Wednesday, April 12, 2017

D&A(TE)

 My contract states that my advance is "payable upon the Publisher's acceptance for publication of the complete and final manuscript for the Work." We are now past all stages of editing (including copyediting) and the editor has stated that the book is ready for design. However, they've now pushed back the publication date significantly (I suspect it's because the press is struggling), and I still have not received my advance. Is there a standard definition of "final manuscript," or is this language as subjective as I fear? Until they formally accept THIS book, the 30-day window for my next book's "first look option" doesn't even begin. For that matter, neither does the 18-month publication window for my current book.

If they don't pay my advance in a timely manner, is this leverage for me to beg out of the contract? 

ah yes, the lovely D&A payment.

Delivery and Acceptance means you've delivered the manuscript and they've accepted it.
They've accepted it if they've sent it to production (ie sent off to be designed.)

However, absent language that says D&A is assumed 45 days after X event unless otherwise notified, it can be a chore to collect.

I'm assuming since you're writing to me that you do not have an agent.
(If you do have an agent, you should be discussing this with her not moi) 

What you do is write a firm, but polite, letter to the editor. You will say that since the manuscript has now been copyedited and put into production, you'd like to know when you'll receive your D&A payment.

Most likely this is NOT in the editor's hands, or under her control, so be gentle with her.

If she gives you a date, you confirm that date with her.
(Confirm means you email her back with "confirming that May 1, 2017 is the date to expect D&A payment.")

Most likely you'll hear "that's up to Accounting, I'll forward your email to them."

And that's when you say "I'd be glad to email directly, please let me know who to contact."
OR you scout around on their website, or in their catalog for a name.

You also need to check your contract for a clause that says if they don't pay you, rights revert to you. Most likely you'll know if it's there, cause it's one we always have to put in. Very few publishers start out offering that in their boilerplate.

If you hear nothing from the editor, there should be a name in your contract, and an address for legal notices.  Get in touch with the publisher. Again, polite but direct. Do NOT apologize for asking for your money.  This is a legal contract, and they owe you this money. 

If they can't pay their bills in a timely fashion, that's not your problem, and they shouldn't be balancing their books on your back.  You fulfilled your part of the contract. Time for them to fulfill theirs.

At some point you might need an attorney to write a sterner letter. Let me know if you need names. 

38 comments:

AJ Blythe said...

Jeepers, Opie. What a tough predicament to be in. No advice to offer; JRs most definitely the expert.

I sincerely hope a nudge is all that is needed for things to happen. Good luck!

Donnaeve said...

Specificity is critical in these matters.

(I love that word.)

Theresa said...

OP, I hope this doesn't turn into a long struggle. How disappointing that would be at a time when you should be enjoying your publication success.

Lisa Bodenheim said...

Ouch. SO helpful to have Janet in our corner to advise us in dealing with these snafus (whoops, coming back out of a rabbit hole. I just googled to make sure I pluralized snafu right and urban dictionary offers it as an acronym).

Opie: best of luck in the nudge. Hopefully, no stern letters needed.

kathy joyce said...

Oh, yuck! So sorry you have to deal with this. I can't speak to publishing directly, but as a consultant/small business owner who's been in this situation, I have two comments. 1) Janet is right about owning this dispute and not feeling guilty about asking for your money. No one else will advocate for you (unless you want a good portion of your advance to line a lawyer's pocket). 2) Do everything in writing, including confirming every phone conversation with an email, and be very persistent. Very. Persistent. It really is true about the "squeaky wheel." Good luck!

Amy Schaefer said...

And some people wonder how agents earn their 15%.

Colin Smith said...

This is exactly what I was thinking as I read:

I'm assuming since you're writing to me that you do not have an agent.
(If you do have an agent, you should be discussing this with her not moi)


Of course, I wasn't thinking moi but Janet--why would Opie contact me about this? Anyway... brain sliding off-topic... weeeeeeee... uh, sorry...

I could use this opportunity to opine and whine on the virtues of getting an agent, and it's true that this is one of the reasons I want one. But that won't help Opie. Though I really don't have anything to say that would help Opie except to say, Opie: All the very best to you. Along with the others, I hope this all gets straightened out quickly and without Rancor, Bitterness, Lawyers, and Hurt. The worst legal team in the universe. Next to Krank, Fargoo, Manchiqeth, and Buttonweezer, one of the largest legal firms on Carkoon. :)

kathy joyce said...

SNAFU was originally a military slang acronym: situation normal, all f#&@ed up. :)

Amy Johnson said...

So sorry, Opie. Wishing you a great outcome.

OT: Yesterday was a two rejection letter day. Last night I had a dream about a comma. And onward I go.

E.M. Goldsmith said...

Like Colin this is one of those scenarios that I want an agent for. Because if I don't get paid either does the agent so extra incentive to collect on contract.

OP, I wish you luck on resolving this matter.

RachelErin said...

How could anyone ever think contracts were boring? The amazing variety of ways people agree to things, and define things.

