Robert J. Sawyer

Hugo and Nebula Award-Winning Science Fiction Writer

The Doranna Durgin blog post

by Rob - October 18th, 2011.
Filed under: Publishing.

For those following Doranna Durgin’s posting — on her own blog and at the Writer Beware blog — about her dealings with Fitzhenry & Whiteside in relation to her novel Dun Lady’s Jess, my comments:

Doranna contends that the book is out of print, and so the rights should be reverted to her. Fitzhenry & Whiteside says, no, in fact the book is in print, and so the reversion clause doesn’t pertain.

Who’s right? There’s no question: Fitzhenry & Whiteside.

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). A quick call to Bakka-Phoenix, Canada’s oldest SF specialty store, revealed that Dun Lady’s 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.” Doranna’s own blog post makes it clear that the book is certainly in print — there are 1,600 physical copies available for shipment (and, checking, I find that they are traditional web-offset copies from the first and only printing — not print-on-demand or ebook editions; 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 Lady’s Jess is available for purchase there: Chapters.Indigo.ca

Or maybe you prefer to shop at McNally Robinson, Canada’s major independent? 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 physical brick-and-mortar 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).

Oh! And the book is also in stock and on the shelf at Sentry Box in Calgary, a bricks-and-mortar science-fiction and fantasy bookstore.

On October 21, 2011, bookseller Andrew S. Balfour added this comment: I work for one of the booksellers on Rob’s list up there. I can say, with absolute certainty, that this book is just as available as any other in-print book. The fact that it’s not on our shelves has nothing to do with availability, and everything to do with the fact that, when we did stock the book, it didn’t sell.

That says nothing about the publisher, any more than it says anything about the quality of the book. They can’t force us to order something we don’t want, and no one can control the interests of the reading public.

In conclusion: Not selling ≠ Not available

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.

ETA: Okay, so what’s all the online bouhaha about? Well, the book is clearly in print, but Doranna wanted the publisher to revert the rights anyway. Fitzhenry’s response was not an uncooperative “sure, you can force it out of print — by buying up all the existing copies at your normal author discount [typically 40% off cover price].” No, they went the extra mile for Doranna and said if she really wanted to force this title out of print, she could buy the existing copies at cost. [Source: direct quote from Fitzhenry's Richard Dionne as posted by Doranna herself in her timeline of events; Richard is publisher of Red Deer Press, the division of Fitzhenry & Whiteside that produced Doranna's book.]

Dun Lady’s Jess has a Canadian list price of Cdn$21.95; 40% off that would be Cdn$13.75 a copy; that’s what Doranna’s contract said she should have paid if she wanted to buy copies. But even though the book wasn’t out of print, Fitzhenry offered her a chance to buy the books at cost. I’ve bought books at cost from Fitzhenry myself — trade paperbacks similar to the one in question; cost, in my case, ranged from $1.66 to $3.19 a copy, depending on the title.

There’s no contractual reason in Doranna’s case that Fitz should offer copies at such a low price, but they did. That was more than fair, since an “at cost” sale means the publisher makes not one cent in profit — Fitzhenry bent over backward to let the author accomplish what she wanted to accomplish, namely forcing this clearly in-print title out of print.

For those unfamiliar with Fitzhenry & Whiteside, this is a publisher that has published Pierre Berton, Alice Munro, Northrop Frye, Charlotte Gray, and David Suzuki — some of the top names in Canadian writing.

This is a publisher whose books have won multiple Governor-General’s Awards, Canada’s top literary prize.

This is a publisher whose Fifth House division was recently named Alberta Publisher of the Year by the Book Publishers Association of Alberta.

This is a publisher that, over forty years in the business, has published many hundreds of titles to critical acclaim and commercial success.

This is not a publisher that abuses authors.

Note: there’s a lengthy comment thread attached to this blog post, with comments by Doranna Durgin, her agent Lucienne Diver, Victoria Strauss of the Writer Beware blog that Doranna originally posted in, booksellers, and others — and replies from me, covering a lot of ground about the business of publishing and distributing books. Click HERE to read the comments.

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28 Responses to The Doranna Durgin blog post

  1. Thanks for sharing this on my blog as well, Rob. I understand that I’m not going to find any solidarity in this venue, and won’t be expecting it.

    I also think it’s important to add that you work with Fitzhenry & Whiteside very closely. We all have our own context.

    In any event, 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 venue.

    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.

  2. Doranna, if you, or your agent, meant, “The book shall be considered out of print if it is not continually physically for sale in brick-and-mortar bookstores,” why didn’t you use that language? I’ll tell you why: NO PUBLISHER WOULD EVER SIGN IT. The publisher doesn’t control in any way, shape, or form, what books a bookstore orders and stocks on its shelves. The only part of the process a publisher CAN control is which books are physically available for shipment to bookstores — and yours IS.

    Your contention that online bookstores aren’t “normal trade channels” is just that, a contention: there’s no case law I know of to prove your interpretation correct. You know of some? Link to it; excerpt it; post it here; trumpet it — because it’s what you need to make your case.

    Or, it WOULD be, if in fact your book was ONLY for sale online. As I pointed out above, it took me less than a minute to find your book IN A BRICK AND MORTAR BOOKSTORE.

    As for my relationship with Fitzhenry & Whiteside — yup, I’m an author published by them, just like you. My experience has been a positive one because there seems to be some demand for my three titles published by Fitz and Whits (in fact, I just received a royalty check today from them). I’m sorry there isn’t any demand for this title of yours. But your book and my books are promoted and distributed exactly the same way by exactly the same company — operating exactly as every other established publisher does.

    Yes, I have also edited books on a freelance basis for Fitzhenry & Whiteside, via their Red Deer Press division — but not for over two and a half years (since I finished the anthology Distant Early Warnings: Canada’s Best Science Fiction). Your crack about not going to find any “solidarity in this venue” is unworthy and unfair. Sharon Fitzhenry, Richard Dionne, and the late Dennis Johnson (who preceded Richard) will all tell you that I always, always, always fight for the rights of authors over those of the publisher.

    And my authors will tell you the same thing: Marcos Donnelly, Andrew Weiner, Danita Maslan, Karl Schroeder, Nick DiChario, Terence M. Green, Matthew Hughes, and Fiona Kelleghan; a bunch of them are in the SFWA directory — ASK THEM. (You can’t ask the late Phyllis Gotlieb, but ask her husband who administers the estate; he’s in the directory, too.)

    (ETA: And, for the record, no one at Fitzhenry & Whiteside has asked me to publicly respond to your blog posts; I was brought into this because John E. Johnston III, the chairman of SFWA’s Grievance Committee, phoned me about it on Tuesday, October 4, 2011, on which date I easily determined that the book was in fact in print, shipping from the distributor, and for sale through retail channels.)

