Home » Contracts, Passive Guy » Why I rejected my publisher

Why I rejected my publisher

11 June 2014

From author Jordan McCollum:

If you’ve poked around my site or been a subscriber for a while, you might remember that in November 2011, I received an offer of publication from a regional publisher, with a 2013 anticipated release. . . . Like any publishing offer, it was a long time coming.

Three years and two weeks after I started the novel. Two years after I submitted it to the same publishing house the first time (obviously they rejected it, and with good reason). Eighteen months after an editor at the publishing company told me not to bother resubmitting the revised, newly-award-winning manuscript. Almost nine months after I went ahead and did it anyway.

I got the good news at a writers’ retreat and I was so excited to share with my friends there.

. . . .

While we waited on that contract, they assigned me an editor, who happened to be someone I’ve wanted to work with for a long time. They asked me for the “final” submitted version of my manuscript (although editing was at least a year away). They requested an author photo, then a release from my amazing photographer. They needed tax documents. I got it all turned in.

Finally, the contract came in the mail. I held my breath as I opened that big white envelope and read through those pages with my publisher’s name and mine. And I cried.

But they weren’t tears of joy.

With a friend’s recommendation, I consulted with a lawyer who specializes in contract disputes and intellectual property law. He spent looong billable hours reading the contract and writing me an extremely thorough analysis. And, yeah, it was as bad as I feared.

. . . .

Naturally, I was very worried about the possibility of a book never being declared “out of print” because the publisher had an ebook version on the “shelves.” I might never get the rights to my backlist back unless the publisher was feeling very generous.

. . . .

But my lawyer was more concerned with another issue, one that I was anticipating, but didn’t think it would be as bad as the reality. The contract demanded the right of first refusal on basically everything I might write for the next 21 years. If I submitted any work anywhere else, it would be deemed accepted by this publisher, and contractually obligated to them first. There was no timeline in the original contract, meaning they could spend three years sitting on my manuscript, before granting me one year to try to find someone else to take it (after which the time frame and rejection process would start over).

. . . .

I offered options, options I knew other authors had gotten added to their contracts with this company, and options I knew other publishers used. I gave some, and they gave a little.

Ultimately, however, they wouldn’t budge on the most important issue.

. . . .

I sent a final message to the publisher. I told them I didn’t want to burn any bridges, but I would need to see changes to these clauses of the contract.

They said no.

So I said no.

Link to the rest at Jordan McCollum

To answer a question that may be on the minds of some — Jordan is not one of PG’s clients.

However, the contract problems she describes are very familiar to PG.

Typical out-of-print clauses are virtually impossible for an author to enforce unless the publisher wants to revert the book. See one of PG’s first contract-related posts describing a minimum wage for authors for a better alternative to standard out-of-print clauses.

Rights of first refusal and non-compete clauses can substantially limit an author’s freedom to self-publish or choose to work with another publisher, even if the first publisher is doing a terrible job of selling books.

Contracts, Passive Guy

100 Comments to “Why I rejected my publisher”

  1. Reason #138 to Self-Publsh.

    • Yep! In the non-excerpted parts of the post, I mention that I self-published two novels during the negotiation process—both of which were named among the 5 finalists for the top honor in this regional market, over all but one of this publisher’s books. (No one’s more surprised than me.) Didn’t seem to influence negotiations in the slightest.

      So . . . why am I supposed to need a trade publisher again?

      • Congratulations and well done on making the right business decision for you. It takes a lot of courage to stand up for yourself but so necessary.

        • Thank you very much :)

          • Jordan

            This may sound silly, but I always feel some sense of gratitude when I hear a story like this; one writer going though a Tradpub hardship and sharing the experience so another writer doesn’t have to now that there’s a choice. Having your indie titles earn recognition and sell well is probably the best payback to the Legacy system there is.

            All the best.

      • Jordan, it took a lot of confidence in yourself to turn that contract down. Seems like a lot of writers would say “But without a big publisher, I’m not worth anything!”

        Glad you know you are worth something. :)

    • Yep!

  2. Non compete clauses are tantamount to lifetime slavery. The publisher owns all of your future output. Do. Not. Do. It.

