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Here lies the body of Mike O’Day

I’ve never really been a sailor, but I’ve done some mucking around in dinghies on lakes and on the coast. At one point, my dad, thinking that I should actually learn something about the craft, gave me a book about it. I don’t now remember the difference between a halliard and a shroud, but I remember one section quite clearly. There was a long and patient discussion of rights of way on the water – who gives way to whom, and that sort of thing. The discussion ended with this verse:

Here lies the body of Mike O’Day
Who died maintaining his right of way.
He was right, dead right, as he sailed along,
But he’s just as dead as if he’d been wrong.

It’s a ditty that I urge you bear in mind. Here are three reasons why:

Copyright

A lot of authors, especially indies, are anxious to Protect Their Copyright. Back in the day, people used to mail themselves sealed, dated packages containing their manuscript. More sensibly, you can register your work with the US Copyright Office, at the cost of some manageable fees and some tiresome form-filling.

And OK, if you want to do it, do it. (Any competent publisher will do the legal basics for you, and you can always check to see that they have.) But here’s the thing: let’s say you have the world’s most bullet-proof copyright registration in the world. Let’s say you have film of Barack Obama solemnly testifying, his hand upon the Great Seal of the United States, that he watched you and you alone write your manuscript. Ok, great – but so what?

If your book is popular, it’ll be pirated. Sleazy crooks, probably based in Russia, will rip off your book and make pirate copies available online.

What then? What do you do? It’s not like there’s some Interpol of Copyright staffed by a combination of Daniel Craig, Tom Cruise and the like. There’s literally no one who’s going to help you. So, sure, you could sue, but you’d have to go to a Russian court to do it (and good luck with that.) And even if you did that and won, the crooks would just pull down one pirate site and pop up a duplicate site two weeks later.

I can prove to you that you won’t defeat piracy, as follows:

  1. You’re not as well-resourced or experienced in fighting piracy as Penguin Random House
  2. PRH books are pirated all the time
  3. So your book will be pirated too, assuming anyone can bother to do it

Which all sounds terrible, except that almost no one gets their books from pirate sites and plenty of people make plenty of money from books. So the problem can’t be that bad.

Contracts

You sign a contract with a top publisher. They make various commitments and you take those undertakings in good faith.

But it’s not unheard of for big publishers to break their contractual commitments. It’s happened to me, more than once. It used to be really quite common. Now, I think, it happens a bit less than it used to, but it still happens.

So let’s say a publisher breaks a contract with you. Let’s say, they commit to publishing three books. They publish one and it doesn’t do well. They bring out the hardback of #2 and it doesn’t do great. Meanwhile, corporate shenanigans mean the entire imprint is being reduced in size, so you get an email telling you sorry, there won’t be a paperback of #2 and they won’t bring out book #3 at all. That story isn’t made up. That exact thing happened to a friend of mine.

(And what’s more, the whole communications round the episode were terrible. It would be one thing for you editor to call, or take you out to lunch, and say, “Look buddy, I’ve got terrible news and I feel awful.” Quite another to get a blunt email from someone in Contracts you’ve never even met. I might also add that there was nothing wrong at all with the books – the same author has a great career elsewhere now. The sales failure was entirely on the publisher’s side.)

So what do you do?

You have in black and white a contract signed with full faith and credit of a very large corporation, undertaking that they WILL do X.

You could – you really could – go to court and seek an injunction compelling the so-and-sos to do what they’d promised. But in the first place, the publisher would probably deny they’d caused commercial harm. In the second place, a publisher forced by court-action to publish a book is hardly likely to do a great job with it. And third: what next? The great publishers of the world are unlikely to want an author who’s willing to sue them.

In other words, there’s damn all you can do. (Or almost damn all: you should make a big, bloody fuss because someone might offer you some apology-money, and because you thoroughly deserve to have your feelings known and recognised.)

But legally speaking? You are Mike O’Day: right, but powerless in your rightness.

Agents

Same thing here. With agents, the issues don’t tend to be contractual exactly, as the author/agent contract is often pleasantly brief. But there IS an implicit contract, nevertheless, which runs as follows:

  • You will sell your work only via the agent (with a little carve out for direct-to-reader selling, via self-pub – and even then, that should always be talked about first.)
  • The agent will represent your work and manage your career
  • If anything happens to disturb that understanding, you’ll both talk about it like grown-ups

Often though, that’s just not how it turns out. I know of well-known agents at absolutely first-class agencies who have simply discontinued any kind of comms with no-longer wanted authors (even, in one case that springs to mind, when that author was actually a bestseller in her own country.)

So, quite possibly, the agent you think it going to take care of your career simply exits, stage left, with no proper discussion or handover. And even though your contract is with Big Agency, LLC, not with Jane Jones of Big Agency, LLC, it turns out that Big Agency has literally no interest in taking care of you if and when Jane Jones decides to wash her hands of you.

Is that fair?

It is not.

Is there ‘owt you can do about it?

There is not.

Sandy O'Donnnell

So where does that leave you? You should sail your career like a wiser Mike O’Day. You take care of your copyright, your contracts, your agents and all the rest of it as professionally as intelligently as you can.

You will do that, and people may still – unreasonably and uncontractually – mess you around. You are welcome to scream. You are welcome to feel peeved. But the thing you do after that is get back to your desk, so you can start writing another book.

