Give me my advance back!

The other day, someone asked me if publishers ever ask for their advances back. After all, there have to have been times when a publisher has signed a contract with an author and that author failed to deliver. I told the person asking that yes, publishers do sometimes ask for their money back. But the instances that came to mind weren’t where an author failed to deliver a book. No, the examples I remembered were where the publishers determined, usually after a public outcry, that the book delivered wasn’t what they thought it was. There have been situations where plagiarism has torpedoed a deal or where a newly signed author wound up having her contract canceled because she dared self-publishing something totally unrelated to the contracted book. Despite all that, I simply could not remember a situation where a publisher had demanded an advance back from an author for not delivering a book and certainly not from a best selling author.

Now, that’s not to say it hasn’t happened before. I simply couldn’t remember an example.

So imagine my surprise when I went over to The Passive Voice this morning and found reference to a law suit filed by Hachette against Seth Grahame-Smith (SGS for future reference). SGS, in case you aren’t familiar with the name, is the author of Pride and Prejudice and Zombies: The Classic Regency Romance – Now with Ultraviolent Zombie Mayhem! and Abraham Lincoln: Vampire Hunter. We have him to thank for other re-imaginings of classics like Sense and Sensibility and Sea Monsters. I think you get my drift. PP&Z was a fun romp but the originality quickly wore thin as SGS and others took public domain books and reframed them with one sort of monster or another.

So let’s fast-forward to Hachette’s lawsuit. I urge you to click on the link and read it for yourself. It isn’t all that long and it does illustrate some of the issues both publishers and authors have to work with when entering into a contract. From here on out, remember that what I say is just me talking as a reader and a writer, not as a lawyer.

Since I haven’t yet seen a response fro SGS, for the purposes of this post, I will assume that the basic facts — dates, etc — alleged in Hachette’s filing are correct.

  • December 2010 the contract was executed.
  • The contract was for two books.
  • $500,ooo advance per book paid upfront with the remainder of $2,000,000 per book to be paid.
  • Book 1 was to be a sequel to Abraham Lincoln: Vampire Hunter.
  • Book 2 was to be “a novel on a subject to be determined by” SGS and agreed upon in writing by Hachette. It was to be “comparable in style, quality and broad appeal to Abraham Lincoln: Vampire Hunter.”
  • Both books were to be “original with Author [Smith] in all respects”
  • 60 day grace period after the expiration of contracted deadline or agreed upon extensions during which SGS could deliver the books. After which, the contract could be canceled.
  • Book 2 received several extensions, the last date for delivery being April 1, 2016
  • June 6, 2016, SGS delivered Book 2 but Hachette claims it was not the agreed upon Book 2 and that it was not “original” work but derivative ala PP&Z.
  • Hachette wants its $500,000 back as well as all other reasonable fees as laid out by the contract.

O0kay, with me so far?

According to the filing, SGS has basically told Hachette, “Nope. That’s not going to happen.”

Now, from a business standpoint, you want folks to deliver what they have said they will and you want it in a timely manner. After all, you have customers who want the product and you can’t deliver it to them if you don’t have it. That seems simple enough.

But this is where I have to look at publishers and scratch my head. Can you imagine your local grocer or Wally World contracting with a supplier to deliver something but they don’t know what? Oh, sure, the contract says you have the right to say no when they finally come to you and you decide it isn’t want you want. But de-amn. Think about the inventory headaches that would cause. Here’s a publisher happily writing a check for half a mil without knowing what the book is going to be about. Nope and nope and nope again.

From a writer’s point of view, this sort of contract gives me the willies. Sure, being able to put that much money at one time into my bank account is intoxicating. But then the practical side of the brain takes control. That money isn’t really mine, even if it is resting in my bank account, until the publisher has agreed first to the idea of the book and then accepted the book. Anywhere along the line, said publisher can change its mind and say “nope, it doesn’t meet the terms of our contract.”

But how, you say?