    • Agreed. I have several untested constitutional arguments against it citing the 13th and 14th amendments, but the supreme court is not likely to entertain my arguments any time soon. :-(

    • …now I have to wonder how many writers have actually already signed away 21 years of their lives.

      21 years.

      And anyone can possibly defend this over Amazon? I… don’t get it.

      • I keep thinking how frustrating it must be for those writers who’ve already signed away their rights. I’m sure there are at least some of them sitting on the sidelines wishing they could self-publish.

  3. Pardon my French, by why the $#@! would anybody sign a contract with that kind of non-compete clause in it?!?

    “If you submit it, we automatically own it for three years, although we don’t have to pay you a dime. And if you can’t sell it in a third of the time that we sit on it, it’s ours all over again.”

    • Many writers are so desperate to see their book on a book store shelf that they’ll sign anything.

      But this is why I no longer have any interest in trade publishing.

      • Exactly. It may be shocking, but people have no clue what they’re walking in to. I talk to these people everyday and I feel like wow! Really? Which is why now, I direct everyone I know here to the PV. It’s the only way to help, but then there will always be the stubborn types who just want to believe that once they sign they will get the happily ever after scenario.

    • Dan, two reasons (and I know you know, but I’ll say it anyway ;-)): 1) Writer A wants so BADLY to be published because of the validation thing and doesn’t care what it involves (“My book will be published!”), and 2) Writer A couldn’t be bothered to read the fine print (basically, TL;DR).

      Hard to believe people still think of validation at this point, but they’re still out there. As for the other, don’t read the fine print in a publishing contract at your peril.

    • Desperation.

    • Because nurturing.

      • Never underestimate the need for some people to be validated by some perceived authority or establishment.

    • It used to be the only choice. Now it’s not. So the publishers have responded incorrectly in a move to shore up their hold on the market.

      So sad.

      Even without Amazon I’d rather sell .pdf’s on a s***** website.

  4. Physical slavery was outlawed in 1865. But apparently Intellectual Slavery is legal. If you sign on the bottom line.

    • EXACTLY!!!! 13th amendment…

      Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
      Section 2. Congress shall have power to enforce this article by appropriate legislation.[1]

      Later the supreme court said this applied to the “badges and incidents of slavery”
      —————————————-
      Perpetual contracts, long terms of servitude. The real difference is you are supposed to understand what you are signing, and so do so willingly. So not involuntary. But who the hell understand these contracts, how is this truly voluntary? Many states have declared that contracts written above a 10nth grade level should not be enforced due to this notion that a contract requires a voluntary agreement.

      Debt and contact have been the basis of involuntary servitude throughout human history. Arguable, of course.

      This is just my high level political view, when you dig into the cases and laws things tend to break down. But the bottom line is that courts could EASILY declare many of these contract unconscionable without even getting to the constitutional notions of involuntary servitude.

      EDIT: Sorry. Currently studying for the California Bar.

  5. Horrible. At least she had the good sense to get an IP lawyer to look it over before she signed such a disgusting contract.

  6. 21 years worth of first-refusal rights?!
    Is that a new thing?
    I’d heard of first refusal on the next work, but 21 years?

  7. The real question is why do publishers insist on it? It only makes sense if they have a vested interest in limiting your ability to publish. Why would that help them?

    • If you write The Next Big Thing, you have to hand it over to them. If you write The Next Midlist Novel, no-one else will be able to publish it, and you can’t self-publish it, so there’ll be less competition for their midlist authors.

      There’s historically been no downside to the publishers from pushing such a clause, so why wouldn’t they?

    • The “reasoning” is a publisher invests a lot of money into building an author’s career, and they don’t want the author to jump ship. (This fear stems from before the self-pub days, too, so it’s not even that. I doubt it helps, LOL.)

      I really understand that, and I reiterated that I already had multiple novels ready for this regional market, so it wasn’t like I was trying to “steal” their marketing dollars. At the same time, NO ONE has a bigger interest in building my name than me. NO ONE will work to do it. NO ONE.

      • Hello Jordan,
        What do you mean by “Regional Market?” I’m not familiar with that term.

        • They (meaning all the publishers in the market, I think?) classify themselves that way, with the US West as the region.

          (Really, they’re publishers serving the LDS [Mormon] market so heavily concentrated in the West.)