When DH was in contracts last year (his first year of law school), he regaled the dinner table with the classic cases used to illuminate points of contract law.

The girls loved it so much, they frequently request their favorites.

Which is all to say, I love these posts about the nitty gritty aspects of publishing.

And as a former freelancer, I echo everyone else who has said - there is no shame in wanting to paid, in insisting on being paid as agreed, or in asking for clarification about payment.

I sincerely hope the press stays out of DH's fav class this year: bankruptcy.

kathy joyce said...

Amy Johnson, After I collect a few rejections, I make word clouds from them. Takes away the sting, just a bit.

MA Hudson said...

Yikes, the idea of not being paid and the publisher keeping the rights to your book is a nightmare! Highway robbery. I'd have a hard time coping with that one.
Good luck, OP. Hope your advance comes through without a hitch.

Amy Johnson said...

OT: Re: OT: Just got a request for the synopsis. Ah, what a ride! Thanks, kathy joyce!

Robert Ceres said...

Yikes. Posts like this give me the heebee jeebies, which, Kathy, I wish was a military acronym. I personally love snafu. I also like using the phonetic alphabet, as in Charlie Foxtrot, for when things are a cluster f...

Brigid said...

Oh, OP, wishing you all the best. How stressful.

Off-topic, we just had our offer accepted on a house. Um. We'll see--had an accepted offer fall through during last year's Lent From Hell. But oh, my, would this be a miracle. Of course I know where my writing desk would go, and I've scoped out all the best spots for percolating.

Chantal said...

Okay, completely OT, because I'm going NUTS. There was a book recommended on this blog in (I think) a post (rather than a comment). It might have been a prize, and might have been on Janet's TBR pile.

It might have been recently, and it might have been years ago - I recently revisited some posts ans clicked this book up in another tab and then the tabs crashed and burned.

First chapter was someone working in a movie theater... and then it got held up at gunpoint. I think. Nice, tight, sticky prose is what I remember, and I want to read more of it.

Wow, with all these incredibly specific details, how can you NOT help me? (Sorry. Plz halp.)

BJ Muntain said...

*making note to check all contracts to make sure they have 'if you don't pay me, I retain all rights' or words to that effect*

There's a good reason for an agent right there. I mean, I can read legalese just fine, but do I know everything that needs to be put into a contract? Maybe not. And even if I did, would I remember everything, know which things are most important, and know which things are negotiable? Heck, I'd probably suck at negotiating a contract, anyway.

The thing that worried me the most in all that was: "I suspect it's because the press is struggling." I'm pretty sure that's one reason Janet suggested looking for the wording about getting your rights back in that contract. If they haven't given you your money yet, and the press goes under, then you at least get to keep your rights. And a darned good reason for non-agented authors to make sure that wording is in their contract.

Good luck, OP. As Kathy Joyce (I love that name) and Janet said, be persistent.

BJ Muntain said...

Congrats, Brigid! And not totally off topic - there's a contract involved there, too. Buying this house was when I learned I sucked at negotiating. When I said I didn't want the dishwasher, and both my now-ex and realtor looked at me like I grew a new head. My ex said, "Why wouldn't you want one if it's already there?" My realtor said, "It's a standard contract." I gave in. The dishwasher died two years later when I couldn't afford another one.

Of course, I'm 20 years older, wiser, and more crochety now. (Part of that may have to do with being without a dishwasher for 18 of those years.)

Contracts, people. Everything is contracts. Know what you want, and make sure it's in your contract, or don't sign it.

BJ Muntain said...

OFF TOPIC for 2Ns: Eric Smith has a #MSWL (Manuscript wish list) for: "Essay collections, particularly humor though I’m open to anything that’s really compelling." This was on Twitter. His full wish list is here.

(Yes, I'm reading the #MSWL site fairly regularly now. I'm getting back into the query trenches. Pray for me.)

Colin Smith said...
This comment has been removed by the author.
Amy Johnson said...

Congratulations, Brigid! A new home for Ilaria Jacqueline. :) I hope all goes well.

Colin Smith said...

Brigid: I was amazed when the offer we put in on our house was accepted. So was our realtor. Well below asking price. You never know... I hope it all works out for you! :)

Chantal: I have no idea what that book is, but I'll get started on it. I'll let you know when it's available to preorder. Probably sometime after I've found an agent for it, and it sells to a publisher. Give me about three or four years, OK? :D

Rio said...

Chantal: I think you're thinking of The Long and Faraway Gone by Lou Berney. Berney is such an incredible storyteller. His writing knocks the breath right out of you.

Janet Reid said...

Rio is right.
Also,I loved that book a LOT.

Colin Smith said...

... and because you would think less of me if I didn't, here's where you can find Janet's first mention of this book:

http://jetreidliterary.blogspot.com/2016/11/it-turns-out-i-dont-know-it-allor-didnt.html

;)

John Davis Frain said...

Chantal, yaaaaassssss. Long and Faraway Gone by Lou Berney. It is long and faraway above his other two. You will love it. If you think of it, email me after you finish.