One line in the pleadings stood out and this is where my writer’s back went up. Book 2 was to be “comparable in style, quality and broad appeal to Abraham Lincoln: Vampire Hunter.” How do you define that? It is such an objective requirement that it would be easy for a publisher to use it as reason for rejecting a book.

But then, as one of the comments at TPV pointed out, this is SGS we’re talking about. He made his reputation by taking public domain works and re-inventing them. I’ve read both PP&Z as well as Abraham Lincoln: Vampire Hunter. PP&Z is very much taking Austen’s original work and simply adding zombies to it. You can lay the two books side by side and see how he did it. While entertaining, ALVH is, in its own way, derivative, more as an idea than by taking another book and simply re-purposing it. So why Hachette would expect anything else from him is beyond me.

But, going back to the original question, yes, there are times when publishers ask for their advance back. With traditional publishing facing the challenges it does right now, I have a feeling we are going to see more and more suits like this. Traditional publishing simply isn’t in the financial position to allow authors to sit on money and not deliver manuscripts, at least not when the advances are six-figure or higher.

On a closing note, I once more recommend you read not only the filing but the attached contract. I haven’t had a chance to study it as closely as I want but I will before next week. From what TPV noted, it is a good example of some of the things he, as well as Kris Rusch, have been warning writers about for some time.

So, what do you think, based on the filings, etc., is Hachette right to ask for its money back?

 

53 Comments

Filed under AMANDA, WRITING: PUBLISHING

53 responses to “Give me my advance back!

  1. I’ll admit that my eyes glazed over when I tried to read the fillings and the contract, so I won’t even try to have an opinion on the legal issues.

    However, my business experience leads me to the conclusion that paying a contractor for work before it is performed is usually a bad idea.

    Paying an advance to cover the cost of materials that the contractor will have to purchase before beginning work is sometimes necessary (although I recommend asking for a materials accounting to make sure that the money is actually being used to buy materials for your job).

    But you don’t cut a check for the work until the work is done, and done to your satisfaction. Yes, this means that the contractor assumes the risk that the deal will go south. This is why contractors build overhead into their bids and why you have to be careful about who you do business with.

    • This is what escrow is for.

      • Granted. I didn’t want to get into the kinds of safeguards that both sides can build into the contract, contractor’s liens and so on. The point that I was trying to make is when you’re an employee, they pay you and then you do the work, when you’re a contractor, you do the work and then they pay you.

    • My first thought reading the pleadings was that this sort of business practice is one of the reasons trad publishing is in the trouble it is. I can see signing a contract for an unnamed project with an author who has a reliable track record but, at the time this contract was signed, SGS did not. So, to me, that was just asking for trouble.

      It also shows another issue trad pubs have had. They see a trend and expect it to continue longer than it really does. How many Da Vinci Code-type books did they buy that died on the shelves? Or 50 Shades, etc? Trends are fickle things and, given the time it takes trad pub to get a new book through the pipeline, it is insane to think it will continue to be “the thing” while all those new books make it to the stores.

      • I suspect that much of the problem stems from the people who greenlight the production of books (and films and music) and who authorize high ticket advances not actually reading any more than the high concept of a project.

        The rank and file editorial staff, who work with the authors and the manuscripts, aren’t the ones who who decided to award a half million dollar contract on spec.

        Instead the purse strings are held by financial officers who are making their decisions based on the kind of superficial knowledge of a product you can get in an hour long meeting that presents a dozen projects for consideration.

        So the works get pitched in the formula: “X made us millions, Y made us millions, this project is X meets Y.” The qualities that make for solid long term sales are much harder to boil down into a soundbite.

        • Oh, I have no doubt you’re right. I’ve heard stories of acquisition editors pitching stories they think should be accepted to the editorial board and having the bean counters say “we need this sort of book because it is currently selling” and that is what gets bought. Forget about the fact it will take a year or more to get the book on the shelves and that, by then, the trend will be over. Short view is good if you can get the product out in weeks, not years. Otherwise, you will get burned sooner or later.

