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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.

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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.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

62 Comments

  1. Elyssa Papa
    Nov 17, 2011 @ 10:15:08

    I guess I’m baffled and confused at the Sourcebooks lawsuit and the whole ado. I thought that having an excerpt at the back was a common thing, and something an author would want to promote previous book or next one in series. And I’m really troubled that Clenney’s agent’s husband is representing the author…it just seems like that’s not right for some reason.

    And I think an author alias always manages to leek out somehow. I mean, it’s not like her photo is going to be different at the back of a book. But good for Senate in selling a YA; I hope it’s successful for her.

  2. Christine M.
    Nov 17, 2011 @ 10:15:14

    I don’t know Clenney from Adam, never heard of her before, but you can be sure that I won’t pick up a book of hers, ever. What a PR fail.

  3. Elyssa Papa
    Nov 17, 2011 @ 10:16:20

    Oops. Leak, not leek. I blame Thanksgiving for any food-typos of words.

  4. Christine M.
    Nov 17, 2011 @ 10:18:52

    @Elyssa Papa: Well, as long as the copyright inside isn’t to her real name and she doesn’t include a picture… I think if an author *truly* wouldn’t want to be known, it could work. For a while at least. How long did it take before Nora Robert was figured out as JD Robb?

  5. Nadia Lee
    Nov 17, 2011 @ 10:23:43

    Well, all Kristina Douglas novels are copyrighted to Stuart’s real name, which is no secret. So I don’t think it was meant to be some super secret.

  6. Na S.
    Nov 17, 2011 @ 11:19:49

    I thought the name Kristina Douglas sounded familiar and lo and behold I do have a book on my bookshlf. I also have an Anne Stuart book and never made the connection. Interesting.

  7. Lynne Connolly
    Nov 17, 2011 @ 11:28:04

    Is a “secret pseudonym” and a new identity the same as doing what AJ Llewellyn did?
    Well, no, not quite, unless she hires an actress to be her at signings, but it’s not far off.

  8. Elyssa Papa
    Nov 17, 2011 @ 11:31:15

    @Christine M.: Very true. I’m trying to remember when Stephen King and his alias(es) were also revealed.

  9. Christine
    Nov 17, 2011 @ 11:51:33

    @Jane- how did you add nook, Google books, Sony Reader, and Kobo Apps to the device?

    I haven’t played around with my Fire apps beyond the Amazon app store but would love to add Bluefire and Overdrive etc.

  10. Jane
    Nov 17, 2011 @ 11:56:17

    @Christine I don’t have my Fire in front of me (and I haven’t been able to find the bluefire app) but you download via the Amazon App store on the Fire device, a file browser. I downloaded ES File Explorer. At some point, you’ll need to go to the settings and change the allow unknown app installs from No to Yes.

    Once you have ES File Explorer downloaded and changed the setting, simply go to the web browser and find google the name of the app + .apk such as nook .apk

    Once you find the download file, you click the download link. It should download. Then click on the notifications up in the upper left hand corner. You should see your file downloaded. Tap it and it should give you the option to install. Tap install and it will install and the icon app should show up in your “apps” section.

  11. Christine
    Nov 17, 2011 @ 12:02:05

    @Jane- thanks! I can’t wait to try it out tonight. So far I am really loving the Fire. It’s a great compromise in size and functionality between my old Kindle and 1st gen ipad. I think it’s going to be great for travel.

  12. Rachel
    Nov 17, 2011 @ 12:37:46

    I write merch tie-in books for a children’s television series, along with approximately a half dozen other writers, under a single publisher-owned pseudonym. At signings and other interactive events, that pseudonym is represented by an actor. (Oh laws! The children have been betrayed!) It’s not that we writers are all unattractive, nose-picking, profanity-spewing miscreants with legal histories that require us to maintain a minimum distance from children, but we all have to stay home and do our job (writing) so we can earn a living and the publisher has more books to sell. The actor gets paid to sign books and take pictures with fans. Writers, for the most part, don’t.

    As readers place increasing non-writing demands on writers (Tweet! Blog! Podcast! Spend two months a year at conventions! Send personalized emails to every individual on your mailing list!), get used to the idea that meeting those demands will increasingly be outsourced to either a performer or an assistant so that writers have time to do the only job they actually get paid to do. If such deception is going to lead to feelings of betrayal, maybe it would be better if everyone remembered you buy a book, not the person who wrote it, and scaled back the expectations of what additional services authors are supposed to provide.

