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This is Doranna Durgin’s WordPlay Blog. I’m glad you’re here–whether it’s to learn more about my books, or chat about dogs, horses, and reading. On Fridays, The Write Horse usually stops by for life with horse training, written by Patty Wilber.

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This entry was posted on Saturday, March 9th, 2013 at 04:00 and is filed under Behind the Scenes. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

  • Elizabeth

    As someone who has worked in-house before and have seen contracts, I will say that you or your agent didn’t negotiate enough.

    There seems to be a misunderstanding of what regular trade channels mean. You should have inserted exactly what you meant because regular trade channels does also mean online sales nowadays (that’s been going on for more than 3 years). I’ve seen strikethroughs and insertions in contracts along with initials from all parties. Inserting an asterisk isn’t enough. I find authors are so pleased to have their books published sometimes that they don’t properly negotiate on their contracts enough.

    Also, putting it on shelves in-stores means the book has to show a demand for it. I know that Indigo/Chapters will stock the book in-store for 45 days and will return it to the publisher’s warehouse if it’s not selling. I’m assuming it’s a similar case for B&N and Borders, etc.

    I’m not sure if your agent did such a good job. I would NEVER grant world rights to a publisher (maybe just North American rights) unless they’re paying a lot of money—and I mean at least a six figure sum. You can exploit those rights with another publisher who has more pull in their territory and get additional advances from each territory you sell to. F&W doesn’t seem to have a strong presence outside of Canada and the US.

    An agent’s job is to work for the author and it seems to have been done very poorly in this case.

    If you think you should get the rights back, then consult a lawyer. But have you tried renegotiating a revised contract whereby they get to have Canada & US rights, but they’ll revert the rights back to you for all other territories? That’s a compromise at least.

    Since I know you want publish an e-book yourself, so why don’t you suggest getting the e-rights back? And you’ll allow them to still sell off the remaining 1,600 copies? Because if all rights are reverted, then they probably won’t be able to sell those remaining copies. The book technically is still “in print” and available to order.

    Instead of outright demanding for all rights back, you might as well make suggestions and work with the publisher. It seems to me that both you and the publisher are saying it’s my way or the highway; therefore, you’re both not getting anywhere.

    I’m curious—did you try adding a clause to revert back to you after X years? I’ve read that your agent tried to add a sales threshold at negotiation stage.

    Best of luck!

  • http://www.doranna.net Doranna

    Hi, Elizabeth–thanks for your interest in this situation. Some of your comments are addressed at Writer Beware in detail, so I won’t repeat myself extensively here. (Also, I’m sorry for the delay in moderating this comment; I’ve been immersed in a double-whammy of contractor office-invasion and a transition to a new computer.)

    On the whole I agree with what I think is your basic premise–authors need to look out for their interests and to beware of compromising, and this factor is becoming more important than ever before. My situation should certainly serve as a warning to others.

    I do find myself curious what “worked in-house” and “have seen contracts” means. How many contracts have you negotiated, at what level of publishing? Because initialed insertions aren’t inserted unless both have discussed and agreed upon them; they’re perfectly valid in those circumstances. And in this case, “regular trade channels” takes the common industry meaning of the phrase at the time the contract was signed; that’s got court precedent.

    I’m also not quite sure whether you disagree with the highly experienced industry professionals who consider the publisher in contract violation, or whether the situation simply inspired commentary. I do feel that in order to speak so authoritatively, especially about negotiations in which you had no part, it’s important to present complete context.

    (As an aside, given the oft-stated fact that this book was placed with this publisher under highly mitigating circumstances, there’s nothing to be gained by assuming that my agent didn’t serve me well in this case, or in blaming my agent for this publisher’s misbehavior.)

    But you know, all that stuff is kind of beside the point, and that point is, none of this would matter at all in this case if the publisher was behaving professionally/honoring the contract.

    Also, it’s irrelevant *why* the book isn’t in regular trade channels. And it is not, by industry definitions, in print. It *exists.* The industry definition of in print–certainly at the time the contract was signed–is that the book is available. This one certainly isn’t readily available to order through F/W’s regular trade channels, which demonstrably include US outlets. Even Canadian stores take 2-5 weeks.

    As regards your suggestions, I’m afraid I can only say again that it comes down to publisher behavior. It isn’t possible to engage in dialogue/compromise with someone who’s ignoring you, stonewalling, breaking promises, and then refusing to engage at all.

    Although you’ve made some assumptions about my plans for this book, it would be a mistake to think that my initial or ongoing position is “my way or the highway.” It would be more accurate to say that due to the nature of the publisher’s responses (and non-responses) there’s never been an opportunity to engage in more meaningful dialogue. Indeed, GriefCom prefers to work in a mediating capacity, and has a track record of great success in just that. Fitzhenry & Whiteside is the only publisher ever to respond to them in the manner they did.

    Thank you for your good wishes, and I appreciate that your comment gave me the chance to discuss some of these issues.

  • Elizabeth

    That’s okay, Doranna. Yes, definitely that authors should take a proactive measure. The Editor will always work on behalf of the publisher’s interests. I wanted to add that the clause you mentioned is standard (at least in Canada).

    There are different levels in the editorial department and while we all have a say, there is usually one or two who actually do acquisitions. Here, one person does acquisitions (which is the Publisher and Managing Editor). Editors and Associate Editors don’t acquire (in some houses they do, depending how big the house is), but we do have a say on the book. So, I’ve seen contracts from agents who will strikeout which clause and add in. But yes, they both have to agree. Sometimes, they find a middle ground. It’s a back-and-forth until everything is finalized with signatures.