  2. I haven’t had my first cuppa yet, much less read the contract, but it’ll be interesting to see if “broad appeal” has a definition anywhere in the contract.

    This does highlight one of the weakness of the slow-to-publish pipeline: if a fad burns out in three years, and it takes 5 years to publish the third or fourth book, who’s at fault for the drop in sales?

    • Uncle Lar

      Gee, if there were only some way for an author to finish a book, make it pretty, and get it in front of readers in a more timely fashion.
      I’ve quit reading anything the big 5 have to say since in their world indie and e-books and Amazon are a passing fad. As well as a fundamental belief that they are doing everything right and all the ills of the industry can be blamed on the writers and customers.

      • Funny, isn’t it? They think indie is a passing fad and yet they fail to recognize the passing of their own publishing fads. Maybe they need to clean their glasses and take a long, hard look at the publishing world as it really is.

    • Yes, “broad appeal” is a pretty slippery term. It almost sounds as if the author would be in breach of contract if the book didn’t have comparable sales numbers to PP&Z.

      • I haven’t had a chance to look at the contract yet but I get the feeling that this is one of those contract Kris Rusch and TPV warn authors about and is a prime example of why every author even considering signing a trad publishing contract needs to have an IP attorney vet it first.

  3. Hey, Amanda.

    Leaving the details hanging in the wind is stupid whether you’re a publisher, author, municipal government, telephone company, or contractor. The last three in the previous sentence are cases where I’ve run into this kind of negotiating stupidity in real life, in IT, since 1995, and *every single one of them* ended badly, with court cases and people doing work which might or might not have real value to the hiring authority and ultimately not getting paid and/or having to return money, and/or getting fired.

    I know giving and getting big advances generates a lot of headlines and makes the recipient of the money happy, and that’s a wonderful thing if you like headlines or you’re the recipient of the money. But it’s also stupid from a viewpoint of actually creating value (manuscript; sales; etc.).

    ***

    I’d make a lousy lawyer. By the time I got down to the terms of delivery and acceptance of the manuscript, my eyes had absolutely glazed over.

    I’m going to have to (at some point) go see if Writer Beware, SFWA, and/or RWA show model contracts. The different percentages and all were seriously confusing (and a lot smaller than I’d have thought reasonable), and unless there were explicit covenants about how such is reported, I see a lot of potential for shenanigans. (I hear that suspicion of shenanigans is rampant in the mainstream publishing industry.)

    Beyond that… that’s a big honking advance to give someone without even a synopsis, and giving the publisher total judgement about what’s an acceptable manuscript without some objective rubric (pardon the redundancy!), or agreement to hire a Special Master in event of disagreement, strikes me as unwise. Now the court gets to divide the baby.

    • “that’s a big honking advance to give someone without even a synopsis, and giving the publisher total judgement about what’s an acceptable manuscript without some objective rubric ”
      This.

      I think both parties in this dispute must get a “bad at business” ranking.

      • freddiemacblog

        I think both parties in this dispute must get a “bad at business” ranking.

        Exactly — that’s a lot of money to throw at a fad that (reasonable people knew) wouldn’t last very long.

        Add to the fact that the author made his mark by writing derivative works (Book 2 was to be “comparable in style, quality and broad appeal to Abraham Lincoln: Vampire Hunter.”), so how could they be surprised that what he finally submitted was, indeed, not “original” work but derivative ala PP&Z.

        Some writers really are one-trick ponies (and some of them are excellent at that one trick); expecting this guy to create something new and original *without* falling back on what he knows and does well is foolish.

        I hope that all of the Hachette people who were involved in this fiasco get a sound flogging with a wet noodle (maybe ala dente?). Markets, especially those based on novelties, change at light speed. No one with any businesses sense should have approved (much less, offered) a contract like this for a novelty. Honestly, what’s wrong with a single book contract (much, much, much smaller advance) with a generic option on book #2 (i.e., right of first refusal to whatever he wrote)?

