Today’s guest post by multi-published author Doranna Durgin is about a publisher behaving badly.
More than that, however, it highlights something that every writer signing a publishing contract needs to be aware of: the importance of reversion clauses (which publishers often like to keep as vague as possible so they can hold on to rights for as long as possible), and the problems that can arise even when authors and their agents re-write open-ended reversion clauses to make them more precise.
This post was originally published at Doranna’s blog, where an active conversation is ongoing in the comments thread.
When hikers Dayna and Eric find a young woman naked, terrified, and speechless, they’re sure she’s the victim of foul play. But the truth is much more shocking: she isn’t human at all. She’s Dun Lady’s Jess, a horse transformed into this new shape by the spell that brought her and her rider, to whom she is utterly devoted, into this world.
Possessed now of human intelligence but still a horse deep inside, Jess desperately searches this world for her master and rider, using her fiery equine spirit to take on human idiosyncracies–and human threats.
Dun Lady’s Jess is my heart book—my first book. A fantasy, it was first published by Baen in 1994, and in 1995 it won the prestigious Stephen Tall/Compton Crook Award for Best First SF/F/H of the year. It grew two sequels, and it stayed in print for a good long run—but eventually, some years later, it fell off the shelves and the rights reverted to me.
Halfway through the next decade, I was invited by a delightful editor to reprint the book through the new Star Ink imprint of the Canadian publisher Fitzhenry and Whiteside. We had a wonderful time with the new edition, giving painstaking attention to the details large and small. It became stalled in production, however, and by the time it was released, the editor had chosen to part ways with the publisher. Eventually the book was released under Fitzhenry and Whiteside’s Red Deer Press line.
The reversion clause for Dun Lady’s Jess reads:
“16.(a) If the Publisher fails to keep the Work in print *through regular trade channels* and for sale and written demand from the Author declines or neglects to reprint it within six (6) months thereafter and to offer it for sale, or after two (2) years from the date of the first publication the Publisher wishes to discontinue publication of the Work and gives three (3) months’ notice to this effect to the Author in writing.”
The part between asterisks? My agent and I added that to the boilerplate, because the clause as it stood was far too open-ended. The new phrase was approved and initialed by both myself and Richard Dionne, for Fitzhenry and Whiteside.
(The part right after the asterisks? Yes, it seems to be missing a word—probably “upon.” But that’s part of the boilerplate.)
The book was published in November 2007, although the U.S. distribution didn’t take place until April 2008. By spring of 2010, it was evident, through royalty reports, that the book wasn’t being placed on the shelves anywhere (that is, “regular trade channels”). For a couple of years now, it’s sold only a handful of copies per year, and has slowly slid off availability via online sources. (see the screenshot below).
But when we asked for reversion of rights, the response shocked us: if I would buy the considerable copies the publisher had sitting in their warehouse, they would revert the book. I have to tell you…it felt like coercion.
We responded that this wasn’t possible, and reminded them that they naturally had the ability to sell their remaining stock should the rights to the book be reverted. In other words, for them, nothing would change.
But they didn’t respond to that email, nor to the one after that, or the one after that, or to the phone call by the book’s original editor with that line, or—after we’d let the situation sit for a year—to the query after that.
We sent screenshots of the book’s lack of availability and its failure to appear in any distributor warehouse. It’s in the publisher warehouse alone—which does not equal being available through regular trade channels. We also sent a PDF of the relevant contract page with the initialed changes to their boilerplate. This material went out return receipt—and finally, we received a promise to review the situation and get back to us in a week.
This did not happen.
 |
| Dun Lady’s Jess: The warehouse listing. Unlike books that are available through regular trade channels, this title is stocked only in the Fitzhenry and Whiteside warehouse |
After another nudge—which included the reminder that the publisher could continue to sell warehoused copies in their usual fashion, as well as a reminder of the boilerplate changes–we were finally told: “This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. [my note: yes, a handful of copies a year] We have some 1,600 in stock with no reason to revert rights. “
How about because it’s a contractual obligation?
Finally, I went to SFWA GriefCom. You may not have heard much about this committee; when GriefCom mediates a dispute, the parties involved maintain a strict nondisclosure; no one’s dirty laundry is aired. And because they see a high level of success, that means you see very little dirty laundry and very little about GriefCom.
In this case, the request from GriefCom to Fitzhenry and Whiteside was simple: Revert the book per the contract obligations, or provide proof that the book is available via regular trade channels.
It took a week of trying for GriefCom to connect with Richard Dionne, at which point we were given a promise that Red Deer would provide proof of distribution within a week.
This did not happen.
After three weeks of silence and unreturned phone calls, GriefCom sent a different kind of request, giving Red Deer forty-eight hours to either revert the book or provide proof that it was being sold via regular trade channels, and asserting that after that, I would be forced to take additional steps.
Early the next day, I heard from the GriefCom chair that he had received a phone call, and that the unidentified caller took him to task in no uncertain terms–claiming harassment, declaring there would be no reversion on the title, and warning that she would “report” us to [prominent Canadian SF writer #1] and [prominent Canadian SF writer #2]—all before hanging up on him.
We took this as an indication that the publisher no longer wishes to interact with GriefCom.
Finally—knowing that truly, no one wants a big dramafest, I emailed Richard Dionne and made the same request: Please send either the reversion or the proof that Dun Lady’s Jess is being sold via regular trade channels, and please do so within the next three business days.
This did not happen.
I don’t have a lot of options left, but I do have some. For one thing, I have this: I can break the silence that protects Fitzhenry and Whiteside from the consequences of their actions—a silence I’ve kept for a year and a half. And I can do it to warn everyone possible, via the big wide Internets: This is my documented experience with this publisher. We have a contract clause that was approved and initialed, but is not being honored. A critical contract clause—one that protects my interests in my book per the agreed-upon terms. A contract clause that is of utmost importance these days, when publishers and writers are scrambling to negotiate shifting terms and a shifting industry.
A contract clause no writer should take lightly.
Meanwhile, I still want my book back. I still want Fitzhenry and Whiteside to honor the contract they signed. Contracts are not a thing of convenience, to be ignored when a publisher pleases. “Make me,” isn’t in a professional lexicon…or shouldn’t be. If you feel the same, I hope you’ll pass this warning along.