          • So this publisher is marketing mostly to the Mormon community?

            • Yes, mostly.

              • But will you ever see your book(s) on the shelves at Deseret Book, Jordan? :)

                It sounds like you’ve made the right decision. Best of luck.

                • LOL. And how will I ever be a success without THAT?? ;)

                  (Actually, I *could*. I did get a print distributor. I haven’t actually seen them there yet, but it’s within the realm of possibility.)

                  Thanks!!

              • We need to get to know each other. I’ve got a series of historical fiction planned surrounding the founding of the LDS church and the move into Deseret. Should start coming out the middle of next year. Maybe you and I can help cross-promote to one another’s established audiences.

      • Publisher invests a lot of money into building an author’s career
        That’s a good one, I bet that they even believe in it. Building author’s career, my ass.

      • More power to you, Jordan, and I wish you continued success.

      • If they don’t want an author to jump ship, they can simply give the author better terms than any competing offer. Done. Just like a company that has a valuable employee who adds to the bottom line: You don’t want them moving over to work for another company, raise their pay, give them bonuses and stock options, matching 401K, 4 weeks’ vacation, etc, and treat them RIGHT. THen they will happily stay.

        The answer isn’t to turn them into indentured servants.

        And what gets me, too, after reading the comments of the author’s blog post, is that this is a religious publisher (LDS). Like, dudes, What Would Jesus Do were he a publisher?

    • That’s easy. One less author they have to compete against, or as Edward pointed out, the author’s fourth book just might be The Next Big Thing and its theirs for peanut. Or imagine they stumbled over the new King and all his/hers future work is theirs without them having to compete for it, or offer a better advance for it.

    • From a financial perspective, it’s a free option. An author might write a great book in two years, and the publisher has a lock on it. If he builds a portfolio of hundreds of these options, he will probably make some money.

      If authors are going to give away these options for free, the publisher is going to collect them.

    • They have a vested interest in owning your career. If you turn out to be a big thing, you’re their big thing. If you don’t, they can always keep rejecting you. Zero loss for them, with a lock-in if you can make them money.

  8. How many 10’s of thousands of great novels submitted over the decades were lost because the authors weren’t the type to even get through those years to the contract offer.

    • Even worse, I read a comment a while back by a famous single-book author whose novel is still in print and lauded decades later (forget who it was) who essentially said ‘yes, I’d like to write another book, but publishing was so awful the first time around that I just couldn’t stand to do it again’.

      • You’re probably thinking of Harper Lee, who wrote To Kill A Mockingbird.

        • Yeah, that sounds about right.

          • Chris Armstrong

            Although, from what I’ve read, they very heavily worked with her on revisions – taking a series of anecdotes to a storyline.

            • In the above article? Because what I read in this article was They asked me for the “final” submitted version of my manuscript (although editing was at least a year away). There’s nothing about editing in here, or did I miss something?

            • I’m sorry, I think you have my story confused with someone else. They never gave me a single edit, though they did request that I remove one element, which I did, all by myself. They never gave me any editorial feedback. We never made it that far in the process.

              The manuscript was complete when I submitted it a year before the contract was sent, and completed without any input from the company (except to reject a previous version).

            • Oh, wait. Are we talking about Harper Lee? My bad.

              • Chris Armstrong

                Oh yah, I was just thinking of some info I picked up from a documentary on Harper Lee. No worries!

  9. The only hope of survival that publishers have is to provide added value to authors.

    This is diminished value. Heck, it’s totally removed value.

  10. Thanks for featuring my post, PG!

    I have many friends who are contracted with this publisher, and even some who are being offered contracts with them today. I always tell my friends they should try to negotiate because they may have better luck than I did. If they do decide to take the contract, I warn them not to take it hoping to do something else in 5, 10, 15 years. Be as sure as you can that you’ll be happy for the life of the contract.

    For some of my friends, this publisher may be the best fit for the rest of their career. The regional market is VERY small: the 2 “large” publishers handle usually fewer than 200 titles a year, and the 2 “medium” publishers less. The rest might be classified micropresses. This publisher handles more fiction in the regional market than anyone else, so if the regional market is your end goal, you’re set. No one, I hope, goes into the regional market hoping to quit a day job.