  13. Jane
    Nov 17, 2011 @ 12:45:57

    @Rachel I think those non writerly obligations you speak of are encouraged more by those on the publishing end than the reader end.

  14. DS
    Nov 17, 2011 @ 12:47:38

    Is that Jeff Mehalic from Charleston WV? I’m going to have to Google this– No, wait, I need to see who I can find who wants to gossip.

    A bookstore owner told me that J. D. Robb was Nora Roberts before or just at the time the first book came out. It was an open secret. Stephen King was a little more successful with his pseudonym. I didn’t know about those books until he announced that he was the author.

    Love how smooth the Fire works. I was watching videos. listening to music and playing Angry Birds Rio until after midnight. Didn’t have a problem at all even though the internet was acting wonky– love you, Frontier (not). I’m impressed by the screen and the touch sensitivity is just right for me.

    ETA I’m using a Amazon basic stylus instead of my finger.

  15. Sheryl Nantus
    Nov 17, 2011 @ 13:03:17

    I’m sort of thrilled that my publisher includes promos from other books in the back of mine – because *I* get the same chance with other books and other readers. It’s a two-way street – maybe she would gain sales by someone finding the advert in another book.

    Definitely a fail in my book. There’s much better ways of settling things like this than having your hubby play lawyer, imo.

  16. Anonymous
    Nov 17, 2011 @ 13:39:06

    It seems likely that Clenney and her agent are unhappy with Sourcebooks’ terms. Once the first book was a success, they wanted to get out of the contract and get a better royalty rate elsewhere. The nonsense about the promos is merely a pretext. Of course the complaint shows only one side of the story. It’ll be interesting to see what the court says.

  17. Kim
    Nov 17, 2011 @ 13:40:37

    Barbara Dawson Smith changed identities and now writes solely as Olivia Drake. No mention of the new identity is found on the Dawson Smith website, but it is mentioned on the Drake site. I wonder if her agent or publisher pushed this, or if the author wanted a fresh start.

  18. Courtney Milan
    Nov 17, 2011 @ 13:59:57

    @Elyssa Papa: I’m not just “disturbed” that Clenney is apparently represented by her agent’s husband; I wonder whether it’s not an irreconcilable conflict of interest.

    Given the allegations in the complaint (which I’ve read), I am having a hard time figuring out how Mehalic can ethically represent Clenney. I don’t know the underlying facts, and it may be that the statements in the complaint are very far afield from reality, but it also seems like some of Clenney’s possibly defenses to the suit might implicate her agent or place responsibility on her. There are some weird potential joinder issues that might crop up.

    I don’t see how the agent’s husband can properly advise Clenney here. I don’t see any way to waive that one.

    Incidentally, I hope that the complaint here exaggerates or misstates matters, but a lawyer who tells someone that including a few pages of cross-promotional material at the end of a book constitutes a breach so material that she can walk away from a contract that has made the other party close to six figures…. I have a hard time seeing that as anything other than flat malpractice.

    One last thing–the return of the $1000 is returning the portion of the advance that’s been given to Clenney. I think she had $1000 due on delivery, which presumably she’s never received.

  19. Isobel Carr
    Nov 17, 2011 @ 14:06:51

    I’m with Sheryl on the promo thing. Love it. And as a reader I’ve found lots of new authors this way.

    And I’m also in agreement with Anonymous. I think the author just wanted out of her contract. Not sure why she went about it this way, when you can usually just buy your way out (I know several people who’ve done so recently).

  20. Mireya
    Nov 17, 2011 @ 14:15:41

    I just read that the nook tablet can access the Amazon appstore, does that mean that anything you get that way after you install the software needed to do so, goes to the microsd and not the main memory?

    As to that lawsuit, it smells of conflict of interest to me. It’s

  21. Shawn Hennessey
    Nov 17, 2011 @ 14:17:39

    A PR stunt? Fail.

  22. Jane
    Nov 17, 2011 @ 14:19:02

    @Mireya: Yes, those apps will have to go on the microsd bc unless it is rooted, it can’t be installed in that special BN partition.

