Penguin Taking Underperforming Authors To Court To Recoup Paid Advances

from the a-publisher's-greatest-revenue-stream-is-sometimes-the-authors-themselves dept

Thu, Sep 27th 2012 8:08am — Tim Cushing

This looks like it might be a new sign of the disrupted times. With major publishing houses competing with damn near everyone for readers, they can longer be expected to hand out hefty advances, especially in exchange for the literary equivalent of vaporware.

Penguin has decided to reclaim a bit of the money it threw at a selection of authors and, in one case, a potentially heartwarming tale of love and concentration camp survival that turned out to be completely fabricated. The Smoking Gun has published the names and amounts sought by Penguin in the lawsuits filed for "breach of contract/unjust enrichment." Here's a couple of defendants from the list:

* Blogger Ana Marie Cox, who signed in 2006 to author a "humorous examination of the next generation of political activists," is being dunned for her $81,250 advance (and at least $50,000 in interest). Her Penguin contract totaled $325,000.

* Holocaust survivor Herman Rosenblat was signed for $40,000 in 2008 to describe how he "survived a concentration camp because of a young girl who snuck him food. 17 years later the two met on a blind date and have been together ever since, married 50 years." While Rosenblat’s story was hailed by Oprah Winfrey as the "single greatest love story" she had told on the air, it turned out to be a fabrication. Penguin wants him to repay a $30,000 advance (and at least $10,000 in interest).

Ten more authors were named, including "Prozac Nation" author Elizabeth Wurtzel, who failed to deliver a "book for teenagers to help them cope with depression." The total amount, including interest, totals to over a half million dollars. Authors failing to deliver something printable (or anything at all) to publishers is nothing new, but a shotgun blast of legal filings against authors is a bit novel. (Oh, ho! A book pun.) It would be tempting to call this a new "revenue stream," but only the interest would be "new" money.

Theories as to ulterior motives or possible underhandedness on Penguin's part are being advanced (and another pun! completely unintentional!). In The Smoking Gun's comment thread, Trident Media Group chairman Robert Gottlieb speculates (strongly) that Penguin's treatment of its authors is disingenuous, at best:

Authors beware. Books are rejected for reasons other than editorially and publishers then want their money back. Publishers want to reject manuscripts for any reason after an author has put time and effort into writing them all the while paying their bills. Another reason to have strong representation. If Penguin did this to one of Trident’s authors we could cut them out of all our submissions.

Another possible angle is offered by literary blogger Edward Champion:

Why did Penguin wait until NOW to go after advances? Has Ducksworth been settled? And are authors having to pay up for discrimination?

Champion refers to the age discrimination lawsuit filed earlier this month against Penguin by Marilyn Duckworth, who alleges the publisher forced her out after 27 years of employment to pursue employees that were "faster, stronger and more nimble."

At this point, it's tough to judge the merits of the lawsuits based on anything other than Penguin's claims. It looks like straight-up breach of contract and the range of topics left unpublished (the rise of Bass Pro Shops, an "analytical forecast arguing for the future success of gold," a second book from the "dynamic pastor of the Empowerment Temple") suggest that Penguin's not limiting legal action to trendy bloggers or other "next big things." If this action proves to be successful, it's not tough to imagine other publishers following suit (Pun trifecta!), especially with the possibility of collecting 25-30% interest thrown into the mix.

But, if you're an author-to-be, and choosing to sign a publishing deal with a major publishing house, you'd have to think that this kind of thing would make you a lot less willing to sign with Penguin. Who wants the added stress of possibly being sued for the advance the publisher gave you? It would seem that authors may start to be a lot less interested in publishing with Penguin.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: authors, lawsuit, publishing, recoup
Companies: penguin

27 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 27 Sep 2012 @ 8:13am

As your editor I think you should be pun-ished for the content of that article.

