“Don’t Let The Bastards Get You Down”

No author dislikes to be edited as much as he dislikes not to be published.  ~Russell Lynes

By: Stacey Purcell

I’m sure a lot of you have read about author Kiana Davenport’s trouble with a large traditional publishing house. In case you haven’t, I’ll do a short re-cap. This author signed a deal for a book that she wrote which was due to come out in 2012.

So far, so good.

Ms. Davenport has won numerous awards, been previously published and by all rights is a wonderful writer. She is also a fashion model who lived the high life and spent most all of her money. She submitted and was accepted by Riverhead, an imprint of Penguin books. The terms for her new contract were less than what she used to command, but she needed the money that the advance would pay.

Just prior to this arrangement, she came across Joe Konrath’s blog about self-publishing and turned to him for help. With a bit of guidance, she sold a collection of short stories and was successful! She then published a second collection and  the proverbial poop hit the fan!

 “The editor shouted at me repeatedly on the phone.  I was accused of breaching my contract (which I did not) but worse, of ‘blatantly betraying them with Amazon,’ their biggest and most intimidating competitor.  I was not trustworthy.  I was sleeping with the enemy.”

Kiana Davenport immediately hired a lawyer. (Good for her!) He pointed out that the first collection was published before she signed the contract, so they turned their attention to the second collection and demanded that she take it off line, erase all mention on the internet about her short stories and that she submit in writing that she would not publish any of her back log items while her current book was with them. (That would represent a good two or more years of her life.)

Can you say straight jacket?

She refused. (Yay!) They terminated their contract and demanded her advance back. They are also holding her novel hostage until she sends them the money. That’s the whole sordid affair in a nutshell.

My first response to reading about her plight was disbelief. I simply couldn’t believe that an established business under the banner of an even bigger company would resort to classic bully tactics fronted by their legal department. After spending several hours researching articles posted by several amazing bloggers (lawyers included), I can say I was wrong. Do they not realize writers have blogs? Stories like this WILL get out and spread like wild fire.

Authors are urged to remember they are “professionals” in most every writing group out there. If I’ve heard it once, I’ve heard it ad nauseum to always be on my best behavior, remember this is a profession, dress appropriately etc. etc. etc. So I ask the question, “How professional was it that the editor screamed at her over the phone? How professional was it that they called her agent offering treats so she would move forward in the right spirit?” I would also answer the questions by saying that they seem to be on shaky legal ground.

I haven’t seen the contract, I can only interpret the actions by both parties. If the publisher thought they had an iron clad legal stand, there wouldn’t be such an emotional outburst on the editor’s part, and they wouldn’t have tried to offer incentives for her to agree to their terms.

“The vice president and publisher of that house called my agent, offering extra little sweetmeats if I would just capitulate and ‘adopt the right spirit going forward.’  This somewhat sinister and semi-benevolent attempt at mind-control fascinated me.”

I think someone at Riverhead omitted the clause about what they would allow her to publish or not publish during the tenure of their agreement. I also think that if all of the above is true, then they are in breach of contract. By terminating the contract and demanding the advance back, on baseless grounds, they are now in the wrong. I believe they are bluffing by demanding the advance back and I’ll bet that her lawyer is telling her much the same thing. **Remember, I’m not a lawyer and am only expressing my thoughts.**

This whole story makes me sad. Not every publisher is a bad guy, some actually support the idea that the author is out there drumming up business and making their presence known on line. It seems to me that it’s a win-win situation and a model that would help traditional publishers stay afloat in this tumultuous time. Scenarios, like this, hurt everyone and I hope that the coming days as the landscape dramatically changes in our business, we will see calmer, more rational behavior from all.