  23. Brie
    Nov 17, 2011 @ 14:38:58

    I don’t mind about the promotional stuff as long as it doesn’t take half the book, it’s annoying when you think you still have 20% left and then the book ends leaving you with a bunch of preview chapters and info on new releases (this is particularly annoying when it comes to e-books).

  24. Gretchen Galway
    Nov 17, 2011 @ 14:44:57

    PR: “‘ 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.'”

    Jane: “My guess is that Ms. Molta is not at all acquainted with the romance genre.”

    I just wanted to say this was my favorite part of your post today. You read between the same lines I did. “I’ll only look at romance that isn’t what I think romance is.” Can you imagine any real pro in the genre mentioning “bodice-ripper” without irony or criticism?

  25. Renda
    Nov 17, 2011 @ 14:46:02

    @Rachel: I don’t really want a writer to do much more than writing. I don’t need them to keep up with a blog or be the wittiest Tweeter out there.
    What I need them to do is write a book.
    If someone shows up as a writer and it is not stated/known/patently obvious that this is NOT the writer, then I will feel betrayed and misused by the writer.
    If it is a situation like you speak of, not A writer but a CADRE of writers and this is known, like the Nancy Drew series, then I would expect a character of the book to be portrayed by the actor, not the author.
    My daughter thoroughly enjoyed her time with Junie B. Jones, knowing full well that was not Junie B. Jones because there is no Junie B. Jones.
    But if I take my time/money (since you have to have a book and receipt from that store in hand more often than not) to see a writer to express my gratitude for their writings, I expect the writer to respect me and my fellow readers enough not to send a ringer.
    I think the very least one can expect from any person is honesty of identity.

  26. Elyssa Papa
    Nov 17, 2011 @ 14:47:24

    @Courtney Milan: Courtney, that’s the phrase my brain was searching for earlier re: irreconcilable conflict of interest but my brain blanked and I tried to describe my feeling at the lawyer representation. And I’m in complete agreement with you about this whole thing.

  27. Moriah Jovan
    Nov 17, 2011 @ 14:56:26

    I cannot shake the feeling that the author is being used by a slap-happy agent and her attorney husband for their own agenda. By and large, writers really just want to go in our hole and write and not think about all that icky business-y contract-y stuff. After all, that’s what agents (and lawyers) are for, right?

  28. Beth
    Nov 17, 2011 @ 15:05:36

    I can’t think of any reason a writer would invite a lawsuit. Something must have happened for her to take such a stand; we don’t have enough information to weigh both sides.

  29. SarahT
    Nov 17, 2011 @ 15:11:34

    If Sourcebooks included four pages of cross-promotional material in Clenney’s book, I’m assuming this is their standard practice. If this is the case, would Clenney not have benefited from having her work promoted at the end of another author’s book? And if not, wouldn’t it have made more sense to ask them to do it for her next release rather than reneging on the contract altogether? It sounds to me as if she and her agent simply wanted out of the contract and this is the excuse they’re using.

  30. Lynn S.
    Nov 17, 2011 @ 15:25:19

    You’re quessing that Molta isn’t acquainted with the romance genre. I’m guessing many strange things about the person writing press releases for Entangled. Proper strange, oh my.

  31. LG
    Nov 17, 2011 @ 15:32:38

    @Rachel: I’m with Renda on this one. It doesn’t matter whether the readers are adults or children, if someone does a signing or other event claiming to be the author, that person had better be the author. If the author is too busy to do these kinds of events or doesn’t wish to do them, then he or she should just not do them, period. Having an actor pretend to be the author for an event is insulting to every fan who attends. As far as all the other PR stuff goes, again, if someone writes something saying they are the author, I expect that person to actually be the author. And, again, if the author doesn’t wish to do those PR activities or doesn’t have the time, then maybe those activities shouldn’t be done (personally, I’d rather have books than tweets). Or, as Renda said, people pretending to be characters from the author’s books could do them. I don’t know if she still does this, but I seem to remember that Sherrilyn Kenyon had people doing chats or something as her characters. That’s perfectly okay, and even fun.