    You do yourself no credit whatsoever with comments about “solidarity.” What you have is crappy contract language; your agent and you never should have agreed to it.

  3. 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.”

  4. Hi, Lucienne. Good to see you here!

    You make two interesting statements. First, you say the publisher specifically declined to define “in print” as a specific sales threshold, and that the contract in fact DOES NOT CONTAIN ANY SUCH THRESHOLD (“A sales threshold was argued at the contract stage and the publisher would not agree to it”).

    In other words, the publisher MADE CLEAR AT THE NEGOTIATION STAGE that that was NOT their understanding of the term “in print,” and you, as agent, knew that up front, and one presumes you conveyed this important information to your client, correct?

    Also, you mention “their interpretation” of the term “in print.” In other words, this isn’t the slam-dunk case of breach of contract that Doranna has been posturing it is. It is, rather, a matter of INTERPRETATION OF CONTRACT LANGUAGE.

    The contract does not define the term “in print” except with that vague “normal trade channels” language, which is surely a negotiating oversight; the contention that “in print” means GENERATING SALES IN BRICK-AND-MORTAR STORES is, as I said, an interesting contention. Which other publishers have agreed to this interpretation of the specific term “IN PRINT” in your experience, please? Thanks!

    Indeed, your expert opinion, please: ARE ebookstores like Amazon not “normal trade channels”? When an author licenses a book to a print publisher, does that publisher SPECIFICALLY REQUIRE A CONTRACT RIDER to allow sales through online merchants, given that that would represent an exploitation of the material outside of “normal trade channels,” and would therefore presumably be covered under the “all rights not herein specifically granted to the publisher are reserved to the author” clause that presumably this and every contract you negotiate contains? Does a different royalty schedule pertain, or do you allow your client’s publishers to treat all sales through Amazon, B&N.com, and so forth under the “special sales” provisions of the royalty schedule? Thanks!

  5. Are you actually taking the position that a publisher who doesn’t sell books yet won’t revert to the author is in the right? Interesting stance for an author or someone who claims to advocate for them.

    To answer your question, I define normal trade outlets as outlets that have the book on hand to provide their customers at the point of purchase. If Amazon and other outlets have the books on their sites available to send to those who have bought it or bookstores have books shelved for their customers, that’s one thing. However, per the screen shots that we’ve taken from various sites, the comments of consumers who have tried to purchase the book and the failure or delays that resulted, and extensive browsing by some through bookstores, this is not the case. The existence of copies in a publisher’s warehouse, whether or not it also acts as a distributor, does not count, to my mind, as honoring the spirit or the definition of the reversion clause.

  6. Lucienne writes:

    “Are you actually taking the position that a publisher who doesn’t sell books yet won’t revert to the author is in the right?”

    No, of course I’m not taking that potion. Fitzhenry and Whiteside DOES SELL BOOKS — to the only entities IT CAN SELL THE BOOKS TO: bookstores, online and off.

    So, when you write, “Interesting stance for an author or someone who claims to advocate for them,” you know you’re substituting innuendo and sarcasm for ACTUALLY ENGAGING WITH THE CONTRACTUAL ISSUES THAT HAVE BEEN RAISED, right?

    Lucienne writes, “To answer your question, I define normal trade outlets as outlets that have the book on hand to provide their customers at the point of purchase.”

    I didn’t ask you how YOU define something, Lucienne. I asked you WHICH SPECIFIC PUBLISHERS have agreed to this definition. You’ve provided not one single example. It’s a yes-or-no question; it’s the one a court will ask if this is ever litigated. And you’ve dodged answering it, so I ask again: ARE ONLINE BOOKSTORES EXCLUDED FROM THE DEFINITION OF NORMAL TRADE CHANNELS?

    If the answer is NO, we’re done; there is no contractual breach. If the answer is YES, then WHAT PART OF THE LICENSE TO PUBLISH IN THE CONTRACT YOU NEGOTIATED AUTHORIZES SALES THROUGH THESE CHANNELS, and WHICH SPECIFIC PART OF THE SCHEDULE OF ROYALTIES APPLIES TO THOSE SALES? Seriously: if they’re not trade-channel sales, then there needs to be separate contract language to cover them. So, if they’re not, then answer the question, please.

    But OF COURSE you’re not answering the question. NO AGENT or PUBLISHER would agree that sales through Amazon and other online book retailers DON’T COUNT as “normal trade channels.”

    You write, “If Amazon and other outlets have the books on their sites available to send to those who have bought it or bookstores have books shelved for their customers, that’s one thing.” YES, IT IS — and THEY DO. Amazon.ca (and remember, F&W is a Canadian publisher) DOES have the book IN STOCK AND AVAILABLE. See here for Amazon.ca and the “Find in a Store” link for Toronto at Chapters/Indigo here. (These are the same links I posted yesterday.)

    Seriously, DID YOU EVEN LOOK AT THE LINKS I POSTED before you decided to comment? It’s clear NEITHER DORANNA, SFWA’s GRIEVANCE COMMITTEE, NOR WRITER BEWARE did this same cursory fact-checking before spouting off — or, if any of them did, they chose to bury the information. The book is PHYSICALLY IN STOCK IN CANADIAN BOOKSTORES; the book is PHYSICALLY IN THE AMAZON.CA warehouse and shipping immediately; the book is AVAILABLE FOR ORDER from other major Canadian retailers; the book is IN THE DISTRIBUTOR’S CATALOG. *IT IS.*

    You’re bobbing and weaving now, Lucienne, but the contract language was crappy, and you should have done better. Seriously. If you meant that “in print” had nothing to do with the existence of physical copies but actually meant that “outlets [must] have the book on hand to provide their customers at the point of purchase,” WHY DIDN’T YOU SAY THAT IN THE CONTRACT?

    And, come on, tell us the truth: which other publishers — name them — have agreed to that language: not that “in print” is defined by “being available in traditionally printed and bound mass-produced copies to immediately supply copies to booksellers” but that it is “ACTUALLY ON HAND IN BOOKSTORES.” Seriously, this is industry-changing stuff, Lucienne: “in print” defined by a third-party’s action — whether bookstores choose to order the book or not — that the publisher can’t control. WHO HAS AGREED TO THIS?

    You didn’t answer any of my questions directly, so I pose them again. Don’t dodge, don’t duck, but answer. Here’s what I said:

    “First, you say the publisher specifically declined to define ‘in print’ as a specific sales threshold, and that the contract in fact DOES NOT CONTAIN ANY SUCH THRESHOLD (“A sales threshold was argued at the contract stage and the publisher would not agree to it”). In other words, the publisher MADE CLEAR AT THE NEGOTIATION STAGE that that was NOT their understanding of the term “in print,” and you, as agent, knew that up front, and one presumes you conveyed this important information to your client, correct?”

