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.

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11 responses to “This Is Why Authors Don’t Like Traditional Publishers”

  1. Pete says :

    Hi Jeff,

    Query: If she wasn’t under contract with Penguin 10 years ago when it turned down the stories, but her current contract contains the right of first refusal, does the 10 year old offer/rejection even count?

    It seems to me that, if I had been in her shoes, it might have occurred to me to ask – but hindsight is always 20-20.

    And hold the phone a second.

    There’s another e-pub platform besides Amazon?

  2. Jeffrey V. Mehalic says :

    Pete,

    I don’t think her prior offer and Penguin’s rejection satisfies her current contract’s requirement, but it does show that at least ten years ago, Penguin didn’t want to publish the stories.

    I’m not sure that Penguin’s first-refusal requirement even applies here, though, since her work for them is (was) a novel, and what she self-published was a collection of short stories. The right of first refusal typically applies to the same sort of work. This whole episode is much more about vindictiveness than it is about competition.

    And yes, I hear rumors that there are e-publishers besides Amazon.

    Thanks for your comment.

  3. Dan says :

    Have you seen her contract?

    Did she violate it?

    Questions that need answers.

    • Jeffrey V. Mehalic says :

      Dan,

      I have not seen her contract. As I mentioned, what I know about her situation is based on what I’ve read. If Ms. Davenport is willing to provide me with her contract, I’ll be happy to review it and give my opinion, but as she is represented by counsel, she understandably may not want or be able to do that.

      Apparently, Penguin takes the position that she violated her contract, but I’m not convinced that she did.

      Thanks for your questions and comment.

  4. techsurgeons says :

    I read about Penguin’s actions on a tech blog I follow. To paraphrase Winston Churchill, “The publishing houses will always do the right thing… after they’ve exhausted all the alternatives.”

    Thanks for holding their feet to the fire.

    -TG
    @techsurgeons

    • Jeffrey V. Mehalic says :

      TG,

      Thank you very much. I agree that publishers may end up with the right result, but getting there is unnecessarily painful and contentious, as this incident demonstrates.

      Penguin’s actions here should give pause to anyone considering signing with them. Instead of trying to compete head to head against Amazon (even though there was no competition between them regarding Davenport’s works), Penguin reacts to the threat it perceives from Amazon by punishing the person who has the most to lose: its author.

      Not a sounds business strategy for a publisher that is already worried about its future — and should be.

      Thanks again, and take care.

  5. Marilyn S says :

    Poor woman–having to come up with that advance in 10 days. Penguin is going to scare potential authors from publishing with them. I’m guessing Christine won’t be interested in doing business with them for her authors.

    • Jeffrey V. Mehalic says :

      Marilyn S,

      Thank you for your comment. You’re exactly right about Penguin scaring off potential authors. Penguin forgets that there are an increasing number of publishing options for writers (which may have been the very reason it treated Davenport so badly), which means traditional publishers have to treat their authors better, not worse.

      It’s good to see you here. Take care.

  6. Mary Moreno says :

    Hi Jeff – I enjoyed this article. The first thing that came to mind was a caveat I learned from Tad Crawford, publisher of my first nonfiction book (and author of Writer’s Guide to Legal Forms), was never give a publisher the right to your next work. I’m sure Christine would agree. My second thought is that all this publicity might serve the author publicity-wise, and perhaps now Amazon will offer her a contract!

    • Jeffrey V. Mehalic says :

      Mary,

      Thank you for your comments. The right of first refusal is one of those points that an author should negotiate, not accept automatically. If the publisher wants that right for the author’s next work, the publisher should be prepared to pay, in some form, for that right. A lot of authors think they have to give that right to their publisher and don’t attempt to negotiate a better deal.

      And I agree that this controversy will help Davenport’s sales and perhaps position her to get a contract with Amazon — which reinforces how counterproductive Penguin’s decision was.

      Thanks again, and take care.

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