The Small Print

I’ve wanted to do a post about contract clauses for a while, and this week seems the most opportune time to do it, with all the hullabaloo over Kiana Davenport getting dropped from Penguin for breach of contract.

You can read Davenport’s account of it on her blog but basically it boils down to this:

  1. Davenport had a publisher and a new book contracted for a big advance
  2. Davenport self published and ebook of short stories
  3. Publisher (apparently) ‘went ballistic’
  4. Publisher dropped Davenport
  5. Publisher demanded return of advance already paid
  6. Indignation ensues

Now, I want to say straight off the bat that without seeing the individual contract or being one of the people involved, it’s impossible to say anything for sure, but here’s my take on things.

Firstly, in my experience publishers will do anything they can to NOT cancel a contract, especially one which they have already invested time and money into.

In Davenport’s case she stated that her advance was to be paid in quarters and that the first section, a whopping $20k was to be repaid before Penguin would release her rights back to her. This means that, until she has repaid her advance, her publisher are going to hold her book rights, which means she can’t sell it anywhere else. Given that it took her four years to write the book, that’s a lot of time and work doing nothing right now.

So, why would her publisher drop her? Surely it would have to be something extreme?

Well, yes, it would.

Davenport says in her post that she was told to remove the ebook and all references to it or else her contract would be terminated. She refused, and so her publisher eventually did terminate her contract.

Now, here’s the thing, is she WAS in breach of her contract then the publisher is well withing their rights to do that.

This isn’t a ‘publishers are evil’ thread, but a statement of fact that applies to any industry. If you contracted a plumber to install a full bathroom and they instead installed three sinks, you would cancel that contract and refuse to pay until it had been recified, right? So what makes you think that publishing is any different?

There’s been a lot of ranting from self-publishing advocates that this is just another example of how traditional publishing is the devil, but those who are ranting in such a fashion appear to lack any sort of business sense and, as most have never dealt with a publisher or even seen a contract, are in no place to be ranting.

So, why would a publisher do something like this?

Well, two reasons spring to mind:

1. Right of first refusal

2. Non-compete clauses

a right of first refusal is when the publisher has the right to be the first one to consider your next work, usually it’s pretty specific to the genre etc, but not always. In this case if Davenport went ahead and SP an ebook without giving her publisher first dibs, then that would be a breach of contract.

Non-compete clauses are similar in that they prevent the author from releasing a book that would be competing with the one the publisher is releasing. Generally these are more beneficial to the publisher, given that they prevent the author or another publishing house from using the publicity PAID FOR by the first publisher to help sell the other book. It also means that the author is not competing with themselves for shelf space, reviews and/or places on bestseller lists.

If Davenport had either of these in her contract and she went ahead and published an ebook without consulting her publisher, then that would, indeed have been breach of contract.

From what she said, the publisher was willing to try and work something out, but she refused, seemingly on principle. Choosing instead to have a rant about it on the internet.

Now, what does this mean for Davenport?

Well, the current situation is that she owes her publisher $20k and until she repays it, they are holding her MS, which they legally own the rights to until she repays. It’s a crap situation for all involved, but one which could have been prevented by just stopping to pay attention for a moment.

All of this would have been laid out in the contract that Davenport signed with her publisher, and with Penguin being a Big 6, you can be sure they have a team of lawyers to make sure they are legally sound. Not only that, but Davenport has an agent, who apparently did little to help prevent the situation.

As of the moment, Davenport has no book, but she has a collection of short stories for download. Additionally she now has all the stress of finding the money to repay her advance.

The really sad thing about this is that Davenport is clearly an intelligent and talented woman. She has won lots of awards for her work and commands some very high advances.

Moral of this story?





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2 responses to “The Small Print

  1. paul burrell

    The publisher had already declined the stories in the collection she self-published. The work was already out in various anthologies, and was short stories, not novels; I don’t think the non-compete clause theory holds water, either.

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