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Writer Beware: Fitzhenry & Whiteside
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I’m so sorry to hear that this is happening. I remember reading your blog when you were first so excited about the book being re-released. Its sad that all that excitement was mutated into disappointment due to the idiot publisher.
I also copied your link and sent it to the ladies over at Smart Bitches Who Love Trashy Books in the hopes that they will share/pass it on to the folks who enjoy their site, many authors included.
I hope this gets resolved without bloodshed, but if there must be blood, I hope its theirs. I wish you luck also in your endeavors.
Oh, that was a *wonderful* thing to do–thank you! I’d really hate to see someone else end up in this position.
Next week the post will be going out via Writer Beware and other venues; I needed to get things started here as a base point. Sort of an underlying rumble. ;>
I wish it had been resolved without bloodshed, too. We really, really tried. Hard. Honestly, the whole thing is somewhat baffling. There’s no logistical reason NOT to revert the rights per the contract, since the stock can be sold as it pleases the publisher to do so.
It’s very hard to have such a special book in this situation, but Editor and I are resolved to celebrate the joy we had in working on the project together, and to treat this as a separate thing.
Thank you for your help!
I also linked it to one of my social forums, with readers and writers, Doranna. Good luck!
Peg, thank you!
Kaye, yeah…”regular trade channels” means brick-n-mortar. On the Shelves. But that’s why we kept saying, “Please revert or provide proof of availability per the contract terms.”
Interesting blog. I’m sorry that’s happening to you. I loved that book, and I know there are other people out there who haven’t found it yet and would love it. Strangely enough when I accessed Powell’s Books website, they have it listed as on back order from Red Deer Press.
I’ll link to this on FaceBook, ladies. With luck and the numbers of authors, editors and other industry types will focus some unwelcome attention on your recalcitrant “publisher.”
Thank you so much, Bud!
Terrie, thanks! I cringe from conflict of any sort, and having the support of the community is a huge help. I really, really didn’t want to do this, and I’m concerned about being threatened in response [insert image of social wuss], although I’ve been excruciatingly careful to stick to documented fact and will continue to be. But sometimes the facts are all you need…
The baffling part is, I just can’t imagine how the book is worth this kind of mess. To me, yes. But to a publisher (any publisher?), at those sales numbers?
I’m saddened to hear this is happening, but so proud of you for standing up against the ugliness.
William Congreve wrote, “Heaven has no rage like love to hatred turned…nor hell a fury like a woman scorned.” (The Mourning Bride – 1697)
When one of us is scorned, we all must pull together – consider the cat out of the proverbial bag. Best wishes.
I can’t believe they are acting this way with you. If it was a major earner you could understand but sounds like there is an accountant complaining about 1600 books being still in stock and refusing to acknowledge or accept the law.
Good luck with this and you have stuck to the facts, so the only threats are going to be bluffs.
Tania, the whole thing is really baffling. Because they can still sell their existing stock, they just don’t have anything apparent to lose by abiding by the contract terms. And it’s *not* a good seller for them; it never has been. (Which, you know, I hate to say about my own book, but it just didn’t seem to thrive there. I had to fortify myself with chocolate to read those royalty statements, but I can’t deny them!)
I take it these people are storing the books in their garage? Otherwise just the cost of housing the inventory has to be eating them alive. I’d say these are not the brightest bulbs in the chandelier. Do you know any Canadian literary attorneys?
It’s my impression (right or wrong) that they also do a lot of direct ordering to schools and the like, so the warehouse is probably SOP for them.
So sorry to hear about the trouble you are having but thank you for going public about it. It’s a salient lesson to authors, particularly in terms of negotiating contracts and keeping track of all correspondence. If you and your agent hadn’t made that change, you’d now have no leg to stand on.
Good luck – I hope the public scrutiny will cause the publisher to change their mind and give you back the rights.
Nicole–thanks! And thanks, too, for reiterating the lessons here, spot on: Writer CYA, Part I!
