It’s not about romance, but it is about blogging and publishing

A few days back, blogfamous writer Dooce posted her side of a story in which she alluded to a lawsuit regarding a contract, and that the settlement eradicated her faith in the publishing industry.

A few searches reveals that she was sued for breach of contract by Kensington for backing out of a two-book deal because the editor she had been working with was no longer with Kensington.

Some bloggers are discussing how much the publishing industry sucks, and others are pooh-poohing the whole thing as the histrionic ramblings of someone who gets far too much attention for nothing in the first place. 

Other bloggers are discussing whether blog-to-book deals have jumped the shark. Personally, I’m thinking that the time when you could count on potentially making a living off your blog have long past; there’s a lot of people writing online and not really enough readers to visit every blog!

Many of the folks here who have blogs were writers first who use their sites as tools to market themselves and interact with fans. The book-to-blog trend makes sense. But what about blog to book?

Categorized:

News, Random Musings

Comments are Closed

  1. 1
    Nora Roberts says:
    1+

    Interesting. Was there a binding oral contract—in that did both parties negotiate and say: That’s a deal? Is that legally binding? That’s where lawyers come in, I suspect. Though I once bought land in Ireland on a handshake by the side of the road and both parties considered that absolutely binding. Still, different story.

    Was she negotiating with Kensington, putting the final touches on the contract—and negotiating back-door with another publisher? That would be a messy business.

    Would Kensington—a smallish publisher—put the muscle on a potential author without serious cause? I dunno. Seems overkill to the extreme.

    Whatever the case, this women isn’t being especially smart to put—in writing on the internet—her thoughts, feelings and her viewpoint on the case. Her lawyers won’t be pleased.

    As in most, there’s probably some crap on both sides of this fence.

  2. 2
    Robin says:
    1+

    For some reason this little anecdote brought back all those questions I had about Gail Dayton’s situation with Luna. 

    Does anyone know the legal scoop with this case, especially since there was no signed contract?

  3. 3
    Suisan says:
    1+

    I would have a very hard time believing that one side of this thing is totally in the right and the other side is completely wrong.

    For one thing, if you’re sued, you really need to ANSWER the complaint. By not answering you’re asking the judge to grant a default to the party who sued. It’s analogous to pleading No Contest in a criminal matter.

    But as to Sarah’s question, I do think the day is over when bloggers could hope for a book deal based on the writing style or popularity of their blog.

    Not that I know word one about the publishing industry, you understand. Just guessing.

  4. 4
    SarahT says:
    1+

    How can a publisher sue a writer for not signing a contract?  That doesn’t make sense.  I was under the impression that an oral agreement had no legal validity.  Given that some kind of settlement was reached, there had to have been enough substance to the case to allow it to get this far.  I suspect that there must be more to this story than Dooce chose to reveal in her blog.

  5. 5
    mapletree7 says:
    1+

    I work at an agency and I am AMAZED if they sued her without a contract and without any money changing hands first.  AMAZED.

  6. 6
    Tonda/Kalen says:
    1+

    I don’t know what state you guys live in by in mine an oral contract is legally bindin, which is why when an editor calls you, you don’t just babble out YES! YES! Oh, god yes!!! Or you don’t if you have an IQ larger than your shoe size. You take a deep breath, get all the details, and say let me think it over . . .

    Once you’ve said yes to that phone call, the rest is just detail work, and publishers don’t hammer out contracts unless you’ve agreed to the deal.

    This lady screwed the pooch, and while I’m sorry she did so, Kensington (disclaimer, they’re my publisher) had every right to sue her.

  7. 7
    Tonda/Kalen says:
    1+

    but, not by.

    Why do I never see these damn typos until I hit the publish button?

  8. 8
    eggs says:
    1+

    They were posting the legal documents over on trainwreck and, as far as I can work out, her agent got a copy of the final text of the contract, then told the publisher that Dooce agreed to all the terms and all they needed to do was send her a hard copy to sign.  That was a clear, orally binding agreement between the agent and Kensington.  (I don’t know who “the agent” was).  Dooce then refused to sign.  I think the ‘he said, she said’ came down to whether Dooce had actually told her agent that she accepted the terms.

    Between the oral agreement and the refusal to sign, the Kensington editor that Dooce was all squee about moved on to another (bigger, better, faster, stronger) publisher.  I think Kensington managed to read between the lines on this one.  IANAL, but Kensington seems to be sending a message both to writers AND staff about what will happen if they try to fuck them over.  Frankly, for someone who’s so hard up for cash that their friends are suggesting readers send her five dollar donations, it boggles the mind she cut out on a $150,000 two-book contract.

  9. 9
    Robin says:
    1+

    I don’t know what state you guys live in by in mine an oral contract is legally bindin, which is why when an editor calls you, you don’t just babble out YES! YES! Oh, god yes!!!