Doranna Durgin responded to all early injunctions to “put down that book/notebook and go outside to play” by climbing trees to read and write. Such quirkiness of spirit has led to an eclectic publishing journey, spanning genres over 30 novels to include mystery, SF/F, action-romance, paranormal, franchise, and a slew of essays and short stories.
It seems to me, that the author is tar and feathering Fitzhenry and Whiteside, without just cause. As others have pointed out, the book can be ordered at a big box bookstore, or purchased online at numerous venues. The publisher was obviously invested in the book, having spent hard cash to print 1600 copies which are collecting dust in a warehouse. If purchasers wanted the book, it is available. Bookstores have limited shelfspace, and the availability of titles has a lot to do with past sales. Unfortunately, the author's book just isn't selling. Bashing F & W is unjustified, and rather shortsighted.
You know, the publisher could end all this by simply accepting/writing off the loss and returning the rights to the author. Yes, yes, I know that publishers want to make money, but we must all suffer disappointments in this life. In any case, this author's rights are far more important to her than the loss is to the publisher. F&W is being annoying and unreasonable.
Six months later, it's still dispiriting to read this comment thread. It doesn't matter how you define "available." Any reasonable definition will do. The result's the same. If the book isn't available, then the publisher should issue a reversion. If Ms. Durgin's book is available, it isn't selling, and the publisher should issue a reversion.
What's relevant about F&W's marketing is that they stopped even trying to sell the book. There's no good reason to refuse to revert a book that's dead in the water. If the failure is the book's fault, the publisher has no reason to hold on to it. If some other house thinks that it was the publisher's fault, and that they can make a success of it, the only appropriate thing to do is let them.
Under those circumstances, telling the author that she'll be given a reversion *only* if she agrees to buy up the publisher's remaining stock of copies is … startling, to put it mildly. We're not talking about American Book Publishing or PublishAmerica, for heaven's sake. Fitzhenry & Whiteside are an established Canadian publishing house. They're certainly old enough to know better.
When a publishing house agrees to publish a book, they're assuming the associated risk. That's how the business works. If the book doesn't earn out its advance, the author doesn't have to give it back. If it loses money, the loss isn't billed to the author. Having 1,600 unsaleable copies in the warehouse is the publisher's problem. No way is it standard publishing practice to try to make the author buy them.
It should be obvious how prone to abuse that practice would be. Sales are sales, no matter who's paying. If a publisher is guaranteed to sell every copy at the standard discount, normal constraints vanish. You can buy no-hope books for near-zero advances, inflate the print order and the cover price, and skip all that tiresome editing and packaging and marketing. You can even wait to manufacture those supposedly warehoused copies until the author pays up — at which point you really are on par with ABP and PublishAmerica.
None of this is the author's fault.
I was nonplussed to see her blamed for not insisting that the contract spell out "normal trade channels." Excuse me? A first-time author is supposed to debate the fine points of distribution systems with the publisher? I wouldn't necessarily expect an experienced agent to challenge that phrase. In fact, I wouldn't have challenged it myself. I'd have assumed that "normal trade channels" meant "stocked and sold in bookstores," that being the defining characteristic of trade books. Meanwhile, newbie authors get points for even knowing what "trade" means.
The real problem with the contractual language was that F&W were ignoring it. What was missing from the contract was F&W's stipulation that reversions would only be granted if the author bought up the existing stock of copies. That's big. It should be there. I'm not sure why F&W left it out. Possibly it was because the standard advice to newbie authors who are offered a contract on those terms, and whose publisher refuses to change it, is to tear up the contract and find a different publisher.
A couple of take-aways for me. The individual with finite financial resources is not equipped to take the company with less finite resources to court. It is so sad and discouraging to see it come to this.
As someone who has worked in-house before and have seen contracts, I will say that the author or the agent didn't negotiate enough.
There seems to be a misunderstanding of what regular trade channels mean. You should have inserted exactly what you meant because regular trade channels does also mean online sales nowadays. I've seen strike throughs and insertions in contracts along with initials from all parties. Inserting an asterisk isn't enough. I find authors are so pleased to have their books published sometimes that they don't properly negotiate on the contracts enough.
Also, putting it on shelves in-stores means the book has to show a demand for it. I know that Indigo/Chapters will stock the book in-store for 45 days and will return it to the publisher's warehouse if it's not selling. I'm assuming it's a similar case for B&N and Borders, etc.
I'm not sure if your agent did such a good job. I would NEVER grant world rights to a publisher (maybe North American rights) unless they're paying a lot of money—and I mean at least a six figure sum. You can exploit those rights with another publisher who has more pull in their territory and get additional advances from each territory you sell to.
An agent's job is to work for the author and it seems to have been done very poorly in this case.
If you think you should get the rights back, then consult a lawyer. But have you tried renegotiating a new contract whereby they get to have Canada & US rights, but they'll revert the rights back to you for all other territories? That's a compromise at least. Remember publishing is a business!
Best of luck!
Not Anonymous who kinda is Anonymous,
As happy as I am to see posts like Anne's, "the book is not selling" isn't actually a relevant contractual argument. The book isn't available per the contract terms, and that's what matters.
You can see the above posts demonstrating the multi-person expertise and research that's gone into determining this conclusion. I don't see the same in your post.
"The book is not selling" also doesn't excuse F/W's behavior. (You didn't say it does, but this is a critical point that shouldn't be obscured.)
However, as a side conversation–there are many reasons why a book doesn't sell. I've already demonstrated that this orphaned book has had no support. What am I comparing it to? Other Red Deer books, via private conversation with a source I won't "out." The distribution of my book vs the distribution of those other books vs. the distribution that was promised. The failure of Red Deer to do so much as include my name on their web site, along with the failure of their search engine to link through to the book's page (it returns a result, but the click-through didn't work as of last night).
There are many factors that go into reader decisions about book purchases. I've done the research–have you? Do you realize that an author signs the rights over to a publisher for the very reason that a publisher is best positioned to market and distribute the book, and that it's primarily a publisher obligation to make those things happen? Do you know for certain that I'm not already engaging in the best possible promotional choices to support a decent publisher effort? Do you know what efforts I made when this book was released, only to be repeatedly told by readers it wasn't on the shelves as promised?
It's convenient to blame me for the book's sales, and it's convenient to blame the book. But sans that basic publisher support, it's not possible to draw conclusions about how the book would or wouldn't have performed, if given a chance. (I'm not claiming it would have been a bestseller. I'm saying we don't know.)
