# Penguin punishes author for ebook



## Jan Strnad (May 27, 2010)

From the NY Times (registration required):



> In 2010 Ms. Davenport signed with Riverhead Books, a division of Penguin, for "The Chinese Soldier's Daughter," a Civil War love story. She received a $20,000 advance for the book, which was supposed to come out next summer.
> 
> If writers have one message drilled into them these days, it is this: hustle yourself. So Ms. Davenport took off the shelf several award-winning short stories she had written 20 years ago and packaged them in an e-book, "Cannibal Nights," available on Amazon.
> 
> ...


http://www.nytimes.com/2011/10 /17/technology/amazon-rewrites -the-rules-of-book-publishing. html?_r=2&hp

Excuse me now, but I'm off to Amazon to check out "Cannibal Nights"!


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## Betsy the Quilter (Oct 27, 2008)

It seems to me there has already been a looooong discussion of this somewhere? Or was that a different case....

ahhh, here it is: http://www.kboards.com/index.php/topic,83575.0.html

Also, I'm moving this to the Book Corner, as it is a discussion of books, not the Kindle itself, thanks.

Betsy


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## KindleMom (Dec 11, 2008)

Penguin appears to not be a very nice/smart company. [Hope that's ok, Betsy. I didn't mean to offend or fire any one up. Just frustrated with their business practices.]

Whenever I go to buy a Kindle book and notice that it costs more than the paperback, it's almost always Penguin. I then head to my library and borrow it. I refuse to pay more for a Kindle book than the paperback. Or hardback. I won't do it. They will ALWAYS lose the sale.


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## Kenneth Rosenberg (Dec 3, 2010)

KindleMom said:


> Penguin is evil.
> 
> Whenever I go to buy a Kindle book and notice that it costs more than the paperback, it's almost always Penguin.


Hmm... I wonder how they justify that, even to themselves. They must have some very strange, convoluted logic.


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## Betsy the Quilter (Oct 27, 2008)

Evil seems a bit strong perhaps .  I know people feel strongly about these issues, but let's not start stoking the fire so soon in the thread.  

Betsy


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## Jan Strnad (May 27, 2010)

Sorry, Betsy, I didn't see the other thread. I just read about the case in the NY Times.


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## bulrush (Aug 14, 2011)

Kenneth Rosenberg said:


> Hmm... I wonder how they justify that, even to themselves. They must have some very strange, convoluted logic.


Failing companies rarely have any logic at all. Except maybe their executives signed contracts with huge bonuses, now the rank and file workers have to find a way to give them their bonuses.


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## Badducky (Sep 20, 2011)

We only really have one side of the story, and the slant of the article is definitely towards the rise of amazon and the (too early to declare) inevitable failure of publishers.

However, Publishers who have strong stables of writers can actually stand up to Amazon. Remember how we got the Agency pricing model of most books instead of everything for 9.99?

In this article the most interesting thing is the interpretation of a non-compete clause. I would love to see how that one is worded, and compare it to ones I've already signed just to see if I'm in danger of this interpretation. As a writer, non-compete clauses that keep me from writing and publishing are things I absolutely do not sign, ever. I used to work in video games and one of the reasons I quietly shifted away was my disgust with the prevailing attitude that my imagination worked 24/7 for only one company.


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## KindleMom (Dec 11, 2008)

I thought the agency pricing was Apple's doing.    Didn't that start with their ipad bookstore?  Sorry, don't know what it's called but I only read on my Kindle, not my ipad.


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## DYB (Aug 8, 2009)

I actually understand Penguin's behavior here.  The author is under contract to them.  The author can't start publishing work outside of her contract.  Just like recording artists can't start recording and releasing music independently or through another label while under contract to a particular label.  Just like, say, Apple employees can't go and work for RIM (BlackBerry) while working for Apple.  It's just not how business functions.  If Penguin has made an investment into the author - they have a reasonable expectation that she will not try to exploit their investment while cashing in somewhere else.


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## DYB (Aug 8, 2009)

KindleMom said:


> I thought the agency pricing was Apple's doing.  Didn't that start with their ipad bookstore? Sorry, don't know what it's called but I only read on my Kindle, not my ipad.


Well, Apple was the catalyst of agency pricing, but it came from the publishers.


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## KindleChickie (Oct 24, 2009)

When your empire is falling, you wage war.

I had relented recently and purchased some ebooks above the 9.99 point.  I think I am going to go back to restricting anything above 9.99.  I am cancelling my preorder for the 3rd book of The Strain trilogy.  I will check it out at the library.

Here is the thing that gets me.  I need the large print books.  If you check the publishers price on large print v normal print, you will see they charge a higher premium.  The logic behind this is it uses more material.  So what is the logic behind charging more for an ebook?  It uses NO material.