I hope the public scrutiny creates the circumstances for the publisher to revisit their choices about honoring this contract, too.
Dee, If the book is always out of stock everywhere, you CANNOT blame the wonderful book for not selling! If no one can find it, it cannot be sold!
So sorry this has happened to you, and hope you retained the electronic rights (I did not look to see if you posted the complete contract) so you can get this series moving soon!
Will Share on Facebook and tweet!
Thanks, Kathi–and for that kind take on the book sales. I like the way you think!
Doranna, I just saw your Twitter post on this…and could not get that link to open (it could be my browser playing “who me?” which it sometimes does, but…)
It’s sickening that this is happening with Dun Lady’s Jess. That is SUCH a good book and I love it so much! And for your first to be tied up like that–OUCH.
As Kathi said, low numbers aren’t your fault if they leave it in the warehouse…people can’t buy it if it’s not there to buy and they’re not advertising it enough to let people know it exists. DANG.
Sadly, I have no explanation for the twitter link. Well! I’ll just have to post it all over again tomorrow, shall I? Heh.
And that book has your lovely intro, too, which I treasure!
I’m sorry you’re having such a difficult time regaining your rights, but I admire your persistence in standing up for yourself. As a fellow writer, I cannot imagine your frustration at having your intellectual property held hostage. Best of luck in your fight.
Wow, you sure pegged what it feels like!
It’s been a very hopeless/helpless feeling these past eighteen months, and a long time to hold silence. I did tell them I would move forward more publicly if I didn’t receive a response to my most recent (and final) email to them.
As much as it is laudable to attempt reconciliation without involving the courts, it appears that what’s needed for a judge to tell the publisher to honor the contract. Tho mediation through GriefCon made sense at first, I believe a stiff letter from a lawyer has been indicated for some time. This drama is negative karma and you want a lawyer to deal with things without personalizing the conflict.
Thanks, I appreciate your take on that. It’s been very difficult to know how best to proceed, especially given the international aspect of the situation.
I agree that investing in a lawyer, particularly in one who practices both sides of the border is very worthwhile. I have a lawyer friend who has said that a f*** you letter from a lawyer, threatening legal action is often enough to get action, especially in a case such as this where F$W only stand to lose money on lawyers. There is no upside to them maintaining the rights to your book
Sorry to read about your situation on Boing Boing.
http://boingboing.net/2011/10/16/writer-my-publisher-said-i-could-only-get-the-rights-to-my-out-of-print-book-back-if-i-bought-their-leftover-copies-from-them.html#disqus_thread
Just emailed Fitzhenry & Whiteside asking them to give you your book back.
godwit@fitzhenry.ca bookinfo@fitzhenry.ca announcements@fitzhenry.ca
That’s terrible! I know you can’t change what you already signed, but for anyone else reading this, or for your next contract, never agree to an out of print/reversion clause that does not have minimum sales language, for example, the book must sell a minimum of 100 or 150 units (ie e-book or physical copy) in the previous two accounting periods to be considered in print. Anything less than that and the author can get her rights back. Again, so sorry!
So that’s what’s going on with the book. I’ve covered the story on the TeleRead e-book blog. Hopefully the widespread attention it’s getting (found it via BoingBoing, which means lots of people will be seeing it) will lead to the publisher doing the right thing without lawyers being necessary.
Good morning, people! Apologies for those of you who had a wait time in moderation. I’m in the western half of the states and probably on a different schedule than many of you (and have barn and dog chores to tend at any given time!)
Grant, thanks for your thoughts. I’m pondering my options…
Craig, that was an action-minded thing to do! Thanks for thinking of me. 8)
Chris, many thanks! Very much appreciated!
Alison–you’re absolutely right, of course. We did try to get that change made, too, but the publisher was intransigent. There were mitigating circumstances, and it was my decision to move ahead. I did it for a reason, but I’m also going to put myself right out there as an object lesson and say I wouldn’t do it again.