Here lies the body of Sandy O’Donnell
Who never again would write a novel.
An agent betrayed her, a publisher lied –
And instead of just working, she sat down and cried.

Do not be like her.

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  • 346
Comments (23)
    • If you are a member of the Society of Authors, is there anything they can do if contracts are broken?

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      • They could keep a record and warn others, but likely won't bother.

        The thing is, if a publisher reneges on a contract, it's a good thing for the author. A publishing contract includes an advance from the publisher in exchange for their sole right to publish your work (and spend money on doing so). This is calculated on the basis that it is the total of all royalties your work is expexted to earn. (And, realistically, most books don't even earn out their advances.)

        If they choose not to publish a subsequent book they have contracted, it is because they have chosen not to spend the extra money on the publishing process. Were they forced to publish, they would put a minimum possible effort into promoting a book they didn't see as a good investment. If they are half-decent, you will get your advance without argument; at worst, a reminder or two of their obligations and the implicit threat of bad publicity will see you paid. And as they will have chosen not to publish,you get back the right  to sell the manuscript to someone else for a second advance.

        A good thing to get in your contract is thus a reversion clause on the first book(s) in the case where they choose to forego the subsequent book they have agreed to publish, especially if it's a series. That way, you can also resell the earlier books to someone else, boosting the compound value of the new book, as the right marketing could change the series' entire dynamic.

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        • In theory, the SoA can help. But they (and the Writers Guild in the US) lack backbone in my umble opinion. They'll write a stiff note, but they won't roar.

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        •       Well, well, well!

                 Such good and sage advice.

                 It seems that in the perfect and magical world of writing/getting published/being unimaginably famous (and rich), we still need good ole resilience and grit. And lots of it.

                 Not every baby turtle will make it to the ocean. 

                  But I guess the difference between aspiring authors (us) and baby turtles (them) is that we have more than one chance to surf the waves of success. 

                  And even when we think we’ve made it safely ‘there’,  we could get eaten by a predator (wrong agent/bad timing/poor marketing/corporate woes), or shock, horror - an apathetic audience. 

                   If you really want to be a successful writer, be prepared to suck your gut in, stick your chin out - and start all over again, and again.    Or not. 

                   Thanks for your insights and humour. 

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          • I am freaking out at the moment.


            I have just received a rejection from an agency - telling me that 'Oh... we're sorry, we have a book similar to this coming out in 2 years.'

            Well - this just says that we love what you sent us and we are going to rip you off. And it will take who-ever about 2 years to do. I have already sent a strongly worded email in reply. And I have no problem in shaming this agency.

            What am I? A toy dog. 

            Sure - I try my very best to protect, at least my written work - if not the ideas themselves. A good idea is a good idea and the best good ideas are the simplest ones. So, I apologize if my idea was so simple as to inspire you to commit this complete act of vandalism against me. It's despicable.

            I do not expect work to get stolen when sending it in to publishers and agents. What choice do we have when everything is electronic? 

            Yes, great. I am really inspired right now.


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            • Right. So conveniently they are right at the beginning of the process just about the time that they received my submission.

              Which was a complicated process, btw - because I had to pitch rather than just send the script. If this is what the world is really like then why? Why submit? What's the point of that - it's what I always suspected it was - just fishing for ideas that sell and then to sell them themselves. What would they not do that? I've seen it. It's what this whole thread is all about!

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              • Let me make this clear. What they have told me is -

                Because we don't like YOU, we already have a book coming out in 2 years - 

                WHICH IS THE BOOK THAT YOU'VE JUST SENT US

                With a great big lump of poo emoji, at the bottom of it.

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                • L's right I think Jack. You're making five out of the old two and two. For a publisher to pick up a submission, find a pet author, and pay them not only to write it, but then for royalties and so on is a bit of a stretch.  Certainly, for fiction.  They have enough novel ideas incoming with MS ready to go to systematically steal material. For non-fiction - I suppose, in theory, they might look at a piece that covers the impact of epigenetic science on the future delivery and cost of healthcare to the insurance industry, and think, he quotes someone who obviously knows more than he does about epigenetics, lets commission them to write one - but I doubt even that.  I sincerely understand what you mean, and how you feel.  I write and deliver specialised training to make money. Every one is a fresh piece of work. I deliver it, and more than once, years later, see my original material being delivered half-heartedly by someone else.  If I worried about it, I wouldn't sleep.  I just stay one step ahead.

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                • image_transcoder.php?o=bx_froala_image&h=522&dpx=1&t=1627313727


                  Halliards and shrouds.  Nautical terminology is only important to those wanting to give a clear instruction. Halliards to haul the sail up, which if it drops, won't hurt much. But the shrouds hold up the mast, and in outline look like a coffin. If the mast falls down, well, you're quite possibly dead. 

                  A great deal of our language comes from sailing of course - including 'brass monkeys' - three brass rings fastened together in the shape of a monkey's head, and holding a pile of canonballs. As the novels of Patrick O'Brien attest (literature in my view) the reader has no need to understand every, or even many nautical terms, but who can resist my favourite? Futtocks!

                  image_transcoder.php?o=bx_froala_image&h=521&dpx=1&t=1627313672


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                  • Yes - it's good that we're here.

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