        • that makes so much sense I can only assume you work in an industry far removed from trad pub.

          • STM journals (production), actually. Not sure who told me (eons ago) that STM pub isn’t glamorous, but it tends to be much more stable. We don’t have celebrity authors of any sort (but minus signs dropping out of a math journal will turn your hair grey), any “fads” have to have lotsa staying power before The Company thinks about putting $$$ out there, some of our publications are over 100yrs old — utterly boring, but very stable.

            Being on the production side, I am dealing with people missing deadlines, submitting incomplete materials/incorrect formats, trying to explain why the issue will be X weeks later than scheduled (funny, people never seem to realize that late submission = late delivery). Having to make a silk purse out of editorial promises is (unfortunately) a regular occurrence.

      • TRX

        > I think both parties in this dispute must
        > get a “bad at business” ranking.

        These contracts are an integral part of Hatchette’s business. If it read that way, it should be safe to assume they intended it to as a matter of corporate policy.

        The question becomes, “How many other authors have signed similar contracts?” Or was SGS specially singled out?

        I can’t see Hachette having more than two, three different contracts, tops. Contracts that have been polished by generations of their lawyers, that would take serious management mojo to alter even a single semicolon.

    • Phil, I hear you. I’m neck deep in a manuscript and a side editing project right now. So the contract hasn’t been read — my eyes would do more than glaze. They would probably fall out of my head. One thing I’m wondering about is if there wasn’t a mediation clause in the contract. Most of the ones I’ve seen before have just that sort of clause. If this one did not, I have to wonder if SGS did not have his attorney vet the contract before he signed it. Mediation would have done two things: 1) basically given him even more time to get something to Hachette they might accept and 2) kept this out of the media.

      That said, if SGS is in breach of the contract, and if the terms aren’t so broad as to be unenforceable, then he should be required to repay the advance. However, if he made a good faith attempt to fulfill the terms of the contract and the publisher is simply using overly broad definitions to try to get out of the contract, then screw ’em.

    • “Leaving the details hanging in the wind is stupid whether you’re a publisher, author, municipal government, telephone company, or contractor. The last three in the previous sentence are cases where I’ve run into this kind of negotiating stupidity in real life, in IT”

      THIS^^^^^^
      I am currently working a project as a tester where the customer didn’t insist on specific requirements, the sales weasel and the pointy-haired project manager said they would refine them as they went, and now the customer is being told with a straight face by the developers that validating an e-mail address to make sure it actually is one wasn’t spelled out in the requirements and therefore they aren’t required to do it. And then they wonder why they might get sued.

  4. Not seen the papers yet, but as far as books go, _Android Karanina_ was not bad. Kept Tolstoy’s points pretty well, within a relatively believable steam-punk-ish world. that being said, it wanders as much as the original, if not a bit more so. I finished it, which I can’t say for AL:VS or PP&Z

    • Sara the Red

      I tried to like PP&Z, because it was a fun idea, but frankly SGS’s rather crude humor–brought out via Mr. Darcy, of all people–turned me off entirely. I can suspend my disbelief for a lot of things, but having a well-bred (if socially awkward) gentlemen dropping crudely disguised sex jokes in front of young ladies broke it where the zombie-slaying sisters Bennett did not. :p The others, I just kind of went ‘meh, they’re gonna beat that idea into the ground’ and passed over.

      (I may still see the movie. If I can find it.)

      • The fact that he didn’t respect the source material (his introduction said he “made it interesting”) really showed through. And his world building fell apart in several places (like having a housekeeper who followed Japanese fashions having bound feet… uh, wrong country entirely, dude.)

        • Sara the Red

          I didn’t make it nearly that far. Good grief!