    Well, Lucienne, DID YOU? DID YOU TELL DORANNA THAT THE PUBLISHER HAD REFUSED A SALES THRESHOLD FIGURE AT THE NEGOTIATION STAGE? What you’ve said is tantamount to this: “An advance level was argued at the contract stage and the publisher would not agree to it” — and yet after signing the contract you still somehow expected to get that amount of money as an advance — and led your author to believe that she’d get it, too. Seriously?

    You end with, “The existence of copies in a publisher’s warehouse, whether or not it also acts as a distributor, does not count, to my mind, as honoring the spirit or the definition of the reversion clause.”

    Which brings us to why authors get agents in the first place: so that questions of “in my mind” don’t come up, since the language will be EXPLICIT, and so that notions of “honoring the spirit” never arise, because the language is clear. But it ISN’T in this case. It’s crappy language, and now its interpretation is in question. YOUR INTERPRETATION, I SAY AGAIN, IS NOT INDUSTRY-STANDARD, and I defy you to make the case, with citations, that it is.

    You’re saying “in print” in this contract means “actually selling — not available for shipment to, but actually selling because customers are buying it — in brick-and-mortar but not online bookstores, even when the publisher has specifically declined to set a minimum-sales threshold in the contract, and the agent agreed at the negotiation stage that no such threshold exists.” THAT’S what you’re arguing, Lucienne — but I can’t believe you’re arguing it with a straight face.

  7. Steven Harper Piziks

    That’s weird. When I click on the bookstore links you provided, Rob, the book is listed as available for order and will ship in 1-2 weeks. I take that to mean the bookstore doesn’t actually stock the book but has to order it from the publisher, receive it, and then send it on to the customer. Amazon.ca has a single copy for sale. Me, I don’t see that a single stray copy being available from one Canadian vendor means the book is available through normal channels. Your links seem to support Lucienne and Doranna’s argument rather than your own.

  8. Steve, as you well know, my friend, LOTS of books available at Amazon.com (and all other Amazon branches) are not physically stocked in the Amazon warehouses. They stock those that are selling to customers for instant shipment, and those that aren’t are fulfilled once a copy arrives from the distributor. Holy cow, it would be great, great, great, if all our publishers agreed that if a book didn’t say “In Stock” at Amazon.com that it’s “out of print.” But, seriously, Steve, name one that has agreed to that interpretation. Not five, not ten — just one. One. Who is it? I can’t think of an example, and I’ve tried. Can you? If you’ve got one, please pipe up with it.

    Even so, it’s moot since the book IS “IN STOCK” at Amazon.ca. Do you really want to raise the bar to be “IN STOCK WITH MULTIPLE COPIES”? Which publisher is going to agree to that? And let’s be clear here: this is a SMALL-PRESS IMPRINT: “Star Ink Books.” We’re not talking a major big-five New York publisher. NEW BOOKS from small presses get the “not-in-stock” treatment by Amazon all the time; are you arguing that they’re all out of print from day one, and subject to reversion-of-rights upon request by the author?

    The book in question, from a Canadian publisher, is for sale at the major Canadian online retailers Amazon.ca and McNallyRobinson.com. IT IS. The book is in stock, after looking for it, for two seconds, at a bookstore here in Toronto. IT IS. The book is in the warehouse of Amazon.ca. IT IS. The book is in the distributor’s catalog. IT IS. If this “supports Lucienne and Doranna’s argument,” then please, word-by-word now, with no hand-waving, no “seems to,” no “I don’t see,” please take apart this clause and point to the contact breach — because THAT is the argument that Lucienne and Doranna are making: breach of contract.

    Ready? Here you go: “16.(a) If the Publisher fails to keep the Work in print through regular trade channels and for sale and written demand from the Author declines or neglects to reprint it within six (6) months thereafter and to offer it for sale, or after two (2) years from the date of the first publication the Publisher wishes to discontinue publication of the Work and gives three (3) months’ notice to this effect to the Author in writing.”

    Oh, here, let me:

    “If the Publisher fails to keep the Work in print” — BUT IT IS IN PRINT; there are large numbers of physical copies extant.

    “through regular trade channels” — a contentious phrase at best, not defined, but arguably should include all booksellers including online ones, since the trade in question is the bookselling trade (and McNally Robinson, by the way, is principally a brick-and-mortar outfit).

    “and for sale” — IT IS; GO AHEAD: click that “Add to cart” button, and watch it work.

    “and through written demand from the Author declines or neglects to reprint it within six (6) months” — BUT IT’S NOT OUT OF PRINT; there are lots of physical copies.

    “and to offer it for sale” — IT IS; it’s in the publishers’ catalog, and I’ve posted multiple links to places you can buy it.

    There you go; that’s what the clause says. Please, Steve, point to THE ACTUAL BREACH OF CONTRACT; quote the offending words, and if you’re going to fall back on “regular trade channels,” provide the proof that any publisher anywhere is agreeing that online bookstores don’t count as “regular trade channels.” (I’ve asked Lucienne to provide the contractual proof that she made a distinction in terms of grant of rights and royalties for sales through online booksellers; she’s failed to do so, because, of course, she didn’t make any such distinction in the contract — online sales are treated IN THE CONTRACT UNDER QUESTION as “regular trade channel” sales.)

    It’s a sloppy reversion clause; Lucienne should have worked harder; Doranna should have understood what she was signing. Agreed on all counts. But breach of contract? Puh-leeze.

  9. “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 that “normal trade channels,” while more precise than the original wording of the reversion clause, isn’t precise enough. But that doesn’t seem to be down to Doranna’s or her agent’s negligence, but rather to the publisher’s refusal to consider more restrictive language.)

    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 Doranna’s 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.” In other words, 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 defines “normal trade channels” as “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 be holding onto rights because it is 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?

  10. Hey, my first book still has not earned out a $200 advance. Am I mad at the publisher? No, they did an excellent job. Most people just don’t want to buy it. Is the book flawed? Not seriously, I don’t think (though who knows) — it has been well-reviewed, taught in some university courses, and attracted attention from readers abroad. Sales? This just hasn’t translated into many sales, relative to other books. Do I suck as an author? No. Has it killed my career? No – my second book outsold my first, garnered national press coverage, etc. Publishers cannot do much if nobody wants to buy your book. It doesn’t mean that anything or anyone is wrong or at fault, necessarily.

  11. Victoria, Amazon.com — the US one — has the book for sale FROM AMAZON. “Ships and sold by Amazon.com.” Says so right on the product page. Yep, it’s not in stock, but you can order it, and they’ll deliver it. Same thing with IndieBound.

