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.

How to Evaluate a Small Publisher

1. Ask to see the boilerplate contract.

A. Lloyd Jassin has a list of things that should be in a contract.
B. Morse, Barnes-Brown, Pendleton also has one

There are lots of places to find lists of red flags in contracts.
C. EPIC has one here 
D. The Authors Guild has one here
E. The amazing and invaluable Victoria Strauss has a great resource here.


2. Ask if the terms are negotiable
That means the publisher will negotiate with you or an agent or a contract review specialist to change the terms of the contract either by deleting clauses, amending clauses, adding clauses and/or changing royalty rates.

If a publisher says s/he doesn't negotiate, you've got a big red flag.


3. Look at the books they're publishing
Do they look professional? Trust your instincts here. You've read books, you've held books in your hands, you can recognize when one looks cheap and poorly designed. What they are publishing now is probably what your book will look like too. I will freely confess I am a book snob. Maybe you aren't.



4. Is the only way to buy books through the publisher's website?
Most readers don't like giving their credit card information to a site they don't know or use often. If the only way to buy books from this publisher is on their own website, that's a problem.

A.  Are books for sale on Amazon and BN. com?
Verify. And check the prices. The LIST price, not this discounted price.

B. Are the books listed at Ingram and Baker & Taylor?If they're not, your chance to get into bookstores and libraries other than as a special order is close to zero.



5. Look for the price of the books.
Are hardcovers more than $25.00
Are trade paperbacks  more than $15.00
Are Ebooks more than 9.99

If the books are overpriced (I didn't say over valued so lets not open that tin of gummy bears ok?) you've got a problem.


6. How long has the publisher been in business?
One of my ironclad rules is not to be first. Let the new publisher learn those first hard lessons on someone else's client. I like to be third. Or tenth.

Has the publisher been in business less than five years? That's a brand new publisher since publishing is a very long lead industry.

You know who discovered that the hard way? Amazon. They knew a lot about selling books, but selling books and publishing books are two VERY different things. They had a lot of money and some very smart people but they still had a bumpy road the first few years.


7.  Is the focus of their website writers or readers?
If it's writers, they're not using their website to promote their product. A publisher should be focused on their product: books. If the website is largely about how to become one of their authors, how to query etc, that's a problem.




A lot of small publishers do very well. They know their business and they work very hard.
I've sold books to a goodly number of them.

Some aren't.

Make sure you can tell the difference.

Query: not this publisher, not now not ever

 In contrast to the questioner on Wednesday, who seemed to have a list of favored publishers, I'm wondering how you handle a situation where a writer prefers not to do business with a certain publisher. Let's just posit that there are concerns of an ethical nature that probably have nothing to do with the quality of books being published. Let's also say the writer does NOT particularly want to make this known to said publisher, either publicly or privately.


Do you simply not pitch to that publisher? But what if a book is a perfect fit for a certain editor (who works for the "blacklisted" publisher) and s/he somehow gets word that you're shopping a book that's right up their alley, and asks you about it? Do you pitch it even though the writer doesn't intend to accept an offer? What if you do and they make an amazing offer, both money and terms, and it's not accepted-- do they ever ask why not? Would it be horribly awkward and perhaps damaging to your relationship to tell an editor your client doesn't want to do business with them? Or does this happen all the time and it's no big deal and everyone is fine with it?


More important, does this aversion to questionable business practices make a writer "difficult" and someone you'd rather not take on as a client? Is it something a writer should mention up front if an agent offers representation?

You've really been working yourself into a frenzy here haven't you?

Time to get off that hamster wheel and take a deep breath.

First, it's your book, and you don't have to sell it to anyone you don't want to. That said, if you arrive with a shiny new manuscript that I'm enamoured of, telling me you have a hit list of publishers, well, that's probably going to be it for me.


Here's why: Unless you can explain in pretty blunt and understandable terms, what your objections are to BigAssPublisher (ie the CEO is Ann Coulter in her spare time) my assumption is you have some irrational prejudices and that does not bode well for me being able to shop your book far and wide. It also does not bode well for future books; what if you decide This One and That One no longer meet your criteria?


If I sign you, and you reveal this prejudice only after I start talking about a submission list, you'd better have a VERY good reason, or I'm probably going to pull the plug.


This kind of stuff falls in the category "life is too short to deal with this kind of thing."  


Now, that said, I do know an author, back in the day, who refused to let his agent shop his book to anyone who had published a book on the OJ case.  (This was in the middle of the OJ case tempers were high, let me tell you)


His book did get published, but 20 years ago there were a lot more publishers to send things to.


Now if by some chance I think your reason not to want to do business with a publisher is sound, well then, I send it out, and if anyone asks why they didn't get it, I say what I always do: we had a very select, targeted list.