Sad to say, there is probably only one good way to get your book back: sue them. They appear to be in breach of contract. A good lawyer could advise what legal remedies are available. Breach of contract can be very serious, so it may even result in some monetary damages, but that’s a question for the lawyer.
People like this will ignore you because it costs them nothing. When they get a letter from your lawyer, it changes the cost/benefit ratio dramatically.
Finally, this goes out to the writers out there: avoid Frickin’-Weaselside. Don’t sign new deals with them. If you have books with them, get them back (if you can!). Because I intend to boycott their entire line until this is resolved to the author’s satisfaction.
Mark, I hope the community opinion of the situation helps F&W to rethink their decision, but it’s not the only reason I’ve done this scary going-public thing. It was really time to provide the facts of the situation to other writers, so they could keep them in mind when making their own decisions. This is a time during which publishers are finding their way as much as writers, and staying silent on situations such as this allows precedent to be set.
My reversion clause does not require service of notice; it simply takes effect.
Not much I can do but pass the word along via my blog (http://thewriterinblack.blogspot.com/2011/10/deal-not-with-this-publisher.html) and facebook but consider it done.
David, passing the word along is the very thing! Thanks!
Thank you for publishing this. As a freelance editor, I will avoid them. Just for the record — I had a somewhat similar experience with Double Dragon, also Canadian.
Speechless.
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Sadly, even the major publishers play these games. Several of my late husband’s books are in limbo where the rights aren’t reverted but there’s no particular effort to sell them.
I just hope by going public, you haven’t screwed yourself in publishing by houses that would want to make an example of you. Have you contacted Charles E. Petit, who is listed as the SFWA lawyer, for either advice or representation?
What a mess. sorry you have to endure this.
1. SFWA has an attorney for just such things.
2. I am under the impression (and am NOT a lawyer) that you can send a letter that says in effect ‘If I do not hear from you with two weeks from this date, I will assume permission has been granted and will go ahead with my plans to . . .etc.” That should get their attention and if they try to sue, you have reams of material to back things up. But ASK THE LAWYER.
Jane
Thank you, Jane! I’ll keep your words in mind. I’ve heard that advice from a number of people today. 8)
Amy, thanks! Every little bit in spreading the word *does* help. Publishers (in general) need to know that authors do have recourse in situations such as this–and that what they do matters to the rest of us.
Doranna – this is just awful. I will do the same as Kathi. I wish I could do more but I hope my little bit will help.
Sorry to hear of your troubles. I bought this book when it first came out and was impressed enough to pick up everything I’ve seen of yours since.
I just sent the boingboing link and your link to The Passive Guy for his blog http://www.thepassivevoice.com/ – he is a newly un-retired lawyer who often comments on contract clauses. While he doesn’t give legal advice on his blog, his often snarky comments can be useful.
Best of luck on this, Doranna –
Phil
Doranna, I had not heard of this book, though I’d much like to read it. I’d happily take one of those 1600 books off their hands–but not till they do right by you. And I’ll be letting them know.
Cindy–thank you! That’s a big smile for me. 8)
Phil–thanks! I should have done that myself, but have been rather…caught up in things…
Andrew — Okay, that *really* warmed my little author heart.
I note the theme of this reply is gratitude. I’m enjoying that. 8)
Although I do have to add a PS to the person whose comment didn’t make it past moderation: With apologies, because I appreciate your visit here, but I’m not posting personal attacks in regard to this situation…not even when they’re targeting the other side. I’m sorry you have cause to feel as you do!
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It’s also not available through Amazon.com, which I would definitely consider a “regular trade channel”.
http://pics.livejournal.com/ravensilver/pic/000wke1b
Good morning, world!
Simone–Cory has a great summary of trade channels in his response on BoingBoing. I’m not going to address specifics, but will say that the Canadian nature of the publisher has been taken into account. 8)
Of course, not everyone there thinks I have my head screwed on straight. (I am shocked to see this, SHOCKED I say!)