    “Grant of rights” doesn’t mean obligation to physically distribute in all the territories. Gee whiz, will you let me do a Writer Beware guest blog about Tor because they have world English rights to my novel Mindscan and it’s not on the shelves in the UK?

    Of course F&W is looking at doing ebooks; do you know any print publisher that isn’t? They’ve been contacting the authors I dealt with there and arranging ebook deals with some of them.

    (ETA: Fitz first approached me and the authors published under my imprint on 28 February 2011 about exercising the ebook clauses in their contracts. You, astonishingly, suggest they should have done this instead on Doranna’s schedule, writing, “Surely, if an ebook were in the works, Doranna’s original reversion request (which she made over a year ago [August 2010]) should have shaken that information loose.” In this changing environment, publishers are taking time to consider their options, but, again, you had to know, as did Doranna, that when they contracted with her for ebook rights in that they might someday want to do such an edition — there was no new information to “shake loose.”)

    I imagine, on the ebook front, they’re starting with the titles they think are most likely to sell and working their way down the list. It IS sad that Doranna’s book never sold well in this edition. It’s sad for Doranna, who is the author; it’s sad for editor Julie E. Czerneda, for which this was, I think, the only title produced under her Star Ink imprint; but IT’S ALSO SAD for Fitzhenry & Whiteside, a small, family-owned business, who tried their best, putting a beautiful cover on the book, and buying into the hype surrounding the book’s sale to them that there would be an appreciable audience for this title.

    You ask numerous “whys” as if they were unique and special to Doranna’s case, but there isn’t anything unusual here. So, let me ask a “why” of my own: why is this case being given so much attention by Writer Beware, which is run by A.C. Crispin, Richard C. White, and yourself? Oh, that’s okay; I’ll answer it for you: the answer’s right on the front cover of the Fitzhenry & Whiteside edition of Doranna’s book: A.C. Crispin is Doranna’s close personal friend, and blurbed the book for her.

    By the way, F&W was just in Frankfurt, trying to sell foreign rights to backlist titles. If they have those rights to this book, they were trying to sell Doranna’s too, and maybe did. Because, see, they ARE trying to recover the considerable investment they made in Doranna — via the advance she received and in printing the number of copies of this book the advance required.

    All you’ve done here, Victoria, is obfuscate. Answer the questions I’ve asked of Lucienne and Steve above: POINT TO THE BREACH. Show where OTHER PUBLISHERS WOULD AGREE TO THE INTERPRETATION that Doranna is posturing is blindingly obvious. And show WHY THIS CONTRACT, with its poorly worded yet agent- and author-approved reversion clause, should be a lightning rod for action.

    ETA: Crispin’s husband, Michael Capobianco, has tweeted that this is an “extremely important test case” — but what makes it that? Besides his and Crispin’s personal relationships with Doranna, what makes a case with poorly worded, ambiguous contract language (you yourself have argued multiple interpretations of it here, Victoria), in which everyone — agent, author, publisher, and you, too, Victoria — agree that the book is indeed physically still in print, into an ideal “test case”? Test cases prove or disprove general principles (it’s the principle that’s being tested; otherwise, it’s just a case). What general principle is being tested here? That people can disagree about what clumsily amended contract language means? Already proven, thanks.

  12. Now, if F&W had asked Doranna to pay back the unearned portion of her advance, then that would have been wrong. But to offer to sell her the remaining stock at manufacturing cost? That’s REASONABLE, indeed more than fair. What bugs me so much about this case is that people who should know better — and, in many cases, DO know better — are spreading misinformation about how publishing works. We hear terms like “breach of contract” and “coercion” being thrown around when no such things have occurred. And that’s reprehensible.

  13. Searching amazon.com two minutes ago,

    Dun Lady’s Jess by Doranna Durgin (Nov 6, 2007)
    Temporarily out of stock. Order now and we’ll deliver when available.

    That does NOT look prepossessing to me, as regards a book being distributed “through normal trade channels.” A friend of mine who used to be a bookstore chain employee said that a particular large publisher had the very nasty habit of labelling titles “Permanently Out Of Stock” which was effectively the same as out of print, but using a different term for legal fiction that the book was not out of print.

    RJS responds: The book is NOT permanently out of stock. It’s not out of stock at ALL. “Permanently out of stock” is a term that refers to the PUBLISHER’S stock (not any particular bookstore’s). There are 1,600 copies IN STOCK at the publishers’ warehouse. As you say, claiming something is “permanently out of stock” is a PUBLISHER’S TRICK, when they DON’T HAVE STOCK, and DON’T WANT TO REPRINT. THIS IS NOT THE CASE HERE; I’m not aware of Fitzhenry EVER trying that on ANYONE. The book is in stock.

    B&N link

    Dun Lady’s Jess (11/6/2007)
    by Doranna Durgin

    (2)
    Format Used/New from
    Paperback $12.54

    points to [clicking the #12.54]

    B&N link

    which shows the book new as having a price of $21.95 but listed as “CURRENTLY NOT AVAILABLE”

    RJS RESPONDS: Interesting. That’s the first and only “not available” anyone has publicly put forward.

    The Harvard Book Store, an indie quite literally across Massachusetts Avenue from Harvard Yard, which has a Print on Demand machine in the store, lists

    [Dun Lady's Jess]

    Dun Lady’s Jess (Paperback)
    By Doranna Durgin
    $21.95
    ISBN-13: 9780889953987
    Availability: Special Order – Subject to Availability

    The same search also yielded

    The Sexy Lady North to Alaska (Hardcover)
    By Jesse W. Thompson
    $29.04
    ISBN-13: 9780557839032
    Availability: Usually Ships in 1-5 days
    Published: Lulu.com, 2/2011

    The comparison, that a book from a Print-on-Demand house with no advances can get a book out to a retailer in 1-5 days, while a there are availability issues with getting a copy of a book which there are apparently are hundreds of warehouse copies of….

    RJS RESPONDS: “Apparently” is a lovely weasel word, Paula. Place orders for both, and see what happens. Regardless, Lulu is indeed print-on-demand: they print and ship domestically within the United States; Fitzhenry’s books are printed and warehoused in Canada; Doranna CHOSE to publish with a Canadian publisher, and her book is IN STOCK at Amazon.ca’s Canadian warehouse.

    Difference in delivery times? Possibly. Difference in the way this database you saw routinely codes books based on country of origin? Possibly. Why you didn’t do any real research — why you didn’t plug in, say, another Fitzhenry title and see what it showed as, or another title from a non-US publisher and see what it showed as — is beyond me. You’d have to show that Doranna’s book is being treated differently from others from the same publisher, or other backlist books from other foreign publishers, to add anything meaningful to the debate. All you’ve demonstrated is that domestic shipping takes less time than foreign shipping, and that’s a trivially obvious fact.

