# Penguin Takes Underperforming Authors to Court



## Steerpike (Sep 27, 2012)

Always nice to see what is going on in the sunshine and roses world of publishing 

Penguin Taking Underperforming Authors To Court To Recoup Paid Advances | Techdirt


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## Devor (Sep 27, 2012)

No book means you repay the advance and they charge interest.  That simple.  No sympathy here.


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## BWFoster78 (Sep 27, 2012)

Agree.  The blog post title seemed misleading to me.


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## Steerpike (Sep 27, 2012)

I'd say failing to deliver a book constitutes "underperforming."


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## Kevin O. McLaughlin (Sep 27, 2012)

I'm a little confused by the Trident response in the article. They say if Penguin did this to one of their authors, they'd stop submitting books to Penguin. That doesn't make sense, to me. It sounds like Penguin is asked for perfectly legitimate reimbursement from writers who didn't fulfill their end of the bargain. Why would Trident punish all the rest of their authors for one writer failing to fulfill their contract?

It'd be a very different story if Penguin was canceling contracts and demanding money back on books which had actually been delivered as promised, but...it doesn't sound like that's the case, from what I am reading here.


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## Steerpike (Sep 27, 2012)

It's all about leverage, Kevin. Whether Penguin is right or wrong, Trident's first concern is to look out for their writers. I think what they're getting at here is that they'd use their leverage to come to some terms with Penguin, not that it would actually get to the point of pulling their catalog.


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## Devor (Sep 27, 2012)

Steerpike said:


> I'd say failing to deliver a book constitutes "underperforming."



Underperforming is when a book is supposed to be a blockbuster and fails, or when the writing falls short or deadlines are missed.

No book means there was a total failure to perform.


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## Mindfire (Sep 27, 2012)

Devor said:


> Underperforming is when a book is supposed to be a blockbuster and fails, or when the writing falls short or deadlines are missed.
> 
> No book means there was a total failure to perform.



+1 to this. Lol


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## Steerpike (Sep 27, 2012)

Devor said:


> Underperforming is when a book is supposed to be a blockbuster and fails, or when the writing falls short or deadlines are missed.
> 
> No book means there was a total failure to perform.



A failure of performance is less than what was expected in terms of performance, ergo "under" performance. All the way under is still under.


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## Mindfire (Sep 27, 2012)

Steerpike said:


> A failure of performance is less than what was expected in terms of performance, ergo "under" performance. All the way under is still under.



True, but to call abject failure "underperforming" is also an _under_statement.


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## Steerpike (Sep 27, 2012)

Mindfire said:


> True, but to call abject failure "underperforming" is also an _under_statement.



So the person who wrote that blog post is being charitable


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## Devor (Sep 27, 2012)

Steerpike said:


> So the person who wrote that blog post is being charitable



Only to the authors.


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## Kevin O. McLaughlin (Sep 27, 2012)

Yeah, there's this feeling of shocked surprise in the piece, like the person writing it was stunned that publishers would actually do such a thing. Um. If I hired someone to do a job, paid the person $20k in advance for the service, and they failed to deliver better believe I'd be suing them, too. Just common sense.


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## Steerpike (Sep 27, 2012)

Kevin - what the author says (and I don't personally know whether it is true or not) is that even with author's failure to perform in past circumstances, these kinds of filings going after multiple authors are unusual. If that's true, then the story is significant in that regard alone. It appears from this piece at least that publishers in the past have not been quick to file suit. This, then, would signal a chance in philosophy.


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## MichaelSullivan (Oct 3, 2012)

Kevin O. McLaughlin said:


> Yeah, there's this feeling of shocked surprise in the piece, like the person writing it was stunned that publishers would actually do such a thing. Um. If I hired someone to do a job, paid the person $20k in advance for the service, and they failed to deliver better believe I'd be suing them, too. Just common sense.



I actually can't see why there was an article on this...how is it news?  Books are signed...and not published for any number of reasons:


Authors fail to turn in manuscript
Author and editor fail to agree on required edits
Publisher fails to put the book out in the time specified
Previous books in the series don't sell enough
Legal department decides they could be sued

Every contract (despite what Trident said) indicates what happens in these situations.  In almost all of them any money paid to the author has to be repaid.  I don't see why there should be any a) surprise b) condemnation of Penguin.

There are enough truly bad things that traditional publishers do...let's not jump on them for perfectly valid practices as well ;-)


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## Zero Angel (Oct 4, 2012)

One possible area of worry is if all the authors failed to deliver their manuscript or if Penguin deemed their manuscript unacceptable.