    If that state is CA,  you still have to PROVE you have an oral contract, and proving up the formal requirements for a valid contract are even more critical when you allege the existence of a valid oral contract.  Plus, if performance will take more than one year, or the contract is for real estate or exceeds $100K, the statute of frauds kicks in, and the contract must be in writing to be valid. 

    They were posting the legal documents over on trainwreck and, as far as I can work out, her agent got a copy of the final text of the contract, then told the publisher that Dooce agreed to all the terms and all they needed to do was send her a hard copy to sign.  That was a clear, orally binding agreement between the agent and Kensington.  (I don’t know who “the agent” was).  Dooce then refused to sign.  I think the ‘he said, she said’ came down to whether Dooce had actually told her agent that she accepted the terms. . . . but Kensington seems to be sending a message both to writers AND staff about what will happen if they try to fuck them over.

    It seems to my untrained eye that Kensington alleges a valid oral agreement to enter into a contract AND a valid written contract, relying on the argument that a written contract that is complete in all material provisions but simply lacks stenographic production or final signatures can be binding if both parties can be shown to have accepted its terms. 

    Everyone has the right to sue, of course, and Kensington may have had a valid complaint against Armstrong, but I find it a little chilling that they so readily sued her (the promissory estoppel claim was my favorite).  I think that you’re right, though, eggs, in saying that Kensington is using Armstrong as an example, because their first prayer for relief is a declaratory judgment that they did, indeed, have a valid contract. Declaratory judgments are often requested ahead of any wrongdoing by the other party so that the plaintiff can use said judgment to enforce alleged agreements.

  10. 10
    1+

    Jeez, who’d want to discuss all of their private business in public anyway? 

    I’m beginning to think I’m old fashioned in that regard.  I also don’t watch daytime television where people talk about the relatives they’ve slept with.

    Anyway, to answer your initial question, I was book-to-blog.  I had no need or interest in blogging about my writing before I got published, and now I see it as a way to keep fans connected and ideally, attract a few new readers.

  11. 11
    R*belle says:
    1+

    So look at you guys throwing your hat in the ring!  The main thing that has jumped the shark here is Dooce herself.  That being said, whether or not there was a contract depends on the governing law of the state that governs.  Technically one would assume Utah, as that is where the Defendant resides, but perhaps they were forum shopping, invoking long arm jurisdiction in a state that they like better.  Technically she does conduct business in every state, and earns revenue thus potentially invoking jurisdiction anywhere.  In my state, there must be offer, acceptance and consideration, and most contracts have to be in writing.  If you are alleging an oral contract, you start messing with the Statute of Frauds and trying to determine if part performance can a valid contract make.
    Anyway, that is all awfully boring and not intended to be legal advice, but I have to say my sympathy is with her.  A legal battle between the little guy (even if it is someone too big for her britches) and a publisher with gobs of money and lawyers chomping at the bit to do their bidding is not actually a battle.  Its a petty little way to screw someone against the wall and prove a point.  Blog to book is still around I believe and I generally don’t care HOW good authors get discovered if they have something that I want to read.  I don’t blog to get a book deal, I blog to write, even if I only entertain one or two people a day, at least I have brought a smile to someones face.

  12. 12
    Robin says:
    1+

    That being said, whether or not there was a contract depends on the governing law of the state that governs.  Technically one would assume Utah, as that is where the Defendant resides, but perhaps they were forum shopping, invoking long arm jurisdiction in a state that they like better.

    Although I’m no expert, according to the complaint, Kensington seems to have invoked the forum selection clause in the alleged contract and filed in the Southern District of New York (one of the most powerful federal districts in the country—Enron filed for Chapter 11 there), in federal court by way of diversity jurisdiction (all parties are domiciled in different states). 

    For one thing, if you’re sued, you really need to ANSWER the complaint. By not answering you’re asking the judge to grant a default to the party who sued. It’s analogous to pleading No Contest in a criminal matter.

    That’s generally true, unless, for example, you file a collateral attack on the original claim in a separate action, alleging that the original claim was improper in some way (lack of proper jurisdiction, lack of proper notice, etc.).  In that case, you don’t answer the original complaint, because to answer is to consent to the terms of the filing.  Once you answer, you’ve agreed to the terms of the game as they’ve been laid out by the plaintiff.  That’s why motions to dismiss, demurrers, etc. have to be filed before an answer.

    There’s something so intimidating, though, about being hailed into court, especially federal court, with a claim for four different types of financial damages, including punitive damages (a tort rather than a contract remedy).

  13. 13
    Kalen says:
    1+

    I must be one cold hearted bitch, cause I don’t feel the least bit sorry for this “writer”. Simply put, publishers don’t draft contracts without an oral agreement in place, so if the final contract was merely awaiting her signature, she already had a deal, if she changed her mind, too fucking bad. Lots of people change their minds but have to stand by their word. Time to be an adult or suffer the consequences . . .

