Penguin sues authors

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?



10 Responses to Penguin sues authors

  1. Melissa Alexander says:

    The authors signed a contract, and they accepted hefty sums of money. They haven’t held up their end of the contract, and they SHOULD return the money. (They should return with interest ONLY if the contract stipulates that, however.)

    I hope that Penguin discussed the issue with them before the lawsuit. I think it would be really crummy of Penguin to ignore the issue for all this time and then, out of the blue, smack them with a lawsuit demanding money and interest. Within their rights? Sure. Crappy way to treat people? Absolutely.

    If the situation is that Penguin has made attempts to regain the monies and has not been paid, then I have no problem with the lawsuits. They are legitimately owed the money. If Penguin reclaims what is owed, maybe they can use that money to take chances on new writers!

  2. Hanna says:

    E-publishing/print on demand is the future and the dinosaurs are thrashing about as they die slow, agonizing deaths. What more is there to say?

  3. Mark Henry says:

    I’m a stickler for follow-through. As individuals, the easiest way to foster trust in each other is to honor your commitments. When I sign a contract with a publishing house, you can bank on the fact they’ll be getting their manuscript. It’s a deal. If I pay a mechanic to work on my car, he better work on it. This is the nuts and bolts of human interaction and I have a hard time generating empathy for social ineptitude.

  4. I share your mixed feelings on this.

    On the one hand, the author(s) signed a contract. If that contract stipulates repayment of an advance under certain conditions, then the author is obligated to repay, and the publisher is justified in pursuing legal means to reclaim that money.

    On the other hand, the whole situation makes me a bit sad. The publisher is the partner in power here, and it doesn’t look good for their image to go after their authors. At the same time, I’d hate it if they cut their losses but took fewer or smaller chances on other authors as a result. Unless the advance is huge, I don’t think anyone gets a significant gain from publishers suing authors.

  5. judith Grout says:

    Perhaps a small bit of caution before spending all those bucks would be wise. Some dollars in a rainy day savings account might be a wise action.

  6. Miriam says:

    Judith makes a good point. Stashing something away just in case is always a good idea. The real takeaway for me is that authors need to make sure they read their contracts and meet their obligations. And, they need to use their agents to intervene with publishers before things get out of hand.

  7. This is one of the reasons I’m not a big fan of trying to sell a book based upon a synopsis and prefer to have a reasonably complete draft before going to publishers. Unless we’re talking about a well-mapped out non-fiction project, the creative process is too iffy to write contracts around. The one time I tried to pre-sell a novel based upon a synopsis and sample was a pretty negative experience for me because I felt locked into a storyline I lost faith in, especially when the first editor it went to turned it down. My whole creative process sort of hit a wall. Conversely, you might imagine that if I *had* presold the project that the financial validation would have bouyed me up and seen me through to the finish. Sadly, the muse is perverse in my experience. Money would just have intimidated me and there me and my creative process would be, rubbing our heads after hitting the wall.

  8. EDWARD says:

    Holocaust survivor Herman Rosenblat, if that part of the story is true, has apparently breeched his contract. Oprah seems to attract more than her share of those people. But they are all very different stories. The headline, which is NATIONAL ENQUIRER-like in its own way, makes it sound like Penguin is going after authors as a group, which it’s not. Penguin is playing by the rules that Occupy Wall Street first screamed about: if you have enough money, the law doesn’t apply to you. The 1% live in a cocoon of total amoral anarchy. Words like ‘fairness’ and ‘decency’ are not even on their radar. Penguin has left the publishing world and now lives in the corporate world.

  9. Julie Nilson says:

    At first glance, it seems like Penguin is going overboard, especially since sometimes the creative process can be unpredictable. However, after reading the article, I see that these authors are all *years* past their deadlines, so it’s pretty likely that their editors and agents have already done everything they can to get the authors to finish. When an author signed a contract nearly a decade ago (as in the case with Wurtzel) and still hasn’t delivered, I think the publisher has every right to believe that the manuscript is never going to happen. The headlines make Penguin sound bad, but I think they’re in the right here.

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