It isn't an issue to be tossed off so blithely, without any acknowledgement of the complex nature of book sales, publicity, and publisher obligations–or acknowledgment that the commenter speaks without access to any of the book's actual history.
The book sales also don't ameliorate the ways in which F&W has behaved badly. It doesn't change the fact that F&W is contractually obligated to revert that book to me.
As a further aside, I'm bemused by your comments about stripping books, given the frequent references to remaindering in this conversation. This book is a French flap trade paperback–it's beautifully produced, in fact–and that means books are returned, not stripped, and are therefore available for remaindering. Books still in the warehouse–as F&W declares–are available for remaindering at any time. None of your comments about stripping apply to this book or this situation, and if F&W's primary goal is to ethically relieve themselves of the financial burden of the book, the best option for doing so is to remainder and revert it.
Anon:
The public doesn't want this book? That's ridiculous. I bought the book in mass market paperback when it first came out. I donated it to one of those Books for the Troops programs or something, then realized I hadn't kept a copy for myself. The paperback was no lomger in print, and it took months before I was able to find a beat-up copy in a used bookstore. I was also happy to buy the ebook edition when Baen first made it available. So I bought it three times. And considering the prices of the used copies, people clearly do want the book. However, the public can't buy books that aren't on the shelves, aren't available for orders through many venues.
The thing is, the book is not selling. The public does not want it. If the publisher ships it to bookstores and it doesn't sell, it's going to end up with the cover ripped off, returned and trashed. The publisher might as well throw the remaining books out now and save the shipping fees. They want to make some money on it.
Perhaps they are looking at other ways to market it…but it is a marketing issue.
It is quite possible the book is never going to sell again. I'm sorry. It happens…even to good books.
Canadian publishers rarely make profits and it's more expensive to print in Canada than in the USA, so I don't blame them for trying to earn back their costs.
Maybe the author could think of some way to spark her sales.
(…And my duplicate post is gone. Thank goodness!)
Elizabeth, it is perhaps of some pertinence that DUN LADY'S JESS was to be the first book in a new line, much like Rob Sawyer's imprint only under a different author/editor. However, my editor reconsidered that publisher relationship while JESS was in production, and the book was folded into the Red Deer imprint.
The book never received the distribution I was promised (sigh–yes, I have those emails somewhere, even three email programs later), and which certainly influenced my willingness to sign the contract. I was never even listed on the Red Deer web site as an author.
It's clear to me that this orphaned book fell through all kinds of cracks. Well, okay. It happens. That doesn't mean the contract isn't just as valid as it was the day I signed it, and under the contract, it's time for the book to revert. Asking for reversion–*insisting* on it, under the contract terms and circumstances–is no justification for bad publisher behavior, or for them to threaten me with another author who did in fact then make an effort to discredit me.
Free DUN LADY'S JESS, Fitzhenry & Whiteside. At this point, it's the least you can do.
Another point that has been repeatedly made on Rob Sawyer's blog (which has been closed to comments, which is why I'm responding here), by both Rob and other commenters, is that it's NORMAL (Rob's caps) for a publisher to offer to sell unsold inventory to the author when a book is being taken out of print.
I pointed out that, while it is indeed NORMAL for a publisher to let authors buy unsold books at cost after the out-of-print decision has been made, it is not NORMAL for a publisher to make rights reversion contingent on the author buying a large quantity of books (and that really is the offer F&W made to Doranna–if she would agree to buy the books, her rights would be returned–I've seen the documentation). At that point, Rob's counter-argument changed a bit: it was NORMAL for a publisher to allow an author to "force a book out of print" by buying up the inventory.
Well, as I've noted above, "out of print" doesn't necessarily mean "no physical copies in existence." Publishers routinely take titles out of print even when there's a sizable amount of warehoused inventory. So inventory doesn't need to be exhausted for a work to go out of print, which means that there's equally no need for authors to "force" works out of print by buying up the overstock.
Unless, of course, the publisher wants them to. I think it's possible, when Doranna first made her rights reversion request, that F&W saw a way of recouping its investment in the unsold books by passing the expense on to her. It's even possible that they thought this would be a win-win–they'd get their costs, she'd get the books.
Whatever the reasoning, F&W's offer to Doranna is absolutely not NORMAL. I'm not saying it doesn't happen on occasion–but it's neither customary nor routine for reputable publishers to offer buyout deals to their authors.
Victoria Strauss's comparison of the distribution of F&W's Red Deer Imprint's other books to Durgin's _Dun Lady's Jess_ makes it clear that Amazon.com is a normal distribution channel for Red Deer and that they had no difficulty supplying their other books to US booksellers. Thus the fact that this one book is not available via Amazon (and that the B&N distribution bias is similar) makes it equally clear that _Dun Lady's Jess_ is _not_ available through Red Deer's own normal distribution.
It's also a puzzle. Red Deer has a small list, which makes it difficult to understand how one of their books–one of just fourteen SF/F books published by them between 2002 and 2010–fell through the cracks and was not distributed the same as the others…and is not equally available now. It's hard to believe that a publisher would deliberately sabotage a book in this way, or that someone would not notice the discrepancy and rectify it. And yet–it's also hard to see it as an accident, with such a small list.
It seems to me that there's a hole in the bucket at F&W–perhaps only in Red Deer–which F&W would be wise to explore. Who made the decision to keep DLJ out of those marketplaces were its other SF/F titles were placed? Why? Clearly that decision was not to the monetary advantage of either F&W or the author.
Oh, dear. I saw my post last night and not this morning, so I broke it up to start again–and now my original post is back, so I've just repeated myself to the Anons. Sorry about that!
Well, it's a chance to add this to Mr. Balfour:
The point being, that unless your experience as author, agent, publishing advocate, mediator, or IP lawyer has been obscured in this conversation, you can only make authoritative statements from your own personal bookseller context.
What I think I hear from that context is: As a retail employee of [years] at the [size][bookseller name] in the role of [actual job], you would consider this book available for special order in your region.
Although I admit I'm curious to know how long the customer would be waiting for that book, based on the Canadian Internet ordering time frames of up to five weeks. Perhaps you receive a better response than they.
(Again, sorry about that repeated section above. I tried to delete, but I guess I can't?)
Mr. Balfour–
Fitzhenry & Whiteside has been placed in the company of Publish America and Poetry.com not for the reasons you suggest, but because of the way the company has comported itself during the course of this conflict, as documented in both my blog post and the more detailed time line linked within. You yourself said you wouldn't attempt to defend their behavior.
