10.20.2006

Dooce's wild

Miss Snark---

Have you seen the stories about Kensington sueing mega-blogger Heather B Armstrong for breach of contract?



yup, I sure have.
There's a link at Media Bistro's Galleycat
and a lot of others too.

In a nutshell, Heather Armstrong was approached about doing a book for Kensington. She has an agent. The agent negotiated the deal points and fired off an email to Kensington saying "ok, we've got a deal".

Meanswhile back at the ranch, the original editor at Kensington left for Simon and Schuster. Heather Armstrong wouldn't sign the contract. What she says now, what she said then, what Kensington said or did is grist for the mills of Blog which grind fine, fast, and rarely separate wheat from chaff.

Here's the problem: the agent agreed to the deal. That is how publishing works. We hammer out deal points and THEN get things in writing. I've had authors deliver books before the contracts arrived (unusual, but not impossible). I'd be a total nitwit to say there wasn't a deal in place if Heather Armstrong hadn't actually signed the documents.

This author clearly didn't understand this. She didn't understand that her book deal is not contingent upon the editor being the same from start to finish. And it's really really not dependent on how she 'feels' about any of this.

What I don't understand is why Kensington sued. I've had clients go apeshit in deals. The publisher usually backs away as fast as they can. They don't want crazy and unhappy authors.
I don't understand how it got to litigation either. Usually there are few steps before calling in the Shysters, first among them is your agent saying "hey there, time to get your head out of your dooce and fix this".


Bottom line is Kensington is getting an anthology, all of us are getting a wake up call that people who blog aren't always "writers" who've spent any time learning how this industry works.

23 comments:

Dave Kuzminski said...

The link needs to be fixed so it reads as, http://www.mediabistro.com/galleycat/authors/doocell_do_a_book_for_kensingtonshe_just_wont_write_it_45754.asp#email

David said...

I imagine that author-agent relationship won't last very long. Or author-blogger relationship.

Or maybe it will. I think that if I were the agent, it wouldn't.

Of course I have a blog

Kimber An said...

Wierd, confusing, and scarey.

Anonymous said...

This is nice to hear because it's been frustrating as a writer who blogs to see other bloggers trying to write and get book deals from their blogs.

whitemouse said...

Ah?

I don't see how a deal can be legally binding until the publisher has a signature on a piece of paper from the writer.

Yes, there was a deal made, and perhaps a verbal contract was made too, but it was made with the agent.

The agent is not the writer's legal guardian; if the agent's agreement was equivalent to the writer's, then the publishers would have the agent sign the contract.

Alan Morgan said...

I'm somewhat confused as to how a verbal agreement from the agent can be legally binding when it's "We have a deal, send the paperwork". Isn't the paperwork the point at which it becomes legally binding?

blaironaleash said...

I haven't read Dooce in a couple of weeks so I wasn't up to speed on this. But Heather Armstrong seems like a lovely human being as well as a gosh-darned funny writer.

I'm not one of the herd rushing to sneer over her (possibly) making an error of judgment.

blaironaleash said...

And I'd have to be utterly, utterly, last-ditch desperate to ever submit anything to Kensington, on this basis.

chisem said...

Years agi U submitted a non-fiction proposal to a big publishing company. I received a letter from an editor accepting the project and offering an amount of money. I was excited. A few days later she telephone to say that it was a mistake. She had not cleared it with her boss. I'm not sure of my legal rights on this, but I did have a signed letter saying we had a deal and a dollar amount on the offer. She was frantic. I didn't want to publish with someone who didn't want me, so I said fine, cancel the deal. We did and I sold the project -- for less money -- to someone else, who really wanted to promote it, including a national book tour.

I do wish I had had an agent to take care of me, but none wanted to represent the project forcing me to go it alonel

It was educational. I then sold two non-fiction books on my own before devoting myself entitely -- and unsuccessfully -- to fiction.

So, it happens as part of life and learning.

I guess I write all this to just say that an agent, while elusive, is necessary.

Dave said...

Now you know why lawyers study CONTRACTS for several years in law school.

Grapeshot said...

My take is that a verbal deal is considered a deal if both parties think it is at the time the agreement is made.

Anonymous said...

I have to admit, I'm totally bewildered here. They sued her because she didn't sign a contract? Is there a lawyer in the house who can explain to me how she was legally obligated to sign a contract, and could be sued for not doing so? As Alan Morgan noted above, isn't the signing the moment at which the contract becomes binding? If you're legally bound to a contract before you sign it, what is the signing for?

Aconite

Anonymous said...

I think bloggers are no more or less likely to misunderstand the publishing process than any first-time author with no prior publishing experience. If anything, we're probably more predisposed to research because we tend to be more Internet-savvy.

Even so, there really aren't a lot of good resources for people who want to understand what happens operationally in publishing, during and post-sale. Miss Snark discusses mostly the process leading up to sale, which is understandable given the nature of the blog. But even writers who are savvy about publishing can be found wandering around Barnes & Noble a week after publication, confused because the house paid co-op and the book isn't in big stacks on the table by the door.

It's just not a very transparent process and not very intuitive, either. Heather's confusion stems from the fact that in nearly every other industry you'd have to have something on paper and signed to be binding, even if a third party has power-of-attorney and verbally agreed to terms. Her assumption was wrong because publishing really doesn't work that way, but it wasn't unreasonable given how the rest of the world works. I'm torn between "heather should have asked" and "the agent should have explained" because i think there should have been more of both. I don't believe it's the agent's job to educate the client about publishing per se, but managing client expectations can only help both parties.