    However, this publisher is not the only place I want to be able to publish for the next two decades! I knew that going in, and when their contract, even after “negotiations,” didn’t mesh at all with my career plan, it actually wasn’t all that hard to walk away. Kind of like knowing when you get a really bad edit note that would ruin your story, and you ignore it.

    • You’re welcome, Jordan.

    • I’m glad that you went into the publishing deal with clear head and steady nerves, and I hope that because of your story, authors in similar situation would invest in a good IP lawyer more easily and examine their choices with open eyes, knowing very clearly what they are giving up when they sign on a dotted line.

    • Maybe you and your author friends should start your own small press and give better terms to the regional authors. Love to see the “little guys” get together and EAT the big guys. :D Or create a self-publishers cooperative and help each other out while SP-ing.

      Best of luck. I think walking away was wise.

  11. I’ve only read the excerpt here. Does the writer name names? Because it would be a service to all hopeful writers to know what they could be getting themselves into.

    • Sorry, I don’t. I don’t want it to seem like I’m doing this to punish that publisher; I’m doing it to try to educate other authors. I think people in the market might guess who I mean (with only 2 “big” publishers that are actually small presses).

    • The thing is, it doesn’t matter who the publisher is, because the lesson here is, at least for me, when dealing with publisher (no matter who the publisher is) read the fine print, invest in a good IP lawyer to learn what you have to give away in exchange of getting published and assess how much is that worth to you.

      • And count your fingers afterwards if you shake hands.
        These days there’s just too many pitfalls involved to even think of approaching that business.

      • Of course you should always have someone looking out for you and reading your contracts, but that particular clause seems predatory to me and I think other writers should know to avoid them.

        But obviously it’s a personal decision not to name names. Fair enough.

    • Judging from the comments here and what little I know of the LDS market, it was probably either Deseret Book, Shadow Mountain, or Cedar Fort. I’ve heard that they all have horrible contracts, though, and wouldn’t be surprised if their boilerplates are so similar as to be interchangeable.

      • Aaaaand now that I had a chance to read DB’s Wikipedia page, it looks like Shadow Mountain is an imprint of Deseret Book. So that narrows it down even further.

      • My guess is Covenant. They are notorious for their extremely ugly contracts and refusal to negotiate.

      • I’m LDS (although I write for the mainstream market, definitely not for the LDS market) and I’m horrified and embarrassed that anyone associated with my religion would pull the kind of crap that’s in those contracts. I’ve got a cousin who writes for that market and wants to get published; I feel like I ought to point her towards this thread.

      • How about we NOT guess and NOT get the writer in any sort of trouble. Unlikely. But, you know, could happen.

  12. Wow, this was an LDS/Mormon publisher? I’ve heard that they’re horrible even by New York standards, but this is just plain unconscionable. I write mostly mainstream science fiction, but I have a couple of story ideas that only really belong in the LDS market. I had kind of hoped I could sell my Mormon stuff to them and keep my mainstream/indie stuff completely separate, but apparently, that’s not the case.

    • That was what I was hoping, too. There are also a few circumstances where you might be able to do both, depending on content & genre. But that’s a different discussion, I guess.

      • Have you looked into Strange Violin Editions? From what I can tell, they’d probably be a better fit for my LDS stuff anyway. They published A Short Stay in Hell by Steven L. Peck–excellent book!

        I suppose I could self-publish too, and that’s probably what I’ll end up doing anyway, but marketing to the LDS market is very different from marketing to a general audience. If going with an LDS publisher would open some doors to that market that would otherwise remain closed, I would rather just hand it off so that I can focus on the indie stuff that’s my bread and butter.

        • Sorry, not familiar with them.

          The biggest door that going with an LDS publisher would open that you really can’t do on your own is catalog & prime bookstore placement. (You can get in the stores on your own—I have, though I’m not sure it’s worth it without publisher backing with booksellers/catalogs.) Just be sure your contract doesn’t prevent you from doing your indie stuff!

          • Sounds like a market where a writers’ coop might make sense; a handful of authors teaming up to set up a specialty “small press” and splitting the costs of the catalog marketting.