I realize that conversation around a situation like this naturally turns to picking apart the details–in this case, those of my contract and my reversion request. And yes, I do want the book back and I do want F/W to honor the contract, but the warning stands firmly enough on publisher behavior alone, starting with that first coercive response. Writers need to be aware that if they sign with F/W, they, too, could experience this behavior.
As for the contract details…I recognize that you offer a bookseller's perspective–although in truth we know nothing of you. For instance, for what bookseller do you work? For how long have you worked there? In what capacity do you work for them? And by the way, are you assuming that I've never worked at a bookstore?
While we're at it, I wonder…how many book contracts have you negotiated, to provide you with an understanding of the common phrases used within such documents? How many years have you spent on the inside of the publishing industry, and how many genres and different publishing houses have you worked with? How many books have you successfully reverted? Are you aware that contracts are interpreted with the context of the time they're written, and within the context of what any given phrase meant at the time the contract was signed? Have you done the research to determine the state of regular trade channels at the time my contract was signed?
I have, by the way.
Have you consulted with a number of professionals who have a vast familiarity with publishing contracts, reversion language, and the process of reverting books?
I have, by the way.
Do you engage a professional to interface with the publishing industry on your behalf? Do you have the support of organizations that exist solely to resolve contract/industry issues, but who bluntly won't waste their time or reputation on flimsy or unsupported issues?
I do, by the way.
===========
To various Anons…
One of you is perfectly correct that no one can force a publisher to deal with a mediator. However, it's the fashion in which this publisher's representative expressed the desire to disengage from GriefCom (after initially making promises) that becomes the pertinent point.
Likewise, just because a publisher requires World Rights, that doesn't mean the publisher is legally obligated to exploit them. But as others have said, publishers who don't are throwing up a red flag. Authors deserve to have this information in hand as they make decisions about their careers. Agents deserve to have this information in hand as they advise clients on submissions.
One more time: whatever anyone thinks about the details of my contract (regardless of your actual experience in the industry, which probably varies wildly among those in this conversation), the publisher's behavior alone has been enough to earn a place here in Writer Beware, and to urge industry professionals and aspiring writers to spread the word as widely as possible.
Over on his blog, Rob Sawyer posed a challenge: put things in context by comparing Doranna's book to other books published by Red Deer Press.
So I did.
– Amazon shows 10 books pubbed by Red Deer in 2007. Of those, eight are listed by Amazon as in stock and available in at least one edition. Only two are out of stock or out of print: a nonfiction hardcover that's out of print, and Doranna's book, which is out of stock. Doranna's is also the only 2007-pubbed paperback that's not currently in stock and available.
– Amazon shows 14 SF/fantasy books pubbed by Red Deer between 2002 and 2010. Of these, 13 are in stock and available in at least one edition. Doranna's is the only one that's out of stock in all editions.
Results from Barnes & Noble aren't quite identical, but they are very similar.
Obviously, there are many reasons why books go out of stock. But this does demonstrate that Red Deer has no trouble getting its books into US distribution.
Paula:
Fitzhenry and Whiteside is a Canadian distributor. I don't know how easily they can ship to the US, you'd have to ask them, but I doubt highly that Barnes and Noble checks Canadian distributors on its searches, just as our searches omit most American distributors, even though we can order from them.
Once again, the publisher cannot control who does and does not order from them.
Anonymous and Mr Balfour: No, you CANNOT walk into a Barnes & Noble in the USA and order the book, going by the fact that is it NOT on any of the multiple pages of Doranna Durgin books listed on the in-store kiosks in the B&N where George RR Martin signed books for 1600 people the first day his latest book released.
I went to a kiosk and typed in Dun Lady's Jess — nothing came up in response as even close to that title. I then searched on Durgin, Doranna, and multiple pages resulted with availability of books ordered on-line and shipping time. Dun Lady's Jess, again, was not there at all, even to say "out of stock, availability awaiting publisher" sorts of things.
"Famous" Canadian Author (perhaps I should say "infamous") quotes in his blog about non-public details of Doranna's contract with F&W.
From now on I think I'll just call him "Sock Puppet".
Gee, how did you get those details, Rob?
The behavior by F&W gets more astonishing by the minute…
"Backlist titles by midlist authors don't live on bookstore shelves. They live in warehouses. "
Which is precisely why it's so important to pay attention to the rights reversion clause.
A lot of authors are now requesting clauses that after X consecutive quarters of less than $Y in royalty payments, rights revert (though publisher can continue to sell remaining stock, as usual).
There's no reason for a publisher to cling to the rights of a book that isn't selling and that they have no intention of promoting further, so why give them the legal right to do so? At that point, the book matters far more to the author than to the publisher, and the rights reversion clause should be negotiated to reflect this.
It's unfortunate that the clause in this contract was so vaguely worded. Why are agents expected to be able to help with legal negotiation if they have no background in law? They have more experience than most authors, certainly, but enough to go up against the bar-certified lawyers hired by publishing houses?
BuffySquirrel: Yes, it is clear that we disagree.
You, as a consumer, expect that every book which is available should be in stock at any given book retailer, regardless of that book's age or popularity.
I, as someone who makes his living in book retail, am telling you that this expectation is ridiculous. Fitzhenry and Whiteside are telling Ms. Durgin the same thing. Why this is ridiculous has been explained, but I will summarize again:
Backlist titles by midlist authors don't live on bookstore shelves. They live in warehouses. As long as a bookstore can get such a book easily (and it is very, very easy in this case), then the book is available. This is not a matter of opinion This is how the industry works, and will continue to work if you want brick and mortar bookstores to continue existing.
Ms. Durgin has voiced the expectation that her book should be treated differently than thousands of books just like it, but has provided no legally compelling reason why this should be the case. For this reason, one of the most respected publishers in Canada has been placed in the company of Publish America and Poetry.com.
To answer Whinny from Colorado, in part: B&N (and the late lamented Borders) were notorious for posting smaller press titles on their systems and then constantly stating "not available" or "backordered" or some other such verbiage that would make the potential ordering book customer throw up the hands and walk away. One of my titles had been out for six months one time that I checked on it, and it had been listed as "not yet released" all of that time.
You cannot blame the author for failing to promote, either. This is not a promo issue, it's a chain bookstore matter. What brick and mortar store would even bother to order a book for a customer if their computer systems didn't even recognize the title as being available to order?