20 Responses to “Don’t Let The Bastards Get You Down”

  1. You know, as a writer who has been published by a major house, I am constantly excusing the publishers for their really rotten behaviour toward authors. It’s a tough world out there for publishers, etc etc.
    I also constantly repeat the message that the publisher buys one manuscript, while the agent has to take a chance on ALL the writer’s output.
    Apparently I’m wrong.
    Since when, by accepting one manuscript, did a publisher buy ALL the writer’s output ?
    Another step on the road to self-publishing……

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  2. Hi Lyn- I don’t believe all publishers behave badly, but it does seem like an extraordinarily high number do. It’s sad. I think that if they would stop trying to fight the growing tide of authors taking the control back on their own works, and partner with them, they would benefit from it. All authors have wanted is to be treated fairly and receive fair compensation. It’s because those two items are sorely lacking that self publishing has taken off with such passion.

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  3. William says:

    Professionalism, like Manners, seems to have gone the way of T-Rex. Time and time again, I’ve seen examples of “If I YELL, that makes me RIGHT!”, “If I SWEAR, that makes me TOUGH and SCARY”, and my favorite; ask a question, then interrupt the answer to demonstrate you know far more than the other person before the other person can give a thorough and detailed answer which, more often than not, would address every point and/or issue asked.

    This incident (and to quote Stacey, “I am *not* an attorney”) says more about how edgy and perhaps genuinely frightened traditional publishers are these days. For decades, they held the reins, they decided who would or would not be given benediction (how many times has anyone picked up the Hot Book Of The Moment and wondered, “Huh?”), and now there’s been not a sea change but a massive upheaval in the Industry. They have no control anymore, and in an industry based on control, that’s a scary thing.

    It will be quite interesting to see how this all shakes out. Personal opinion only, I’m on Ms. Davenport’s side all the way. I’d love to see The Contract, though, and really would like to see the section or codicil that prohibits her doing as she pleases with other works.

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  4. “They have no control anymore, and in an industry based on control, that’s a scary thing.”
    I think you just summed up the whole matter in one sentence! If they are going to continue being a part of this industry, it can no longer be about control, but rather be about partnering with the author. I think there’s still plenty of pie to go around- they just don’t get to call ALL of the shots anymore.

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  5. jbrayweber says:

    What amazes me is that publishing houses are either too slow or too blind to see this behavior does and will hit the internet with force. Not only do they look unprofessional and underhanded, they are damaging themselves. Writers everywhere will see this and many will choose to submit their work elsewhere. Mars like this effect the perception of publishers as a whole. One more reason to self-publish.

    That said, my publisher is very much about the author marketing themselves, even if that means self-publishing their books. They do see it as a win-win as sales from one helps the others.

    Great post, Stacey.

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  6. Thanks, Jenn. I do believe (and I want to strongly say this out loud) that there are great publishers who “get it”. They want the author to be an active member of the marketing team, even if that means self publishing other works while their book is for sale. It can work to their advantage and it certainly works for ours!!
    I also don’t understand how they think this type of behavior and manipulation won’t get out for public consumption. This is a fairly tight knit community and most folks have blogs. …..things that make you go hmmmmmmmm

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  7. ~Sia McKye~ says:

    Sadly, this is not the first *horror* story I’ve heard about an author publishing other works with Amazon and the publisher pitching a fit (even when there is no contractual clause forbidding it). It is, however, the most blatant breech of professionalism I’ve seen in some time. *shaking my head*

    The thing is, the publishing world–authors, agents, publishers–is a small world because of the internet. Bad behavior gets around much quicker than one would think and stays viral long after the situation is resolved.

    Interesting article, Ma’am.

    Sia McKye’s Thoughts…OVER COFFEE

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  8. Hi Sia and thanks for stopping by Muse Tracks!
    I have also heard other stories similar to this, but not quite to this extent. Unfortunately, it does give the publishers who are trying to work with authors a black eye. We’ll have to stay tuned to see what the fallout of this episode brings.

