These are uncertain times for many established writers, as the case of the Hawaiian novelist Kiana Davenport shows. Until recently she had a deal with Riverhead Books, a literary line that is a division of Penguin, for a Civil War novel, “The Chinese Soldier’s Daughter.” Ms. Davenport received an initial $20,000 advance for the tale, which was scheduled for publication next summer. That wasn’t enough money to survive on, so the writer cast about for another source of income, and self-published a book of old stories on Amazon. The result: Her novel has been canceled, the publisher wants its money back, and her publishing career is in jeopardy.
I gave a brief account of what happened in an article published Monday, but some of the reaction was frankly disbelieving. Would a publisher really cancel a novel and demand its money back under these circumstances? Many writers seem to be successfully bridging the gap between mainstream publishers and self-publishers; perhaps there are additional elements at play here. Ms. Davenport and Penguin officials declined to be interviewed. But the correspondence between lawyers backs up the writer’s tale as outlined in her blog.
Publishing contracts have not evolved as fast as the self-publishing opportunities for writers, making this case somewhat murky. But much of the commentary I’ve seen comes down harshly on Ms. Davenport for supposedly violating her contract – as if these agreements were always ironclad and any deviation was punished by cancellation. There was little sympathy for a mid-list writer adrift on the digital seas, and no mention of what a publisher’s responsibility is to a writer during the years it takes to produce a new book.
Here’s the back story: Ms. Davenport took some award-winning old stories off the shelf and published them as an e-book, something many professional writers are doing with material they cannot get in print any other way. “Cannibal Nights,” which appeared in July, was her second e-book of short fiction. Downloads were modest.
Penguin learned of the new work and got upset. In a brief letter
that Penguin’s general counsel, Karen Mayer, sent to the writer, it said the publication of “ ‘Cannibal Nights’ by Amazon violates the ‘next-work’ representation, the no-compete provision and the option clause.” Penguin also said Ms. Davenport had thereby demonstrated her “unwillingness to work in good faith with us” toward publication of the novel. The letter ended by saying the writer had 10 days to repay her advance “to avoid legal action.”
Penguin stated in mid-September that this was “a straightforward matter involving the publisher’s right to publish the author’s next work. It is being handled by the lawyers.”
Jan Constantine, a lawyer for the Authors Guild, wrote a letter to Penguin on behalf of Ms. Davenport. She said that the stories had been offered to Penguin 15 years ago and turned down, that Riverhead had already seen the novelist’s next novel and said it was not interested at this time and that a self-published e-book was hardly competition to the novel but might even promote it.
“In fact,” Ms. Constantine wrote, “the marketplace experience has shown unequivocally that eBooks by Ms. Davenport which are available on Kindle and elsewhere would most likely lift sales of her books since she is building a fan-base by her online presence. Any expert in the publishing world would support that conclusion.”
Penguin was unpersuaded. It had no further comment Monday. Neither did Ms. Davenport’s lawyer, Donald David.
