unsnarling the snarl

The recent Month9 mess (small press cutting back their list due to health issues of the lead person, stories coming out about lack of support and non-payment going back a couple of years) has me wondering about how you handle a situation like that. So, here are my questions.

1. If you have a contract with a publisher and have not yet been published by them and information starts to come out that they are less than ideal as a publisher, is there any way to get out of the contract? Does this change based upon where the book is in the process? Signed but not delivered, delivered but not edited, fully edited and up for pre-order, etc.?

2. Does a book that's already up for pre-order count as a book that's been published? At that point are you just stuck going forward with it no matter how ugly?

3. What would you say to a writer who wanted a buy-out clause built into a trade publishing contract from the start? I've seen so many publishers go bankrupt or sour that it seems to me a prudent thing to have, but I suspect most agents would think I was absolutely insane to demand one.

4. If you are a writer who gets caught in a mess like this and your debut sales are horrible as a result, do other publishers take that into account when you try to get your next contract? Or is it the kiss of death? I'd think this happens often enough that they have to give some leeway, but then again it's such a competitive field that there are always shiny new authors to sign instead, so why bother with tarnished goods.

(1) You can "get out" of a contract only with the consent of the other party unless the other party has breached the contract. Since "the author must have confidence in the publisher" is NOT one of the terms of the contract, losing confidence doesn't have an impact on the contract at all. The only exception to this is if the contract has not been signed and fully executed (ie you've got signature of both parties, and the on-signing payment.) If you don't have a fully executed contract, you can (most likely) withdraw from it. Contract law varies by state so this is something you'll need to consult an attorney about. Almost everything can be negotiated, but it does take both parties wanting to negotiate something to get started.

(2) Once it's got an ISBN and is available for sale it's published. Obviously, the sooner in the process the better if you're contemplating making a change. Again, you're stuck unless the other party breaches the contract or is willing to negotiate to let you out of the contract.

(3) A potential client who starts issuing instructions about what they want in a publishing contract is a bad risk. There's no such thing as a buy out clause in a standard publishing agreement. No publishing company would tolerate it.  The publisher invests thousands of dollars in overhead and production, expenditures that they and you and I hope adds value to the book. A contract that allows a writer to "buy back" the book at any time for something as amorphous as "losing confidence"would potentially cost them a lot of money.

A writer saying they've "lost confidence" in the publisher is so abstract as to be meaningless in a contract.  How would you prove it? How would you disprove it?  Most of the time when I hear writers talk about how publishers have screwed up, it's on things like "it was a bad cover" "my publicist sucked" "my editor left." Those are just normal woop and warf of life in publishing.

That said, your contract should have a bankruptcy clause, and a non-performance clause. The non-performance clause says that if the publisher doesn't pay royalties on time, and correctly, and doesn't fix the situation within a specific amount of time when notified, the rights revert to the writer. That's measurable. And paying royalties on time is to be expected. It's completely in the control of the publisher. There are no aesthetics involved. Run the report. Send the report. Pay the writer.

There is also a provision for reversion of rights if the publisher fails to publish within a certain time frame, or does not keep the book in print.


(4) Lots of writers survive idiot publishers.


What you really need here though is how to avoid getting snarled up with one of these over eager, under capitalized "we're here to fix publishing" people.

Here are the big red flags:

1. New Kid On the Block. One of the things I beat into my minions is "don't be first." Brand new start ups are fun, and exciting, but someone is learning the hard way when the boots hit the ground. I prefer they learn on someone else's client.  With a start up publisher, I like to see at LEAST two years of sales. Not just acquisitions, two years of books on the shelf. And make sure that authors are getting paid for those too.

When Amazon went into the publisher biz, I can remember laughing at all the snafus they encountered. Just cause you're good at selling books doesn't mean you're good at publishing them. Which leads to flag #2.

2. Lack of actual publisher experience.  I admire start ups, and I'm an entrepreneur to my finger tips but I also think that starting a publishing company with no publishing experience is a recipe for disaster. Some publishers recover from those disasters. Some do not. Generally the ones that do are the publishers who are building strong relationships with bookstores, reviewers, agents and other publishing pros who will help them. What they are NOT doing is trashing anyone in public (see #5) And they are publishing a small to moderate size list. Which brings us to point #3

3. Number of books published.  A one-person operation proposing to publish 100 books a year is ludicrous. You simply can't do all the work required for something like that.  Given small publishers often wear three or four hats (marketing, finance, overseeing acquisitions, foreign rights) they should plan to publish FEWER books not more.

They go for volume because they are looking for revenue. If they need to publish 100 books a year to pay everyone, they are headed for a reckoning that will not be pretty.

This is just plain accounting. Intentions, good bad or otherwise, don't come into the equation.

4. A website that is more about persuading authors to submit books than about actually selling the books they publish.  By way of comparison, look at any website for a successful non-megawatt publisher. Even if they do take unagented submissions, it's not the focus of the website at all.

Examples: Hawthorne Books, The Permanent Press, Tyrus Books

5. Denigrating people who ask questions or write critical comments in a public space.  One does not run a business like an audition for a remake of Mean Girls.  Well, I guess you can, but thanks, I'll be doing business elsewhere.

I have certainly had my share of uncomfortable conversations and interactions with publishers. You'll notice they have not been in public, nor will they ever be in public.  If a publisher talked about any one of my clients in public the way that the Month9 publisher did, I'm not sure what I'd do, other than this:

It's very very easy to get sucked in to "someone wants to publish my book" and forget to ask some essential questions.  That's why you have those questions written down and you know to ask them before you get too giddy to think straight.

And the last, and biggest red flag of all time:

6. Publishing is Broken; We're Going to Fix It.  Confidence is a good quality in a entrepreneur. So is iron clad optimism.  Hubris is not.  Someone who tells you they're going to fix an industry they've never worked in is textbook hubris.

A lot of people come up with terrific ideas to improve things.  The one I love most right now is this:







But when someone tells you they're going to fix a problem, it actually has to be a problem. 

If you think what kinds of books get published is a problem, you can't tackle it from the acquisitions side. You have to tackle it from the sales side. What people buy is what publishers tend to publish. If you think not enough science fiction is being published,  tell me how to find more science fiction readers, not that you're going to publish more science fiction books. Hubris is thinking that if you just publish it you can sell it.I wish that were true; wishing does not make it so.