          Yeah, it was about the time Mr. Darcy made a crack about ‘balls’ in front of young ladies (actually quite early on in the book) that I went “What. The. Hell.” and gave up on it.

      • That’s it! I couldn’t quite put my finger on it and you just did. That was what really bothered me about the book. Thanks!

    • I read PP&Z and it wasn’t bad. But it was definitely one of those where you read one and you don’t need to read the others. That’s why, when I read the complaint, I wondered what Hachette expected when it said “original”. To date, as far as I know, SGS hadn’t written anything that wasn’t derivative (and I could be wrong.)

      • Sara the Red

        Also not sure why they thought the trend would still be popular? PP&Z was a hit, so to speak, because it really was something completely different. (Though again, for those of us who don’t appreciate his lack of respect for the source material, it wasn’t so great.) But as far as I can tell, it fizzled out in about two years. And that was almost six years ago!

  5. Max

    All the more reason to stay self-pub, personally, unless offered something particularly worthwhile.

  6. I can’t understand the starting point: how can Hachette AND the author have signed a contract in which ‘WHOLLY ORIGINAL’ was even included? Hachette had seen (did anyone there READ it?) his previous work, which included MUCH non-original stuff.

    Maybe they were concentrating on the tiny print in the royalty clauses and missed the giant gorilla inserting material into public domain classics.

    Serves them ALL right for starting that way.

  7. Without being able to see what was delivered to the publisher, I don’t have enough information to determine if the book presented to them fulfilled their broad requirements or not. It may be that after the flop of a movie they decided that the series has run its course and changed their mind about putting out more. This could simply be their way of trying to get out of what they see as a product hitting the market after its already gone stale – they have buyer’s remorse of the six-digit variety.

    But as I said, I haven’t seen the book.

  8. Joe Doakes

    I did read the Complaint. It boils down to four defects:

    -Book 2 is not an Original work invented by this author, it’s a re-working of an older book that no longer is protected by copyright. The Complaint lacks details but by way of example, suppose I re-wrote “A Midsummer Night’s Dream” substituting Vampires for Fairies. That book would not comply with the contract because the idea wouldn’t be wholly Original to me, it’s just a re-working of Shakespeare with Vampires thrown in.

    – it’s either way too short or way too long, the Complaint doesn’t specify which. The contract requires 80-100k pages but this is “materially” different. I’m guessing “way too short” because too long could be edited whereas too short can’t.

    -The contract provides: “Book 2 shall be a novel on a subject to be determined by [author] with [publisher’s] written approval.” The Complaint says Book 2’s subject wasn’t approved. Why would that matter? Go back to my example above: suppose instead of Shakespeare With Vampires, it’s Shakespeare With Child Rapists. Nobody wants to publish that book, it’d kill the publisher’s reputation. And they’re not going to let you keep a half-million dollar advance for a book they dare not publish.

    -it’s not comparable in style and quality to ALVH. The Complaint doesn’t explain why not, probably because that’s an entirely subjective judgment call. I cannot imagine a federal court judge resting her decision on a quality-of-writing factor but suppose Book 2 is written in Dr. Seuss’ rhyming style, or all the dialogue is in Ebonics. Buyers expecting ALVH style will hate it. True, it might be hard to define “style” and “quality” but like pornography, I know it when I see it.

    Reading between the lines, it looks as if the author was a year late on delivery so he tossed off something short and unmarketable to call it good enough. I’d be interested to see the manuscript for Book 2.

    • Yeah. I’d be interested in seeing what sort of back and forth Hachette and SGS had during all that time regarding what he pitched to them and what they accepted/rejected. Then I’d like to see what he did submit and compare it with what the agreed upon idea was. There are a lot of unanswered questions and I wonder how SGS will respond to the complaint.

  9. Being me, I wouldn’t touch that contract with a barge pole. The only book I would contract to sell is one sitting finished on my hard drive. Then they can read it, ask for changes, PAY ME for the changes, and then PAY ME for the finished product. Then if the thing explodes and sells a million copies, they can pay me my contracted share per-copy.