  32. Brian
    Nov 17, 2011 @ 15:51:38

    @Rachel:

    As readers place increasing non-writing demands on writers (Tweet! Blog! Podcast! Spend two months a year at conventions! Send personalized emails to every individual on your mailing list!), get used to the idea that meeting those demands will increasingly be outsourced to either a performer or an assistant so that writers have time to do the only job they actually get paid to do. If such deception is going to lead to feelings of betrayal, maybe it would be better if everyone remembered you buy a book, not the person who wrote it, and scaled back the expectations of what additional services authors are supposed to provide.

    Where are these readers that demand these things? Most readers I know like it when an author has a fairly up to date website, anything else is gravy. I can see those demands coming from publishers as they cut promotional/marketing budgets more and more and shift that burden more onto the authors plate. I’ve never heard of someone not buying an authors book because she doesn’t tweet or blog or podcast.

  33. Angela
    Nov 17, 2011 @ 16:02:24

    @Rachel: I have to agree with Renda and LG and Brian! The only thing I expect from the author is a book. Though a website properly maintained would be really nice too – but anyone can easily do this for an author.

    I don’t really care if an author never tweets, blogs, Facebooks, or any other social media – if it’s there, I’ll probably read it at some point, but if not I sure don’t miss it.

    Now, if an author makes a promise in the form of saying they’re going to do a signing? Then I expect that author to be there. Having someone else pretend to be the author, without disclosing this fact to the readers, is a huge breach of trust for me. I’d feel completely betrayed, because not only did I take time and money to buy that author’s books, but I (usually) take time to travel, stay in a hotel, and stand in line for hours on end to meet that author and get a book signed (that is probably a duplicate, or triplicate of something I already own).

    If an author can’t be at a book signing or appearance, don’t let them get scheduled. I may be bummed I can’t meet a favorite author, but I won’t be angry about it.

  34. Sunita
    Nov 17, 2011 @ 16:23:05

    @Rachel: I’m with the other commenters on this. It’s one thing to represent a character (or the mother, or someone else in the show if you need an adult). But to represent the non-existent author? And am I correct in assuming that is it not well known that the pseudonym represents more than one writer? Or is this a book-packaging type enterprise, where it’s more or less an open secret?

    Either way, I don’t understand why you see this behavior as a response to reader “demand” rather than the publishers’ desire to maximize marketing opportunities.

  35. Darynda Jones
    Nov 17, 2011 @ 17:09:56

    Thanks for this post, Jane. I was wondering about the lawsuit, and like Isobel, I’ve had a couple of friends recently give back their advances and that was that. Still not sure what’s behind the curtain. It is strange that the agency filed bankruptcy before starting all this and have possibly led the author astray. Not saying that’s what happened. Just a thought.

  36. Moonlite
    Nov 17, 2011 @ 17:43:13

    @Darynda Jones:
    I once worked for a company that got sued by another company. In order to protect their assets, they declared bankruptcy (Chapter 11). The lawsuit in this case was bogus and my employer eventually won. I can only assume this is common practice in cases like this.

    Why oh why did I give up my dream of being a lawyer?

  37. Michelle
    Nov 17, 2011 @ 17:59:57

    I would be so disgusted if I went to an author signing and it wasn’t the author of the book. I would feel taken advantage of and probably wouldn’t read any futher works.

  38. Jane
    Nov 17, 2011 @ 18:28:05

    @Moonlite: One doesn’t get rid of a frivolous lawsuit because they file bankruptcy. The two suits would not intertwine until there was a judgment to be paid. Frivolous lawsuits are dismissed at the pre answer motion level or in summary judgment but not because the defendant has filed bankruptcy.

    When one files b-ruptcy, one is declaring under oath that the person is not financially solvent to meet its financial obligations. If there was a case pending at the time of the filing and the suit was frivolous, the company filing for b-ruptcy would be asserting to the court that their current obligations, not some obligation that may or may not occur in the future, was causing insolvency.

  39. Jennifer
    Nov 17, 2011 @ 19:08:03

    @Jane: I have been thinking of getting a Kindle Fire, but I currently use Bluefire to read library books. Is this available on the Fire?

  40. Jane
    Nov 17, 2011 @ 19:11:19

    @Jennifer: You can install it, but you have to locate the .apk file and I wasn’t able to find it on the interwebs. I was able to load Aldiko which is comparable to Bluefire and I think you can use library books with it.