    There seem to be some distribution issues, with regards to availability/distribution to/through US retailers, with the USA a market what is it, fifteen times the size of the Canadian market?

    RJS RESPONDS: Actually, the US market is ten times, not fifteen, the size of the American one, Paula. Regardless, yup, no doubt she’d have done better if she’d signed with an American publisher for this book, and … oh, wait. She DID. Baen published this book in August 1994 (ISBN: 0671876171). Had its run in the States. Fell out of print there. Rights reverted. Re-sold to a Canadian publisher, who was told there was a big demand for this title, justifying a reissue — and, guess what, there wasn’t.

    Marketing and publicity and promotion generally involve expenses.

    RJS RESPONDS: True, and most of that is done when the book is NEW. The Fitzhenry and Whiteside edition came out three and a half years ago, and that’s when the book got its big push. Man, I’d love to tell my publishers that they should be allocating monthly promotion and publicity budgets — and staff — for my books that are that old. But they don’t. But this book did get a push when it first came out; I saw it.

    I have no clue what Canadian law is regarding merchandise in warehouses–the Thor Power Tools legal case in the USA wiped out printing books and keeping them for years in warehouses. Thor Power Tools, however, is US law, not Canadian law, and holding onto years-old stockpiles of books in Canada might not incur the inventory tax penalties that the USA applies.

    RJS RESPONDS: Thor Power Tools doesn’t pertain for books in Fitzhenry’s Canadian warehouse. Perhaps it has some applicability to why Amazon.com chooses not to warehouse this and other old titles in the US — but that’s nothing specific to Doranna’s book.

    No promotion of the book by the publisher seems to be occurring in the USA, and that extends by inference, looking at the results above, to even providing assurance to US booksellers that there are books available which the publisher could fill orders with.

    RJS RESPONDS: By inference? Really? Lots of places in the US show it as available for order. What are you basing your inference on? How ’bout this: why not TEST the proposition? Order a copy from one of the places that says it’s available for order. If the order is not fulfilled, then you’re on to something. Until then, you’re not inferring, Paula, you’re implying — and there’s a world of difference. In point of fact, if the publisher’s distributor didn’t list it in its catalog, the book would not show as available for order from Amazon. But it DOES — and it IS.

    I wonder if the situation with the publisher has been something of a case of “path of least resistance/expense” where the cost and effort for dumping the books exceeds the cost for keeping them moldering away in a warehouse selling at a glacial creep rate.

    RJS Responds: Yeah, there’s no doubt that everyone wishes there were fewer copies still extant at this point. Of course, the initial print run was geared to the advance that Doranna’s agent insisted on, and based on the hope/hype that there was pent-up demand for a reissue of this book, winner of, as Doranna says, “the prestigious Stephen Tall/Compton Crook Award.” It’s sad for all concerned.

    But you know what? The author got her advance; she came out in the black on this. The agent got her commission; she came out in the black on this. The editor got her editorial fee; she came out in the black on this. The only one in the red? The publisher — who paid out a large advance that hasn’t earned out, and has thousands of dollars worth of inventory that hasn’t sold.

  14. I too am surprised that offering to sell the remaining stock has been taken as objectionable behaviour. As Robert points out, it is entirely normal practice in the industry. I’m willing to bet also that the publisher is offering those copies at the author’s discount, which is usually considerable (mine is 40%). Never mind the fact that the books can be resold.

    RJS responds: Actually, Jonathan, as Doranna herself has said in her timeline, the books where offered to her “at cost” — not at her author’s discount of (presumably) 40% (or $13.17 a copy on this $21.95 book), but at cost so that the publisher would make not one cent of profit on this sale. When I’ve acquired similar trade paperbacks at cost from Fitzhenry in the past, the figure has been between $1.66 and $3.19, depending on the tittle. You’re right that offering this sort of discount to an author on an in-print book is not normal; Fitzhenry & Whiteside was being very generous.

  15. It’s normal practice to offer to sell inventory to the author when a book is being taken out of print, or when inventory is being reduced (in such cases, the book should be offered at the manufacturing cost or just above–not at the author’s discount).

    What’s not normal is to make rights reversion contingent upon buying the remaining stock–which is the deal that F&W offered Doranna.

  16. Seriously, Victoria? Doranna asserts to her publisher Fitzhenry & Whiteside that the contractual condition for triggering the book being declared out of print has been reached. Fitzhenry & Whiteside replies by saying, basically, are you nuts? We’ve got 1,600 copies in the warehouse (it’s in print in that sense) and the book is for sale to bookstores by us (it’s in print in that sense) and it’s for sale by third parties to customers (it’s in print in that sense, too). Sorry, but this simply isn’t an out-of-print situation, per the contract you signed. But if you’d like to force one, Doranna, sure, we’re jiggy with that: buy up the stock at manufacturing cost, shake hands, and we’re done.

    There’s nothing untoward about that at all; indeed, it was cooperative and generous of Fitzhenry to offer Doranna the chance to acquire the copies at cost — way, way cheaper than what buying them under her contractual author discount would have cost.

    This isn’t just my interpretation, by the way; I’ve spoken to Sharon Fitzhenry, the publisher of Fitzhenry & Whiteside. No one wanted to coerce Doranna into doing anything.

    ETA next three paragraphs: Again, note, Victoria, as Doranna herself reports in her timeline, the offer from Fitzhenry was to acquire “the remaining stock at cost.” They were offering precisely the sort of discount you said they should (actually, the deeper of the two discounts you described — you said, “in such cases, the book should be offered at the manufacturing cost or just above — not at the author’s discount,” and that was indeed the offer that was made: at cost). But, as you say, an at-cost sale is normally only made when remaining copies are being disposed of when the book is out of print. Fitzhenry offered Doranna these books at that deep, deep discount even though the book isn’t out of print so that, if she really wanted to, Doranna could force the book out of print.

    Fitzhenry didn’t have to make any offer at all: contractually, of course, at any time, any author can invoke his or her author’s discount and buy whatever quantity of books he or she wishes at that discount, which, as you well know, is typically 40% off; if an author wants to force a book out of print, that’s one way to do it.

    But Fitzhenry said, okay, it’s not out of print, but if you really want to force it out of print, we’ll help you do that by offering you a deep, deep discount on copies, so that we — the publisher — make not one penny profit on them. Doranna clearly didn’t understand this — she didn’t understand her own reversion clause, and she didn’t understand that Fitzhenry was trying to help her not hurt her. That’s fine; lots of authors don’t understand the business. But someone who knew better — you (who gave her a platform to express her views at a blog site that supposedly represents a knowledgeable view of publishing), Cory Doctorow (who gave Doranna’s claim a signal boost without checking the facts himself), John E. Johnston III of SFWA’s Grievance Committee, or Doranna’s agent Lucienne Diver — should have explained this to her.