As someone with his nose to the grindstone spending every free second trying to pave my own way while working two other jobs, I find it hard to feel sympathy for anyone that was paid to write a book and then did not deliver though. It sounds like they hit the lottery and then said, "Oh you know what? I don't like writing."


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## Kit (Oct 4, 2012)

This happened to my housemate. He's brilliant, and got contracted to write a technical book- but he's a terrible procrastinator, and just didn't make the deadlines. I knew it was going to happen as soon as I heard about the book deal (because I know how bad he is with the procrastination).  Kind of frustrating for me, because I'd bend over backward for a chance like that.


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## shangrila (Oct 4, 2012)

Zero Angel said:


> One possible area of worry is if all the authors failed to deliver their manuscript or if Penguin deemed their manuscript unacceptable.
> 
> As someone with his nose to the grindstone spending every free second trying to pave my own way while working two other jobs, I find it hard to feel sympathy for anyone that was paid to write a book and then did not deliver though. It sounds like they hit the lottery and then said, "Oh you know what? I don't like writing."


This is my thinking too.

I mean, I'll admit, I procrastinate when it comes to anything just about me. But if other people are depending on me to get something done? Or they've _paid_ me to do something? You don't screw around in a situation like that.


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## Ghost (Oct 4, 2012)

I'd love to see a penguin in a courtroom.


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## Aravelle (Oct 4, 2012)

I'm with Penguin on this. I love Penguin. I want to be published by them someday. n_n


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## pskelding (Oct 5, 2012)

I work for a company owned by the same parent company as Penguin, so I have *some* bias (it's not a publishing company though). 

The folks at Penguin and our parent company value professionalism above all else.  This move doesn't surprise me very much but it's quite possible that the authors can't repay the money as they've spent it.  

Without knowing more I'd say any author who didn't deliver a book to be published by Penguin is a total idiot!  

Being dead would be the only thing to stop me!


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## Kevin O. McLaughlin (Oct 5, 2012)

Aravelle said:


> I'm with Penguin on this. I love Penguin. I want to be published by them someday. n_n



Oh, I don't think I'd go that far. . Penguin IS the company that bought the Author Solutions family of companies - pretty much the most notorious collection of "scam the writer" companies on the planet, at this point. Buying a business that's a repeat customer on both Writer Beware and Preditors & Editors for ripping off writers isn't especially ethical; and frankly, in today's publishing industry, where gaining writer goodwill is increasingly important, it's just plain stupid.

No, I don't have any real interest in being published by Penguin. They've clearly demonstrated how much (little) they respect writers.


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## Devor (Oct 5, 2012)

Kevin O. McLaughlin said:


> Penguin IS the company that bought the Author Solutions family of companies - pretty much the most notorious collection of "scam the writer" companies on the planet, at this point.



There's lots of reasons to buy a company, and business practices are easy enough to change after a buy out.  But I've never heard of Author Solutions so is there any way you could elaborate?


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## Steerpike (Oct 5, 2012)

I'm beginning to wonder if anyone read the article and got the point.


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## Kevin O. McLaughlin (Oct 5, 2012)

Devor said:


> There's lots of reasons to buy a company, and business practices are easy enough to change after a buy out.  But I've never heard of Author Solutions so is there any way you could elaborate?



Author Solutions is the parent company which owns companies like AuthorHouse, IUniverse, Xlibris, Trafford, and a number of other well known "scam the writer" companies. Basically their business model is to grossly overcharge for initial publishing services to "help the writer self publish", then keep 50-90% of the post retailer profit, and hard sell expensive (and generally ineffectual) marketing products to the writers as well. It's like every disadvantage of self publishing AND every disadvantage of traditional publishing, all wrapped up into one nifty scam with none of the benefits of either. They've been repeatedly blasted by every major writing industry watchdog site.


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## Mindfire (Oct 5, 2012)

Kevin O. McLaughlin said:


> Author Solutions is the parent company which owns companies like AuthorHouse, IUniverse, Xlibris, Trafford, and a number of other well known "scam the writer" companies. Basically their business model is to grossly overcharge for initial publishing services to "help the writer self publish", then keep 50-90% of the post retailer profit, and hard sell expensive (and generally ineffectual) marketing products to the writers as well. It's like every disadvantage of self publishing AND every disadvantage of traditional publishing, all wrapped up into one nifty scam with none of the benefits of either. They've been repeatedly blasted by every major writing industry watchdog site.



In a sense, Penguin assimilating them could be a good thing. Now that they've been absorbed by a legitimate company, they're not out scamming people anymore. One of the easiest ways to kill a company is to buy it, right?


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## Steerpike (Oct 5, 2012)

These companies are still operating under Penguin, as far as I know.


