If the return is just for the book he never delivered then there is not issue. But that is not what this says: “they're entitled to some of the advance on that first book they published because they didn't make as much money as they expected on it.” They are meant to have accurate expectations-and they wear the consequences when they don't.

That’s what the author is saying, not the publisher.

If you read the actual article, the publisher’s reason for wanting that money is that he never gave them the second book. They never mentioned how well (or poorly) his first book did.

Is it that the standard in the industry is to not get a return of the advance against royalties or is that contractual? Because I had heard that in the contract, the publisher has the right to ask for a return of whatever advance is not earned out but never does.

Not in my contracts. The only reason my publisher would have recourse against my advance is if, as Nora says, I did not fulfill my obligation to produce a manuscript. There is additional language about how a manuscript that isn’t up-to-snuff would be handled, but it still doesn’t include return of the advance.

The reason print authors receive advances is because of the time gap between contract and actual publication. This was also why e-publishers rarely paid advances. Most e-books were released within a few months of the execution of the contract. However, now that release dates for e-books are taking longer, some e-publishers are paying advances, too.

Joint accounting–sometimes called basket accounting–can delay a writer seeing a dime in royalties until all books in the deal have been published and the returns calculated. It also means that, even if Book A sold well, if Book B and/or C don’t sell as well and you got an advance on the three-book deal, you may never get another farthing because all three books’ sales added together don’t earn out the three-book advance.

I suspect in this case, Nora is right, and the two books were joint accounted. (Never heard of this practice until I sold a pair of books to Bantam and my agent had to negotiate the joint-accounting language out of the contract.) If that’s the case, in essence, the author’s on the same legal ground as someone who turned in half a novel and skipped on a single book contract. But, again, a decently-worded contract will spell exactly what happens in the case of non-performance. And if it says you give the whole advance back, you can’t really fight that.

It’s complicated–we need an agent to explain it clearly.

But you don’t turn in the book, the publisher can demand the advance back.

Nora

It sounds like this was a poorly worded contract. The author thinks it covers only one book, while the publisher thinks it covers two. What agent or attorney would allow that ambiguity?