Jana, I’m not taking anything for granted. I did feel it was important to shine some daylight on the situation, though. When it comes to author decision-making, knowledge is power. You know far too much about this sort of thing, I know!
David, thank you! 8)
And now, la la la, physical life must trump virtual life for a while… (IE, the horse is waiting for FOODS.)
Doranna – sometimes the public way is the only way to get what’s fair, right and legal. Been there – done this. I hope this prompts them into doing what they’re LEGALLY OBLIGATED to do.
Two more comments:
One of the first things that came to mind on reading your story about this was that maybe it was time and past time to lawyer up.
Once you do get the rights back and have it published elsewhere, I will buy a copy in support.
Doranna – reposted to my over 900 facebook friends and several dozen author followers. Will post to twitter tomorrow – over 1200 followers there. Authors have enough challenges without dealing with this kind of horse crap. (So to speak)…..
AFA
Lee
Lee–thank you so much! Spreading the word is the very best thing that can happen right now.
LB–Hmm, what an excellent idea that is. Hmmmmm.
Seems to me they’ve telegraphed your next efforts: “…and warning that she would “report” us to [prominent Canadian SF writer #1] and [prominent Canadian SF writer #2”. Contact these two author and see if they can use their evident position and influence to shake the company’s tree. Good luck!
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Doranna,
I first learned about your book on SFReader a while ago, but I never got around to get it. I aways was intrigued by the premise, and still want to read it. However, now I’m going to wait, because I’m not going to add even a single sale to F&W’s list. You deserve to get your book back, and I’ll gladly buy from you once you have. And you will get it back, they are in breach of contract.
I also posted a link here on my small writing board, hoping that every little bit helps.
Best of luck!
– Hannah
Hannah, every link and mention *does* help–especially when it spreads the word to the writers who deserve better than this in their own dealings, and to agents who are helping them to make decisions. Thank you!
Fitzhenry & Whiteside isn’t just a publisher, it’s also one of Canada’s largest book distributors (they used to distribute Ace Science Fiction, and they do distribute EDGE, Canada’s largest SF line). And a quick call to Bakka-Phoenix, Canada’s oldest SF specialty store revealed that Dun’s Lady Jess is indeed available via the distributor Fitzhenry & Whiteside to any bookseller that wants it; the title is listed in the distributor’s catalog.
The contract language in question is this: “in print through normal trade channels.” The blog post makes it clear that the book is certainly in print — there are large numbers of physical copies available for shipment (and, checking, I find that they are traditional web-offset copies from the massive first printing — not print-on-demand or ebook editons; the book is in-print not just in some nebulous new-paradigm sense, but in the classic, normal, traditional sense of the term).
As for “normal trade channels,” Fitzhenry & Whiteside is a Canadian publisher. What constitutes “normal trade channels” in Canada?
Well, how ’bout via Chapters.Indigo.ca, Canada’s largest bookstore chain? Dun’s Lady Jess is available for purchase there: Chapters.Indigo.ca
Or maybe you prefer to shop at McNally Robinson, Canada’s major indepedent? They’ll sell you a copy, too: McNallyRobinson.com
Or Amazon.ca? They show the book as In Stock — that is, it’s in their own warehouse, not just the publisher’s: amazon.ca
Or perhaps you want to pick it up in a bookstore? It’s in stock and on the shelf at World’s Biggest Bookstore (the Chapters/Indigo store in downtown Toronto) (verifiable via the “Find It In Store” feature at the Chapters.Indigo.ca link above).
There certainly are such things as reversion-of-rights clauses that require the publisher to meet a threshold number of actual physical copies sold or a threshold number of dollars earned to keep a book in print. But this contract doesn’t have any such language. The book is in print — copies exist — and it is available through “normal trade channels” in the country in which it was published.