Donna, I share your affinity for specificity. Writing it, sure. But saying it brings even more pleasure. It slides off your tongue and slithers right through your lips. I don't smoke, but I'll enjoy a cigarette after talking specificity with the right person.

nightsmusic said...

Now that I'm not working and at a desk at 6am, I'm always late to this party and haven't got much else to add here except: Several small, and some not so small, presses that publish in my genre and don't require an agent, are closing their doors. I have friends published with them and they're struggling with things like getting rights back or getting paid for their final submission prior to the publisher sneaking away in the dark. I've learned a lot from them and their woes. Between Janet's blog and their troubles, I now have a list of things to look for and make sure are in any publishing contract I may ever be offered, prior to my signing. While I realize that this is a hindsight comment for you now, OP, you have more ready to shop around and will have a lot more knowledge going into any contract negotiations. Good luck.

Mark Ellis said...

Don't quit your day job, revisited.

Beth Carpenter said...

OP, fingers crossed you get what you've earned, and soon. Brigid, fingers crossed for you, too.

Brigid said...

Nightsmusic, share your list? The Treasure Chest needs it!

nightsmusic said...

Brigid

Mind you, these are just some my questions and it's by no means complete, but several of these were thoughts my friends expressed they'd wished they asked prior to signing 'on the dotted line' because now, they're scrambling to figure things out.

What happens to me if you retire? (agent question if I’m ever lucky enough)
What happens to my book if the publisher is bought out?
What happens to my rights if the publisher is bought out? If it closes?
What happens to my ebook if the publisher closes?
What happens to my print book if the publisher closes?
What happens with the proceeds from any print books still for sale at various sites if the publisher closes?
What happens if my current editor retires? Do I have a say in the new editor?
What constitutes final acceptance? Is acceptance in writing?
Once my book is accepted, how long before my payment is received?
How long after signing will my rights revert to me?
When do I receive my sales proceeds? Quarterly? Semi-annually?
Do I have cover input?
Who writes the listing blurb?
How much marketing is done by whom?
Do I pay for marketing costs?
Do I get an advance? If so, when?
What is the timetable from getting “the call” to a publish date?

kathy joyce said...

Happened again today. Every time a call comes in from New York, I let myself think it might be "the call." It's always fake Microsoft people wanting to scam their way into my computer. Today, I engaged him 'til he hung up on me. Made me feel better.

Julie Weathers said...

Kathy Joyce,

The last one I got telling me my computer was infected was Kenneth, obviously from India. I said, "All right, now we both know my computer isn't infected so that's a lie. I'm going to pray for you. What would you like me to pray for?"

"I beg your pardon?"

I repeated myself and insisted I was going to pray for him.

"Pray that I get a better job."

I did.

Terri Lynn Coop said...

I loved Lou Berney's book enough to blog about it. It really is utterly amazing:

http://readinrittinrhetoric.blogspot.com/2016/12/book-review-long-and-faraway-gone.html

Terri

Joseph Snoe said...

Concerning the original question, Janet R.’s answer is good, except I would start with a telephone call to O.P.’s contract person the company and ask matter of factly “now that we’re here, when should I expect my advance?” That person will probably not know but can give a name of the person you should contact. Once you get some sort of commitment write (email) a thank you note to everyone you ask and include a statement of what you understand they promised.

As far getting out of the contract, who knows. When West Group decided against publishing a second edition to my health care casebook, I didn’t try to change their mind, but did ask for a letter saying they relinquished all copyright and other rights to future editions of the book. They were willing (and almost eager) to accommodate my request.

The problem comes if your company is not willing to cancel the contract and transfer all rights to you. The painful fact of the matter is it may not be worth cost of seeking legal help and going to court. A letter from an attorney may be all that’s needed, but if not, you may have legal rights but no practical relief.

When I was in legal practice I volunteered as part of the Austin Accountants and Lawyers for the Arts. One of my nonpaying “clients” was a local band who at the time had one album out. It was a great one and I already had it. (I loved the band and they are still going today with multiple CDs in their discography – their Wikipedia entry lists eleven albums, the latest released in 2013).

Their problem: Their “manager” who promised to market their first album didn’t do anything because as he said, he had no money, but he had the master copy of the record and refuse to give it back to them. I called and wrote him several times. He sounded since at first but it became clear he lied, promised, and whatever else he could do to keep the master. I told the band leader they could fight this guy in court (they’d easily win) or, better yet, write 12 more songs and put out a second album, which they did (and it was a great record!)


Joseph Snoe said...

Chantal and Rio

I started reading “The Long and Far Gone” last night. I’m still in the very early pages of Chapter 1.

To rehash an old story, that‘s the book Lou Berney autographed “To the wonderful and witty Joe Snoe” for me. That’s enough for it to have a special place in my heart.

Chantal said...

YES! That's it. Thanks everyone, going to pick it up straight away.

Also Rio, your response made me flinch, because I just plowed through SL Huang's Russell's Attic series, and, well... Rio.