The Writer’s Predicament

How about this for a predicament?

You’ve written three books that have been published by a big house and are also available on Kindle, Nook, etc., and you sort of hope nobody buys them.

What? Are you kidding me?

No, I’m not. I’m not kidding. Since last May, when I received a letter from Penguin saying they were letting my first two books go out of print, I haven’t wanted people to buy them. Why? Because I WANT THEM BACK. I want the rights to those books back so I can promote and sell them myself. And why wouldn’t I? The publisher abandoned them, gave them no promotional support, and has now taken two of them off the paper market, which means they’re not available in bookstores. They’ve priced the ebooks too high, (they’re being sued by the Justice Department, along with five other publishers, for doing that kind of thing) which keeps the sales low. On top of that, they give me a paltry percentage on ebooks, just like they did on paper books. I want the rights back. As I told you in the last blog, I can get a 70 percent royalty from Amazon.

I asked them, first through my agent, to give the rights back to me because the contract said they have to give them back if they put the books out of print. They refused, citing another clause in the contract that says that if “any edition” of the book is selling more than 300 copies a year, they retain the rights. The ebooks are selling more than 300 copies a year. Let’s just consider that a moment. If they’re selling the ebooks for 7.99 (which they are) and they sell 300 a year, they get a whopping $2,400 a year, of which they give me $360 a year. (I get a generous 15 percent in royalties from the publisher on ebooks, minus 15 percent to my agent, of course.)

I’m going to get into a bit of legal stuff here. I’ll try to put it in layman’s terms as best I can. If you sign a contract with someone, you have what is called an “implied duty” to act in good faith. That means you have to do your best to adhere to the terms and conditions of the contract. You have to do what’s right. The duty of good faith has evolved over hundreds of years. It isn’t a written law. It’s called “common law,” which means it was basically developed by judges. But it makes sense. This is probably the only time you’ll ever hear me say that something a judge said or did makes sense. I don’t care for judges any more than I care for big publishing houses. It’s just a thing of mine.

In the publishing industry, authors like me have an implied duty of good faith to deliver a quality manuscript on time. They have a duty to work with the publishing house’s editors, their marketing staff, their publicists. They have a duty to go to book signings and do speaking engagements. When the publishing house’s copy editor sends an edited, marked-up, paper manuscript, the author has a duty to go through it, page by page, respond to the changes and send it back in a timely manner. When the advance copy comes (or galleys, as they call them in the biz) the author has a duty to read them to see if there are any typos, any last-minute changes before the manuscript goes to the printer. I did all of those things.

What’s the publisher’s implied duty of good faith under the contract? Well, if you ask them, their duty is to pay the advance money. That’s pretty much it, as far as they’re concerned. But if you ask the courts, their duty is to give the book “a reasonable chance of achieving market success in light of the subject matter and the likely audience.” That requirement became a part of the law in a case called Zilg v. Prentice-Hall back in 1983. So, given the legal requirement that Penguin give my books a reasonable chance of succeeding in the marketplace in light of the subject matter and the likely audience, and given the fact that the “likely audience” is huge (there’s a big market out there for legal thriller/mysteries) you would think that tanking my second and third books with zero promotional effort because Jerkoff felt put upon would be a “breach” of their implied duty under the contract.  I do. I think it’s a breach.

So I got me a lawyer. I explained the situation to him and he wrote Penguin a letter and said, (I’m paraphrasing here) “Look, you’re in breach of the contract. At this point, all we want is the rights back to the books. We’re not looking for the money Mr. Pratt might have made had you not breached the contract. We just want the rights back.” Six weeks later, Penguin wrote back and told us to go jump in the lake. So he wrote them another letter and very carefully pointed out their duty under the law. Two months later, they wrote back and told us to go jump in the lake again. He wrote back to them and refined his points. Two months later, they wrote back and said they’d sell the rights back to me for $32,000, which is what they say is advance money I haven’t earned. Bear in mind that my books have grossed over $600,000 at this point. They’d given me $75,000 in advance money. They’d kept $525,000 of the money my books had generated, had spent virtually nothing on promotion, and they say I owe them $32,000? Sheesh!

So my lawyer and I took a closer look at those indecipherable royalty statements they send to authors twice a year. One of the interesting things about the royalty statements is that they don’t mention the amount of money the books have grossed for the publisher. Let me get the latest one… okay, here it is, from back in January. It lists the retail prices, it lists the advance money, it lists the number of returns and the number they’ve held in reserve. It mentions the paltry eight percent royalty amount. It says how many books and ebooks they’ve sold. But nowhere on that statement does it mention that Penguin has grossed over half a million on the sales of the books. I find that strangely… strange… and misleading and exploitative.

This blog is getting a bit too long… We wrote back to them again. I’ll tell you what we said and where we are today in the next blog. What a predicament!