Last week, the SFWA Contracts Committee issued this advisory.
SFWA Contracts Committee Advisory on No-advance Contracts
Recently, SFWA’s Contracts Committee was made aware of a situation in which a well-liked publisher canceled the publication of a number of books it had contracted to publish. The publisher said the decision was made because of “unexpected changes” at the company. The Committee has reviewed the contract in use, which lacked a provision for such a cancellation. The Committee believes that canceling a contracted book that satisfies the author’s obligations is at odds with the spirit of the contract. Making this situation worse is the fact that these were no-advance contracts. Because no advance was paid, the publisher could make this decision without financial penalties. The authors’ books, were, in effect, put in limbo for many months and the authors received nothing but an apology. Besides depriving the authors of the ability to sell the books elsewhere during this delay and putting off any income from the books into the indefinite future, the authors careers suffer as a result.
Publishers of all sizes may find themselves unable to live up to their contractual commitments for a wide variety of reasons, some of which could not have been reasonably anticipated. Hence, the Contracts Committee urges writers to think carefully about signing a contract that provides no advance, or only a nominal advance, while tying up their work for a lengthy period of time. Critically, payment of an advance gives an indication the publisher actually has the financial resources to meet its obligations. Publishers who do not pay advances or pay only nominal advances should include language in their contracts specifying how they can cancel a book and what happens if they should cancel a book, including a specified amount of compensation to the author.
SFWA Contracts Committee
October 25, 2019Legal Disclaimer: The contract alert should not be understood to be legal advice. The issues presented by contract law are complex. Authors should consult a competent attorney familiar with the business of publishing as well as contract law before signing any contract.
The publisher in question is Fireside Press.
The cancellations were first reported on October 8 by Jason Sanford in his Genre Grapevine column, and discussed on October 9 in Mike Glyer’s File 770. Fireside publisher Pablo Defendini issued a statement on October 8, in which he revealed that the five canceled contracts were for manuscripts that were “unpublished and unannounced”, and attributed the cancellations to disruptions caused by editorial departures.
Author Meg Elison, one of the canceled authors, did not find this to be a sufficient explanation…and she was livid.
A few days later, Defendini issued an apology. “I can see now how [the cancellation emails] read as callous, uncaring, and dismissive of the authors’ feelings,” he wrote. “I’m very sorry for that….My behavior was not consistent with Fireside’s values, and I deeply regret it.”
Beyond the Contracts Committee’s general warning about no-advance contracts (and if you’re part of the small press world, you know how common these are): multiple simultaneous contract cancellations are not frequent or normal, and can signal trouble beyond whatever the publisher offers as an explanation (if it explains at all). Ditto for a publisher that suddenly starts offering to revert rights on request.
Fireside’s situation also highlights the risks of signing with a publisher that’s essentially a one-person operation (as Defendini admits in his apology). With the best will in the world, the publisher can be sidelined by a single bad event (personal or professional), leading to glitches, errors, and delays in scheduling, payment, and more. Writer Beware’s files are stuffed with such stories.
Troubled publishers do recover, or at least hang on. Month9, which canceled dozens of contracts in 2016, is still publishing, as is Permuted Press, which axed an undisclosed number of titles in 2015 (both publishers cited overstocked lists, though in both cases there were other issues as well). In the short term, though, if a publisher is or has been actively shedding writers, it’s best to hold off on submitting until it’s clearer what’s going on.
I bet there is some hidden little thing all these publishers do with a bank, like take loans based on future sales which of course they are basing their projected book profits on. Taking on projects far in advance of their ability to market and publish, just to keep ahead of Peter to pay Paul. And once any business gets in this cycle, and I have personally seen this happen several times in the custom car and motorcycle industries, among others, there is usually no way for the company to get out of the cycle. And the more unscrupulous ones just keep doubling down and taking more and more order deposits, or in these cases, getting authors to sign contracts. IMHO.
Makes me glad they rejected my short story recently… Jeez! I'm surprised they're still taking submissions this year considering how swamped he's making it out to be…
PT Dilloway,
In his statement, he says he works with freelance editors but does everything else by himself.
Oh, I'm not saying events don't happen, but if one party for whatever reason can't deliver there should be a clause allowing the other party to go/look elsewhere.
If I hire a painter to paint my house and they fall and break a leg, I'm not required to wait until they are all healed up to do the job, I can hire someone else.
And I remember reading about some of the abuses. One was a publisher that didn't want to publish the book so they requested it be rewritten over and over until the writer finally gave up. The second was a writer trying to get out of a contract where the publisher had 'first option' on anything they wrote, the writer got it killed by writing something the publisher didn't dare publish …
If they're a one-man operation, how could the delay be due to editorial departures?
Sometimes events really are beyond a publisher's control, and not due to malfeasance or unprofessionalism. Most contracts include language allowing for that, which is reasonable–though to prevent abuse, there should be a time limit on how much the publisher can extend things, after which point the contract terminates.
There should also be language requiring the publisher to publish within a defined amount of time (for instance, within 12 months after contract signing or acceptance of the final edited manuscript), or else the contract terminates and rights automatically return to the author. You'd be surprised how often that provision is missing in small press contracts.
Hmm, have added to the contract that if the publisher cancels/delays for any reason all rights return to the writer so that they are free to publish elsewhere or self publish (not that the publishers would agree to losing any of their control over the writers' works.)