            • Uh…even though I’m not LDS, I write a lot of stuff that touches on it and could appeal to parts of the market. I’d be very interested in an indie co-op to reach this audience. If anybody is serious about this, let me know. For reals. Contact me via my web site (click on my name, obviously.)

        • I know the gal who runs Strange Violin. I’d vouch for her integrity in a heartbeat. She’s smart, ethical, conscientious, and a self-publisher herself. If you do want to work with a small press in the LDS market, she’s the one to go to.

  13. The contract demanded the right of first refusal on basically everything I might write for the next 21 years. If I submitted any work anywhere else, it would be deemed accepted by this publisher, and contractually obligated to them first. There was no timeline in the original contract, meaning they could spend three years sitting on my manuscript, before granting me one year to try to find someone else to take it (after which the time frame and rejection process would start over).

    I’m not familiar with contracts but is that a common clause in publishing contracts? If so, why on earth would anyone agree to that? That’s just nuts.

    • It is totally nuts. Authors en masse need to say no to this.

    • I think the obvious answer is that most of these authors don’t actually read the contract and wouldn’t understand it if they did. They count on their agents to deal with that stuff.

      • This regional market is so small that an agent would starve if they had to live off 15% of an author’s earnings. In practice, only authors who’ve gotten agents for national market books end up using agents with these publishers. Yet another reason why authors sign the contract, I guess.

  14. Patricia Sierra

    Do I have this right: when a contract gives a publisher first right of refusal, they can tie up the book for as long as they wish?

    • That was how my lawyer explained the wording of this particular contract to me. It’s possible I could have gotten some language to limit it added; I didn’t ask.

  15. Historically, option clauses have been terrible gotchas. I turned down a contract long, loooong ago because the option said basically, 1) the publisher wasn’t required to even look at the optioned property until the contracted work had been published; 2) that the option covered ALL works (which could have meant novellas, short stories and non-fiction, none of which that house published); and 3) I couldn’t submit ANYTHING elsewhere until the work had been either rejected or an offer was made. Nowhere in the contract did it say how long the publisher had to consider the new work AND no where in there was it stated how long the publisher had to publish the first work.

    Even back then, I knew that was a terrible contract and I didn’t just walk away, I ran.

    I’d say the new policy should be is, if the publisher wants an option, they can pay for it. Just like film companies.

  16. Why the F*&% do publishers think this is okay?

    Think they’ll ever catch on and start offering more equitable contracts, in light of the ability authors have now to earn a good living from self-pub? Or will they just run themselves into obscurity, riding their fancy dinosaur with the words GATEKEEPER LOL spray-painted on its sides?

    Jordan, good for you for a) having a lawyer go over the contract in detail and b) walking away from that crap deal.
    And congratulations on having your self-pub stuff do so well!

    • “Think they’ll ever catch on and start offering more equitable contracts, in light of the ability authors have now to earn a good living from self-pub?”

      No. Those already operating this way are too deeply entrenched in what has worked for the last fifty years. They can’t change. Sooner or later they’ll keel over dead and be replaced by others who have grown up with the notion that writers are human beings, not chattel.

    • I’ll tell you Libbie. I know the answer. Or will at least bloviate on the topic.

      Publishers think this is okay because of the way the ‘real’ economy works. Not how it works in a lab or in the quasi mathematical theories of great economists.

      In the real economy people, over time, will charge as much as they can get away with. This includes taking as many rights as they can get away with.

      Be it software companies only ‘licensing’ you the right to use what you have bought, so you don’t actually own anything on your computer (an overstatement but somewhat true), to record companies early and mid century virtually owning artists, same with movie studios mid century indenturing actors.

      If you want to go a bit further back it is the same impulse that leads to slavery. A better example would be all forms of indenture, including modern notions of unbankruptable debt (really? I get to work off my college loans for the rest of my life for the privilege of being a highly productive tax paying citizen. Great policy ya f*** wads!).

      Probably a bit more of an answer than you were looking for. So let me boil it down with a story. Uncle Jo loves stories. That’s why he’s here!

      I worked with some friends who have a berry farm. They were worried about charging $3 a pint for strawberries. It seemed too much. They were making a pretty high margin at that point (through certain parts of the season only, early and late picking costs shrunk the margin considerably).