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## Badducky (Sep 20, 2011)

Word of advice: If your non-compete clause stipulates that you cannot continue publishing with other companies, including Amazon, re-negotiate that clause. However, it would make sense for Penguin to want this, and it would be easy to miss when reading over a contract if you didn't have help from a good agent or a lawyer.

If you sign a contract with a publisher, and you don't uphold the terms of the contract, you are the one who is at fault, not your publisher. We don't know enough to pass judgment, in this case, and we'll see what the courts say. Regardless, the current media seems to slant heavily towards the excitement of the changing publishing climate at the expense of the details wherein the devil lies.


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## DYB (Aug 8, 2009)

KindleChickie said:


> When your empire is falling, you wage war.
> 
> I had relented recently and purchased some ebooks above the 9.99 point. I think I am going to go back to restricting anything above 9.99. I am cancelling my preorder for the 3rd book of The Strain trilogy. I will check it out at the library.
> 
> Here is the thing that gets me. I need the large print books. If you check the publishers price on large print v normal print, you will see they charge a higher premium. The logic behind this is it uses more material. So what is the logic behind charging more for an ebook? It uses NO material.


Ha! Don't confuse them with logic!


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## Aaron J Booth (Oct 13, 2011)

Badducky said:


> If you sign a contract with a publisher, and you don't uphold the terms of the contract, you are the one who is at fault, not your publisher. We don't know enough to pass judgment, in this case, and we'll see what the courts say. Regardless, the current media seems to slant heavily towards the excitement of the changing publishing climate at the expense of the details wherein the devil lies.


I am in agreement with this. I feel that if you sign something, you can't expect sympathy when you break it. The publisher wanted the item deleted and removed from the internet, that is an acceptable request and a fair one in the event that the writer did what they did unknowingly. They could have just outright sued them for breach of contract, but they offered that first.

I am fortunate that my contract is a 'per book' deal where each contract is for each book and not for my soul.


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## jbcohen (Jul 29, 2011)

I am with Kindle Chickie,  I will not pay over $8 for anything - don't care how good or bad the writting is or who wrote it.  No one is worth over $8.


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## history_lover (Aug 9, 2010)

I don't like Penguin for a lot of reasons but I doubt they would sue an author if they didn't have sound legal reason to do so. If it said in her contract that she could not release any other work with another publisher or by self publishing then she did break her contract and Penguin are right to sue her. I'm pretty sure these kind of contracts have existed for a long time and it's pretty standard especially with major publishers. If the author wasn't happy with the contract, she shouldn't have signed with them. She agreed to the terms and then broke the terms... and somehow Penguin are the "evil" ones? Sorry, but as much as Penguin has done to tick me off, I have to say, I don't see anything immoral about what they're doing here.


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## KateEllison (Jul 9, 2011)

The Passive Voice blog (which mainly focuses on the contract/legal side of publishing) did a post about this awhile ago:

http://www.thepassivevoice.com/09/2011/indie-author-goes-traditional-a-cautionary-tale/

The author, Kiana Davenport, also did a long post about it on her blog. She says she did not violate her contract.

Here's what she wrote about it: http://kianadavenportdialogues.blogspot.com/2011/08/sleeping-with-enemy-cautionary-tale.html

I'm pretty disappointed with Penguin. Even if she did violate her contract (which I do not think she did), calling her and YELLING over the phone, or making accusations about "going to the enemy" are childish and unprofessional.


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## Betsy the Quilter (Oct 27, 2008)

KateEllison said:


> Here's what she wrote about it: http://kianadavenportdialogues.blogspot.com/2011/08/sleeping-with-enemy-cautionary-tale.html
> 
> I'm pretty disappointed with Penguin. Even if she did violate her contract (which I do not think she did), calling her and YELLING over the phone, or making accusations about "going to the enemy" are childish and unprofessional.


Let's be careful in discussing this; Ms. Davenport characterizes the discussion as "shouting" which may certainly be true, but she does not say that the editor said she was "going to the enemy." She characterized what the editor said as accusing her of "sleeping with the enemy" but did not say the editor used those words. Here's the quote from her blog:



> 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.


Note the quote ends at "blatantly betraying them with Amazon." (Strong enough in itself if it's a direct quote.)

All I'm saying is please be accurate when attributing words to people. These discussions get heated enough as it is.

Thanks!

Betsy
KB Moderator


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## DYB (Aug 8, 2009)

KateEllison said:


> The Passive Voice blog (which mainly focuses on the contract/legal side of publishing) did a post about this awhile ago:
> 
> http://www.thepassivevoice.com/09/2011/indie-author-goes-traditional-a-cautionary-tale/
> 
> ...