And no, I disagree, with all due respect, that this matter will rub off on Writer Beware, SFWA or any other group that is so respected and does such service to authors.
Frankly, whether we agree isn't going to make much difference in this situation. The facts remain factual, regardless of who believes them.
Simply put, backlist titles by mid-list authors don't live on bookstore shelves. They live in warehouses. Ms. Durgin seems to believe that her book should be treated differently than the thousands of books just like it. She is mistaken.
Obviously we disagree about the meaning of 'available'. If I'm going to buy a book from a physical bookshop, I expect the book to be there to buy. If I have to order it, I may as well do that online and not waste my time and money visiting a shop that doesn't have the book 'available' to buy.
However, the online hub that represents lots of independent bookshops in the UK indicates that this book is not 'available to order' from any of them. Nor does the largest chain of bookshops in the UK have the book 'available to order'. Only Amazon UK, a non-physical shop, can supply a single copy. Admittedly, the UK is only a small part of the English-speaking world, but a lot of books are sold here. Just not that one.
BuffySquirrel:
"a book is available in a bricks-and-mortar bookshop if it's on the shelf."
That is not the commonly accepted definition of "available". Nor is it a reasonable expectation, especially for a three year old reprint of a seventeen year old title by a mid-list author.
"Available" means in print, and available to order from a distributor. As Mr. Sawyer and I have already demonstrated, if you ask a brick and mortar bookstore if this book is available, the answer will be "yes".
As for the price, from 2008 to now, the price of this book has gone from $22 to $9.99. This also answers your question about why the publisher is still hanging onto this: They're still trying to get something out of their investment by finding a price point at which the book will sell. If that doesn't work out, it's probably only a matter of time before the book is remaindered.
Since the contract in question does not include a sales threshold for the reversion of rights, the fact that we're not ordering it is not relevant to the contract.
As Ms. Durgin has pointed out, the portion of the contract currently under dispute is as follows:
"If the Publisher fails to keep the Work in print *through regular trade channels* and for sale "
Ms. Durgin seems to be under the impression that her unique definition of "regular trade channels" will trump the definition used by the rest of the industry.
Available =/= In stock.
Frankly, from what I understand of the whole situation (and given that my knowledge of the law is limited), it seems to me that the publisher is possibly within their legal rights in not reverting the rights to the author, although they are possibly abusing those rights. I think arguments can be made for both sides and, since the parties cannot agree, you agree to disagree and ask a judge to decide.
Though I understand the author's frustration that the publisher insists on holding on to rights they do not use, I don't think that is a very valid argument either. Nobody is obligated to exercise a right they have, unless it is stipulated in a contract that they should do so. And I don't think anyone is obligated to submit to mediation.
The problem I see with the publisher's behavior is a) the fact that they asked her to buy the remaining stock off them and b) that they tried to bully the mediator. If, when asked to revert to revert the rights, they had responded "No. We believe that the book is stil in print and therefore we refuse to revert the rights. If you feel differently, go to court", they would have been in my opinion in an irreproachable position (at least legally, as far as professional courtesy and commno sense goes, it's another matter). But to demand that the author buys the remaining books in order for them to revert the rights smacks of blackmail. And to threaten a mediator by dropping famous names? A very shady practise.
Obviously some of us are using the vanity publishing definition of 'available' where a book's 'available' if you can order it. Outside of that little tangent to commercial publishing, a book is available in a bricks-and-mortar bookshop if it's on the shelf.
If the price point is too high, I fail to see how that isn't the publishers' responsibility.
As we're all agreed the book isn't selling–for whatever reason–then can someone explain why the publishers are so determined to hang onto the rights, even if it means breaching the contract?
We have different definitions of "available". Mine is based on availability.
Such is the way of the Canadian book publishing industry. It's not as commercial as the US industry. Canada's publishers can receive government grants (as can authors) and they often pride themselves on producing "literature" over a "good read."
That last point might be why the book was chosen.
With regard to why it's not selling, it's now trade paperback (maybe mass market would have been better) and the cover looks young-adult.
So, you have a book that is more expensive, won't fit nicely on the shelves with its counterparts, is a re-release and looks like it should be in the young-adult section. I'm going to also add that the cover, with the squished on title and that font, looks self-published to me.
I also question the blurb on the front cover calling it "fresh"…it was originally published in the 1990s. Not fresh.
The marketing isn't good.
Not sure why they won't revert the rights, though. You need a Canadian lawyer. It's possible that in Canada, but giving you back the rights, they'll not be allowed to sell the remaining books, since technically they would no longer have permission to do so. Does the contract specify they can continue to sell their copies? Don't assume because it works that way in the USA that is how it works in another country.
We have different definitions of "repeatedly demonstrated."
It is available at brick and mortar stores. This has been repeatedly demonstrated.
Mr. Balfour–
You're absolutely right. If the book isn't selling, it isn't selling, and no one's suggested it should be otherwise. Obviously, this book wasn't a good match with this publisher. I regret it, and I'm sure they regret it, and the readers who are facing brow-raising prices to purchase used copies of the original edition probably regret it, too.
However, the contract does call for availability through regular trade channels–which at the time of the signing referred to brick-n-mortar stores. Sans that, it needs to revert.
Why go to so much trouble to hang onto a book that isn't performing, when F/W can clear their warehouse via remaindering, honor their contract, and be quit of it? Or optionally, continue to sell the book just exactly as they already are, honor their contract, and be quit of me?
I could go on–there's something to be said about a publisher claiming world rights on one hand but being defended as a small Canadian publisher on the other–but really, that's the crux of it as regards my contract.
As regards their behavior–that exists regardless of the final contract disposition. I've written for a dozen publishers across genres and never before experienced the behavior documented of Fitzhenry & Whiteside, starting with "if the author is willing to purchase the remaining stock at cost we'd declare it out of print and revert the rights immediately." (For those who aren't familiar, that's basically trying to remainder it through me, and also implies they really don't, in fact, care about keeping the title.) For that alone, it's important to break the silence on this baffling and pointlessly difficult situation.
I work for one of the booksellers Mr. Sawyer mentioned in his reply. With no disrespect intended to Ms. Durgin, I have to agree with Mr. Sawyer.
The reason Ms. Durgin's book isn't on our shelves is because we're not ordering it. We're not ordering it because it didn't sell. That doesn't change the fact that the title is readily available to order from one of Canada's largest distributors.