I will tell you this: I've only gotten calls a couple times from editors wondering why they didn't see something and every single time it's happened, it was after an exclusive submission and a pre-empt. In other words, most of the time editors are NOT looking to see what you didn't send them; they're trying to read the stuff they're behind on.


In the end you'll have to decide if this blacklist is something you really want to pursue.  I STRONGLY urge you not to. If you go ahead, you really do need to discuss this with prospective agents BEFORE you sign.


This kind of thing can be a deal breaker and you don't want to tell everyone you've signed with Agent R only to be back out looking for a new agent in a couple weeks.




This is on the list of things you fret about before you really need to.  Here, have a cookie and think about that really clunky sentence on page 400.

Query question: so I queried publishers and agents and now I'm in a pickle

I queried a bazillion agents and wasn't patient enough to give them what seemed like 17 years to reply (it had only been a month.) In a snit, I sent a query to a publishing house that takes direct submissions.

Then, in the excitement of having agents (not you, alas) request full mss, I forgot about the publisher.
Recently, the publisher has requested a detailed synopsis and a full manuscript.

On the one hand, several agent requests and one publisher request mean I'm deeper into the forest primeval than I was with my first book. Which makes anything that happens at this point good news. I'm also close to finishing my third book -- and querying that.

But...do I risk offending the agents or the publisher if I fill my dream agent (not you, alas) in on what's going on with the publisher and hope she responds saying "Let me take it from here...I was just seconds away from offering you representation because yours is the best book I've seen in a decade?"

Or do I send the mss package to the publisher and hope for cosmic coincidence  -- that they'll offer me representation the day before dream agent does?

Being a wee woodland creature, I'm tempted to hide under my rock, berating myself for snorting in the face of the guideline "Be Patient" and the one that says "Query agents first, publishers second."

Can you help clear out my muddle puddle? 

First, you're going to go back and do some in-depth research on the publisher to make sure they're serious about publishing print books.  You're going to look for things on their website that indicate they sell to wholesale accounts like bookstores, or to libraries.  You're going to make sure they actually sell books to somoene other than the author and the author's one hundred closest friends.


The reason you're going to do this is because if the publsher is NOT a serious publisher, no agent is going to want to deal with that contract, and knowing you have interest from them won't make any difference.


But, if the publisher is a professional place (rather than a hobby outlet--a phrase I'm going to catch hell for I bet) then you let the agents know. It may not make a difference, but you'll want to let them know in case it does.

Blog post follow up!

Remember this post from March 2014 from a blog reader who had an offer from a small press?

Here's the rest of the story:

About a year ago, a small press was very interested in publishing my  first novel. I asked you if I still needed an agent.

You said, "Yes" but that I wouldn't find one if I was going with this small press and that what I needed was a good lawyer.

Fast forward a bit and I received the official offer and a pointer to their contract. I was hot to go. I'm over a certain age and wanted to be young enough to savor the joy of my first book in print.

Remembering your advice, I found a literary contracts lawyer (at a very reasonable price through California Lawyers for the Arts).

We went through the contract a couple of times, I made notes, wrote a letter (all vetted by him) and sent it off. Within minutes I received an  indignant letter saying the offer was withdrawn. How dare I tamper with  the contract, blah, blah, blah. Yikes.

It took about five minutes to move from remorse and mortification to relief. I had dodged a huge bullet. Even if I had violated some rule of protocol, it was clear that we were wildly incompatible.

This providential dope slap was a blessing.
- I was jolted into being patient. I needed to take the time to make sure I had the right fit, agented or not.
- Someone else (not immediate family) loved my novel enough to publish it. That validation gave me confidence.
- Big aha - I needed an agent. This publishing thing is tricky stuff.  Whether it's the Ts & Cs or following the right protocol, I didn't know and didn't particularly want to know how to navigate all that myself.

I reworked the query a bit, polished some pages, and made standardized packages of materials (query + nothing extra, query + first five pages, query + first chapter, query + synopsis + first chapter...) so that there was less emotional investment to sending out a query: identify a good agent prospect, tweak materials, send out, done.

And now I do have an agent. Of course, I have quickly learned that there is no slam dunk to landing a publisher just because I have an agent. That journey continues while I continue to write new material.

Even though consulting a lawyer cost me the contract, that was still excellent advice! There are worse things than ending up with the wrong publisher.

I am delighted to hear that you dodged this bullet and ended up with an agent I admire and respect (readers, I redacted the name for privacy)

Any publisher who takes umbrage at negotiating a contract is not a publisher you want to work with.

There are publishers that don't budge on boilerplates, and others that don't negotiate much at all--the problem here is that the publisher got mad when an author asked for changes...as though that was somehow an insult.  This is after all a business, not the Roland Park Ladies Tea.