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  9. Lorin O. says:

    On the other hand…

    A few things jump out at me here. First, of course, we only have the author’s view of the editor’s tone and emotional tenor, which may have been anything from emphatic to heated to downright hysterical. We don’t know. And since this is the author’s account, and the opinions of bloggers BASED on her account, we also don’t have any sense of HER tone in dealing with her editor.

    So, I’d leave aside the issue of the editor’s “professionalism” and look at what we know, which, until the contract is posted online, is really not much.

    Second, if she is, indeed, in breach of her contract, then the publisher has a right to hold onto her MS until she returns their advance or makes some effort to resolve the matter with her publisher. That publisher isn’t really “holding the book hostage;” that publisher has purchased a work to which it’s entitled by virtue of offering that advance and signing that contract with the author. At this point, it’s one lawyer’s opinion versus another’s as to whether or not the contract was breached.

    Third, re: the editor’s efforts to entice to author’s agent’s with bribes of some kind, well, again, we can only speculate as to tone and motive. If that editor DID yell or get heated, maybe this was some effort on her part to make amends or to compensate for the misunderstanding. Or maybe it was not a bribe of any kind but some effort to demonstrate the publishing house’s support for the book, which may not have garnered a massive advance but which they hoped to push, anyway.

    Again, we don’t really know. We only have the author’s characterization of events, and how often have we heard another person’s side of an argument that didn’t correspond to our own recollection of events?

    Fourth, many authors in this position would probably talk to their agents and editors BEFORE putting out their own works. Because they’d want to make sure not to tread on the efforts of their publishers, who have really signed on to act as partners to produce and distribute this work to, one hopes, a large audience. They’d want to make sure they weren’t shooting themselves–and their agent or publisher–in the foot by diluting the impact of the upcoming publication with their own self-publishing efforts.

    That publisher’s ability to launch that author in the most advantageous way and to “brand” that person in a certain manner might be compromised by her self-publishing efforts. Or it might be enhanced. Again, we don’t really know, but it might not have hurt to have some conversation BEFORE the self-published books were launched.

    Lastly, and probably tangentially, I love Amazon as much as the next voracious reader and buyer of tschotkes, but over the years, they have forced publishers into some godawful and untenable positions. And as great as it is to publish directly through them (and to self-publish in general), writers are smart to keep an eye on their practices.

    We all love the playground that is Amazon, but they really HAVE bulied publishers into whittling their profits down to nubs, which does not make them a big friend to writers. Like everyone else, they have the right to do business and to get the most bang for their buck, but the end result of them dominating the book marketplace is NOT a happier day for folks like us.

    Phew. End of dissertation! 🙂

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  10. Hi Lorin!!! I love having you comment here because you have such a deep knowledge of the publishing industry and, as always, such sage advice.
    I totally agree with your assessment of the situation. We have seen one side of the argument and I did state that I haven’t seen the contract (boy am I dying to!) and we will have to wait for the lawyers to hash it all out. You’ve made some really valid points such as contacting her agent and editor before she published anything. We don’t know if her agent knew or not. Her first collection was published before they signed a contract. I assume her agent was aware of the fact that she was going to put out another, but maybe not…
    I have also read about Amazon doing some screwy things to authors as well in the past. Thankfully, they realized the error of their ways and have dropped those silly ideas. Bottom line, this is a business and you always have to be on your toes to protect your rights. Don’t sign anything without reading it, better yet, get a lawyer to read it too and do everything above board.

    Thanks for sharing your opinions here!!

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  11. Suzan Harden says:

    Unfortunately, threats are usually issued by the person with least valid position. Like Sia said, this isn’t the only horror story about publishers behaving badly. Every time DH reads one, he comes into the room where I’m working and says did you hear about this. Then he shakes his head and sayd, “I’m glad you didn’t get a contract and decided to self-publish. These bozos aren’t worth it.”