    I’ve asked you, Victoria, and I’ve asked Doranna’s agent, Lucienne Diver, to name any publisher at all that would agree to the interpretation of the contract language Lucienne put in as meaning that this book is, in fact, currently out of print. (That interpretation: that to be considered in print having lots of physical copies on hand is insufficient, that being for sale at online venues in the United States and Canada is insufficient since these are not, we contend, “normal trade channels” (whatever that means), but instead that the book has to actually be selling to customers in brick-and-mortar stores, despite the publisher having declined, per Lucienne’s own testimony in her comment above, and the author and agent having agreed to leave out, an actual copies-sold provision from the reversion clause.)

    You haven’t put forth an example of a publisher who’d read that clause that way, and neither has Lucienne. Why? Because you can’t. Not only would no publisher read that clause that way; no publisher who believed that was the intent of Lucienne’s addition to the boilerplate would have agreed to it (the intent supposedly being to exclude sales via Amazon and other online booksellers from counting in determining in-print status).

    And, of course, no one has explained why, if this is what Lucienne really meant at the time she was negotiating this deal, she didn’t simply word it that way in the contract.

    Meanwhile, Doranna asserted — direct quote — “Availability only via the publisher’s website does not meet this criteria.” I’ve shown in the blog post that began this thread that the book is available beyond the publisher’s website; in other words, what Doranna asserted was demonstrably untrue. Indeed, Doranna herself says that the publisher was (in my view, quite rightly) “shocked to hear we believe DLJ isn’t available.” Doranna was wrong in her assertion that it wasn’t; it’s trivially easy to prove that she was wrong. (“Ships and sold by Amazon.com.” “In stock” at Amazon.ca.)

    Fitzhenry didn’t do anything wrong here. They didn’t approach Doranna; Doranna approached them — and they responded expeditiously (in about two weeks, according to Doranna’s timeline on her website, which is much faster than any New York or UK publisher I’ve ever dealt with has responded to a reversion request). Their response: sorry, that’s not what the contract says, but if you really want to force the book out of print, you can.

    Doranna’s response to that offer, after Fitz took a bath on Dun Lady’s Jess and ended up with 1,600 copies in the warehouse, was, hey, no, I’m not going to do that, but why don’t you buy the sequels from me instead? (That’s precisely what Doranna did, per her own timeline of the events on her website: she tried to sell Fitzhenry more books. You gotta admire her moxie after how poorly, by her own account, this book did. Yeah, she didn’t get a reply to that message; Canadians are known for their politeness, and if you can’t say something nice the best thing is to say nothing at all.)

    Victoria, you’ve tried to make this into something nefarious, but it just isn’t. It’s a sloppy contract (at least the part of it under discussion here), but there’s no breach. Doranna wanted a way out, regardless, and the publisher proposed what would be acceptable to it — and Doranna declined.

    At that point, Doranna had two honorable options. First, accepting Fitzhenry’s view that the book was not, in fact, out of print. Or, second, if she really felt that her reading of the contract was tenable, well, the contract doubtless has a clause for resolving disputes (my contracts with Fitzhenry call for both sides to submit to binding arbitration; God knows what Lucienne agreed to in Doranna’s, but there must be something for these circumstances). If she didn’t want to accept the publisher’s reading of the contract, that should have been her next step. Instead, she demanded that they revert the book anyway, threatening — direct quote again — “further steps of my own” if they did not do so within 48 hours. Who is coercing whom?

    Both you and Doranna are way, way off base.

  17. Original blog post (top of this thread) has been edited to add this fact, but I’m adding it here, too, so it doesn’t get overlooked. Dun Lady’s Jess is IN STOCK AND ON THE SHELF at Sentry Box, the science-fiction and fantasy bookstore in Calgary.

  18. In regards to “in print through normal trade channels.” wouldn’t that refer to their channels as a distributor to book sellers? Why are “brick-and-morter” stores an issue other than as customers who have access to the product thereby fulfilling the terms of the contract.
    I might be misunderstanding contract language or industry jargon so I thought it worth asking.

  19. Seems to me, that in the absence of an articulated industry or contractural definition of “normal trade channels”, then “normal” is self defining as being “the norm”.

    If I recall correctly, online book sales started to eclipse brick-and-mortar sales some time in the past several years. (I’m not going to look it up and cite, others can confirm if they so desire). I don’t know if these sales include wholesale or B2B transactions or if technical trade books or text books are included, but in the absence of the contract defining the sales-pool as being genre (or whatever) specific, then the sales profile/shape is kind of moot anyway.

    The other way to see “normal” in this context is what the reseller market norm would be and is the norm defined by the number of stores selling the class of products only or is it weighted by the amount (in dollars? in units?) of sales as well.

    It just seems that online shopping, whether the dominant sales/distribution channel or not, has become an integral part of the “normal” fabric of book shopping.

    Furthermore, JIT (Just In Time) supply and shipping has been the norm for many industries over the last 15 years. It’s not new. Drop-shipping is also a very common practice (seller takes the order, producer/wholesaler ships directly to the customer).

    If the publisher is making a book available, if it offers the book as part of its own “normal” sales platform, if it doesn’t deny access to the product, I’m not sure what else a publisher can do to keep a work “in print”. Any expectation that there is some sort of (ongoing or one-time) marketing aspect, would have to be articulated in the contract since marketing and distribution are two entirely different operational streams.

  20. Aura, you’re correct, in my view. The only thing a publisher can control is distribution to booksellers.

    Michael, excellent point, and thanks for bringing the concepts of JIT (Just In Time) and drop-shipping into the discussion. You’re exactly right: it’s unrealistic to expect bookstores to stockpile large quantities of books that are several years old; the people posturing otherwise do, in fact, know this, but choose not to acknowledge it in this instance.

  21. This reminds me of my days editing… sometimes it’s difficult to understand where new authors are coming from, and what assumptions they have about how publishing works. You want to shoot yourself when they say things like, “Well, if your journal doesn’t publish whole books, just read through the entire book I submitted and extract parts to publish in your journal!” But it surprises me that the author here does not know more and have more reasonable expectations, given that this is no newbie.

  22. Let’s have a look at Doranna’s timeline, folks. Of it, she said (right here, in the first comment in this thread): “My blog/timeline contains every response we got from them, each of which is devoid of information.”