    Everybody makes money, everybody is happy.

    This contract is like somebody saying to me: “Paint my kitchen like the way you painted cousin Janey’s kitchen, but different, y’know?”

    Not with two barge poles.

    • As I said in an earlier comment, I can see signing a contract (as a publisher) for an as yet unwritten, untitled, not yet agreed upon book if the author has a reliable track record of sales, on-time delivery (or close to it) and willingness to work with editors. But without that, not gonna happen as a publisher.

      As an author, the only way I would sign such a contract is if I already had a very good working relationship with the house and editor. Otherwise, no way.

  10. Daniel Allen Butler

    Every single one of the eleven contracts I’ve signed with publishers, each one has contained the following provisions:

    XX. PUBLISHER SHALL NOT BE OBLIGATED TO PUBLISH the Work if, in its sole and absolute judgment, whether before or after acceptance of the Work, Publisher determines that supervening events or circumstances since the date of this Agreement have materially and adversely changed the economic expectations of Publisher regarding the Work at the time of making this Agreement. Upon making such a determination, Publisher may terminate this Agreement without further obligation by notice in writing to Author, and Author may retain all payments previously made to Author under this Agreement.

    XX. Dispute Resolution. a. Negotiation of Disputes. In the event of any dispute arising under this Agreement, senior executives of the parties, with decision-making authority, will meet in XXXXXXX, XX within fifteen (15) days after notice and enter into good faith negotiations aimed at resolving the dispute. If they are unable to resolve the dispute in an additional twenty (20) days, the dispute shall be submitted to mediation/arbitration under paragraphs 21(b) and (c).
    b. Mediation of Disputes. The parties shall submit any unresolved dispute to one mediator selected by the parties as soon as possible, but no later than twenty (20) days after notice. Senior executives of the parties with decision-making authority shall be present at the mediation session, which shall be held in XXXXXXX, XX. If the disputes are not resolved within an additional thirty (30) days, the parties shall proceed to arbitration as specified in paragraph 21(c).
    c. Arbitration of Certain Disputes. Any dispute not resolved paragraph 21(a) or (b) shall be resolved by an arbitration proceeding conducted in XXXXXXX, XX under the then-prevailing Rules for Commercial Arbitration of the American Arbitration Association (“AAA”). i. The proceeding shall be conducted by one (1) arbitrator, reasonably acceptable to both parties, having at least fifteen (15) years of experience in the field of publishing and authors’ agreements.
    ii. The fees of the mediator and the AAA shall be divided equally between the parties.
    iii. The parties shall cooperate in good faith to proceed to an arbitration hearing within three (3) months after the Demand for Arbitration shall have been filed with the AAA.
    iv. The arbitrator’s authority shall include the powers, in his/her discretion, to: 1. Permit limited discovery, including production of documents and depositions, to the extent required by the parties; and
    2. Award the prevailing party its attorneys’ fees and out-of-pocket expenses, including its share of the mediator and AAA fees.
    v. The decision of the arbitrator shall be confidential; final and binding; and may be entered and enforced in any court of competent jurisdiction.

    That neither of these provisions were included in the contract indicates to me that Hachette had a pretty slick lawyer draw up the contract and that SSG’s lawyer, if he has one, is an idiot.

    • I haven’t read the contract yet, but I’d wondered about that. Almost every trad publishing contract I’ve seen has the mediation provision in it. If this one didn’t, I have to wonder if SGS just signed the contract without reading it or if someone (the editor, his agent, whoever) told him the contract was fine and “trust me”.

      • Joe Doakes

        There is no mediation provision. Scroll down to Para. 23 of the attachment, under the heading Construction, Jurisdiction. It’s a boilerplate Choice of Laws section that provides the contract will be interpreted in court using the laws of New York.

