This is Why You Always Meet Your Deadlines (Rerun)

Meetings abound this week, mes auteurs, so I'll be posting reruns today and tomorrow. Enjoy!

Episode: "This is Why You Always Meet Your Deadlines"
Originally aired: Thursday, September 2nd, 2010

In case you hadn't heard, Yahoo! sports columnist Adrian Wojnarowski (say that three times fast) has been sued by Penguin Books for failure to meet his deadline regarding a book about former North Carolina State University basketball coach Jim Valvano. The original manuscript delivery date? August 1, 2007.

Wojnarowski was originally offered a cool $400,000 (of which he received $140,000), but his repeated delays caused Penguin to reduce the total advance to $325,000. Now, over three years later, they've canceled the book and are taking Wojnarowski to court to recover the $140,000 they already paid him.

I wish I could say this kind of story was uncommon, but honestly, the only unusual aspect is the filing of a lawsuit. Books are delayed by months (sometimes years) all the time, and failure to meet deadline (sometimes more than once) is not unheard of. I think, however, that publishers' patience is particularly short in the midst of the recession, so I wouldn't be surprised if they were to become even less lenient about missed deadlines, particularly for books bought for six- or seven-figure advances.

The reasons for delays can range from author laziness to the publisher's disapproval of various drafts (that is, sending them back for rewrites) to changes in current events that warrant substantial revisions (generally affecting only nonfiction). Remember, too, that most advances are cut into pieces: often one installment is paid on signing, another on receipt of the manuscript by the publisher, and occasionally a third on or around the date of publication. If you're getting $400,000 and you've already gotten $140,000 just for signing a piece of a paper, one can see how your motivation might be temporarily shot.

That said: this business is slow enough as-is, so as début writers who always want to make the best of impressions, it's in your collective best interest to get your manuscripts and revisions delivered on time. Always be professional, always be on time, and always ask your agent or editor if you have any questions about deadlines, timelines, or any of the other myriad -lines to which you might be subject.

This is Why You Always Meet Your Deadlines

In case you hadn't heard, Yahoo! sports columnist Adrian Wojnarowski (say that three times fast) has been sued by Penguin Books for failure to meet his deadline regarding a book about former North Carolina State University basketball coach Jim Valvano. The original manuscript delivery date? August 1, 2007.

Wojnarowski was originally offered a cool $400,000 (of which he received $140,000), but his repeated delays caused Penguin to reduce the total advance to $325,000. Now, over three years later, they've canceled the book and are taking Wojnarowski to court to recover the $140,000 they already paid him.

I wish I could say this kind of story was uncommon, but honestly, the only unusual aspect is the filing of a lawsuit. Books are delayed by months (sometimes years) all the time, and failure to meet deadline (sometimes more than once) is not unheard of. I think, however, that publishers' patience is particularly short in the midst of the recession, so I wouldn't be surprised if they were to become even less lenient about missed deadlines, particularly for books bought for six- or seven-figure advances.

The reasons for delays can range from author laziness to the publisher's disapproval of various drafts (that is, sending them back for rewrites) to changes in current events that warrant substantial revisions (generally affecting only nonfiction). Remember, too, that most advances are cut into pieces: often one installment is paid on signing, another on receipt of the manuscript by the publisher, and occasionally a third on or around the date of publication. If you're getting $400,000 and you've already gotten $140,000 just for signing a piece of a paper, one can see how your motivation might be temporarily shot.

That said: this business is slow enough as-is, so as début writers who always want to make the best of impressions, it's in your collective best interest to get your manuscripts and revisions delivered on time. Always be professional, always be on time, and always ask your agent or editor if you have any questions about deadlines, timelines, or any of the other myriad -lines to which you might be subject.

Terms to Know: Non-Compete Clause

Continuing my recent trend of contract-related content, today's post focuses on another aspect of the standard book publishing contract: the non-compete clause.

Those of you who have read Agent Kristin's blog may already be familiar with this clause (she's written about it here and, more recently, here). For those of you who haven't, it's like this: book publishers want to protect their interests in their authors, and the non-compete clause is an effective way of ensuring this.

Under the NCC, an author generally can't reproduce any material from the book named in the contract, since doing so would damage the publisher's sales or infringe on their newly acquired rights. Example: if Fancy Pants Publishing acquires your book, 99 Ways to Defeat A Ninja, and you try to have High Fullutent Press publish an excerpt, or a graphic novel version, or some such other work that incorporates material from the first book or competes with FPP's sales, you're in violation of their NCC.

Kristin's second post (above) raises an even more interesting issue, one I inadvertently touched on in Monday's post: namely, that if your agent has withheld e-rights (or graphic novel rights, or any other subsidiary right), the language of the newer NCCs may prevent you from exercising those rights with other companies. If Fancy Pants Publishing has your hardcover and trade paperback, they're not going to want to see you reduce their sales by publishing the graphic novel and e-book with High Fullutent Press.

Now, in the case of Styron, the contract language was too old to include e-book rights, so I imagine the NCC in that contract/those contracts isn't broad enough to include e-books, either. But if your agent specifically withheld e-rights after 1995 or so, the NCC language may be new enough to allow publishers to invoke it to prevent you from publishing your e-books elsewhere. Food for thought, at any rate, and I again invite any agents in the house to weigh in on this... well, weighty issue.