I'm honestly not sure what F&W are doing wrong (aside from being very unprofessional in how they're dealing with Ms. Durgin. I won't attempt to defend that). They're a Canadian distributor, and they're distributing the book in Canada. It's not their fault that it's not selling, any more than it is Ms. Durgin's. They can't force retailers to stock a title that isn't selling.
It's a bit ironic, I guess, but from now on anyone who posts screeds attacking Writer Beware under the name "anonymous" is doomed to be associated with the dork(s) at Write Agenda. All the more reason to come forward and post under your own real name and take responsibility for your comments.
(not a writer from Colorado)
Wow, F&W's appeal to "Well known Canadian Author #1" doesn't seem to be working out too well for them.
All the rants and spittle (and personal attacks) flying (from Author #1) on his blog are not doing the publisher any favors-by-association, as far as I'm concerned.
Wow, Anonymous from Colorado. "Whinny" author–what a clever pun (Doranna's book, as I have no doubt you know–given your obvious research expertise–is about a horse transformed into a woman). I'll contemplate it during the wink of sleep I'll lose tonight for having sacrificed your trust.
(Is it a coincidence that your comments have a strong whiff of a certain Agenda?)
(again from Colorado)
I think I answered one of my own questions. The US price is too high and there are far too many used copies available. That would be my guess why the US market isn't stocking it. Definitely not the publisher's fault.
The only question I have for the publisher is why the don't want to offload the book to a remainders dealer? But has anyone asked if they already tried that? What if the remainder dealers are already sitting on some of the Baen edition? If they can't unload it, they the publisher has done the only two things to make them money off these books, keep selling them like they are or offer to sell them to the author. That would be a fascinating question to have answered. Too bad you've pissed off the publisher or you could have asked it.
(by a writer from Colorado)
I see several problems with this whole situation and most of them fall smack dam on the author, not the publisher.
First, what has the author done to promote this book? The author had to do their part to market a book. If they don't and it doesn't sell, that reflects more on the author than the publisher.
Second, why hasn't this book been selling? It's available to order, so why aren't bookstores carrying it? It seems that there could only be two reasons for this. Either the author has not been making the effort, or the book isn't that good.
And why hasn't a lawyer been consulted? This is a legal document you are arguing the interpretation of, normal person sensibilities don't apply. I understand that the contract gives the publisher 6 months to reply yet you have been demanding replies in 48 hours. Might I ask what the rush is? This is the publishing industry, nothing moves fast. Does the contract allow for such demands? If you want out of the contract, you have to do it in a way outlined in the contract or take it to court.
The way this case is being handle is damaging the name of Writer Beware and the SWFA. I do not feel the author is being honest with the public or living up to her part of the contract. The actions of the author and those who have been trying to help her show the same level of ineptitude at following the rules that I have to deal with in my job for the State. You cannot break a contract just because you want to. You cannot disobey the laws and regulations just because you feel like it. You have to follow the letter and spirit of the contract you signed. Any questionable terminology must be addressed and agreed on befoe you signed the damn thing in the first place.
What I see here is a whinny author, just like the whinny people I have to deal with when they break the law. Frankly, I don't know if I will every be able to trust writer beware again. Certainly not without a lot of research. I've come out of this discussion with a new appreciation of contracts, a distrust of Writer Beware and those associated with this case, and a dislike of the author. In general I dislike whinny complaining people who do not have a genuine grievance.
Most important rule of writing – not all books will sell. Deal with it.
I can order the book through Amazon. And I can go down to Barnes and Noble and order the book if they don't have it and I want it.
You could order the book through Amazon.ca. Not through Amazon.com, which lists it as "temporarily out of stock." Or rather, you could place the order–but you wouldn't receive a book.
Barnes & Noble lists it as "not currently available." So I don't think you could order a copy there either.
If the book is indeed available through regular trade channels, why are so many retailers having problems obtaining stock? The number of books reportedly in the publisher's warehouse makes this especially curious.
I went and had a look at Amazon UK and they say they have only 1 copy left in stock. Book Depository say "currently unavailable". The Hive (an online conduit to independent bookshops in the UK) has never heard of it. Waterstones online (biggest bookshop chain in the UK) ditto.
WRT any 'obligation' to exploit purchased rights, that would depend on the contract. But acquiring rights you have no intention of exploiting is in itself a red flag.
Anonymous, (I really need to get an account, so it doesn't look like I'm arguing with myself) — an argument can be made either way, as to whether the book is available through "normal trade channels" or not.
It would have been far better if the author and publisher had worked out what "normal trade channels" consisted of, in writing, before signing the contract. (Hence why it's a good idea to have an IP lawyer — an actual law expert — help you with contracts, rather than an agent who doesn't have a law license).
But since it's too late to do that, the two parties now need to come to a decision on what that clause means, and if it's being met. "Decision" can be reached by amicable agreement, mediation, one side giving up, or litigation.
But it's a vague clause and it's debatable whether it's being met or not. The author will clearly be far better off regaining rights to the books; the publisher's benefit from holding onto them under the current circumstances is less obvious.
The author has a reasonable case for claiming that the contract isn't being met, it's not at all clear what a court would decide if it goes that far.
The author has given them a detailed explanation of why she thinks the aren't meeting their contractual obligations. I'm puzzled as to why the publisher hasn't responded with an explanation of why they feel they are (IF they feel they are).
But then again, they probably think they are safe. They've been given several ultimatums, none of which have had any consequences, and they probably think it doesn't matter whether they are contractually in the right or not, because they think all the author is going to do is stamp her feet.
Which is why I'm puzzled as to why an IP lawyer hasn't been brought in to negotiate with them yet. A lawyer doesn't have to mean litigation.
Booksellers can't stock every book that is in print. It is their decision not the publishers what books they put on their shelves.
I can order the book through Amazon. And I can go down to Barnes and Noble and order the book if they don't have it and I want it. So, I don't see how the author can say that the book is not available through regular trade channels.
If I were the publisher and I had to deal with an author who starts making demands for a reversion of rights based on an inadequate evaluation of the situation, I probably wouldn't respond to threatening and demanding emails either.
The publisher is meeting their contractual obligations, the book is available through regular trade channels. The author does not have a case. There is nothing to mediate.
The author sounds like an absolute nightmare to work with.