  41. Caroline
    Nov 17, 2011 @ 20:13:02

    @Isobel Carr: Really? Were the publishers just fine with letting authors walk away? This Sourcebooks case seems to indicate they aren’t, always.

    I only know a handful of authors who’ve done this, but all of them had to go through the wringer; it was never simply a matter of just giving back the money and calling it even.

  42. Kelly S. Bishop
    Nov 17, 2011 @ 20:22:32

    @Rachel,

    In the About the Author section of one of her recent books, Rita Mae Brown stated that she didn’t own a computer and hoped she never would. She does have a website but someone else maintains it for her. And she still hits the NYT Bestseller list.

    A brand new author probably wouldn’t get away with that but I don’t think chaining yourself to FB/Twitter hours at a time is necessary either. Maybe you just need to find a happy medium between the extremes.

  43. Brian
    Nov 17, 2011 @ 20:24:00

    @Jennifer: The BlueFire apk is tough to find in the wild right now, but I’ll bet it’ll be posted all over the place if Amazon continues to block it for the Fire (it’s in their Appstore). That or the Bluefire guys will put it in the other appstores that are out there.

    Alternately you can use Aldiko or Overdrive for library books (and IIRC Mantano works with them too).

  44. Elaine Golden
    Nov 17, 2011 @ 21:17:24

    OMG.

    I wasn’t gonna. Really, I wasn’t.

    But then I went over to mobilereads and discovered you can sideload apps. Then one of the posters mentioned this Android ebook app called Mantano. Then I looked into what was so special about that and… just wow. Love the looks of the organization and note taking functionality. Plus the UI looks beautiful.

    Now I’ve got a Fire on order. Thank heavens I just sold my iPad1, which means there’s $$ left over to try these droid apps… which clearly I need to learn all about…

    I’m such a sucker for new gadgets. ;)

  45. Brian
    Nov 17, 2011 @ 21:31:46

    @Elaine Golden: We’ve got a review of Mantano here…

    http://dearauthor.com/ebooks/reading-with-android-mantano-reader

    …a very nice app.

  46. Elaine Golden
    Nov 17, 2011 @ 21:59:11

    Ooh, thanks, Brian!

    *off to read more*

  47. Annabel
    Nov 18, 2011 @ 08:10:47

    I think Rachel was just making a point that authors are becoming less authors and more media figures. I mean, authors are producing “book trailers” now for their work. That’s media/entertainment packaging. I believe very soon we will see media created “authors” who are not really authors but a promotion team creating a brand and slapping a cool, sexy actor out front to represent it.

    Whether it’s publishers, readers, or the authors themselves driving this type of stuff, I imagine authors becoming less authentic in the future, not more. I think readers will have to become flexible about letting authors be a brand and not a real, authentic person.

    Personally, I don’t care who’s behind the book, as long as the writing is good. I don’t need to know the “real” author, only the face they choose to show me as a reader. Maybe I’m just a child of the media era.

  48. Jackie Barbosa
    Nov 18, 2011 @ 09:34:19

    I read the Sourcebooks complaint and what stood out to me was that Clenney’s first book had already generated revenues of $96,000. If my book had earned that much money and I was only get 6%/8% of cover on paper and 15% of net on digital, I’d be pretty anxious to get out of my contract, too. On the other hand, if I was the publisher, I would certainly not let the author of a book with that kind of sales performance slip out of her contract for a mere return of her advance.

    I’m assuming the $1,000 Clenney sent back to Sourcebooks represented the portion of her $2,000 advance for the third book that had actually been paid; since she never delivered the manuscript, she would not yet have been paid the portion of the advance due on delivery. Obviously, Sourcebooks isn’t willing to let her out of the contract in exchange for repayment of her advance, which may be why Clenney and her agent are attempting to claim breach.

    Now, I think Clenney would be wiser to deliver her third manuscript and move on since I don’t think she has a prayer of the breach claim being settled in her favor. And before signing contracts, authors should consider whether they’re going to be happy with the royalty terms if their books wind up selling lots of copies.