The thing is that all these accusations are coming from the author - who obviously considers herself an injured party and sees no problems with her own actions. I think she did make a huge faux pas: she began self-publishing things while under contract to someone else. She became her publisher's competition by self-publishing her own works, no doubt anticipating that the publisher's promoting of her new novels would help her with her own personal sales. Business just doesn't work that way. Penguin might have rejected her early work; but since she is now under contract to them if she wanted it published she should have brought them back to Penguin and offered them yet again. And then if they were not interested she should have asked for permission to self-publish them. But she really never thought that releasing material on her own while under contract to a publisher for a soon-to-be-published novel that had a large advance was a problem? That's very naive.


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## Brem (Jun 29, 2011)

I think it's pretty sad that a publisher is doing this because of some short stories. She's was still planning on selling her main book through them so I don't see why they went this route.


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## DYB (Aug 8, 2009)

Brem said:


> I think it's pretty sad that a publisher is doing this because of some short stories. She's was still planning on selling her main book through them so I don't see why they went this route.


I think from the publisher's perspective: she is their author, they were going to spend money publicizing her name and her writing (through advertising and publishing of a novel) - and she's selling something on the side and collects all the profits.


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## MariaESchneider (Aug 1, 2009)

KindleMom said:


> I thought the agency pricing was Apple's doing.  Didn't that start with their ipad bookstore? Sorry, don't know what it's called but I only read on my Kindle, not my ipad.


I was going to say this. Without Apple as an outlet, I'm not sure the publishers would have gone the route they did. They managed to get their pricing controlled, but I doubt it has helped sales or their IP.


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## Andre Jute (Dec 18, 2010)

DYB said:


> I actually understand Penguin's behavior here. The author is under contract to them. The author can't start publishing work outside of her contract. Just like recording artists can't start recording and releasing music independently or through another label while under contract to a particular label. Just like, say, Apple employees can't go and work for RIM (BlackBerry) while working for Apple. It's just not how business functions. If Penguin has made an investment into the author - they have a reasonable expectation that she will not try to exploit their investment while cashing in somewhere else.


There are ways to handle these matters. For a start, a writer should always keep his publishers of record fully informed. But, once that is done, the author should be free to publish non-competitive books. I fondly remember my publishers freely giving me introductions to other publishers for kinds of books they didn't publish. Publishing was much nicer, once, when the expense accounts were also bigger and the lunches better.

There is no way a book of short stories can compete with a historical novel. It's rubbish. Very likely what happened here is that Penguin had second thoughts about the novel they commissioned from her and is using the book of short stories as an excuse to break the contract.

We might expect quite a bit more of this sort of behaviour, as an excuse to break now-unwanted contracts, and as an expression of publishers' anger at the way the ebook thing has developed, and no doubt there are some publishers deliberately making an example of a few authors to inspire fear in the rest.


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## Math (Oct 13, 2011)

KindleChickie said:


> When your empire is falling, you wage war.
> 
> I had relented recently and purchased some ebooks above the 9.99 point. I think I am going to go back to restricting anything above 9.99. I am cancelling my preorder for the 3rd book of The Strain trilogy. I will check it out at the library.
> 
> Here is the thing that gets me. I need the large print books. If you check the publishers price on large print v normal print, you will see they charge a higher premium. The logic behind this is it uses more material. So what is the logic behind charging more for an ebook? It uses NO material.


I can completely understand what you are saying - but downloading some software is the same price as buying it in the shop and it doesn't use material. I suppose we all know if they can lower production costs - they have a choice: lower the selling price - or keep the same price and have a greater profit. Hmmm, which will it be??!! 

It is an interesting arguement regarding the pricing of ebooks. In my opinion - ebooks were/are cheap purely to get them established as a medium. As a result - they are considered the poor relative of paper books. However, now public opinion is shifting (helped by the tech that is being embraced more and more by the public) the ebook will soon be considered equal to a paper book. I think this because this is all shown in how publishers are slowly but surely equalising the pricing of the media of electronic and paper. At the end of the day - it's the work, not the medium that they are selling (and I think this is the new mantra of publishers' justification of high-priced ebooks).


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## KindleChickie (Oct 24, 2009)

Math said:


> I can completely understand what you are saying - but it could be argued why someone like me, who bought a laptop with Office Starter - why can't I download the full program for free as it doesn't use material...
> 
> It is an interesting arguement regarding the pricing of ebooks. In my opinion - ebooks were/are cheap purely to get them established as a medium. As a result - they are considered the poor relative of paper books. However, now public opinion is shifting (helped by the tech that is being embraced more and more by the public) the ebook will soon be considered equal to a paper book. I think this because this is all shown in how publishers are slowly but surely equalising the pricing of the media of electronic and paper. At the end of the day - it's the work, not the medium that they are selling (and I think this is the new mantra of publishers' justification of high-priced ebooks) Phew!


Because Windows starter and the full program and two different softwares. A book, whether large print or not, is still the same book. And if it were all about "equalizing", why are people with sight problems forced to pay so much more? That is when the publishers decided to even release a large print edition.