There are two issues here, really: the reversion of my book is one. Confused, many of your questions revolve around that matter, and Victoria has addressed those as ably as ever.
The other issue is their behavior over the past 18 months. There's nothing unspoken, hidden in the background, etc, of my blog post, simply because that's all there is. Everything in my blog is based on saved emails, screenshots, and research; the notes in the timeline are pretty specific. That's not mudslinging; it's documented fact. And the point is to let writers and agents know that this is what you can expect if you work with this publisher. IOW, Writer Beware.
As for GriefCom–the publisher refused to work with them.
If there are terms by which any author and agent cannot abide, why would they sign the contract? Shouldn't an author find a different publisher, or simply walk away, if acceptable terms can't be agreed upon?
Yes. But if you're a writer, you know that the decision is often much more complicated than that, and involves emotion as much as good business sense.
In any case, this is a dispute about interpretation, and it's impossible to predict when and how such disputes will arise in the future. Hindsight is 20/20. Decisions in the present are much more murky.
Why did the SFWA griefcom back off? 48 hours from the Oct 3, 2011 ultimatum have lapsed.
I'm not a member of Griefcom, so I'm afraid I can't answer that question.
If a publisher has the worldwide right to publish a book, does that also confer the obligation to do so?
To publish worldwide–as in issuing separate editions in foreign countries, rather than just exporting them? No. But US and Canadian publication traditionally go hand in hand, and Doranna's contract is clearly set up in expectation of US as well as Canadian publication.
Again, though, this is at least partly a matter of interpretation. If publisher and author disagree on interpretation, it might be capable of being settled only via litigation.
Confused,
I'm responding in two parts, since Blogger won't publish very long comments.
No one is telling you to "hate" this publisher. However, when publishers engage in dubious activities–whether those activities are ongoing or an anomaly–it's good to bring that fact to light, so that other authors can take the information into account.
With the clause 16a as it is written, doesn't the 'normal trade channels' stipulation logically apply to the printing, or physical manufacturing, of the book?
As I noted above, "in print" is traditionally understood not simply to mean a book's physical existence, but its availability for sale through the regular distribution channels of the book trade–bookstores, distributors, online retailers, etc.
By F&W's admission, there are about 1,600 copies in its warehouse. But while the book can be ordered online via some Canadian sources, all the US sources I checked (Amazon.com, B&N.com, Indiebound, Tattered Cover, Powell's) list it as "backordered" or "out of stock" or "special order subject to availability." This doesn't mean that the sources could place a special order and get the book; it means they've tried to order it and couldn't. So clearly it's not available through "regular trade channels" in the USA.
(An important question here: if there are so many existing copies of the book, why isn't it available? If the publisher has the copies on hand, why would it not provide them to US vendors?)
If, according to Victoria Strauss, "Traditionally, 'in print' is also tied to availability for sale," why are they written separately in clause 16a? Wouldn't this confirm that they are separate considerations,
That's fairly standard publishing contract boilerplate. It makes specific the fact that the physical existence of the book is not sufficient to consider it "in print." (I think that Doranna's insertion into this clause was made in the wrong place–it should read "in print and for sale *through regular trade channels*" rather than "in print *through regular trade channels* and for sale.")
Even if they are separate considerations, their joint presence in the clause suggests that both conditions must be fulfilled for the book to be considered in print–and as I've noted above, one of those conditions is _not_ being fulfilled.
If I can buy a new copy from a book retailer, how is that out of print?
Again, "out of print" doesn't necessarily mean "out of physical existence." Taking a book out of print is a complicated decision that has to do in large part with demand, and books that are selling only a handful of copies a year may be taken out of print even when large numbers of copies are on hand in the publisher's warehouse. (Those copies are then often sold to remainder dealers to recoup the cost of printing; the author typically receives no royalties on such sales.)
So F&W could take the book out of print, if it wanted to, regardless of how many physical copies currently exist. The reason that you can still buy a physical copy from a handful of sources in Canada is the result of its refusal to take the book out of print–which is at the heart of this dispute.
I am so confused by this whole situation. I have read the author's blog, the Writer Beware blog, the SFwriter blog, the griefcom site, and the boingboing blog, and I feel like there is a lot going on behind the scenes and this amounts to a lot of name-calling and mud-slinging without providing verifiable evidence. It all amounts to "I'm right, believe me, they're bad."
I have to ask (and anyone can answer):
With the clause 16a as it is written, doesn't the 'normal trade channels' stipulation logically apply to the printing, or physical manufacturing, of the book? That is how the sentence reads in the clause. If it were to mean what the author wants it to mean, why wasn't it written as “16.(a) If the Publisher fails to keep the Work in print and for sale *through regular trade channels* and…"? That way, the stipulation would have applied to the sales instead of the printing of the book. If wording is so important, why was this not considered?
If, according to Victoria Strauss, "Traditionally, 'in print' is also tied to availability for sale," why are they written separately in clause 16a? Wouldn't this confirm that they are separate considerations, at the very least if only in this particular contract, in opposition to the 'traditional' meaning of 'in print'?
If I can buy a new copy from a book retailer, how is that out of print?
(personally, I prefer to get my books ordered in. I don't want a copy that's been thumbed through, spine broken, dog-eared, and generally abused by dozens of browsers who didn't end up purchasing the copy that they collectively wrecked. I'll wait a month or more for a fresh copy from the retailer's warehouse, thank you very much)
If there are terms by which any author and agent cannot abide, why would they sign the contract? Shouldn't an author find a different publisher, or simply walk away, if acceptable terms can't be agreed upon?
Why did the SFWA griefcom back off? 48 hours from the Oct 3, 2011 ultimatum have lapsed.
If a publisher has the worldwide right to publish a book, does that also confer the obligation to do so?
Please give me some straight answers instead of telling me to hate a company that, once upon a time, gave an old book a second chance at life.
Thank you in advance for your honest answers to my questions.
Wow, what con artists. I'm definitely adding Fitzhenry & Whiteside to my "Never Ever Submit Here" list.
Maybe phone the store and ask the buyer why they aren't there? The store makes the decision. I looked up Stephen King's availability at Chapters in Canada. Older titles have one or no copies available. THE Stephen King.
Victoria, you are awesome. My head is spinning just a little too much to be as cogent as I would sometimes like.