  49. Donna
    Nov 18, 2011 @ 09:44:36

    Re: Sourcebooks

    Speaking from personal experience, I have to say that I have dealt with this publisher, and found them to be more than fair, and extremely professional. I won’t say I was happy with how things went – they decided against publishing books 2 & 3 of my Lady Anne series – but they were polite, professional, and willing to work toward a solution. Monetarily they were fair. In every conversation since they have been completely polite and professional.

    We worked together on some rights’ issues, and I am now able to publish the novels with another publisher.

    I don’t know the author, her agent or her lawyer, so I can’t speak to the justice of their suit. But Sourcebooks is run by good individuals who care about their authors. I hope they resolve it to everyone’s satisfaction.

    But I have to say… I have NEVER heard to an author complaining about cross promotional material in the back of novels. We all benefit from it. If that’s the best they’ve got…?

  50. Isobel Carr
    Nov 18, 2011 @ 09:48:35

    @Caroline: With the three I know, yes, they bought out their contracts with little fuss (but they were all midlist, not NY Times best sellers; I’m sure that makes a difference).

  51. Donna
    Nov 18, 2011 @ 10:40:25

    If I was her, unless there was some egregious breach of contract by the publisher, I’d just write and deliver the next book. Judging from how low her advance was, I’m assuming she’s a newbie writer (?) and if this is how she handles complaints about her publisher, another may be cautious about signing her, even if she’s a good seller. Suing your publisher for doing what every publisher does (Promo material at the back of your book) is not a good sign.

  52. Isobel Carr
    Nov 18, 2011 @ 11:35:54

    You know, I have to take part of that back, looking at the numbers in the Sourcebooks declaratory action, all the authors I know were making way more money for their publishers than Clenney (heck, sales of my book that came out the same month as hers are much larger, even though I didn’t hit a list, and yes, that makes me galumpish).

  53. Donna
    Nov 18, 2011 @ 11:44:51

    I misunderstood it seems… Sourcebooks is suing the author, not the other way around (had a ‘duh’ moment there!), but still… if I was her I would just write the darn book and move on. With such great sales, she’ll be in a much better position now, and can demand a better contract next time!

  54. Mary Anne Graham
    Nov 18, 2011 @ 12:34:13

    It seems likely that Ms. Clenney was ready to jump ship for greener waters with Amazon.The author might have done better to recall that most industries are a “small world.”

    As to the materiality of the breach, 4 pages of cross promtion wouldn’t seem to affect or diminish the basis of the bargain to the author. It’s not my call and I haven’t studied all the documents, but it looks more like loophole hunting than a breach to me.

    My lawyer side doesn’t do bankruptcy law but wonders how the BR of an agent earning a percentage of contracts might cause nightmares for everyone. Would the BR Trustee then effectively be a co-agent??

  55. Anonymous
    Nov 18, 2011 @ 16:56:14

    When Ms. Clenney’s book hit the USA Today list it was being sold as an ebook for $0.99. Her royalty (15% of net) must have been a few cents a copy. No wonder she wants out of her contract.

  56. Anonymous Bosch
    Nov 18, 2011 @ 18:32:57

    It is my understanding that in most of the Big 6 contracts, the right of the publisher to use the author’s work to advertise other works is typically covered in the contract under the grant of rights to the publisher, for which the author is compensated. I looked at the contract, and it is not present. So it seems that Sourcebooks wants something for free that others are willing to pay for.

    What I am confused about is why fellow authors would be so quick to criticism one of their own, and in support of a publisher with a pretty dodgy record vis a vis its authors (funny how so many leave it after their first experience).

    Come on folks. Your advances are shrinking, your marketing budgets are puny, you’re being compelled to do more and more for yourself, and you want to give Sourcebooks a pass to ride free for something others pay for?

  57. Shiloh Walker
    Nov 18, 2011 @ 21:55:13

    What the hell… the author got pissed because they put an excerpt at the back of her book? That’s fairly common.

    It strikes me as an odd thing to have a tizzy over. IMO, anyway.

  58. Courtney Milan
    Nov 18, 2011 @ 22:03:28

    @Anonymous Bosch:

    This is litigation. Criticism of one party doesn’t imply support for the other. Quite the opposite. One of the ill effects of litigation is that it makes everyone look crappy.