Terms to Know: Right of First Refusal

Come with me, dear readers, on a magical journey to... THE FUTURE.

In the year 20X6, you're signing the contract to publish your first book (hooray!) when you come upon a clause with the following (or similar) wording: "Fancy Pants Publishing House retains the right of first refusal on the author's subsequent book." (In retrospect, it's unlikely you'll see those exact words, unless my dream of founding Fancy Pants Publishing [FPP] takes off before 20X6.)

Back to the contract, though: when a publishing house requests right of first refusal, they're contractually obligating you to show them your second book before you show it to any other publishers. If they want your second book, they get it; if they don't, you can sell it to someone else, but they must see it and decline the offer first. Increasingly, clauses like these are finding their ways into many a first-time author's book contract.

Personally, I'm no fan of the ROFR because I generally dislike any contractual obligation that limits an author's future works or actions, and Tim O'Reilly of O'Reilly Media agrees. In fact, he advocates that if you come across such a clause in your contract, you actually strike it out. This is for a number of reasons: what if your first book doesn't do well and you want to try your second with another publisher? What if your first book does really well with the small house you first signed with, and you want to move on to a larger house that can offer a more substantial advance and more powerful marketing push? What if you simply have creative differences with the folks handling your book?

O'Reilly mentions that an author's refusing the ROFR isn't generally a dealbreaker for the publisher, though I'm no literary agent and can't really comment on whether or not that's the case. (If there are any agents in the house, I'd love to hear your comments!) This, by the way, is one of the many reasons you want a literary agent on your side if you're dealing with a publishing house: contracts are tricky beasts, and if you don't have a pro on your side, you may find yourself without recourse when your publisher asks that you fulfill a half-dozen legal obligations you didn't even know you had. An ounce of prevention, a pound of cure, &c &c.

You tell me, though, mes auteurs: what do you think of the ROFR?

Bicentenne-mail!... I Mean, Post

That's right, mes auteurs, today marks PMN's 200th post. And, much like Strong Bad, I feel the need to celebrate this arbitrary milestone unnecessarily. All of you, quick! Look under your chairs! That's right, you're all going home with four dust bunnies, a half-dozen stale Cheerios, and a water-stained, dog-eared copy of John Gardner's The Art of Fiction! O joy! O rapture!

...in serious bicentennial-type business, it seems that The Big House is relinquishing e-rights to the works of William Styron. While Random House indicated last year that contract clauses like "in book form" implicitly give publishing houses e-rights to any book they publish (e-book rights weren't specifically delineated in contracts until about fifteen years ago), they seem to be reversing their decision with regard to Styron's estate. Speaking for the company, Stuart Applebaum says that the decision is "an exception" and their "understanding is that this is a unique family situation."

The question, of course, is whether there will be (to quote Richard Curtis) "a spate of 'me toos'" in which authors decide to legally challenge their publishers' implicit rights to their books in e-format (assuming those rights weren't negotiated specifically after 1995) and attempt to e-publish with other companies. While I'm certainly not a lawyer, it seems to me that a company as large as Random House wouldn't surrender rights like these unless they believed Styron's lawyer(s) had a strong legal argument that the e-rights to his works were the property of his estate. It's possible that there's something unique to Styron's contract(s) at work here, but it seems much more likely to me that his family's legal team is making the case that Random House didn't specifically acquire electronic rights to his work, and therefore they remain with the author (or in this case, the author's estate).

What do you think, gentle readers? Do phrases like "in book form" include media that didn't exist (and perhaps weren't even really imagined) at the time the contract was signed? If you were (or are!) in this kind of situation, how would (will) you handle it?

David Versus Goliath, Revisited

NB: the guest post submissions continue to roll in, and again, they look great. If you'd like to submit one, you've got two hours from now (the deadline being 12:00 PM ET) to do so. If in doubt—submit!

In the continued battle for The Future of Publishing™, Random House has apparently told its agents and authors that it owns the e-book rights to all backlist titles published before 1994 (apparently the Random House standard contract was altered in 1994 to explicitly include electronic rights). As you might imagine, this is a somewhat contentious issue.

In one corner, you've got the Authors Guild insisting that since authors never expressly granted Random House electronic rights, they are retained by those authors. The AG further claims that The Big House is aware of this, since they went ahead and altered the language of their contracts in 1994 to explicitly claim electronic rights, which the AG takes as an implicit admission by Random House that they do not control electronic rights for earlier titles.

In the other corner, you've got Random House insisting that they retain all U.S. rights to the books they acquire, which implicitly include electronic rights. They haven't said as much (at least, not to my knowledge), but I imagine their position regarding the change of language in their contracts is that it was merely a clarification of existing terms, and not the introduction of new terms of acquisition per se. So far, all we know is that they "respectfully disagree" with the AG's position.

I've always been of the opinion that any rights not specifically granted to one party by another are retained by the party granting the right(s), but I haven't seen the legalese in question and therefore am not really in a position to make a determination. I do think it sets a dangerous precedent for future rights battles, however, since if a company can buy the rights to something that doesn't even exist yet, there's theoretically no limit to the latitude they'll have with everything from book formats to international distribution. Scary times, cats and kittens. Scary times.

In lighter news: happy holidays, and I'll be posting the winners of the First Ever Guest Post Contest tomorrow morning!