Thursday Midday Links: Sourcebooks Sues Anita Clenney
On March 31, 2010, Sourcebooks offered Ms. Clenney a contract for a three book series. Clenney was represented by Christine Witthohn. After the publication of the second book, Witthohn, with the help of her husband, a lawyer by the name of Jeffrey Mehalic, informed Sourcebooks that the inclusion of four pages of cross promotional material at the end of a book was a “material breach” of the contract and that Clenney would not be delivering the third book.
On May 1, 2011, Witthohn sent an e-mail to Sourcebooks demanding that Sourcebooks compensate Ms. Clenney because Sourcebooks included incidental promotions on the four back pages of Ms. Clenney’s first book, Awaken the Highland Warrior. Such promotions, which promote books by other Sourcebooks authors, are known in the publishing industry as “cross-promotions.” Cross-promotions were only included in the paperback first
printing of Ms. Clenney’s first book.
Sourcebooks disagreed with Clenney’s position, arguing that there was nothing in the contract that prohibited cross promotion but it would not include any cross promotion in future printings of Clenney’s books.
The right to include incidental cross-promotions is well within the standard publishing and promotion rights contained in Ms. Clenney’s publishing agreement. Because this right and standard practice is so well known and so regularly practiced by publishers, should individual authors not want cross-promotions included in their works they ask that a clause be added to the publishing agreement to prohibit the practice. Ms. Clenney’s Agreement contains no clause prohibiting or limiting cross-promotions, and her agent Witthohn never asked that one be included.
On May 3, 2011, Sourcebooks replied to Witthohn’s e-mail and informed Defendant and her agent that “cross-promoting authors on the back pages of books is incredibly common, particularly among genres [such as romance].” Sourcebooks also explained that “[t]here is no compensation for authors for such promotional pages” and noted that “some agents choose to add a ‘no-advertisement’ clause into their authors’ publishing agreements at the contract stage. That was not done in this agreement.”
26. Nevertheless, Sourcebooks offered to remove the cross-promotional pages from Awaken the Highland Warrior upon reprint and to flag Ms. Clenney’s future books to run without such cross-promotions, if Ms. Clenney so desired.
Clenney was not pacified with this and wrote back on September 20, 2011, that the inclusion of cross promotional material without additional compensation was a breach and that Clenney had no contractual obligation to Sourcebooks because of that breach. Clenney then returned $1,000 reprentative of the advance (the advance was actually $2,000 per book with 6% royalty for first 40K in mass market and 8% thereafter and 15% off the net for digital).
You can read the entire and short petition for declaratory action here. (I uploaded the complaint here. The court’s site had the personal information of the author). Sourcebooks is asking the court to enforce the agreement and require Clenney to turn in the third manuscript. Sourcebooks also alleges that Witthohn and Mehalic have filed for bankruptcy in January 2011 and it was after the bankruptcy that the agent began to “engaged in a series of unfounded claims of breaches.” Clenney recently announced a deal with Amazon Montlake via her agent Witthohn.
Generally speaking only a material breach allows a party to a contract to avoid performing their obligations. There is no bright line test for materiality, instead:
the determination of “materiality” is a complicated question of fact, involving an inquiry into such matters as whether the breach worked to defeat the bargained-for objective of the parties or caused disproportionate prejudice to the non-breaching party, whether custom and usage considers such a breach to be material, and whether the allowance of reciprocal non-performance by the non-breaching party will result in his accrual of an unreasonable or unfair advantage
Having said that, the use of four pages of cross promotional material that could be cured by a payment of money (ordered by the court in some cases) don’t rise to the level of material breach to me. It is of some concern that the agent’s husband is serving as the author’s attorney. Clenney had no comment because of the pending litigation.
Barnes & Noble’s Nook Tablet has 16 GB of memory compared to the Kindle Fire’s 8 GB of memory. However, only 1 GB of the Nook Tablet is available for non BN purchased content. That means any movies or tv shows will really need to be stored on external micro-SD cards at about $20-$40 a pop because BN has no video or music to purchase. It must all be purchased elsewhere (and in the case of video, really you are creating your own video from DVDs) and sideloaded onto the device. However, BN has announced that next year it will be offering video content of some kind next year. No word on the music.
Kindle Fire is turning out to be surprisingly open. Without jailbreaking, I’ve been able to add the nook, Google books, Sony Reader, and Kobo Apps to the device.
Entangled Pub released another press notice announcing the hire of a former Disney editor who used to acquire YA for Disney and will now acquire mainstream and romance fiction for Entangled:
Ms. Molta joins the savvy and forward-thinking editorial team at Entangled and hopes to discover fresh new voices to cultivate. She has a passion for fantasy and delights in tales of the paranormal – zombies, ghouls, ghosts, and werewolves welcome. “Ah—to live in a world with magic and dragons and dungeons! Oh my!” As a Senior Editor of mainstream fiction with Entangled, Erin will be looking for stories about futuristic worlds with alien creatures and medieval lands with fairies and goblins and witches galore.
She also loves quirky contemporary romances—the girl next door who-may- not-be-as-she-seems, as well as historical “bodice-rippers”. One caveat – “Independent and strong-minded women” are a must.
My guess is that Ms. Molta is not at all acquainted with the romance genre.
Melissa Senate is going to be writing YA but under a secret pseudonym. It’s likely that someone will ferret out the alter ego, but this name change isn’t just for readers. Instead it is designed to convince booksellers that the author’s books should be treated as a debut author instead of an established author with flagging sales.
Simon & Schuster tried this with Kristina Douglas, a purported debut author. Anne Stuart quickly claimed publicly that she was Kristina Douglas. (Probably to the chagrin of the S&S staff as all their promotional material to booksellers and reviewers proclaimed Douglas as a never before heard from author).
I believe that some authors refer to this as the tyranny of Bookscan. Bookscan purportedly compiles sales data but it does not account for ebook sales and I’ve heard that the data can be incorrect even though it is cited as representing 70% of sales.