  14. 14
    Robin says:
    1+

    Simply put, publishers don’t draft contracts without an oral agreement in place, so if the final contract was merely awaiting her signature, she already had a deal, if she changed her mind, too fucking bad.

    But is it a deal as in a contract, or merely an agreement to enter into a contract?  Because the legal status can be quite different for these two things. 
    Is it standard practice among writers and publishers (i.e. a gentleman’s agreement) for everyone to assume there’s a deal, or do they (or your agent) tell you that you are legally bound once you orally accept an offer to contract? I can see where you’re coming from if the practice is based on honor and reputation after agreeing to work with a particular publisher/writer.  If the industry functions based on an honor system of giving one’s word, then I understand why you have no respect for Armstrong in this situation.  But the legal status of some of these issues seems less straightforward to me, based on what I’ve learned about contract law.

    In fact, Kensington’s own complaint refers to the period during which the contract was being drafted as the “contract negotiation” period.  Even their own argument goes well beyond the oral agreement aspect of the case and focuses more on their allegations of substantial performance of the written contract on their part, etc.  If the situation were reversed and the publisher decided to back out before the written contract is signed, would they then be liable for reliance-based damages to the writer? 

    Kensington’s complaint (and the circumstances of this case) remind me almost freakishly of a case I worked on in my appellate law class, and there was a central question in that case of whether a contract had indeed been formed, either written or oral.

  15. 15
    December says:
    1+

    The very idea that someone who calls themselves a professional writer, or wants to be a professional wirter, would back out of a publishing contract because “negotations are stressful” and “My friend doesn’t work there anymore” makes me ill.

    I’ve never read this woman, but it seems to me she’s another self-absorbed, whiny little baby who expects everyone else to take care of her. So I do feel sorry for her, but…not that sorry, because this is the real world and we’re expected to use our heads.

  16. 16
    Kaite says:
    1+

    The very idea that someone who calls themselves a professional writer, or wants to be a professional wirter, would back out of a publishing contract because “negotations are stressful” and “My friend doesn’t work there anymore” makes me ill.

    Obviously, then, if this is her mindset, she’s not a real writer. She’s just a hobbyist scribbler if that sort of thing would stop her!

    Frankly, I’m stressed out. Everyone I know is. But I don’t back out of getting my dream job because “negotiating is so harrrd!”  🙄

    If they’ll print your book and give you money for it—who cares? Give. It. To. Them. Take. Their. Money. It’s not even all that difficult to do this math…

    Yeesh. Double the 🙄

  17. 17
    Walt says:
    1+

    Item #21 of the Kensington complaint said that Armstrong had received interest from another publisher and Kensington believed that she intended to cut a deal with another publisher. 

    If the agent asked for the final paperwork, yeah, I’d say the deal was done. If Kensington had a shred of proof that she planned on backing out and going to a new publisher for different money they’re totally in the right for going after the girl. 

    She toasted herself.  Was the contract really for $150,000 for two books?

  18. 18
    Tonda/Kalen says:
    1+

    Is it standard practice among writers and publishers (i.e. a gentleman’s agreement) for everyone to assume there’s a deal, or do they (or your agent) tell you that you are legally bound once you orally accept an offer to contract?

    Yes, once you’ve accepted their offer either over the phone or via email it’s a done deal (this is the part where $$$ gets discussed, and offer is made, and either accepted or rejected). All that’s left to hammer out is stuff like who retains foreign rights, how many author’s copies you get, etc. Those are the “contract negotiations”. You’re not still hemming and hawing about whether or not you have a deal, and you’re not still discussing money.

    This is why everyone’s agent tells them OVER AND OVER not to say yes to anything right off the bat. To let it play out. To let them try and up the bid or get interest elsewhere before you accept the deal.

  19. 19
    Ann Aguirre says:
    1+

    Wow, that’s fifteen minutes of my life I’ll never get back. What a lame crock o’ drama.

  20. 20
    Robin says:
    1+

    If the agent asked for the final paperwork, yeah, I’d say the deal was done. If Kensington had a shred of proof that she planned on backing out and going to a new publisher for different money they’re totally in the right for going after the girl.

    It definitely looks like this is the impetus driving the suit (especially since Kensington still wants specific performance and not just damages).  And one can certainly understand why Kensington would move to protect what it saw as its interests there.  Here’s my question, though (in the hope that anyone has the legal expertise to answer it):  if Kensington’s position is such a slam dunk, why not get the declaratory judgment and get it on the books (in other words, why settle and take the issue off the legal table?)?  Any decent claim is worded with the certainty of “we’re clearly in the right,” but if there’s no material issue of fact regarding the existence of a valid and binding contract, why not take a declaratory judgment that you can use as a precedent?