    For what it’s worth, I think Sourcebooks’ standard contract utterly sucks and nobody should ever sign it. I think authors that are pissed about this should refuse to give Sourcebooks rights to any more of their books. That seems like a wholly reasonable remedy.

    Also for what it’s worth, if some of the more outlandish allegations in the complaint (e.g., the discussion of the Mehalic/Witthohn bankruptcy) are unfounded, I think that’s potentially sanctionable. There was little reason to include that stuff in the complaint except to slam opposing counsel, which is potentially a hugely douchebaggy thing to do.

    For Clenney’s sake, I hope whoever is representing her doesn’t take the bait.

  59. Danielle Monsch
    Nov 18, 2011 @ 23:12:57

    I am a fellow author, and heck yeah, I will certainly criticize Anita Clenney about this situation should it be determined that Sourcebooks claims as stated in their filing turns out to be correct.

    If this is the correct version (and I’m very aware that so far I’ve only read Sourcebooks side of the issue) this is what appears to me what happened: She signed a sucky contract. She found herself in a better situation where if she could get out of said sucky contract, she’d be making a lot more money. She used the excuse of something that is fairly standard to wiggle out of said sucky contract, probably hoping that Sourcebooks wouldn’t pursue it.

    I have no sympathy for that. I don’t believe you get to take your toys and go home in the middle of the game because they won’t change the rules to suit you. Either she signed a bad contract without knowing it (in which case she should really have hired a lawyer before she signed and glad that the contract only affected three books out of her writing life) OR she knowingly signed a sucky contract as a gamble – the gamble that future good things would happen as a result of getting into print in the first place,and these books were the price to get there.

    It’s a choice we as writers make every day. Me, I am making the choice to pursue self-publishing in the near future because I will not deal with these type of terms. I won’t have a publisher behind my name and I’ll be fighting uphill against the negative impression that many have about self-publishing, but that’s the choice I make. I don’t have the right to turn around after I make it to complain how unfair the system is. It’s a gamble in a how my career will ultimately turn out, but that’s all any of us can do – gather all the facts, make the choice we can live with out of all that are available, and hope for the best.

  60. Lily
    Nov 19, 2011 @ 09:06:14

    The Sourcebooks contract did not sit well with me. The advance was shockingly low considering the publisher was excited enough about Anita Clenney to do a three-book deal. The print royalty rate wasn’t horrible (compare to Kensington or Harlequin), but the digital rate–the most important rate to check in a contract today–was significantly low. Come on, publishers. Get real about your costs of epublication and don’t try to con new authors into giving you a larger share of the profits than you deserve.

  61. Jane
    Nov 19, 2011 @ 09:16:05

    @Lily If an author was truly conned or the author signed th contract under duress, then the contract would be voidable (the party lacking the capacity to contract having the right to cancel the contract as opposed to void wherein the contract could not have existed). I presume that Anita Clenney is a fully capable adult able to legally sign contracts. The fact that the contract is bad (and it is in terms of what an author is getting for the money, in my opinion. There is a non compete clause in the contract that is so broad that it could effectively prevent Clenney from writing romance except for Sourcebooks for the term of the Agreement) doesn’t mean that Sourcebooks is morally bad.

    No one is forcing authors to sign bad deals. In this case, in fact, Clenney had an agent who is supposed to be advising her client and negotiating good contract terms for the client.

    Publishing is a business and it is the publishers interest to gain as many rights for as long as possible for the least amount of money. The goal of the author should be to sign the least amount of rights for the shortest amount of time for the most amount of money.

  62. Anonymoussse
    Nov 19, 2011 @ 13:09:32

    While I have no knowledge of the details of the case, for those commenters talking about how sucky or bad the contract terms are: I think some historical context is called for. Consider the state of the industry at the time Clenney signed the contract. E-books were nowhere near as popular as they are now, and in some minds, choosing to self-publish was akin to sprinkling yourself with loser dust.

    The state of the industry has changed drastically since that time.
    This is one of the risks of signing a multi-book contract: you’re locked into the terms of the contract as they were drafted at the time of its signing for its duration, no matter how radically the publishing landscape may change during that time.

    ETA: that said, the landscape IS evolving, and it behooves all publishers to consider their value proposition at a time when authors have more choices than ever to get their words out into the world.

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