And I know people someone who owns a publishing company. Printing books is a huge expense.


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## DYB (Aug 8, 2009)

Math said:


> I can completely understand what you are saying - but downloading some software is the same price as buying it in the shop and it doesn't use material. I suppose we all know if they can lower production costs - they have a choice: lower the selling price - or keep the same price and have a greater profit. Hmmm, which will it be??!!
> 
> It is an interesting arguement regarding the pricing of ebooks. In my opinion - ebooks were/are cheap purely to get them established as a medium. As a result - they are considered the poor relative of paper books. However, now public opinion is shifting (helped by the tech that is being embraced more and more by the public) the ebook will soon be considered equal to a paper book. I think this because this is all shown in how publishers are slowly but surely equalising the pricing of the media of electronic and paper. At the end of the day - it's the work, not the medium that they are selling (and I think this is the new mantra of publishers' justification of high-priced ebooks).


I agree with you here. Consider that digital music - when first introduced for purchase by iTunes - was 9.99 per album and .99 per song. Steve Jobs insisted on it and arm-twisted record labels into it. But that is no longer the case. Single-disc albums can go up to $14.99 and individual songs are now as much as $1.29. No doubt that price will continue to climb to what were previous compact disc prices (frequently $19.99 per disc.)


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## history_lover (Aug 9, 2010)

KateEllison said:


> The author, Kiana Davenport, also did a long post about it on her blog. She says she did not violate her contract.


I find that hard to believe. I could be wrong but I just think it's unlikely that a major publisher like Penguin wouldn't stipulate in it's contracts that authors can't publish outside of Penguin. I'm no fan of Penguin but it's _because _I believe Penguin to be a greedy, capitalist company that I find it hard to believe they wouldn't include this in a contract. Like I said before, I'm pretty sure this is a common part of a publishing contract, especially with major publishers.



> Here's what she wrote about it: http://kianadavenportdialogues.blogspot.com/2011/08/sleeping-with-enemy-cautionary-tale.html
> 
> I'm pretty disappointed with Penguin. Even if she did violate her contract (which I do not think she did), calling her and YELLING over the phone, or making accusations about "going to the enemy" are childish and unprofessional.


Don't forgot it would benefit her to exaggerate things. We're really only getting her side of the story.


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## S.A. Reid (Oct 3, 2011)

Andre Jute said:


> There is no way a book of short stories can compete with a historical novel. It's rubbish. Very likely what happened here is that Penguin had second thoughts about the novel they commissioned from her and is using the book of short stories as an excuse to break the contract.
> 
> We might expect quite a bit more of this sort of behaviour, as an excuse to break now-unwanted contracts, and as an expression of publishers' anger at the way the ebook thing has developed, and no doubt there are some publishers deliberately making an example of a few authors to inspire fear in the rest.


What a good point. This has the ring of truth.


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## DYB (Aug 8, 2009)

Andre Jute said:


> There are ways to handle these matters. For a start, a writer should always keep his publishers of record fully informed. But, once that is done, the author should be free to publish non-competitive books. I fondly remember my publishers freely giving me introductions to other publishers for kinds of books they didn't publish. Publishing was much nicer, once, when the expense accounts were also bigger and the lunches better.
> 
> There is no way a book of short stories can compete with a historical novel. It's rubbish. Very likely what happened here is that Penguin had second thoughts about the novel they commissioned from her and is using the book of short stories as an excuse to break the contract.
> 
> We might expect quite a bit more of this sort of behaviour, as an excuse to break now-unwanted contracts, and as an expression of publishers' anger at the way the ebook thing has developed, and no doubt there are some publishers deliberately making an example of a few authors to inspire fear in the rest.


It's not about this particular collection of short stories competing with a historical novel. It's about an author using publicity paid for by her publisher to make money on the side. Exclusivity in contracts in the arts is not new and it's not rare. If this particular author thought she could have Penguin promote her and her novel - while she sold her other writings privately - she is, at best, extremely naive. And I would be very surprised if such exclusivity was not a standard clause in all contracts Penguin issues their authors.


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## history_lover (Aug 9, 2010)

DYB said:


> It's not about this particular collection of short stories competing with a historical novel. It's about an author using publicity paid for by her publisher to make money on the side. Exclusivity in contracts in the arts is not new and it's not rare. If this particular author thought she could have Penguin promote her and her novel - while she sold her other writings privately - she is, at best, extremely naive. And I would be very surprised if such exclusivity was not a standard clause in all contracts Penguin issues their authors.


Exactly, well said.


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## Andre Jute (Dec 18, 2010)

DYB said:


> It's not about this particular collection of short stories competing with a historical novel. It's about an author using publicity paid for by her publisher to make money on the side. Exclusivity in contracts in the arts is not new and it's not rare. If this particular author thought she could have Penguin promote her and her novel - while she sold her other writings privately - she is, at best, extremely naive. And I would be very surprised if such exclusivity was not a standard clause in all contracts Penguin issues their authors.