      I went to a market and sold at $4 without telling them, a big market in Portland with no other berries that week. By the end I was selling at $5 a pint and saying all kinds of exaggerated things about how the berries were grown (all true, but also true of most farmer’s market berries, to ignorant people it was mildly impressive.)

      The point is. You get what you can get away with, because competition is never perfect. Especially if your cartel holds a monopoly, like it did at that farmer’s market. Had I come back the next week, and the week after, and been the only seller, I’d have pulled even grander b*******. I even attempted to collude with other berry sellers the next week to raise prices. The Russian growers did, but the local ‘Anglo’ growers didn’t, and our house of cards crashed back down to a reasonable level. See the parallel?

      I’m a few beers in right now. Hope that made sense and wasn’t condescending. Certainly it was too long. :-)

      EDIT: And certainly you know this. I was just illustrating.

      • You did exactly right. And the people who paid $5 a pint thought they were getting a good deal. Who’s to say that they didn’t?

        Yes, you made a killing. But I’m sure the farmer is not buying Caddies with the money, so he benefited. The buyers got produce they liked, so they benefitted. And nobody’s putting the screws to anybody.

        This is how the market is supposed to work, and it’s so difficult to get people to understand that.

        • Yep. What the consumer will pay. If the strawberries looked fab and fresh and tasted good, I’d pay the 5 bucks (budget allowing). But if the guy down the street sold the same at 3, I’d go to him.

          The thing is that readers like me who used to pay 22 bucks for a hardcover and 12+ for a paperback have discovered that we don’t like paying that anymore. We want better prices. And the writers who give us that will start to get our business if they deliver good reads.

          And if all but my fave writers keep charing the 12 bucks for an ebook, I just wait. I’ll wait until it’s used for 2 bucks or the ebook is available for 7.

          I have lots to read. I can wait.

        • I agree. They’re doing it because they can. It’s that simple. But thank God going through these people is no longer mandatory in order to see your work published. Thank God.

      • The theories and economists readily acknolwedge these kinds of practices prevail in the real economy when there are significant barriers to entry.

        The barriers mean there was a huge supply and a much more limited demand from publishers. That made it a buyers market.

        We are watching things play out right now as the entry barriers fall. Zillions of writers are no longer subject to any non-compete clauses and right of first refusal. They just click the Amazon upload button. That is a big change in keeping with the theories.

        Publisher motivations haven’t changed, but entry barriers have fallen. The fact that publishers get away with it today is because authors choose those contract terms when the market offers a very viable alternative.

        In the past authors took the clauses because they had no choice. Today, they are doing it because they choose them when they do have a choice.

        And it’s not a monopoly if anyone can walk up, stand next to me, and sell the same stuff.

  17. Hi Jordan,

    When people as me ‘how to write?’, I say, ‘write the first draft with your heart, the second with your head and don’t worry about the third – the publisher will tell you what to write’.
    I so identify with your experience – but I managed to get the ‘rights over future work’ removed from my contract. They must have really wanted the book on offer. Congrats for standing tall.

    Brahm

  18. In a recent blog where Shatzkin was again attacking self published authors, it was commented that writers are leaving traditional publishers in increasing numbers:

    Someone … “Steven Zacharius” posted:

    “I don’t think there is a single shred of proof that writers are moving away from big publishers in a steady and growing flow. Publishers are certainly not thrashing around like fish caught in a trawler. This sounds like wishful thinking by an indie author. Every single day we have books presented to us by indie authors still. We haven’t lost a single author of any size to self-publishing nor do I know of any larger authors leaving any major publishing house. “

    • Steven Z. posted the same thing on a response to Kensington but the thing is, if that’s true, why was he so active and have been visiting blogs dedicated to authors and writers in time that his company was lunching digital-only imprint.

      Suzan had in her comment on PG’s post on Hachette mentioned:

      Trad published friends had been forwarding e-mails from Kensington, Harlequin and Ellora’s Cave asking for submissions. Thank [deity of your choice] these friends finally stopped sending me those naked pleas six months ago!

      I believe that in the end, it doesn’t matter if publisher see or admit that writers are leaving traditional publishers in increasing numbers. What is important is, that other writers are aware of that and that when they are deciding between submitting their work to an agent/publisher and self-publishing they are with opened eyes choosing the path that is the best choice for them.

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