  21. 21
    KellyMaher says:
    1+

    Okay, I’m not even going to attempt to wade into the mucky legality discussion.  My dad’s a lawyer, and I grew up hearing about contracts.

    But, since Sarah asked, I’d like to weigh in on the blog-to-book discussion.  I don’t think that phenomenon is completely over.  I think the heyday of bigt publishing companies offering a book contract to any blogger who might be relatively popular is over.  Damn, my contract must have gotten lost in the mail.  Where I think this might still happen is in the niche markets.

    If someone is dedicated to responsible blogging, is offering keen insights into a profession or professional concerns, and has a reasonable level of exposure, I don’t see why a niche publisher wouldn’t want to approach them.  If I wanted to make myself even more insane, I could probably approach an editor I know at one of the leading publishers for my profession and pitch a book.  If the topic hasn’t been done before and fits in with their publishing plan, I can guarantee you that I have a damn good shot at being offered a contract based on my professional standing, which is almost solely due to my blog.  When I go to conferences, I’m still amazed that people know my name because they’ve been to my blog.

    There is a major consideration though.  Are the bloggers blogging to increase their writing experience and ability or are they doing it for the ego shot?  I started blogging, with the distant thought of attempting a book, to practice and improve my writing skills and to get my name out into the professional community.  Yeah, the ego boost helped as I was also having a hard time finding a job when I first started, but I tried very hard to be a responsible bloggers.  I’ve made missteps, but who hasn’t?  Being responsible, to me, doesn’t mean hanging out all of your dirty laundry.  If you do hang out some, you had better put it into the context of your main blog mission.

    Main writing blog mission: to promote my published works and build a following of readers.

    Main day profession blog mission: to comment on my profession and issues affecting my profession and offer a sense of compatriotism to other professionals with a similar experience level.

    Just watch, there will be some more blog-to-book deals…they just won’t be for the “look at what I have to say because I need an ego trip” blogs.

  22. 22
    --E says:
    1+

    NY is very definitely a state which recognizes oral agreements—though yes of course one has to prove that the agreement was made.

    (Why does NY have jurisdiction? That’s where Kensington is located. I suppose the writer could have challenged the jurisdiction, but it’d be a hard thing. She may write the book whilst travelling between Utah, Montana, and Khazakistan, but she sends it to NY to be produced.)

    Kensington has the emails from the agent stating an agreement has been made. That seems a reasonable potential proof (from my perspective of someone who doesn’t have all the facts, of course). The fact that contracts were actually drafted is another indicator—as folks upstream have pointed out, no significant publisher (and Kensington may be independent, but they’re significant) will waste their legal department’s time with drafting a contract unless the handshake is solid.

    As to why Kensington is following through on this…that’s a good question. It may be to make an example of her; it may be because they aren’t a huge publisher and the expense (in terms of their staff’s time for the negotiations and contract-drafting) may be considerable. (Given how, er, histrionic Dooce comes across, I can imagine how that time might be very considerable.)

    And of course if they caught wind that she might be selling the book to another publisher, they certainly would jump all over that. The publishing business cannot function if writers play games like that.

    Look at it this way: How would you like it if a publisher said, “Yeah, we’d like to publish your book, and thanks for discussing all these terms. We’ll get a contract in the mail to you right away.” And a few weeks go by, and no contract, and you call them, and they say, “Oh, yeah, we decided to go with a different writer. Sucks to be you.”

    Robin—As to why Kensington might accept a settlement instead of seeking a declaratory judgment—my best guess is that the courts are full, schedules are long, they’re likely to be shunted into binding arbitration anyway, and Kensington wouldn’t want to drag this on any longer than necessary, either. (Sheesh, who would want to have to deal with that woman for any length of time? Which is what makes me think they really did have a cause, because anyone with half a brain would be glad to see the back of her.) 

    —E

  23. 23
    SB Sarah says:
    1+

    Just watch, there will be some more blog-to-book deals…they just won’t be for the “look at what I have to say because I need an ego trip” blogs.

    I agree with you, Kelly. There are a lot of opportunities for writers with expertise in a specific area to be discovered as authors of print books, even some who blog, and then go on to write fiction and non-fiction.

    But I’m thinking the time of the blog author who writes a book that is merely an extension of their own navel-gazing blog (and I have a navel-gazing blog so I say that with a smile) is coming to an end, based on what I’ve read regarding sales figures.

  24. 24
    mapletree7 says:
    1+

    Of course, I’m also amazed that she refused a $150,000 offer because she felt unsupported.  I hope her agent dropped her like a hot potato.

Comments are closed.

By posting a comment, you consent to have your personally identifiable information collected and used in accordance with our privacy policy.

↑ Back to Top