If you say so. But it appears that your interpretation is based on speculation about what Penguin would do, and what Penguin's contract would contain. I haven't seen this particular contract either, of course.

However, I have contracts as a writer, editor, packager and consultant with over 80 of the 100 largest publishers in the world, including one division or another of all the current big six, and for years a publishing contract I drafted for Hyland House of Melbourne was held up in London and often in NY too as a model contract (among others by me, in several standard textbooks for other writers), and widely used in various versions.

In all of that, I have never seen a single clause that said a writer couldn't publish elsewhere because the publisher was *promoting* her. FYI, Penguin had and has no intention whatsoever of promoting a writer they gave a 20K advance. A 20K book is just doclat-filler, mousebait, padding for the back of the catalogue, perhaps in a coming or reviving genre. It would be most amusing watching a smart lawyer tear apart the Penguin bosses for perjury if they tried to claim in court that they intended to promote this author. At best, and a smart lawyer would shred that too, they might claim they were throwing the cloak of Penguin's good name over the author, and they would be very hard put to make that case, and it still wouldn't cover canceling the contract for the author publishing a book of short stories of whatever nature and quality. (For your further information, mainstream publishing contracts don't have a morals clause either, though I suppose religious publishing might try it on.)

What I have seen, always, and also wrote into the model contract I drafted, as fair to both parties, is a clause excluding the publication of *competing works*. This is a standard clause to stop Quickbuckpublishing from rushing in and offering a writer with a bestseller on the list of Respectablepublisher a pot of money to make a quick'n'shoddy Chinese copy under a near-similar name, a practice that was fairly common before any of us were born. By longstanding practice it does not apply to a different sort of book, or a book on a different subject.

The author did absolutely the right thing in going public with Penguin's meretricious attempt to make the non-competing clause mean something it was never intended to mean. I pray that Penguin is stupid enough to go to court about it. The Writer's Guild should take up this author's instance as a test case, and force Penguin to expose their malice by trying to justify this abuse the contract.

There is further evidence that Penguin is using the clause as an excuse to make an example of the author for supporting ebooks. According to the report by Kate Ellison above, the author claimed there was 'YELLING over the phone, or making accusations about "going to the enemy..."'. Guess who the enemy is.


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## DYB (Aug 8, 2009)

Andre Jute said:


> If you say so. But it appears that your interpretation is based on speculation about what Penguin would do, and what Penguin's contract would contain. I haven't seen this particular contract either, of course.
> 
> However, I have contracts as a writer, editor, packager and consultant with over 80 of the 100 largest publishers in the world, including one division or another of all the current big six, and for years a publishing contract I drafted for Hyland House of Melbourne was held up in London and often in NY too as a model contract (among others by me, in several standard textbooks for other writers), and widely used in various versions.
> 
> ...


You're missing the point. Promotion is not the point. The point is being under contract and not publishing materials somewhere else. This is not unique in the arts. Giuseppe Verdi used to be published by Casa Ricordi. He couldn't be published by anyone else. Ingrid Bergman was under contract to Warner Bros. and couldn't make movies anywhere else without their permission. Madonna used to record for Reprise and couldn't record music for someone else. If she were to record music for someone else she'd have to get permission from her record label and the subsequent release would read: "Madonna appears courtesy of Reprise Records." The author in question thinks she's a free agent while accepting advances from a major publisher. As far as screaming over the phone: all we have is the author's word for that. What actually happened and who said what to whom remains unknown.


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## Andre Jute (Dec 18, 2010)

DYB said:


> You're missing the point. Promotion is not the point. The point is being under contract and not publishing materials somewhere else. ... The author in question thinks she's a free agent while accepting advances from a major publisher.


Whatever you may think, there is no obligation in any publishing contract of which I have ever heard of "not publishing materials somewhere else." The contract regulates the arrangements between author and publisher for the single intellectual property of a book or series. What you propose in "the author in question thinks she's a free agent while accepting advances from a major publisher", is grossly at variance with accepted practice, and a huge increase in a publisher's power, totally outrageous. The author _*is *_a free agent in anything but the book under question, and directly competing books published at or near the same time. To posit anything else, as you do, would lead to publishers of a single book owning an author for life.


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## JRTomlin (Jan 18, 2011)

DYB said:


> I actually understand Penguin's behavior here. The author is under contract to them. The author can't start publishing work outside of her contract. Just like recording artists can't start recording and releasing music independently or through another label while under contract to a particular label. Just like, say, Apple employees can't go and work for RIM (BlackBerry) while working for Apple. It's just not how business functions. If Penguin has made an investment into the author - they have a reasonable expectation that she will not try to exploit their investment while cashing in somewhere else.


This.