/j
[ link to this | view in chronology ]
- Anonymous Coward, 27 Sep 2012 @ 8:20am
  
  Re:
  Nah. I thought he was just cracking the quip.
  [ link to this | view in chronology ]
  - The eejit (profile), 27 Sep 2012 @ 8:55am
    
    Re: Re:
    And all our pun problems are solved at a stroke.
    [ link to this | view in chronology ]
    - technomage (profile), 27 Sep 2012 @ 12:01pm
      
      Re: Re: Re:
      All the writers with writers' block have been placed in a suit and tie with the entertainment industry's "punish the people" square
      [ link to this | view in chronology ]
- Anonymous Coward, 27 Sep 2012 @ 10:09am
  
  Re:
  Seems to me that penguin made some bad investments.
  [ link to this | view in chronology ]
Lord Binky, 27 Sep 2012 @ 8:24am

Well I'm shocked. I didn't know that authors could ever have issues writing much less finishing something short of a best seller. They must not be real writers.
[ link to this | view in chronology ]
Jason, 27 Sep 2012 @ 8:28am

No trifecta
Sorry "advanced" was not a pun. Whether it's money or theories being advanced, and whether the nature of the advancement is positional/relational or chronological, it's still the one meaning, and therefore not a pun.
[ link to this | view in chronology ]
- Anonymous Coward, 27 Sep 2012 @ 11:16pm
  
  Re: No trifecta
  I think it's a new kind of pun based on one meaning.
  [ link to this | view in chronology ]
Beta (profile), 27 Sep 2012 @ 8:36am

I want a challenge, wak-wak-wak!
...lawsuit filed earlier this month against Penguin by Marilyn Duckworth, who alleges the publisher forced her out after 27 years of employment to pursue employees that were "faster, stronger and more nimble."

I can't think of anything to write that would be funnier than the mental image this inspires.
[ link to this | view in chronology ]
- Donglebert the Lengthy, 27 Sep 2012 @ 9:14am
  
  Re: I want a challenge, wak-wak-wak!
  Maybe they want more of a challenge.
  [ link to this | view in chronology ]
  - The eejit (profile), 27 Sep 2012 @ 11:23am
    
    Re: Re: I want a challenge, wak-wak-wak!
    So they're contestants on Ninja Warrior before working for Penguin?
    [ link to this | view in chronology ]
Rob D Young, 27 Sep 2012 @ 8:44am

What a frightening precedent.
I really do understand some of these cases. If an author doesn't deliver a book, they shouldn't be paid. If the author's pitch was completely based on a lie, they should be held responsible for that---especially since it reflects so poorly on the publishing group. But ...

If we start to habitually sue authors because of delays or factual inconsistencies, it will discourage less confident or less wealthy authors from making pitches in the first place. Getting published is already an immense challenge. I hope that these cases are settled in a way that demonstrates a very clear breach of contract, so at least all parties know that we can count on the expectations outlined in the contract.

On the other hand, with traditional publishing suffering in the way it has been suffering, cases like this may simply fuel the ebook industry.
[ link to this | view in chronology ]
- John Fenderson (profile), 27 Sep 2012 @ 8:53am
  
  Re: What a frightening precedent.
  This is how it strikes me, too. If an author has breached their contract if in such a fundamental way as non-delivery, then recovery of advance money doesn't seem unreasonable. In effect, the author has said "the deal is off," and all parties should be made as whole as possible. I assume that the contracts include clauses allowing for recovery of the advance in cases like that. That the publishers have rarely opted to actually do it before doesn't make them bad guys for opting to do it now.
  [ link to this | view in chronology ]
- The Mighty Buzzard (profile), 27 Sep 2012 @ 9:30am
  
  Re: What a frightening precedent.
  See, the thing is this has been happening since the very first author failed to deliver a book that their publisher felt like publishing. It's not remotely new in any fashion and it's done by basically every publisher. It's far more rare for them to not try to get the advance back from an author who they feel has jerked them around.
  
