Skip to content

Posts tagged ‘breach of contract’

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?