The contention that a writer can never publish anything else anywhere is absurd. And the likelihood that what she did publish would compete with the Penguin book looks pretty unlikely.

This is likely to end up in court and I hope it does. Penguin is simply going after novelists, further trying to stem the growth of ebooks. That is their corporate policy which is the reason for their ridiculous pricing schemes. If there is one publisher that deserves to go down the tubes, it's Penguin.


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## DYB (Aug 8, 2009)

Andre Jute said:


> Whatever you may think, there is no obligation in any publishing contract of which I have ever heard of "not publishing materials somewhere else." The contract regulates the arrangements between author and publisher for the single intellectual property of a book or series. What you propose in "the author in question thinks she's a free agent while accepting advances from a major publisher", is grossly at variance with accepted practice, and a huge increase in a publisher's power, totally outrageous. The author _*is *_a free agent in anything but the book under question, and directly competing books published at or near the same time. To posit anything else, as you do, would lead to publishers of a single book owning an author for life.


No, it would lead a publisher to owning an author for the duration of a contract. Which is how it works in the music industry and how it worked during Hollywood's studio system. And how it works in reality television industry today with "talent" who sign on to appear in reality TV shows, etc.


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## DYB (Aug 8, 2009)

JRTomlin said:


> This.
> 
> The contention that a writer can never publish anything else anywhere is absurd. And the likelihood that what she did publish would compete with the Penguin book looks pretty unlikely.
> 
> This is likely to end up in court and I hope it does. Penguin is simply going after novelists, further trying to stem the growth of ebooks. That is their corporate policy which is the reason for their ridiculous pricing schemes. If there is one publisher that deserves to go down the tubes, it's Penguin.


At no point did I say "never publish anything else anywhere," so I would appreciate if things I did not say would not be attributed to me and then used as weapons.

In fact, last year Madonna's contract with Warner Bros. expired and she went elsewhere. But as long as she was under contract to one label - that's the only label she could record for.


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## Not Here (May 23, 2011)

Seems to me that comparing authors with musicians isn't quite the same. The music industry doesn't make just one song and walk away. They contract for a whole album and then work in tours and such. It's a whole package deal. Not to mention that the repercussions for backpedaling on a deal would mean far more than just handing over the rights to the songs (like seen when publishing companies decide not to publish a work).

I would say that we should be doing a comparison to journalist. As with journalist, most authors actually work freelance. The publisher's usually have first dibs on the next book but they can pass. Deal done and door closed. In this case it would really depend on if she signed an exclusive or not. But why should an author need to be loyal when the publishing company isn't particularly loyal to them? Don't get me wrong, I have no problem with publishing companies. It's a business. I think it was more like what Andre said, the publisher wanted a way to back out and found it. If the book was something they loved (ie would make them tons of money) I don't think they would have walked. Bottom line, this isn't about teaching the author a lesson or vengeance, it's about money. Guess we'll just have to see what the contract actually said if they go to court.


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## DYB (Aug 8, 2009)

fayrlite said:


> Seems to me that comparing authors with musicians isn't quite the same. The music industry doesn't make just one song and walk away. They contract for a whole album and then work in tours and such. It's a whole package deal. Not to mention that the repercussions for backpedaling on a deal would mean far more than just handing over the rights to the songs (like seen when publishing companies decide not to publish a work).
> 
> I would say that we should be doing a comparison to journalist. As with journalist, most authors actually work freelance. The publisher's usually have first dibs on the next book but they can pass. Deal done and door closed. In this case it would really depend on if she signed an exclusive or not. But why should an author need to be loyal when the publishing company isn't particularly loyal to them? Don't get me wrong, I have no problem with publishing companies. It's a business. I think it was more like what Andre said, the publisher wanted a way to back out and found it. If the book was something they loved (ie would make them tons of money) I don't think they would have walked. Bottom line, this isn't about teaching the author a lesson or vengeance, it's about money. Guess we'll just have to see what the contract actually said if they go to court.


It's true that musicians aren't the same as writers. The music industry, however, doesn't sign contracts for one album. They tend to sign performers for multiple albums at a time. Exclusivity contracts are the norm, not exceptions. I'm a freelancer myself. I am free to move from job to job - once my contract (which can be for a few weeks or a few months - whatever I agree to) is honored. Another example: singers who sing at the Metropolitan Opera sign contracts that they can not perform anywhere else in NYC several months before and after their Met engagement. A few years ago the soprano Anna Netrebko ran into trouble over such a contract when she scheduled her Carnegie Hall debut recital around the time of some Met performances. The Met forced her to honor her contract to them and she cancelled her Carnegie Hall debut that year.

What is absolutely true here is that we don't know the details of that contract. I just doubt that Penguin lawyers would have made a stink if they didn't think they had a leg to stand on.


