Tuesday, April 21, 2009

The Death of a Contract

I was expecting to make this post under more depressing circumstances, but I reached an agreement with my editor. I decide to make the post anyway, because it's informative.

Let's say you've got a book deal with a publisher, agent or no agent. You get the long contract in the mail - easily 10-17 pages - and it feels like you're signing away your work. While you are signing a binding legal agreement, you're not actually selling your soul, nor is your publication really guaranteed, though it's mostly guaranteed. Once the contract is signed by both parties, there are three essential ways a contract can be severed:

(1) The author fails to live up to the obligations stated in the contract. The author doesn't deliver the manuscript by the agreed-upon date, the author refuses to revise, the author dies (the company is not obligated to publish the book if the author dies before delivering the contract, though the estate of the author can push for publication if the manuscript has been delivered), etc.

(2) The publisher fails to live up to the obligations stated in the contract. The publisher does not pay the advance money by the agreed-upon dates or in the agreed-upon amount(s). The publisher does not publish the book within the agreed-upon time (usually a year after signing, sometimes two years). The publisher goes under and stops publishing books. Etc.

(3) The author and the publisher do not reach an agreement on the final version of the manuscript. Either party can sever the contract over this, though it tends to be mutual because there's been a ton of fighting leading up to it. Generally editors buy manuscripts that they like, then ask for some revisions to clean up the manuscript. Sometimes the author will deliver a manuscript radically different from the one that was bought (the version that is "delivered" is a version delivered AFTER signing the contract, not necessarily the version the editor read when deciding whether to buy the book). Sometimes the author will refuse to do revisions because they're too radical (in the author's opinion). Sometimes the real life situation the book is based on, especially if it's a political book, will change dramatically and the author will feel that the book is no longer relevant or needs so much altering that it's not worth publishing.

Either way it's a painful process, feeling a tiny bit like a divorce. If the book is not published, any advance money paid must be returned, though if the author decides to just keep it, the publisher has to then sue to the author to try and get it, and if the advance is small enough the legal fees won't be worth it. The author, if they have other books at the same company, may say, "Take it out of my future royalties for book X" so that the author doesn't have to write a check and the publisher doesn't have to process it. Any money not involving the advance spent by the publisher - in editorial hours, promotion, sales, design, etc - is considered lost and the author is not responsible for publisher's expenses.

Publishers try not to let this happen, but it does. Authors die, or disappear, or don't deliver manuscripts. Publishers are bought by other companies and forced to reduce their line. Publishers go under. The editor who bought the book moves to another company and takes the author with them, involving a whole new contract. It happens. It's one of the reasons the contract is so long, covering a ton of possibilities that are not likely to ever happen but occasionally do. The contract is meant to state what everyone's responsibility is in the production of the book and what happens when situation X or Y occurs, and who is responsible for resolving it. Authors and publishers only go to court when (a) huge sums of money are involved and (b) someone is wildly violating the terms of the contract.

There was a case a year or so ago where someone sued their publisher for "failing to promote the book successfully." Essentially she blamed the publisher for the failure of the book and its low sales. I don't remember who it was or how this case turned out, but it would be a difficult case for a judge in my opinion, as nowhere in the contract does it stipulate what the publisher has to do to promote the book, just that it has to do something. The money allotted to publicity and promotion is not a number the author sees at any point, and would look like monopoly money anyway, because it's impossible to tell what those numbers represent unless you work for that particular company's imprint and know precisely what they typically spend on a book in that genre in the area of publicity and what the budget was when they were deciding and how feasible it was to promote this book anyway. In other words, you would have to be the publisher.

Anyone know how that case turned out?


Mark Roy Long said...

I don't remember the exact case you're referring to, but it reminded me of this recent post at GalleyCat about Dennis Kucinich suing his publisher:


Unknown said...

And then this showed up today:


Anonymous said...

My greatest sympathy to you on the death of your contract. Frankly, I hope that I get the same result on a book I've written as right now, the alternatives are just too horrible to consider.

Just this week I've realised I'm probably going to have to withdraw my latest non-fiction book from publication. I delivered it under deadline in December and the publisher told me it was brilliant; and in February I chased him up and asked about edits, and was told that apart from a light editing to get the text to fit to his standard format (which I was not told of prior to this) he didn't want to change a word.

Then two days ago I had a phone call from the publisher in which I was told the book needed a full and substantial rewrite, it was full of errors, and that I had to introduce material I'd been told not to use when originally briefed for the book.

The errors and problems have all been introduced by the publisher editing the book himself, and getting a friend of his with no previous experience to edit with him.

I am also now required to find Shakespearean quotes which are appropriate to the text, analyse them, and incorporate them into a text which is already, apparently, too long.

The best bit? They want to take the book to print in THREE WEEKS.

I can now try to accommodate these demands; try to get them to delay publication; or refuse to help, let them do as they will with my text, but insist that they take my name off the book.

Yes, I'm spitting blood over this. I am so very angry about it. And you'll note I'm posting anonymously, and I've not named the publisher either. It's on the various lists as being a good one to work with. Not from here, it's not. Damn.

Anonymous said...

Like Mark, the only case I can think of is the Kucinich case, and as far as I know that hasn't gone anywhere yet. There is a bit in there about the publication date that might have been in the contract. If you look at the Cleveland Plain Dealer, you'll see that part of the suit "alleges that Beverly Hills-based Phoenix Books didn't release the book when Kucinich announced his 2008 presidential bid, as it was supposed to".

marty said...

Rejecter, meet Janet Reid; Janet, meet Rejecter :D

"Two authors are suing Gotham Books (part of the Penguin Group) for breach of contract. The news article with a description of the suit is here."

Andrew Wheeler said...

It's probably not the case you were thinking of, but recently Clive Cussler sued Crusader Entertainment over the movie Sahara, made from his book of the same name. Crusader countersued Cussler for sabotaging the movie (he badmouthed it very publicly even before it opened), and it looks like the case is now closed -- with Cussler on the hook for Crusader's legal fees as well as a hefty settlement.

The Rejecter said...

It seems that I'm remembering a couple different cases as one. In the case of Kucinich, if the contract did name a publication estimate ("will be published 1 year after signing"), Kucinich would probably have made triple-sure that date would be well before the elections, and in this case the publisher was derelict in their duties and he can sever the contract. Him suing them is another matter: he perceives (accurately, in this case) that their not producing the book was financially and politically damaging to his campaign, and depending on how much money he's asking for, the request may be reasonable.

none said...

In English law, the standard of marketing would probably be judged by the court against what any similar publishing company might reasonably be expected to do with a similar book; in other words, they'd ask for expert opinion.

I seem to remember Joan Collins's publishers sued her a while back for turning in a crap book; the court decided she'd fulfilled the contract by turning in A book, however crap. IIRC.