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## Devor (Oct 5, 2012)

Mindfire said:


> In a sense, Penguin assimilating them could be a good thing. Now that they've been absorbed by a legitimate company, they're not out scamming people anymore. One of the easiest ways to kill a company is to buy it, right?



Maybe.  It depends on what Penguin does with them.  I'm a little skeptical that Penguin would risk their reputation like that, so I'm assuming there's got to be more to it.  But I don't really have the time to Google it at the moment.

@Kevin, thanks for filling me in.


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## Kevin O. McLaughlin (Oct 5, 2012)

It's been going on three months now since the purchase. No changes to any of the companies. They are still ripping off thousands of writers a month (that's not exaggeration; these companies collectively produce a LOT of books per year). Sad, but it seems Penguin just saw a company making a bunch of profit off the "self publishing craze" and decided to cash in.

I think the fact that they are clearly NOT worried about their reputation does not speak well of how they think of writers.

On the flip side, it means someone can technically publish through an Author Solutions company through whatever method is cheapest, then take the book down (you can sever the contracts), then publish the book themselves and put "Previously published by a Penguin imprint" in the blurb. . If all a writer wants from a traditional publisher is the bragging rights of saying she'd been published by a big six company, well - you can buy that, now.  /snark


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## Steerpike (Oct 5, 2012)

I don't know about "scam." They're not hiding anything are they? When you look at their terms you see what they do and what it costs.


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## Mindfire (Oct 5, 2012)

Steerpike said:


> I don't know about "scam." They're not hiding anything are they? When you look at their terms you see what they do and what it costs.



Yeah. Some companies like this _are_ actual scams. Others might _seem_ like scams, but only if you go off half-cocked instead of reading what's being presented to you. In which case... some of the blame lies with you as well.


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## Kevin O. McLaughlin (Oct 5, 2012)

Merriam-Webster defines scam as "a fraudulent or deceptive act or operation". And while fraud has a very specific legal meaning in the US, which these companies are careful to avoid, they absolutely fit the bill as a "deceptive operation". 

Using the word scam doesn't mean they're breaking the law. It does, in this case, mean the they are using deceptive marketing and tactics, in some cases outright lies, to encourage writers to buy into their products.

Yes, a writer who pays attention isn't going to get sucked in by these guys. Writers who are paying attention know that if they want to buy formatting/etc. services that there are reputable companies offering the same services for a fraction what the Author Solutions companies charge, AND since actual self publishing means uploading your work to your own accounts at the retailers and printers, there's no percent going to some third party company.

My own rule of thumb for novice writers on this is simple, by the way: you can pay cash up front for publishing (that's self publishing) OR you can give a publisher a percentage of the profit in exchange for publishing you (traditional publishing). You should NEVER both pay up front AND a percentage on the back end. That's almost always a scam of some sort.


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## pskelding (Oct 5, 2012)

I did know about Penguin buying Author Solutions. I'm not sure what was behind the decision. My previous and current experience working in large corporations would tell me that it was the decision motivated by the profits they were seeing. They'll take several months to decide how to connect it to Penguin in a meaningful way. You won't see any changes in the near future.


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## Steerpike (Oct 5, 2012)

Yeah, they think they can make money from those businesses, I'm sure. I don't know whether they'll change them a whole lot. There is no real incentive for Penguin to make the acquisition just to shut the whole operation down.


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## Devor (Oct 5, 2012)

Kevin O. McLaughlin said:


> It's been going on three months now since the purchase. No changes to any of the companies.



Three months is, like, no time at all for something like that.  They're probably still on staffing issues.


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## Kevin O. McLaughlin (Oct 6, 2012)

My guess is they're going to let those companies continue business as usual, Devor. They bought them because they're profitable. If they were really worried about writers having a bad opinion of them as a result of the purchase, they would have done something to alleviate that negative PR right away. They haven't.


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## MichaelSullivan (Oct 18, 2012)

I'm not a fan of any of the "subsidized" self-publishing solutions: Xlibris, Authorhouse, iUniverse etc. As Kevin points out they have a business model VERY weighted to them.  They get the up-front money from the author and still offer only a small royalty...talk about having it "both ways!!"

But, they are not a scam...they are very honest and up front with what they do and for how much.  They are a "poor choice" and I hate that authors go that route because they don't know any better. 

If you want to talk "scam" that for me is reserved for Publish America which claims they are a "traditional publisher" and the money flows from them to the author.  On the surface this looks true (they give a whole $1 for you signing with them) but their books are so overpriced that if the author buys even a few of them for their own uses they have padded their pockets pretty nicely.  This is a case where the "fees" are not clearly defined...they aren't getting their money up-front (and documented) as the  AuthorHouse people are...instead it is a "sneaky backdoor" approach that fleeces the authors.


