When I started working in publishing (roughly 100 years ago) the business was still one of “gentlemen’s agreements,” of editors coddling temperamental authors, and agents selling books based on a persuasive conversation rather than book proposals (look up Swifty Lazar, if you don’t believe me). Too, it was always a tenet of agenting that despite the terms in a publishing agreement, there were ways around everything, from an onerous option clause to the repayment of an advance for a cancelled book.
This all worked, of course, because publishers have traditionally been unwilling to persecute their authors (very bad p.r.). Given the conventional wisdom that authors are fragile, creative souls with no real grasp of practical details—like deadlines or basic accounting—even with cutthroat agents involved, the optics of going after someone publicly for non-delivery and non-payment did not work in a publisher’s favor. So, often, authors got away with not repaying advances based on flimsy loopholes and how skilled their agents were at scaring or shaming the publisher.
But, times have gotten tough in recent years. Margins are tighter as a result of the e-book revolution and the Justice Department has decided to stick its nose into publishing practices that many argue it has no knowledge of or understanding about. So, it’s not entirely surprising that Penguin has taken the rather shocking step of suing a number of high profile writers for non-payment.
On the one hand…well, yes. If you sign a contract that specifies that you need to repay an advance under certain conditions and those conditions come to pass, any legitimate business would go after you to recoup their money.
On the other hand, this makes me sad, because it feels like yet another of publishing’s intangibles has been sacrificed to the bottom line. To me it seems that this takes us many more steps away from the days when publishers went out of their way, financially and otherwise, to enable an author—even the most wayward of them (see The Lost Generation)—to thrive creatively and produce the kinds of literature we’re still reading today. Did they lose some money? Sure, but I’m pretty certain Scribner (and Random House and S&S, etc.) is still collecting on its investment.
What do you all think of this action by Penguin?