Thanks for your perspective, Rob. I think it’s important to add that you work with Fitzhenry & Whiteside very closely. We all have our own context.
I hear what you’re saying, and certainly no one has suggested the book isn’t in print. However, while online shopping is a growing venue, it is not regular trade distribution. F&W–as the publisher–is not making the book available in any other fashion aside from online.
I will add that they’ve had plenty–PLENTY–of opportunity to discuss this matter in a reasonable fashion, and that they’ve declined on every count. My blog/timeline contains every response we got from them, each of which is devoid of information, and the first of which tells me they will trade reversion for purchase of all remaining copies. It felt like coercion then, and it feels like coercion now. Given my experience, I would never recommend this publisher as someone it behooves an author to deal with. I understand that your experience has been much different.
From Chapters.indigo: Usually ships in 3 – 5 weeks
From World’s Biggest Bookstore (the only one of 25 stores within 25 KM of me, 1 in stock – shall I go over and make them out-of-stock?)
from McNallyRobinson.com: This item is currently available to order. It should ship in 1 to 2 weeks.
From Amazon.ca: Only 1 left in stock–order soon (more on the way)
Basically they have it “available to order”, I don’t know if a judge would consider that a normal channel…
Good Luck, Doranna
Phil, thanks for that very concise summary. My head is spinning a little hard right now (trying to meet deadlines and deal with this situation), and sometimes it’s hard to cut to the heart of things. You did so very nicely.
I’d like to see my own post to Rob’s blog make it through moderation with the same swift courtesy that his made it through mine, however. (It’s just a repeat of what I wrote above, though, just as his post is a repeat of his own blog. Which is a perfectly efficient way to do it, I think. ;> )
The sticking point here is the phrase in your contract, “in print through normal trade channels”. Unfortunately, the term “normal” is vague and open to interpretation. What’s normal for them is obviously not normal for you. They apparently interpret online listings as “normal trade channels”, while you do not. Your lawyers should have seen this when you forged the contract and perhaps more clearly defined the clause in question.
That doesn’t negate the apparent unprofessional attitude on their part, of course.
We did what we could with the contract, per my follow up post yesterday (that’s been the most common question about the situation, so I addressed it).
I would note that the availability of the book has changed since this all started, per GriefCom research, although it still takes weeks to order via most sources. I don’t know the legal stance on this, given the length of time we’ve been asking for a response.
In any event, one of my goals here was to warn people what I’ve experienced with this publisher. I stand by that warning.
It’s also important to add that a sales threshold was argued at the contract stage and the publisher would not agree to it. I have the entire paper trail. The author decided to go ahead with the agreement anyway because she wanted to work with the editor who was there, which she certainly would not have had she known (as she’s trying to inform others) that they’d feel actual sales weren’t required for their interpretation of “in print.”
Reposted your Facebook post to my own FB page. With just shy of 4000 friends, it should be seen widely.
Awesome, thank you!
However my situation turns out, writers and agents need to be aware of this trail of behavior from this publisher.
All this free publicity must be generating some interest in the book. Will a sudden influx of orders strengthen their position that it is still available? I know I want to read it…
IANAL. Having met *your* contractual obligation of informing them that you are resuming your rights per the clause cited, might you now negotiate with other publishers (being sure to notify them of the dispute). For example, could you offer the eBook via Kindle/Amazon?
Your suggestions are ones that many people have made, and I appreciate your thoughtfulness. Unfortunately, in practical terms, it won’t fly in the industry–publishers just aren’t interested in dealing with a book that isn’t clearly free of contractual entanglement. Understandably! And Amazon does, for instance, require proof of rights on any book for which they know there’s an existing publisher version. Other e-vendors will remove books where the rights situation isn’t clear.