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## Kevin O. McLaughlin (Oct 18, 2012)

Much like Publish America claims to be a "traditional publisher" - and isn't - scams (and I use that word with reason) like Author Solutions claim to be "self publishing companies", when of course they are nothing of the sort. They use the current craze around self publishing to lure folks in. However, they, not the author, publish the work. It's their name listed as publisher on the book; it is their accounts which control the uploads of the book; it is their bank accounts to which money first flows; and even the contracts they have authors sign specifically give them the right to publish the work in question. In most respects, they DO resemble a "traditional publisher" more than they do a self publishing services provider.

They're just a traditional publisher where the author pays for the entire cost of producing the book AND only gets a tiny fraction of the profits. =p

Their advertising themselves as "self publishing companies" is arguably fraudulent. The rest of their system is intentionally deceptive. Webster's defines a scam as something deceptive or fraudulent, so the deceptive marketing alone is enough to qualify them for the dictionary definition of scam. I stand by the use of the word in this case.


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## Mindfire (Oct 18, 2012)

Kevin O. McLaughlin said:


> Much like Publish America claims to be a "traditional publisher" - and isn't - scams (and I use that word with reason) like Author Solutions claim to be "self publishing companies", when of course they are nothing of the sort. They use the current craze around self publishing to lure folks in. However, they, not the author, publish the work. It's their name listed as publisher on the book; it is their accounts which control the uploads of the book; it is their bank accounts to which money first flows; and even the contracts they have authors sign specifically give them the right to publish the work in question. In most respects, they DO resemble a "traditional publisher" more than they do a self publishing services provider.
> 
> They're just a traditional publisher where the author pays for the entire cost of producing the book AND only gets a tiny fraction of the profits. =p
> 
> Their advertising themselves as "self publishing companies" is arguably fraudulent. The rest of their system is intentionally deceptive. Webster's defines a scam as something deceptive or fraudulent, so the deceptive marketing alone is enough to qualify them for the dictionary definition of scam. I stand by the use of the word in this case.



Anything is a scam if you don't read the contract.


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## Devor (Oct 18, 2012)

Kevin O. McLaughlin said:


> They bought them because they're profitable.



No, they bought them because they thought they saw an opportunity to make them _more_ profitable.  The current profit margins would have been factored into the purchase price.  They're going to change something, somewhere, or they wouldn't have made the purchase.  Whether they change something that would make a difference, you've got to give it a little time, I would say six months to a year, because there's a lot involved.


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## Kevin O. McLaughlin (Dec 4, 2012)

pskelding said:


> I did know about Penguin buying Author Solutions. I'm not sure what was behind the decision. My previous and current experience working in large corporations would tell me that it was the decision motivated by the profits they were seeing. They'll take several months to decide how to connect it to Penguin in a meaningful way. You won't see any changes in the near future.



And several months have gone by. And we've seen where they've taken the company. Now Simon&Shuster has contracted with Penguin/Author Solutions to have Author Solutions manage their OWN "self publishing" imprint.

Called Archway Publishing, this new venture is the most egregious of all existing "self publishing" scam operations, costing writers $5-20k to produce an edited, published work through them.

So, I think we now have a decent idea where Penguin is planning to take this. I don't see any indication that they are planning to tone down or make more reasonable the existing Author Solutions scams. They gave the Author Solutions CEO a seat on the Penguin board, and they're using the company to spin off new "publishers" worse (for writers) than the ones which already existed.

Good article on the topic here:
Simon & Schuster Joins Forces With Author Solutions To Rip Off Writers | David Gaughran


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## Chilari (Dec 5, 2012)

That's just shocking. I can't believe they can get away with that. But I guess if people don't go looking for alternatives, or believe that a traditional publisher owning the company makes it legitimate and trustworthy, then they'll get caught out by this scam. And it is a scam: $5,000 to publish not including editing, then charging $0.035 per word for editing? That's $35 or about Â£22 per thousand words - what, about twice the going rate?

Still, if people are aware of alternatives but still chose that route - one comment mentioned a friend of the commenter who said that $5,000 was worth it to see her book published - then there's not much that can be done to stop them. As far as the technical side of self-publication is concerned, a lot of us probably don't really know what we're doing, but a little research and some time investment which is certainly worth less than $5,000 (unless your day job is really well paid) and maybe some guiance from someone who's done it before, and you've saved yourself a lot of money.

Thanks for posting the link Kevin.


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