  Bottom line is they signed a contract to deliver a book that met the publisher's standards and were partially paid in advance on the assumption that they would do so. Unless they signed an uncharacteristically foolishly worded contract, they're well within their rights to terminate it and have their advance returned if that doesn't happen.
  
  Generally the only way a lawsuit ever happens is if the author both fails to deliver a book and refuses to return the advance. Which is almost certainly what happened in these cases.
  
  Personally, I hate to pass up a chance to rip on publishers for being greedy fucks but I can't bring myself to in this case. Unless I hear something to the contrary, it looks like they're simply going after money they're rightfully owed by deadbeat wannabe authors who left them no other choice.
  [ link to this | view in chronology ]
Anonymous Coward, 27 Sep 2012 @ 8:45am

What will Gotham do about the Penguin Taking Underperforming Authors To Court To Recoup Paid Advances? Tune in next week, same bat time, same bat channel.
[ link to this | view in chronology ]
izzitme101, 27 Sep 2012 @ 8:49am

dont give ideas!
This could be good or bad, can you imagine the mpaa doing this?
I'm given to understand harry potter lost millions on the movies (due to the accounting iirc), are they going to go after j.k rowling?
[ link to this | view in chronology ]
- Anonymous Coward, 27 Sep 2012 @ 8:52am
  
  Re: dont give ideas!
  MPAA studios would never do this. They'd have to expose their accounting to the court.
  [ link to this | view in chronology ]
- The eejit (profile), 27 Sep 2012 @ 8:57am
  
  Re: dont give ideas!
  No, Harry Potter used his Invisibility Cloak to hide the money at Hogwarts.
  [ link to this | view in chronology ]
- Anonymous Coward, 27 Sep 2012 @ 9:41am
  
  Re: dont give ideas!
  Who is Harry Potter? He he one of the MPAA guys?
  [ link to this | view in chronology ]
Anonymous Coward, 27 Sep 2012 @ 8:57am

Wait! This creates jobs ...
for lawyers.
[ link to this | view in chronology ]
- David (profile), 27 Sep 2012 @ 9:29am
  
  Re: Wait! This creates jobs ...
  Too true! It seems to me that we need to get the lawyers out of Congress, because the only people who benefit from the laws they pass are other lawyers...
  [ link to this | view in chronology ]
Anonymous Coward, 27 Sep 2012 @ 9:12am

damn thats gotta hurt!
[ link to this | view in chronology ]
Zos (profile), 27 Sep 2012 @ 9:28am

am i the only one that assumed the article was about linux?
[ link to this | view in chronology ]
Indy, 27 Sep 2012 @ 9:36am

Misleading...
Nondelivery.

This is pretty much what they should be doing. What am I missing here?

The Techdirt headline is misleading. Or... just leaving out important information?

Also the quote about the person of age has nothing to do with this specific example other than it's another lawsuit. Her age should speak for itself, if someone produces work at age 55 better than 25, then they stay on. This seems like a loss to a publisher if they are letting superior experienced talent go to newbies just based on age.

Pretty crappy to find this in my newsfeed?

Yeah.
[ link to this | view in chronology ]
- The eejit (profile), 27 Sep 2012 @ 11:24am
  
  Re: Misleading...
  There's a word in there. Underperforming. This includes not actually completing the book or books you signed a contract to write.
  [ link to this | view in chronology ]
Seegras (profile), 27 Sep 2012 @ 9:39am

Sounds like the end of publishers
...Well, at least "advances" are not what you want to have from publishers anymore, so why not just self-publish?

Hire your own free-lance editor (since the publisher will sue you for your advance anyway), get somebody who will publish it on all the usual e-book-shops, and you're set. And probably much cheaper than with a publisher..
[ link to this | view in chronology ]
gyffes, 28 Sep 2012 @ 7:20am

I'm more astonished by
the interest they're claiming on these advances.

Where the hell does Penguin do its banking that it's getting that kinda return??
[ link to this | view in chronology ]