    I’m not sure about the court precedent; is that in the US? Because “in print” and “regular trade channels” in Canada means that the book is printed and available to order. The bookstores at any time can order and the book isn’t out-of-print. It doesn’t have to be in-stores (especially after 3 years have gone by) because the stores control what they order. I thought that is what the term meant in the US as well.

    I’ve spoken to several of my colleagues (some in different houses) and they all agree that legally, it’s not a contract violation. Rather, the publisher might be ethically in the wrong in how they handled it. It is rather common for a publisher to ask if an author is willing to buy back the remaining copies when assessing whether to make a book out-of-print. However, with so many copies, it probably isn’t feasible for you to do so. They should have just pulped the books afterwards and returned the rights. Sure, it’d be a loss in the financial books, but so is the way of print-publishing these days.

    Have you tried just picking up the phone and calling Richard Dionne? Or better yet, calling Sharon Fitzhenry (who is the President of F&W)? A good old phone call still works way better than e-mails in some situations.

    It is inspired commentary. :)

    Well, about the agent–I was just confused as to why she hasn’t explained to you the industry definition, but now I’m not so sure if there is a different definition in the US…

    No doubt you felt GriefCom was one of your last resorts, but they probably got offended in some way (who knows what they were thinking).

  • Elizabeth

    I just read over what I wrote and noticed some errors! (In my defense, I realized I had an appointment coming up halfway through the typing.) What I meant was that two people have acquiring power, with the Managing Editor doing most of the acquiring. I don’t have acquiring power. (It’s just that as soon as I say Associate Editor, people automatically assume I also acquire as well; so, I usually try to explain beforehand.)

    This issue is what people have been talking about at my department—this, the Giller Prize, and the fact that Kobo has been acquired by a Japanese company.

    This entire thing is such a mess and I do hope you get the rights reverted back. I’m wondering—up ’till several years back, some publisher contracts don’t specify e-books, which means they aren’t allowed to publish e-versions. If yours is one of those contracts, then I hope you’ll go ahead and publish the e-book. If it doesn’t specify, then F&W won’t be able to do anything since they don’t hold the rights for the e-book.

    I still think you should call Sharon Fitzhenry yourself. I believe they have a 1-800 number on their website and they have a dial by last name directory. (I’ve once complained all to the CEO of a company when I thought I was right. It worked like a charm.)

    If there’s anything new, I hope you’ll keep us all posted. :)

  • http://www.doranna.net Doranna

    No worries on errors. It’s hard to pull complex matters together right out in public when real life is happening, too.

    Regarding the first response up there…

    All I can say is that my research/experts feel F/W is in violation, though I hear you saying you’ve been in discussion with colleagues who don’t. I think in this particular case, it’s not hard to muster arguments for either side, but when push comes to shove…I know what I understood when I signed the contract, what I understand from my time in the industry, and what I understand from the industry experts I have and am consulting, and none of it justifies F/W’s behavior.

    “Regular trade channels” at the time this contract was signed meant readily available in brick-and-mortar stores, and quickly ordered if not there at the moment–which therefore means in wide distribution through the major warehouses (not just one), which in turn makes a critical difference how bookstores manage their orders and how quickly they process them. IOW, anything that takes 2-5 weeks to acquire is not in regular trade channels–not then OR now. F/W also demonstrably, regularly has books available via US sources that cannot currently acquire JESS. (Cory Doctorow actually did a great job of discussing regular trade channels in the comments from his BoingBoing post on this mess.)

    It’s common for a publisher to ask IF an author wants to buy copies at cost before they’re remaindered (I’ve had this opportunity with my mysteries, in fact, and was grateful for it). But I find it a coercive deviation to tell an author, “If you buy all remaining copies, THEN we will revert.”

    (They don’t even need to pulp the books afterward if they don’t want, or they can remainder, or whatever. Whether or not there was (in their minds) a given understanding that they could sell remaining stock after reversion (should that be their choice), we did immediately make that perfectly clear–it was always a given from our perspective. They have nothing to lose by reverting this book. Nothing has to change on their end if they don’t want it to.)

    Meanwhile, I’m afraid F/W has been just as unresponsive and unavailable via the phone as they were via email for the previous 18 months. As for their response to GriefCom… Well, GriefCom’s primary goal is to resolve these issues with quiet mediation and as little strife as possible for both parties. In fact, GriefCom came to me after the first phone call with a very positive tone, pleased to have made the connection–at which time Mr. Dionne promised to investigate the distribution issue. Except then F/W promptly stopped responding altogether (well, except for that final threatening phone call–a threat which subsequently came to pass).

    I had already suggested some middle ground options with both my agent and with GriefCom, but we simply couldn’t get F/W to talk to us. We spent all our effort simply trying to get them to engage, and never got close to a meaningful conversation. I think it’s fair to say we set limits to how long we were willing to wait.

  • http://www.doranna.net Doranna

    A PS to your PS:

    Mr. Dionne reached out to Ms. Fitzhenry to determine how he should respond to us; I have that email trail, although I think it may have been inadvertent. Also, there’s the unidentified woman who made the irate hang-up call to GriefCom (it’s my understanding that his part of the conversation was “Hello”).

    All things considered, barring indication of a new openness on the part of F&W, I feel that their strongly established message is that they are actively disinterested in discussion. Otherwise, I hear what you’re saying about a phone call. (And yes, I keep revising this to try to say it all best, so I hope I’ve come close this time. At times, my conflict-avoiding inner self does tie me in knots over this stuff.)

    PPS It’ll be interesting to see what happens with Kobo, all right…