    Well, the whole damn timeline is pretty much devoid of information. Here it is in its entirety (snapshot as of Friday morning October 21, 2011, in case she changes it again), with my questions about it in square brackets and italics at the end of each entry. (“Griefcom” is the nickname used by the Grievance Committee of the Science Fiction and Fantasy Writers of America.)

    Late April ’10: We request to revert rights [You really don't know the date? You don't have an actual record of the reversion request? Since all of your Durgin dudgeon rests on the response you got to this request, might we see the actual request? Regardless, your contract specifies that after a reversion request, Fitzhenry has six months to respond. They don't have to respond, in other words, until late October 2010. But they did respond, in about two weeks, as your next entry makes clear.]

    May 3, ’10: Richard Dionne at Fitzhenry and Whiteside responds: “We have some 1,600 in stock and will not revert rights at this time. However, if the author is willing to purchase the remaining stock at cost we’d declare it out of print and revert the rights immediately.”

    6/14/2010: That’s not feasible, but of course you’d have the right to sell off any remaining stock in the event of a rights reversion. Or maybe you’d like to consider publishing the sequels? [Dionne is, supposedly, quoted verbatim in the preceding entry; why isn't Doranna's or her agent's response quoted verbatim here? What, precisely, was said?]

    8/5: Hello? We haven’t heard from you? [Again, surely that's not the actual message that was sent. What, precisely, was said?]

    9/28/10: We point out that the contract defines “in print” as “available through regular trade channels”–a change we made to the boilerplate with their approval. We also point out that the latest statement we were mailed reflects more returns than sales, which indicated to us that the books are not available (or at least not selling) through regular trade outlets. We remind the publisher that reversion of rights does not rescind the right of the publisher to sell off existing inventory. [Come on, Doranna, again, let's have the actual text of the letter. Why the paraphrase?]

    In the interim: The Book’s editor, no longer with the publisher, tries to connect on the matter. There is no response. [The editor is Julie E. Czerneda; surely there's a specific record of this correspondence, too]

    8/9/11: Last year you denied our request for reversion of rights to Dun Lady’s Jess on the basis, you said, that the books were not out of print and were still in stock. However, since then I’ve heard from readers who can’t find a copy of the book, and now I have screenshots of various venues, proving the books are neither selling, in stock nor available through traditional trade channels. (Included in this email: screenshots proving lack of distribution/availability, plus a scan of the relevant contract page where Fitzhenry & Whiteside has initialed to approve the language “available through regular trade channels.”) [First, number one, crucially important, is this: you have put in quotation marks, as if it was what your contract actually said, the phrase "available through regular trade channels." But that's NOT what the contract says; rather it says "in print through normal trade channels" -- so you've tried to remove any question of "in print" status, as customarily defined [bound mass-produced copies available in significant quantities for immediate shipment to booksellers] from the debate, even though it is the key contractual point under dispute.

    Regardless, let’s have the attachments, Doranna; you posted one screenshot on your blog (the shot showed a BookManager screen that showed the book is indeed O/H [on hand] in the distributor’s warehouse and available to any bookstore that wishes to order it). Let’s have ‘em all; if you’ve got your slam-dunk proof, why aren’t you sharing it?

    Also, this seems to be a paraphrase (in that elsewhere you’ve put in quotation marks what was supposedly actually said); why not share the actual text?

    Also it’s key to note here that Doranna acknowledged on August 9, 2011, that Fitzhenry had declined her initial reversion on a principled basis, based on the contract: “you denied our request for reversion of rights to Dun Lady’s Jess on the basis, you said, that the books were not out of print and were still in stock.” That means the request of this new date — August 9, 2011 — triggers a new six-month-response-period, per the contract your agent negotiated and Doranna signed. Contractually, from this point on, Fitzhenry has until March 9, 2012, to respond, and, if any of Doranna’s claims were substantiated, to rectify the problem. But as we see that negotiated timeframe was ignored by Doranna.]

    8/15/11: We try again, with more formal and insistent language, pretty much saying the same thing as above. [Really? How 'bout, since your whole sense of outrage and anger seems to be based on your reading of Richard Dionne's initial response to you, that you let the world be the judge of the language you yourself employed: what, exactly, verbatim, did you say in "more formal and insistent language"?]

    8/30/11: We nudge with screenshots ["Nudge"? Come on, Doranna. What did you actually, specifically say? And let's see those screenshots, please.]

    8/30/11: I also connect with SFWA GriefCom, who attempts to connect with F&W without luck for a while, and in the meantime … [(The ellipsis is in the original and is how this entry ends.) Surely you outlined the case in detail to SFWA's Grievance Committee, gathering up and sharing verbatim the correspondence that you've neglected to post.]

    8/31/11: Fitzhenry & Whiteside: “This book is in stock, on sale on our website, it continues to sell albeit in lesser quantities. We have some 1,600 in stock with no reason to revert rights.” [Again with the direct quoting, supposedly, of the response you got, but only paraphrasings of the messages you sent. Why?]

    9/6/11: The contract specifies that the book must be available through “regular trade channels,” which clearly, per the screen shots sent, it is not. Availability only via the publisher’s website does not meet this criteria. The contract would allow for you to sell off existing stock. There is no reason to hold onto rights when you’re not even distributing the book. [Again, the incorrect -- although set off in quotation marks -- phrase "regular trade channels," and the substitution of the phrase "available through" for "in print through." Noted. Anyway, clearly the assertions Doranna made here (or maybe it was her agent Lucienne, we just don't know) are incorrect; see the blog post that started this thread: the book is certainly NOT available "only via the publisher's website;" the publisher is certainly NOT "not even distributing the book."]

    9/9/11: GriefCom reaches F&W. Through a phone call, I learn that in spite of our screenshots and previous statements, they’re shocked to hear we believe DLJ isn’t available, and that they will send proof of its availability through regular trade channels. [Which, contractually, they have until March 9, 2012, to do, right?]

    9/23/11: We have not heard anything from F&W. GriefCom commences trying to reach them again, without success. [Details, please? Phone calls -- to whom? Emails -- to whom?]

    10/3/11: Late in the evening, GriefCom gives F&W 48 hours to either revert the rights or provide the promised proof of the book’s availability via regular trade channels, with the warning that I’d take further steps of my own if neither happened. [Let's have the wording -- the exact wording, the real text. Because your next entry suggests that F&W took umbrage to GriefCom's language and approach (which even in the paraphrase you present implies that a threat was indeed made by GriefCom). What we have here is a classic, "I was all reasonable-like, and she blew up at me! What's that? What exactly did I say? Oh, I dunno, but you should have heard her response!"]