I will mention that of the online vendors,there is one copy available–for the others, the shipping is delayed from one to five weeks, depending on the vendor. And yes, a search of all the Chapters, Coles, and Indigo bookstores in Victoria, Calgary, Edmonton, Saskatoon, Winnipeg, Toronto has revealed that DLJ has all of one copy on the shelves at one store.
Responding to Mr. Sawyer:
"A large number of physical copies in the warehouse" doesn't necessarily equal "in print." Traditionally, "in print" is also tied to availability for sale. (These days, it also needs to be tied to actual sales figures or revenue–I'd agree with KevinMc that "normal trade channels," while more precise than the original wording of the reversion clause, isn't precise enough. But according to Doranna's agent, the publisher wouldn't consider that.)
The book is indeed available via various online retailers in Canada. And there appears to be a single physical copy on the shelf of just one of the twenty-four Coles/Chapters/Indigo stores in Toronto (and zero copies in any of the stores in Edmonton, Ottawa, Vancouver, Victoria, Quebec, and other major Canadian cities, according to Indigo's handy "Find in Store" locator).
But the grant of rights in the contract (which I've seen) is for "the right to print, publish and distribute the Work in book form in the English language throughout the World." I.e., not just in Canada. I cannot find the book for sale new anywhere outside of Canada–not just in physical bookstores, but from online vendors (both Amazon.com and B&N.com have it available only via Marketplace sellers, and the Indiebound database shows it as "not in stock–special order"). Surely, for a worldwide grant of English print rights, "normal trade channels" should include non-Canadian trade channels. Conversely, there's no language in the contract that limits "normal trade channels" to "Canadian trade channels."
Beyond that–why is the publisher holding onto the rights for a book that, by Doranna's own admission, is selling only a handful of copies a year? Clearly, the publisher isn't putting any effort into marketing the book. Clearly, given its initial offer to sell the books to Doranna in exchange for reversion, it would be glad to get rid of the book. How does it make sense, under those circumstances, to let hundreds of copies continue to take up space in Fitzhenry and Whiteside's warehouse? Why not sell the inventory to a remainders dealer, and relinquish the rights?
The contract does claim electronic rights. Could the publisher have been planning to issue an electronic edition? But then why hasn't it done so, or informed Doranna or her agent of its intent to do so? Surely, if an ebook were in the works, Doranna's original reversion request (which she made over a year ago) should have shaken that information loose.
Why is the publisher so apparently resistant to providing information and responding to questions?
"There certainly are such things as reversion-of-rights clauses that require the publisher to meet a threshold number of actual physical copies sold or a threshold number of dollars earned to keep a book in print."
And in the final analysis, it's the author's fault that such a clause was not added to the contract. =/ From a legal perspective, I'm not sure that there's any grounds for action against the publisher.
"Normal trade channels" is a little vague. I know in the US that almost half of all print books are bought online today. What percent would it require for online sales to constitute being a "normal trade channel"? Vague language, open to interpretation, is the enemy of a good contract.
One writer I know suggested that writers add a reversion clause to the effect of something like after a book has been in print for five years, it shall be considered out of print and rights revert to the author if the author is not receiving at least $500 per six months in royalties from the publisher for that book. This gives the publisher a choice: pay the writer $1k a year, or revert the rights. Very clear. Very easy.
Fitzhenry & Whiteside isn't just a publisher, it's also one of Canada's largest book distributors (they used to distribute Ace Science Fiction, and they do distribute EDGE, Canada's largest SF line). And a quick call to Bakka-Phoenix, Canada's oldest SF specialty store revealed that Dun's Lady Jess is indeed available via the distributor Fitzhenry & Whiteside to any bookseller that wants it; the title is listed in the distributor's catalog.
The contract language in question is this: "in print through normal trade channels." The blog post makes it clear that the book is certainly in print — there are large numbers of physical copies available for shipment (and, checking, I find that they are traditional web-offset copies from the massive first printing — not print-on-demand or ebook editons; the book is in-print not just in some nebulous new-paradigm sense, but in the classic, normal, traditional sense of the term).
As for "normal trade channels," Fitzhenry & Whiteside is a Canadian publisher. What constitutes "normal trade channels" in Canada?
Well, how 'bout via Chapters.Indigo.ca, Canada's largest bookstore chain? Dun's Lady Jess is available for purchase there: Chapters.Indigo.ca
Or maybe you prefer to shop at McNally Robinson, Canada's major indepedent? They'll sell you a copy, too: McNallyRobinson.com
Or Amazon.ca? They show the book as In Stock — that is, it's in their own warehouse, not just the publisher's: amazon.ca
Or perhaps you want to pick it up in a physical brick-and-mortar bookstore? It's in stock and on the shelf at World's Biggest Bookstore (the Chapters/Indigo store in downtown Toronto) (verifiable via the "Find It In Store" feature at the Chapters.Indigo.ca link above).
There certainly are such things as reversion-of-rights clauses that require the publisher to meet a threshold number of actual physical copies sold or a threshold number of dollars earned to keep a book in print. But this contract doesn't have any such language. The book is in print — copies exist — and it is available through "normal trade channels" in the country in which it was published.
Hmm, that removed by author post must be mine, but I didn't remove it. So sad for me!
Anonymous,
Online venues aren't regular trade channels, and those stores take weeks to provide the book. Other things seemed to have changed since we first went hunting (note my surprise).
Meanwhile, we have repeatedly inquired of Fitzhenry & Whiteside to provide us with information about distribution, based on our evidence of lack thereof, or else for reversion. The timeline is very clear on how the publisher responded to these attempts to communicate. It's past time to allow others to learn from my experience with F&W, however it strikes them.
The sticking point here is the phrase in the contract, “in print through normal trade channels”. Unfortunately, the term “normal” is vague and open to interpretation. What’s normal for them is obviously not normal for the author. They apparently interpret online listings as “normal trade channels”, while she does not. Her lawyers should have seen this when they forged the contract and perhaps more clearly defined the clause in question.
That doesn’t negate the apparent unprofessional attitude on their part, of course.
This comment has been removed by the author.
I'm not sure I understand. Does the author nor SFWA not realize that F&W IS a major distributor as well? The book is available at Amazon.ca and Chapters.ca. Are these not regular trade channels?
Thank you for sharing your struggle. Kind of puts me farther off of traditional publishing and into the realm of self pub where author retains most rights.
Agreed. Long past time to bring in an IP lawyer. (Probably all it would take is a single strongly worded letter from one.)
When I read this, I can't help but wonder why there's not a lawyer involved?