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  12. Well coming from a lawyer, that means a lot.
    We have many different opinions appearing here and I find all of them fascinating. I also find truths in all of them. Lorin puts forth some interesting, compelling arguments about the industry as a whole and the role Amazon is playing in the changing landscape of publishing. We all have a lot to learn and we must keep vigilant, as with any other industry, about protecting our rights and being educated about our contracts!!

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  13. How often are we, as professional authors, told we must promote, promote, promote. A number of agents and editors want an author to submit a marketing plan before they’ll take an author on.

    So why would a publisher, who like all the big name New York pubs are increasingly threatened by a changing world, try to stifle an author who is actively doing that? Have they forgotten that if people read one thing by an author and like it, they’ll seek out more by her.

    To bind her to promoting nothing but her book with them, is the worst business sense I can imagine. In other words, are they insane?

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  14. Wow- I had no idea that some agents and editors would require a marketing plan before an author is considered. Interesting…

    It does seem to be good business to have multiple things out there for sale to cross promote and gain more exposure. (Assuming they’re all good quality items.) I’m not sure how it benefits a publisher to limit an author like this, especially since they’ve contracted a novel with her and she put a collection of short stories online- doesn’t even seem like it would be direct competition. I’m sure we will learn more of the details with a bit more time. Maybe there’s more to this than we know?

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  15. Kristen says:

    Look, I don’t know a whit about publishing real or not, but I will say that cartoon reminds me of the judges from the last rwa contest I was in! heheheheh

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  16. As I said in last week’s post- YOU CRACK ME UP!!!!!!!

    PS. I’ve had a few judges like that too.

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  17. jeff7salter says:

    I saw a different, abbreviated version of this story a few days ago and it shocked the H*LL out of me.
    If everything happened exactly as it was portrayed — and I followed a link to that author’s own recounting — then that publisher is terrified for its own future. Frantically gathering ‘loyal’ sycophants around themselves and barricading the gates for the doomsday meltdown.
    It has been one of several factors which has convinced me to abandon my search for an agent and any efforts at those NYC print-only houses. I’m subbing my newest — with most potential — ms. to several smaller publishers which don’t require agents and have a far shorter turn-around time.

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  18. I was pretty shocked by this as well. I just couldn’t believe what I was reading and was incensed that a large company would stoop so low. All that being said, Lorin makes some very valid points in that we mostly have one side of the tale so we need to wait for rest of the story to come out. I REALLY REALLY hope it’s not as bad as it seems- how sad is that?

    Many people have emailed me offline as well to share similar feelings as yours. This truly would add one more nail in the coffin of traditional publishing. I think I’m still holding onto that dream…..

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  19. Ruth Kenjura says:

    I think the publishing industry is still in the learning stage with the traditional/indie publishing venues. Most of the traditional publishers are crawling when perhaps they should be running toward the change. A lot of people don’t like change and tend to postpone their entry into new concepts/ideas or manner of doing business and it is my opinion that most of the publishing executives and perhaps editors are in this category. I believe that those publishing houses that have ebooks in place will embrace the author, especially if it isn’t the same type work- authors may indie publish short stories, but publish novels traditionally- the short stories would then work as a marketing tool for the author; It really isn’t about competing against the book, but it should be looked upon as expanding the author’s presence especially on the internet. Unfortunately, this author was caught in the vortex of change and she probably won’t be the last. I think it might be a year or so before all the dust settles and a way of using the author’s ability to indie publish and traditionally publish starts to make sense to the publishers/editors. They will have to rethink the bottom line- instead of the fact they aren’t making money on the short stories or other items, but to accept these as the cost of doing business and the authors self advertising and marketing actions. Embracing radical change is scary, but it won’t disappear, so the best we can hope for is understanding things from both perspectives and doing our homework. If you indie publish- pick a publisher who will embrace it and work with it, rather that against it and hopefully if the author has an agent, then the agent can help ferret out the information. And both the agent and author need read all the fine print on a contract.

    But this is just my opinion.
    Ruth

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  20. Hear hear to you, Ruth!

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