    10/4/11: Early the next morning, GriefCom receives a phone call from an unidentified woman. In a raised voice, she accuses GriefCom of harassing F&W, says, “There is no reversion of rights here,” and then states she will be calling [prominent Canadian writer#1] and [prominent Canadian writer#2] to report us. [Why the redaction? Surely it was me (Robert J. Sawyer) and your editor (Julie E. Czerneda), and surely, as you must know, we have both edited in the past for that company -- that is, if we were to be contacted, it would be in our capacities as editors, not "prominent Canadian writers." But, yes, it seems clear that Fitzhenry's position by this point was that Doranna and/or John E. Johnston III of GriefCom had behaved in an unprofessional, untoward, inappropriate, or threatening manner.

    ETA: For the record, this is when I (Rob) became involved in all this. At 11:44 a.m. Eastern time on this date (October 4, 2011), John E. Johnston III, chairman of SFWA's Grievance Committee, phoned me about this matter. And so I did what any sensible person would have done: I immediately checked to see if the extraordinary claims being made held up to even cursory scrutiny.

    I easily determined that there are 1,600 copies in the publisher's warehouse, and that the book is available for order from the distributor (determined by phoning Bakka-Phoenix and speaking to the manager), is in stock at Amazon.ca, is on-the-shelf at the World's Biggest Bookstore here in Toronto, and is available for order nationwide from Chapters/Indigo and McNally Robinson; it took less than ten minutes to do this.

    I didn't ask for anyone to contact me about this matter -- Johnston sought me out -- and I honestly never expected to hear about it again, since it was obvious that the book was in print and for sale, and so I was very surprised when Doranna started blogging about it two weeks later.

    10/5/11: I email Richard Dionne with a final request for either reversion or proof of appropriate distribution, and set a deadline of 2-plus business days. There is no response. [Come on, Doranna: this one is clearly labeled an email by you: let's see the text.]

    10/12/11: I’m putting the finishing touches on this timeline and the blog that will be distributed as widely as possible to break my silence and warn other authors about my experience with this publisher. [Break your silence? But you've withheld documentation at every stage. If you want to "break your silence," full disclosure is required. What specifically did you, your agent, and John E. Johnston III actually, specifically say?]

  23. Amazon’s policy is to stock 2 copies of small press titles at any given time. They don’t ordinarily reorder copies of a book that’s slow to sell until they’ve sold both copies. When that happens, the book’s page will read “temporarily out of stock.” It doesn’t mean the book’s not available. It simply means Amazon may not be able to ship immediately, as is their policy, because they’re waiting for delivery from the publisher or distributor.

    As an author, I empathize with the frustration of wanting one’s rights back and not being able to obtain them. However, I notice no mention has been made of WHY this has become such a pressing issue. Is the author, perhaps, eager to self-publish and jump on the alleged gravy train of ebooks? I ask that in all seriousness—it’s not meant sarcastically. It just strikes me there’s an awful lot of angst going on here for unexplained reasons.

    As a publisher who routinely gets blamed when an author’s book fails to sell to their expectations, I can also empathize with F&W. Having invested thousands of dollars into a book that seemed to have a world of promise, only to discover it didn’t achieve that promise, I can fully understand their reluctance to not only eat those costs but the advance as well when, as Rob has repeatedly pointed out, there is no clear breach of contract that I can see.

    In fact, this sort of situation is precisely why our contract term is two years with auto-renewal unless we’re notified by the author they choose not to. Yes, it increases the likelihood that a book won’t pay us back what we put into it, but if it’s not selling it’s not going to do that just because we have it for four or six or eight years. And granted, since we use on-demand printing, our initial investment is less than for those who do print runs. It’s why we use it.

    It would be lovely if every book published sold thousands of copies—Lord knows I wouldn’t complain. But simple lack of sales isn’t sufficient cause for reversion before the term of a contract expires unless said contract contains language to that effect.

  24. If anyone knows a publisher who can guarantee sales, please send me their contact information. As Robert points out, it may be disappointing for all involved if a book does not sell well, but it is neither unusual nor cause for unprofessional behaviour and misplaced anger.

  25. I work for one of the booksellers on Rob’s list up there. I can say, with absolute certainty, that this book is just as available as any other in-print book. The fact that it’s not on our shelves has nothing to do with availability, and everything to do with the fact that, when we did stock the book, it didn’t sell.

    That says nothing about the publisher, any more than it says anything about the quality of the book. They can’t force us to order something we don’t want, and no one can control the interests of the reading public.

    In conclusion: Not selling ≠ Not available

  26. Andrew S. Balfour, thank you for stopping by. When I called Toronto’s Bakka-Phoenix Books, they told me the same thing: the book was totally available for order. The manager had it up on her computer screen in seconds.

  27. FWIW, Durgin’s book is “available” at The Other Change of Hobbit. We are able to order a copy through both of our primary distributors, where they are listed as available, although not in stock (as of this writing). It may take a few weeks to show up, but we can have it for our customer.

    But the economics of modern bookselling preclude keeping a physical copy of a backlist title on the shelf. We are expected to have paid for the book, in most cases, within 30 days.

    And in this case, with the new cover price of US$21.95, most customers would turn to a $2-3 secondhand paperback. They are not difficult to come by.

  28. Thanks, Dave.

    For those who aren’t familiar with it, a little background on Fitzhenry & Whiteside, a respected Canadian firm that’s been in business for forty years now:

    This is a publisher that has published Pierre Berton, Alice Munro, Northrop Frye, Charlotte Gray, and David Suzuki — some of the top names in Canadian writing.

    This is a publisher whose books have won multiple Governor-General’s Awards, Canada’s top literary prize.

    This is a publisher whose Fifth House division was recently named Alberta Publisher of the Year by the Book Publishers Association of Alberta.

    Does anyone seriously really think they’ve just been laying in wait all these decades for a mid-list fantasy author to come along so they could abuse her? Extraordinary claims require extraordinary proof — Cory Doctorow called what Doranna claimed had happened “a breathtaking violation of publishing norms.” Surely some basic fact-checking — such as I did in the blog post at the top of this thread — would have been appropriate before giving this claim credence.

    For the record, no one at Fitzhenry & Whiteside asked me or encouraged me to take up this issue, and I’m not speaking in any official capacity (appropriately, since I don’t have one); rather, as I noted above, John E. Johnston III, chairman of SFWA’s Grievance Committee, sought me out about it.

    In any event, I’ve spent enough time on this as it is, and I see Cory Doctorow has closed comments about it on his blog, so now’s probably a good time to move on here, too, although, of course, if author Doranna Durgin, her agent Lucienne Diver, or Victoria Strauss of Writer Beware wish to reply to the questions they haven’t answered above about the actual contract language under discussion, and which, if any, publishers have actually agreed with their interpretations of what “in print” and “normal trade channels” mean, they can email me and I’ll make their replies public.