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## Not Here (May 23, 2011)

Well I'm sure the lawyers think they have a leg to stand on but that's saying they had a hand in the letting go. Besides, big fish typically have better lawyers and I'd be willing to bet they are hinging their case more on that than anything.

See my problem is that from my readings, I can't find any indication that authors typically sign exclusive rights. It seems to me more an unwritten rule and the author really made a publishing faux pas. Music aside, (which I had no idea about all those thing, very interesting) I still think it's not quite the same thing. As you said, they contract for several albums. No such thing is done in publishing unless explicitly contracted. It's usually a book by book case.

It will be interesting to see where this plays out.


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## StaceyHH (Sep 13, 2010)

Andre Jute said:


> If you say so. But it appears that your interpretation is based on speculation about what Penguin would do, and what Penguin's contract would contain. I haven't seen this particular contract either, of course.
> 
> However, I have contracts as a writer, editor, packager and consultant with over 80 of the 100 largest publishers in the world, including one division or another of all the current big six, and for years a publishing contract I drafted for Hyland House of Melbourne was held up in London and often in NY too as a model contract (among others by me, in several standard textbooks for other writers), and widely used in various versions.
> 
> ...


Wow, you sure know a lot about a contract that you've never seen and don't know anything about.


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## JRTomlin (Jan 18, 2011)

DYB said:


> It's true that musicians aren't the same as writers. The music industry, however, doesn't sign contracts for one album. They tend to sign performers for multiple albums at a time. Exclusivity contracts are the norm, not exceptions. I'm a freelancer myself. I am free to move from job to job - once my contract (which can be for a few weeks or a few months - whatever I agree to) is honored. Another example: singers who sing at the Metropolitan Opera sign contracts that they can not perform anywhere else in NYC several months before and after their Met engagement. A few years ago the soprano Anna Netrebko ran into trouble over such a contract when she scheduled her Carnegie Hall debut recital around the time of some Met performances. The Met forced her to honor her contract to them and she cancelled her Carnegie Hall debut that year.
> 
> What is absolutely true here is that we don't know the details of that contract. I just doubt that Penguin lawyers would have made a stink if they didn't think they had a leg to stand on.


Sure they would knowing they don't have a leg to stand on. Big companies try to bully people all the time and frequently get away with it.

Publishing contracts and music contracts are simply not the same. It doesn't matter what is standard in the music industry. That is _not_ what is standard in the publishing industry. And some of us have seen and signed contracts, if not this one.

Standard publishing contracts apply to competing works. You don't put out another horror when you just did a horror. But it is standard (and one of the reasons that so many writers have multiple pseudonyms) to put out other genre, largely because a lot of publishing companies will only publish one novel a year from the same author, and few authors can make a living publishing at that rate.

I know literally dozen of authors who put out works like that. It is just part of the industry and has been for years.


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## JRTomlin (Jan 18, 2011)

DYB said:


> At no point did I say "never publish anything else anywhere," so I would appreciate if things I did not say would not be attributed to me and then used as weapons.
> 
> In fact, last year Madonna's contract with Warner Bros. expired and she went elsewhere. But as long as she was under contract to one label - that's the only label she could record for.


Madonna was under a publishing contract to Warner Bros, was she?

No. I thought not.

Music contracts have nothing, I repeat, *nothing* to do with publishing contracts.

Writers do NOT sign exclusive contracts. That is simply the way that it is.


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## Jon Olson (Dec 10, 2010)

Just to say, Kiana Davenport is a great writer. Worth anyone's time.


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## Math (Oct 13, 2011)

JRTomlin said:


> Madonna was under a publishing contract to Warner Bros, was she?
> 
> No. I thought not.
> 
> ...


I'm very sorry, but I don't understand what is going on  Maybe I have the wrong idea.

I don't get it - so if (forget the website for minute) JK Rowling announced 5 more Harry Potter books, you are seriously telling me that a publisher wouldn't even _ask _ her to be all works exclusive to their publishing house for the time she wrote those 5 books? 'Here's your suitcase full of money, Jo, but by the way, you can't...'
Have got the wrong end of the stick?

A contract is a contract is a contract. No-one can say that "_a written or spoken agreement, especially one concerning employment, sales, or tenancy, that is intended to be enforceable by law" _ is a standard thing, and has anything or nothing to do with any other person or situation. It is up to the two parties involved who sign on the dotted line. Isn't that the whole idea of a contract? Isn't that why contracts exist - because it is an individual agreement?

Contracts are individual - which means they can be as day is to night from another contract (hence clauses) - or absolutely identical to another contract.

My goodness, never mind the murky world of media/music/etc - I've lost count the amount of times workmates that do the same job in a shop or office have different contracts!!! Fair? No! Reality? Yes! If someone on the next desk has different working conditions/hours/pay, and you do the same job 9-5 - how on earth does one expect to generalise contracts for authors or artists? Yes the skeleton will be the same, but surely they will be fleshed out with different clauses based on...drum roll(!)....money!!! It must be me - but I just don't understand. 

