the net with respect to publishing has, of course, to do with The Smoking Gun’s report of Penguin suing several authors in order to recoup advances. Lot of authors (who should really know better) expressing outrage and even a well-known agent weighing in that if Penguin committed such an act against one of their authors why, they’d cut Penguin off from submissions.
Obviously, we don’t know all the facts, but of the authors cited, at least one of them delivered a completely fabricated tale under the guise of memoir. Gee, sounds like grounds for recouping a sizable advance to me. Regardless, here’s what I know as fact:
Fact: Most contracts have provisions/failsafes written in to protect the publisher when an author fails to produce a manuscript (what they define as “failing to produce a manuscript” can be called into interpretation, which we’ll get to in a minute).
Fact: Every author who writes a book for a publisher, signs a contract.
Fact: It doesn’t have to be that you haven’t delivered the book—it can be that the book delivered wasn’t what was promised.
Fact: It could be that the publisher decides for whatever reason strikes their fancy, they no longer want the book, and they are well within their legal rights to do so, no matter how shitty and wrongheaded they are.
How do I know this? (And Lordy, I hate, hate, hate resurrecting this, but dammit, sometimes, it’s just necessary.)
Thank you and thanks to Barb for your patience as [Publisher] and I have taken more time to consider SO SHE DANCES. I’m sorry to send the news now that we’ve decided we can’t proceed with the publication. As personally committed to the project as I am and as much as I wish I could continue working with Barb on the book, I’m afraid it’s just too far from working as a [Publisher] book. By that I mean that, first and foremost, the characters aren’t developed fully enough, apart from Soledad herself, who is not coming across as a likable heroine to root for. Further, the style is overly wordy throughout, thus the story pace is slow.
I had hoped that [Publisher] and the other editors here would agree that further revision could bring the novel the necessary depth and emotional involvement, but unfortunately the group is unanimous in feeling that too much revision is required. And so we will have to cancel the contract now, with the provision that Barb will repay her on-signing advance if and when she sells the project elsewhere.
I’m so sorry to have to say goodbye to this novel. It’s painful to do so, but I’m hopeful that you’ll be able to find a home for the book on an adult- or paperback-original list. Please let me know if you’d like me to put [name redacted] in touch with you to discuss this further.
Yeah, the “Barb” in question was me. That was a letter I received nearly four years ago on a project I had sold nearly sixteen months earlier. Sixteen months of working on a manuscript, sixteen months of having more than one editor tell me how much they “loved it,” but when it finally went up to the final arbiter, the publisher, she decided she didn’t care for it and that, as they say, was that.
And because I had signed the contract, she was well within her rights to do so. And so, I had to sign a letter that read:
“The Publisher hereby exercises its option to terminate the Agreement based on an unsatisfactory manuscript delivered by the Author.
The book in question?
WHEN THE STARS GO BLUE.
Yeah. That one. The same book that wound up winning the International Latino Book Award as Best Young Adult Novel was the same manuscript deemed “unsatisfactory” (or in the parlance of my contract, “an unpublishable product.”)
I gave it one more revision pass on my own, basically to take out a few things I hadn’t agreed with at the time, but that I had put in to appease the publisher, and changed the title, but by and large, the book published by St. Martin’s as WHEN THE STARS GO BLUE was the same manuscript turned down the aforementioned publisher.
I won’t lie. That was the single, shittiest, lowest moment I have ever had in publishing. (And trust me when I say I’ve had more than my fair share of shitty moments at publishing’s hands.) To this day, it continues to fuck with my confidence, because by signing that letter, it was like a public acknowledgement that they were right, even though I knew (and still know) better. However, the simple fact is, I signed the contract that gave the publisher the right to cancel the contract and demand I pay them back.
Was it unfair?
Oh, hell yes.
Was it an abuse of their power?
Obviously, I believe so. The amount of the advance was an absolutely paltry sum (seriously, really paltry) by publishing standards and considering the amount of work I’d put in over sixteen months, never being late with a deadline, essentially being a Good Little Author, I thought it rather churlish of them to demand I repay, especially when you consider the amounts publishers (including this one) have let slide in the past.
They had every right to do so because I signed the damned contract.
The clause wasn’t a surprise—I was fully aware of its existence because I read my contracts beginning to end and ask about what I don’t understand. And it’s not an easy clause to have removed—trust me. I just never imagined it was a clause that would ever be invoked because honestly—the language: “unpublishable product,” seemed unthinkable. I’d already had two books published—had received critical acclaim and won awards—had proven I could produce a publishable product, so no… the idea that I could have a contract canceled because of that particular clause was near laughable.
*cue Fate laughing her snarky ass off*
See, here’s the thing— a term such as “unpublishable product” is an amorphous term—subject to interpretation. For that publisher, their opinion was that I had given them an “unpublishable product” and in retrospect, maybe I had, because that particular imprint certainly didn’t have anything like STARS among their titles or other acquisitions. Look at the editorial letter—they basically said they maybe thought it could find a home as an adult title.
My counterargument would be that they had contracted a book that was an interpretation of Bizet’s Carmen—did they honestly think they were going to get light and fluffy?
The truth is, that particular imprint should never have bought the manuscript. Because in terms of story structure, tone, and execution, I never wavered from the proposal I gave them, nor was it appreciably different from my previous novels. They knew what they were getting—or should have.
I will forever maintain that the bulk of error rests on their shoulders, but in the end, it doesn’t really matter.
Because I signed the damned contract.
And here endeth the lesson.
2 thoughts on “Yeah, publishers really CAN do that.”
I have a question about the portion of the letter versus the contents of the contract. The contract stated that they could demand repayment, but in the letter, it sounds as if they’re saying, “Look, if you get this sold, we’d like our money back.” Did you have to pay them back immediately, or only upon selling the book elsewhere? And how did that impact the book’s eventual performance?
The letter I wound up signing, that I posted the one line from, restated the stipulation that if/when I resold the book that’s when I would have to reimburse them. Theoretically speaking, I could have taken the rights back to the manuscript and opted to never resell it, therefore, I could have kept the money.
However, it was a point of perhaps muleheaded pride on my part, that I wasn’t about to do that. I HAD hoped to sell it for more than I had initially, but my timing was crappy, in that it was right around the time that publishing was tanking utterly, so I actually wound up selling it for less than I had first time around, which meant I netted no financial gain.
Was it a sound business decision? No. But creatively speaking, I had to do it, otherwise, I would have had that albatross hanging over my head, whispering, “Maybe THEY were right…”
As far as impact on the book’s eventual performance, none that I know of.