This Is Why Authors Don’t Like Traditional Publishers
You may have heard of Kiana Davenport’s predicament by now. David Streitfeld described it in his article about Amazon in Monday’s New York Times, and he followed up with this post on the Times’ Bits blog yesterday.
Davenport received an advance of $20,000 for a Civil War novel for Riverhead Books, a Penguin imprint. Her book is due to be published next year. Because that amount wasn’t enough to live on — which everyone but Penguin seems to know — she self-published a book of old stories on Amazon. (This was the focus of Streitfeld’s story yesterday, but some of the reactions prompted him to write today as well.)
Here is how Streitfeld describes what happened after Davenport self-pubbed her stories:
Penguin learned of the new work and got upset. In a brief letter
that Penguin’s general counsel, Karen Mayer, sent to the writer, it said the publication of “ ‘Cannibal Nights’ by Amazon violates the ‘next-work’ representation, the no-compete provision and the option clause.” Penguin also said Ms. Davenport had thereby demonstrated her “unwillingness to work in good faith with us” toward publication of the novel. The letter ended by saying the writer had 10 days to repay her advance “to avoid legal action.”
Penguin stated in mid-September that this was “a straightforward matter involving the publisher’s right to publish the author’s next work. It is being handled by the lawyers.”
Jan Constantine, a lawyer for the Authors Guild, wrote a letter to Penguin on behalf of Ms. Davenport. She said that the stories had been offered to Penguin 15 years ago and turned down, that Riverhead had already seen the novelist’s next novel and said it was not interested at this time and that a self-published e-book was hardly competition to the novel but might even promote it.
Davenport’s lawyer pointed out that her sales of her e-book would build her overall presence, and lead to increased sales of her book with Riverhead, but according to the post, neither Penguin nor Davenport’s lawyer had any comment yesterday.
Davenport wrote about her experience on her blog, Davenport Dialogues, in late August and described what appears to have really angered Penguin:
Recently that publisher discovered I had self-published two of my story collections as electronic books. To coin the Fanboys, they went ballistic. 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.
But I think the most telling part of her story is what Penguin demanded in order to proceed with publication of Davenport’s book:
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.
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. It became crystal-clear to me that the issue wasn’t a supposed ‘breach of contract,’ on my part, but the publisher’s fear and loathing of the profoundly threatening Goliath, Amazon. Since CANNIBAL NIGHTS in no way ‘resembles’ or would ‘injure’ sales of the book I had sold them (an entirely different subject matter) I was not in breach of my contract. I stood firm, and refused to capitulate.
Penguin has cancelled Davenport’s contract and demanded repayment of the advance.
What is remarkable — at least to me — is that, according to Streitfeld, “much of the commentary I’ve seen comes down harshly on Ms. Davenport for supposedly violating her contract – as if these agreements were always ironclad and any deviation was punished by cancellation. There was little sympathy for a mid-list writer adrift on the digital seas, and no mention of what a publisher’s responsibility is to a writer during the years it takes to produce a new book.”
Based on what I know — which is based on what I’ve read — I don’t think Davenport breached her contract with Penguin. If Davenport had self-published her short stories on another platform, Penguin wouldn’t have complained. It was Davenport’s decision to self-publish with Amazon that caused Penguin to respond so forcefully (and, one could argue, vindictively).
And that’s a problem for authors — certainly for Davenport right now, but for others whose experiences aren’t as well known — because Amazon isn’t going anywhere, and its model of publishing is going to be more successful ultimately than traditional publishers’, which will produce more reactions like Penguin’s.