At the end of this - I think the lesson this thread is giving me is: Make sure I have the right clauses for me at the right time. I don't have to sign it otherwise, so if I don't like the contract, either do what I'm told - or walk. Finally, if it's not in the contract, then it's in court.


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## Jan Strnad (May 27, 2010)

> A contract is a contract is a contract.


Not quite. If that were true, a lot of lawyers would have a lot less work. Any contract will have clauses that are open to interpretation, and any contract can be overturned in court if it's shown to be too lopsided in favor of one party over the other.

Again, without seeing the contract in question, we can only speculate, but the disagreement seems to hinge on some kind of "non-compete" clause, which may or may not apply to the author's self-publishing an anthology of short stories.

But whatever the niggles of the contract are, the gist of the matter is that the short stories can only promote  the novel and the novelist and help sales, and that Penguin is not operating out of business sense or legality but out of fear, anger, and greed.

Fear, anger, and greed...any one of these can make us do stupid things. (So can love, but I don't believe Penguin is feeling the love right now!) Penguin is feeling fear of the future, anger with any author who doesn't toe their line, and greed to protect the profits of their outmoded print publishing model. And so, they are acting very stupidly.

Right or wrong legally, Penguin is losing an author, putting off others (what author with any "heat" would sign with Penguin after reading about this?), and making itself look bad to readers. How is this posturing going to put a single dime in their pocket? How is spending tens of thousands of dollars suing an author going to benefit their bottom line? It won't. It can't.

It's stupid.


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## StaceyHH (Sep 13, 2010)

Jan Strnad said:
 

> But whatever the niggles of the contract are, the gist of the matter is that the short stories can only promote  the novel and the novelist and help sales, and that Penguin is not operating out of business sense or legality but *out of fear, anger, and greed.*
> 
> It's stupid.


Here's business sense for you:

You sign a contract and pay a sum of money to someone for the rights to their book. You intend to release the book in hardcover ($27), in trade ($15), and in ebook ($10). The author has a following who is perhaps patiently waiting for this book, and the you, the buyer, have some expectation that you can make a modest profit off of this book, on top of what you've already paid the author.

A few months before release, the author self-publishes a book of stories at (let's be generous with the self-publishing price) $3. You, who have now invested tens of thousands of $$ into the still as-yet-unpublished novel, have no creative or editorial input over the self-published novel. Maybe it has errors that create negative buzz, maybe you would have wanted to publish the stories, maybe you feel like it takes the edge of the anticipation thus reducing sales, maybe the stories are unedited or poorly edited. Maybe you just don't like the price undercut, and would prefer all of the buzz to have been about your upcoming release. Maybe you had a right of first refusal clause, and you hadn't yet released the work. Maybe you wouldn't have minded so much if the cheaper self-published collection had been self-published after the book you are producing hit trade.

At any rate, you feel like your author did an end run around you, and now you feel like this person is not worth the trouble of continuing to represent. You feel your author is in breach of contract, and if she is willing to break the contract in this way, _before you even complete production of her book,_ what else is she going to end up doing. You decide that you really don't want to do business with this person.

How is that not a business decision? How is this "fear, anger and greed?"

I don't know the particulars of this contract any more than anyone else on this board does, but I can see all sorts of scenarios that would fall under "business decision," and very few that would be "fear, anger, and greed."

Let's see the contract. Then we can all engage in fingerpointing and Publisher-bashing (maybe.)


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## DYB (Aug 8, 2009)

StaceyHH said:


> Here's business sense for you:
> 
> You sign a contract and pay a sum of money to someone for the rights to their book. You intend to release the book in hardcover ($27), in trade ($15), and in ebook ($10). The author has a following who is perhaps patiently waiting for this book, and the you, the buyer, have some expectation that you can make a modest profit off of this book, on top of what you've already paid the author.
> 
> ...


I wish we had a "Like" button here!


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## ArtMayo (Sep 13, 2011)

Book contracts are, for some reason, kept ridiculously secret, but most will have a kind of non-complete clause in designed to protect the publisher from the author releasing another book on the same topic within a certain time frame (sometimes the duration a book is in print), in order to prevent them cannibalising sales (no pun intended).

Thing is, it's kind of hard to enforce unless the author is very blatant about it (using the same words and so on). I've even worked on books that were re-written and re-released with titles that differed by _only two words_, a mere two years apart. (Contractual lock out was for as long as the book was in print.)

We never pursued them. Because really, it's only for stopping authors from straight duplicating what is already out there.

I'm a little mystified by Penguin's decision. Perhaps it has more to do with how they wanted to manage her emergence as a writer. Particularly with fiction debuts, there can be quite an art to launching a debut novelist, and I can see this playing havoc with that.

I'm sure there's a lot we just don't know.


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