Oh! PS! Edited to add–If this publicity results in a surge of orders, I can certainly hope that the logistical trail is obvious. The word I’m getting from most people is that they’d rather hold off and give the business to someone else–or hunt up a used copy–but there are certainly those out there who don’t sympathize with my cry of Writer Beware, and who might deliberately do the opposite. In that case, I can only depend on the obvious logistical trail…
Here’s a Guest Comment from Victoria Strauss at Writer Beware, with permission. This was posted in response to Rob Sawyer’s post, identical to the one above, at Writer Beware.
From Victoria:
Responding to Mr. Sawyer:
“A large number of physical copies in the warehouse” doesn’t necessarily equal “in print.” Traditionally, “in print” is also tied to availability for sale. (These days, it also needs to be tied to actual sales figures or revenue–I’d agree with KevinMc that “normal trade channels,” while more precise than the original wording of the reversion clause, isn’t precise enough. But according to Doranna’s agent, the publisher wouldn’t consider that.)
The book is indeed available via various online retailers in Canada. And there appears to be a single physical copy on the shelf of just one of the twenty-four Coles/Chapters/Indigo stores in Toronto (and zero copies in any of the stores in Edmonton, Ottawa, Vancouver, Victoria, Quebec, and other major Canadian cities, according to Indigo’s handy “Find in Store” locator).
But the grant of rights in the contract (which I’ve seen) is for “the right to print, publish and distribute the Work in book form in the English language throughout the World.” I.e., not just in Canada. I cannot find the book for sale new anywhere outside of Canada–not just in physical bookstores, but from online vendors (both Amazon.com and B&N.com have it available only via Marketplace sellers, and the Indiebound database shows it as “not in stock–special order”). Surely, for a worldwide grant of English print rights, “normal trade channels” should include non-Canadian trade channels. Conversely, there’s no language in the contract that limits “normal trade channels” to “Canadian trade channels.”
Beyond that–why is the publisher holding onto the rights for a book that, by Doranna’s own admission, is selling only a handful of copies a year? Clearly, the publisher isn’t putting any effort into marketing the book. Clearly, given its initial offer to sell the books to Doranna in exchange for reversion, it would be glad to get rid of the book. How does it make sense, under those circumstances, to let hundreds of copies continue to take up space in Fitzhenry and Whiteside’s warehouse? Why not sell the inventory to a remainders dealer, and relinquish the rights?
The contract does claim electronic rights. Could the publisher have been planning to issue an electronic edition? But then why hasn’t it done so, or informed Doranna or her agent of its intent to do so? Surely, if an ebook were in the works, Doranna’s original reversion request (which she made over a year ago) should have shaken that information loose.
Why is the publisher so apparently resistant to providing information and responding to questions?
This makes me so sad. I truly hope that this results in numerous people rushing to order a copy, because Dun Lady’s Jess is one of my favorite books ever. I’ve read it numerous times, and I love, love, love the whole story. I still have my dog-eared original copy, along with both sequels.
This is going to make me sound like a squealy fangirl, but when I was teaching riding lessons years ago, they brought in a huge palomino quarter horse for the program. Everyone else wanted to call him silly names, like Goldie or something like that. I said we needed to name him Ramble, and it stuck. 🙂
I hope everything works out with your publisher. I’m so glad to have found your blog — and that you have other books!
Oh, that’s awesome!! Ramble the horse–I am SO squealy fangirl over that!
Thanks for the good wishes. It all makes me so sad, too. Like Victoria, I just don’t understand why the publisher is behaving this way, or why it even *wants* to.
Just a minor correction to a post above. C. E. Petit is not SFWA’s lawyer. SFWA is represented by Brownstein Hyatt Farber Schreck.
Thank you! I had that confused, also, and have been too wrapped up in this to go check it out.
I just want to add one more point: having a completely non-promoted, non-distributed book “available for order” (essentially, only by those readers already aware of its existence) should not constitute “normal trade channels” by ANY sane definition of the term.
It also refers to “normal trade channels” at the time the contract was signed (in 2006). Boy, a lot has changed since then.