In this case, both Heather and Kensington are taking unnecessary risks. Kensington's suing a writer who actively doesn't want to be published by them and will probably have no interest in cooperating with the development or marketing of the book. And Heather's may get branded as a problem author, which greatly reduces the likelihood that she'll be published anywhere else.

stay_c said...

Editors hop house frequently too. Jess Riley's book followed her editor to the new house (http://jessriley.blogspot.com/) so I'm not understanding either why she was sued.

But thanks, Miss Snark, giving us an opinion and a forum for discussion.

Tattieheid said...

To clarify a few "legal" areas in basic contract law that seem to be confusing some people.

1) An agent is just that, your representative. A publishing house is entitled to assume that your agent has full authority to act, negotiate and conclude a deal on your behalf.

2)A principal (in this case the author) is legally bound to honour agreements made by their agent on their behalf.
(The law on agency and commercial contracts has been built up over centuries and is designed to allow certainty, business efficacy and security to all parties.)

3)A verbal contract is legally binding in many countries and can only be broken if there is clear and substantial misunderstanding between the parties.
(As I read it, in this case there was agreement and then a change of mind. Neither of the reasons given are likely to meet the above test to persuade a court to overturn the contract.)

4)A written contract is merely a clear statement of the agreement between the parties and can (in most cases) only be signed by the principles unless certain legal exemptions apply.

In this situation most courts would hold that there was an agreement and any argument would just be around the actual details and whether a particular editor was crucial to the successful completion of the contract. She would have lost that argument.

I don't know the lady but from comments attributed to her form the impression she feels the courts and the system has ganged up on her. This is not the case this is pretty established law in most developed countries.

Whether Kensington should have gone to court is not an issue for me to comment on but they did have a right to do so. I do wonder if other Publishing Houses will now have reservations about signing any deals with her, they may feel she is too unstable.

An unfortunate mess that should have been a voided.

I am not a lawyer and am based in the UK but I do have some experience with the basic principles of contract and agency law. You swhould always take legal advice and make sure you understand the meaning of the contract you sign with your agent or anyone else!

Maya said...

Tattieheid's description is essentially the way my agent explained the situation to me when I was getting antsy that my first contract had not yet been received six weeks after verbal agreement was reached.

I think her exact words were, "Relax. We have a deal. Things ALWAYS takes longer than you expect."

Two days later, the contract arrived at her office, and the real fun began.

Anonymous said...

They call it the law of agency for a reason!

whitemouse said...

Thank you, Tattieheid! That makes a good deal more sense to me now.

And I'm glad to know that, well in advance of me getting to the point where I have an agent negotiating on my behalf. The signature is just a formality? Eek! That's not something you want to discover at the last minute.

nyc/caribbean ragazza said...

She should have done her homework. The system is ganging up on her? Not really. I work in entertainment and believe me if a writer is hired by a studio then the exec leaves, of course they are going to still finish the script even if the contracts have not been signed. The minute an agent and biz affairs hammer out an agreement, it's considered a done deal. The paperwork is a formality.

For example, big time producer had a movie going to production. Star of upcoming movie has a hit come out. Agents for star try to change the terms of the verbal agreement(paperwork does take a while). Producer wanted the star (he could have said never mind) but told the agent they had a deal and they could not change the terms. He could do something about the back end or give him a little bump that is it. Agent refused, said star deserves a bigger payday. Producer, "This is not the way to do business. F**k you, your star and I will never hire any of your clients again." Agent backed off. Verbal agreements are not to be taken lightly.

p.s. I read your site everyday. It's really informative and funny as hell.

Anonymous said...

Everyone -- including Armstrong -- keeps saying that they sued her because she didn't sign a contract. That's not true. They sued her because she breached a contract.

MLR said...

This is the first time I've heard an agent's verbal agreement with a publisher is legally binding for the author. It makes sense, but I never thought about it before. Thanks, Miss Snark.

andreas said...

When a verbal agreement by somebody else is legally binding for you, I think there are serious problems with the system. An editor leaving is a big deal, which is why they often take their writers with them when they go. Why hash out the particulars if you are already bound to the deal anyway? While the reality of it is that Kensington may have a legal right to it, it still doesn't make it morally right or fair. As I understand it, there has been serious backlash against Kensington over this, precicely because it almost doesn't matter if they have a legal right to sue or not. It's lame and gives authors serious pause before signing with them.

Anonymous said...

What about real estate agents?

Tattieheid said: "A publishing house is entitled to assume that your agent has full authority to act, negotiate and conclude a deal on your behalf."

I understand the "act" and "negotiate" parts - but "conclude a deal on your behalf"?

I would certainly expect a real estate agent to "act", leading me through the process and clearly explaining every step of the way, and to negotiate for me.

But to agree to final terms of the deal and to accept those terms without first confirming with me/ the principal? I do NOT think anyone would expect me to uphold a price and terms of any contract that only the real estate agent had agreed to.

Under US agenting law, how could an agent accept a deal that has not been confirmed or accepted by the principal? How would the agent's word be binding without proof that the principal has agreed?

Please could someone explain how this works under US law? Surely application of business/contract/agent law is consistent across industries?