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Kiana Davenport’s View of Her Problems with Penguin

I emailed yesterday’s post to Kiana Davenport because I thought she might want to know about it. She was kind enough to email back, and gave me permission to share her response, which is reproduced in its entirety below:

Dear Jeffrey Mehalic, thanks so much for your interest and support. Your readers ask if I breached my contract in any way, but it is answered there in the Bits Blog, Legal documents prove I fulfilled all obligations. Neither my attorneys nor I can understand what motivated Penguin to terminate me, other than sheer terror of Amazon, and the usual despotism of mega-corporations.

The Times article was not so much about me as about the decline of the print publishing industry, and the onslaught of the digital age. I happened to get caught in the cracks of this massive, tectonic shift. Still, I shall mourn the passing of print books and bookstores as we knew them.

Thank you again for your interest, and I wish you all the success in the world. PS…My mother was full-blooded Hawaiian but my father was from Talladega, Alabama. So I have cousins in Texas, Va., W. Va, and Alabama. You have my permission to reprint this email. Kiana Davenport

If anyone from or on behalf of Penguin wants to comment or explain its side of the story, I’m happy to publish whatever I receive.

In the meantime, however, this incident reflects very poorly on Penguin (and, unfortunately, on traditional publishers as a whole). How Penguin reacted to Davenport self-publishing some short stories had nothing to do with any breach of her contract, and has everything to do with its fear of Amazon and other publishing platforms that will make traditional publishers increasingly irrelevant unless they adapt very quickly.

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.

Traditional Publishers Face New Competition in E-Book Market

As if publishers don’t have enough problems. Julie Bosman and Jeremy W. Peters write in today’s New York Times that publishers have a new source of competition: news organizations, magazines, and newspapers, such as The Huffington Post, The New Yorker, and Vanity Fair, that have started to publish e-books. Their infrastructure allows them to get e-books on the market more quickly than traditional publishers, and the quality of the writing rivals what is offered by big publishing houses.

For example, here’s how Vanity Fair published a recent e-book:

When the phone-hacking scandal erupted at Rupert Murdoch’s News Corporation in early July, Vanity Fair collected 20 articles, his family and their businesses and put them in a $3.99 e-book that went on sale July 29. Graydon Carter, the magazine’s editor, wrote an introduction. The articles were then grouped into six chapters, each with a theme that reflected various aspects of Mr. Murdoch’s life.

It’s like having a loose-leaf binder and shoving new pages into it,” Mr. Carter said. “E-books are a wonderful way to do a book and do it quickly. They don’t need to be fact-checked again. They do go through copy-editing. But you’re not reinventing the wheel each time.”

But some publishers are adapting. For example, Random House is partnering with Politico to produce a series of four e-books of 20,000-30,000 words each on the 2012 presidential campaign, which will be released periodically during the campaign.

And of course these e-books lend themselves to e-readers such as the Kindle and the Nook.

I wonder how many other traditional publishers will team up with a different content provider in order to publish e-books. Random House and Politico’s e-books won’t replace Theodore White’s The Making of the President series, but their frequency and timeliness will cause them to appeal to a lot of consumers.

NYT Bestselling Author Opts for Self Publishing

Monday’s Huffington Post had an article entitled “Why Big Authors Are Walking Away from Big Deals to Self Publish,” which is actually a post from  author Joe Konrath’s blog, A Newbie’s Guide to Publishing. If you follow Konrath’s blog at all, you know that he now sells his books exclusively as e-books, and generates sales that have increased consistently. 

Konrath’s latest post features his conversation (via Google Docs) with fellow author Barry Eisler, who has apparently turned down a $500,000 two-book deal from St. Martin’s Press in order to self-publish.

Here is Eisler’s view of traditional publishers:

Think candles vs. electric lights. There are still people making a living today selling candles, and that’s because there’s nothing like candlelight — but what matters is that the advent of the electric light changed the candle business into a niche. Originally, candlemakers were in the lighting business; today, they’re in the candlelight business. The latter is tiny by comparison to the former. Similarly, today publishers are in the book business; tomorrow, they’ll be in the paper book business. The difference is the difference between a mass market and a niche.

Konrath points out two differences between e-publishing and traditional publishing or, as he refers to them, virtual shelves and physical shelves:

First, a virtual shelf is infinite. In a bookstore, they have a limited amount of space. Often, my books are crammed spine out, in section — and I’m lucky if they have a copy of each that are in print. Many times they only have a few, and sometimes none at all. But a virtual shelf, like Amazon or Smashwords, carries all my titles, all the time. And I don’t have to compete with a NYT bestseller who has 400 copies of their latest hit on the shelf, while I only have one copy of mine. We each take up one virtual space per title.

Second, virtual shelf life is forever. In a bookstore, you have anywhere from a few weeks to a few months to sell your title, and then it gets returned. This is a big waste of money, and no incentive at all for the bookseller to move the book.

But ebooks are forever. Once they’re live, they will sell for decades. Someday, long after I’m gone, my grandchildren will be getting my royalties.

Currently, my novel The List is the #15 bestseller on all of Amazon. I wrote that book 12 years ago, and it was rejected by every major NY publisher. I self-published it on Amazon two years ago, and it has sold over 35,000 copies.

Konrath and Eisler’s conversation is worth reading, even if it is long — 13,000 words. But bear a couple of things in mind as you read their comments about the decline of traditional publishing and the corresponding rise of e-publishing. First, both Konrath and Eisler have written several books, which have been published by traditional publishers and provided them with a platform for their e-publishing efforts. Their name recognition and popularity guarantee — to the extent possible — that their e-publishing efforts will succeed. So neither one is trying e-publishing as an unpublished author.

Now, there’s no doubt that e-publishing appeals to a lot of unpublished authors because it avoids much of the delay, frustration, and anxiety associated with traditional publishing. But the reality is that many unpublished authors will have negligible e-sales. So what will they do then? My guess is that some of them will decide to try traditional publishing, some because they don’t have another avenue to try and others because they want the support (financial, not emotional) that traditional publishers provide to the authors whose works they publish.

Obviously, authors like Konrath and Eisler — or even those who have sold far fewer books — are in a better position to take advantage of their success through traditional publishing when they decide to e-publish. For others, though, e-publishing may not be the magic bullet they need for their careers.

Fortuitously, as I was writing this post, up-and-coming romance author E. C. Smith, who writes E. C.’s Ramblings,  made me aware of an excellent interview that Robin Sullivan, who blogs at Write to Publish, conducted last week with Julianne McLean. With no disrespect to Eisler or Konrath, I think most authors will relate more to McLean, who describes the success she’s had with traditional publishing and e-publishing, and, more importantly for those considering e-publishing, explains how she created demand for her e-books.