  11. What astounds me is that having received a half million dollar advance for a novel along the same sort of lines as “Abraham Lincoln: Vampire Hunter” . . . he couldn’t find a historical figure to make into a fighter of weirdness?

    I could come up with a dozen in an afternoon and ask which one they wanted first? Louis & Clark, with Sacajawea as the good werewolf, verus the bad werewolves? What _Really_ happened at Little Bighorn? The Battle of New Orleans? Pick a pirate, any pirate vs. There be dragons right here! The Lone Ranger as a supernatural phenom.

    You write it, send it in. When they except it _Then_ you go off on a tear and do nothing for years but enjoy your bundles of money.

    • Except = Accept because of excellence, right?

    • From the allegations in the suit, it sounds like he grabbed another timeless classic, pasted the text onto a Word document, added “monster” here and there, and submitted the result, thirty-four months after the original deadline. Heck of a way to earn half a mill.

    • I read the Vampire Hunter one, and the retelling of the story of the Nativity (which, I’ll admit, I actually enjoyed and was more in the style of Vampire Hunter where he completely reimagines the thing he’s retelling.)

      I wonder if that’s one of the books that was being grumbled about. Mary and Joseph aren’t turned into horrible people in the book. (Somewhat fervent in their faith, but not the kind of religious people that seems acceptable to hate.)

      • One would tend to be rather fervent in one’s faith if there were examples of actual undead demons from The Pit, running around eating people. Or so I would think.

        That’s my one issue with all monster hunter books by any author. Unless there was -one- of these things in the whole world, and it was amazingly sneaky, people would know about it.

    • It is going to be interesting to see what he did actually submit to them and what they allege they had agreed upon.

    • BobtheRegisterredFool

      Maybe he doesn’t know very many historical figures?

      For that kind of money I’d learn.

      That said, with my damage when it comes to history, I could’ve done a poorly researched partisan hit piece about the vampires and The Party.

      Or one could be nicer and do Calvin Coolidge, Ronald Reagan, and G. W. Bush as vampire hunters.

  12. Reblogged this on The Arts Mechanical and commented:
    This is what happens when you take all the hard work out of creating. The big problem here is that Hachette paid too much for too little. They bought formula rather than craft because they thought that formulas were all that was needed. Then they wrote contracts that essentially would screw most authors over and wonder why the author didn’t give the money back. That 5 million invested could have been split into 10o 50k advances and more than likely at least one of those book would have done well enough to cover the rest. Instead they went to for the unimaginative formula believing that past performance predicts future results and burned themselves.

  13. BDR

    That contract is more or less standard boilerplate language and I’m guessing the publisher pretty much knows the odds are long against them unless they scare the author into negotiating a settlement. That’s not because of vagueness, that’s because it’s pretty hard to collect from an author EVEN IF you win.

    So why’d they do it? Petty egos? The author insulted a Hatchet Face and now it’s revenge of the lawyers? Maybe, but doubtful. That’s because Hatchet Face has waaay too much to lose in suing authors because *future* authors are gonna say “whoa there, are you gonna sue me? No thanks”. It’s not because of ego.

    Nope. Hatchet Face is suing because they must NEED that elusive $500k; even if it is only a longshot and even if it costs them future business. THAT speaks to desperation of a business that is failing.

    The result? As an author do you REALLY want to do business with a group which not only might sue you but which is headed into bankruptcy?? No, no you do not. Yikes!

  14. These are advances, not payment to a contractor in advance of work. A pro who’s a writer can negotiate a retainer against work to be completed. Yes, some clients don’t want to do this. The sea is full of fish, I like to tell myself. Creative writing to a specification is not like building a widget. It’s more like getting a suit tailored. You pay in advance for that, don’t you? It makes me wonder if this author can sell the too-derivative book to another house. I get a feeling he cannot, and this is where a traditional publisher wants it both ways.

  15. Thomas Edison and Nikola Tesla as turn-of-the-century “Ghost busters”…BAM!

    J/K

    ; )