Wow, Kat, I feel like one of those clueless non-publishing lawyers... I would choke on a clause like that too... I would love to see some of the contracts that libertarian authors such as Heinlein signed after they became bestselling authors and hence able to call the shots and hold publisher's feet to the fire.
No, as I said above, no authors get to change indemnities and warranties clauses. Doesn't matter if they're bestsellers, Stephen King, whoever. They're boilerplate. Heinlein wasn't holding any of his publishers' feet to the fire because he was working with them first off and second, he had no leverage to get them to change those particular clauses. (And if he was actually libertarian -- there is much evidence that Heinlein shifted his views often and really wasn't -- the whole idea there is free trade capitalism, that the publisher can do what it needs and wants to do.)
I don't want to get into a whole thing about the indemnities and warranties clauses because that's a whole other long subject, but they operate less scarily than they sound in legal jargon. But essentially the author warrants things like they don't have anything in the book that will poison someone, they didn't steal/plagiarize/infringe on other people's writing, etc., and indemnifies the publisher against legal charges, in terms of attorney's fees, settlements and other court costs in the legal cases about such charges, etc., if those warranties the author gave turn out not to be incorrect, are violated by the author. While those clauses place financial liability on the author to cover the publisher getting sued for the author's book on a warranty violation, in the rare cases that occurs, authors don't usually end up covering all the costs the publisher incurs in such lawsuits. But they are definitely going to have the contractual language in there to protect the publisher from legal liability that the author could expose them to. So that language isn't changed if you want a license contract. Small presses have it, large presses have it, audio presses have it, etc.
Alchemist said:
Meaning, another question: Would self-publishing the big book negatively impact chances of it getting traditionally published in the future?
I think I kind of answered this one, but in any case, if you self-published the big book, likely in pieces, and those did not take off and sell well through word of mouth, etc., then license publishers very possibly wouldn't bite on that book for reprint (but might be interested in other works from you if they liked the big book.) There is a possibility that they would take it on for reprint regardless of sales if they like it and think it's got an untapped market -- John Scalzi very famously got his first fiction contract on his novel, Agent to the Stars, from Tor that he had self-published for free on his website, though that was awhile ago. And if it did have some sales/got good buzz and they like it also and think that you haven't already sold to all the audience there likely was for it in their opinion, then they may offer you a reprint deal. But in that case, if you broke the big book into pieces to self-publish, then they may want to reprint publish it that way. Or they might go for the 800 pager version. It would depend on the publisher and other factors.
I'm guessing that there's a wide range of variability in terms of when a series is deemed successful enough to keep publishing? There are rare birds, like Name of the Wind, that are insta-successes. But I imagine there are more "slow-burners" that build up momentum and a readership. Presumably there are also series that start strong but lose their audience over time, for whatever reason (one wonders if this will befall Mr Rothfuss, considering the situation).
It depends on a lot of factors, yes. Slow-burners that build up are also more common than fast burners which hit on the first one or two books in a series. Series regularly do lose their audience over time although that doesn't necessarily mean that a series stops being profitable. Sometimes it's a bit of a U shape with the final book in a series getting a bigger surge of audience than the ones in the middle. If a series is dropping sales over time, the publisher will assess why they think it's so and whether they want to continue with it or not. In that case, it is possible sometimes for the author to license the rest of the series to another publisher and even get that new publisher to buy reprint rights to the older titles from the first publisher. Or the author might self-publish further volumes of the series. Sometimes a publisher goes under and the author has to get the license rights back, might buy up the old stock and again self-publish, try to find a new publisher, etc. Sometimes an author stops a series and then comes back many years later to write some more in it. So again, since so much can happen, while a series may be planned for X number of books, nobody really knows if that's what is going to happen.
And Rothfuss' Kingkiller trilogy is an example of that. Rothfuss had essentially the ms for Name of the Wind and semi-completed drafts of the other two books in the proposed trilogy back in 2006 which he had worked on while getting his MA and teaching. He won a Writers of the Future award for an excerpt story from Book #2 (The Wise Man's Fear.) He sold the license for the first book The Name of the Wind in 2006 to DAW and it came out in 2007. DAW decided that the work, which was super large, might be a fast-burn seller and that they would gamble on it, putting it out in hardcover as a new, lead title. They did a big marketing push (something that doesn't always work,) and two different covers for the hardcover. Rights were also sold to the U.K., etc. The book did become a semi-fast seller with a huge load of buzz. DAW then did a deal for the other two books in the trilogy.
As a result of working editorially with DAW on The Name of the Wind, however, Rothfuss realized that he needed to do a heap of revision on The Wise Man's Fear, so the novel was delayed from that and plus author life stuff. The Wise Man's Fear came out in 2011 and hit #1 on NYTimes list, etc. Rothfuss was then hit by a round of health problems and family losses, plus revisions and finishing chapters for The Door of Stone have apparently got him stuck. He has published two novella length stories in the universe and a short spin-off novel, published in 2014, which was also a big bestseller, published by DAW. He has also published two short novels unrelated to Kingkiller with another publisher and been slightly involved in the games industry. In 2013, he sold the license to DAW for a new trilogy, possibly a prequel trilogy in the Kingkiller universe, an idea that was going to be a t.v. show for Showcase but production fell through. He has not, apparently, been working editorially with his publisher on the last book for a number of years. But if he gets it done, they will publish it and it will probably do very well. The trilogy was optioned for films, but those are also now on the backburner with Lionsgate, probably the lack of the third book so far didn't help.
From what you say, I'm guessing also--and correct me if I'm wrong (as I know you will
)-- that publishers will often nudge authors in one direction or the other, based upon sales of the first book. If it isn't as good as hoped, they might tell an author planning a five-book series, "Can you wrap it up in three?" And for those who garner a huge following, they might encourage them to extend the series. I'm guessing this is what happened with Robert Jordan, or at least combined with his story just getting bigger and bigger on its own (I believe it was originally intended to be a trilogy).
If a series isn't doing that well, a lot of factors will affect the publisher's decision, including business and economic factors for the publisher that are not about the author. Sometimes the publisher may find they've not marketed and packaged the series effectively so they want to try changing that. Sometimes the series isn't doing badly at all but they don't feel it's going to build enough for it to be workable for them. If they decide that they aren't going to continue with a series, they will usually just not buy the next books in the series. They may buy a different series from the author after that. Most series are relatively episodic -- they aren't one big saga or if they are, it's for a first trilogy and the second trilogy is a different story. If a series is doing very well, the publisher may tell the author that they would like more of them and like that more than getting a new series. For instance, R.A. Salvatore, when he was visiting SFFWorld, told us that at one point Wizards of the Coast asked him to write more Drizzt D&D tie-in novels for them because they sold really well and it would actually allow them to keep a whole office of employees from closing. That's kind of unusual because it's a tie-in fiction franchise that comes out of the gaming industry, not the mainstream publishing industry. Plus he liked the character and has done all sorts of RPG tie-in fiction as well as his own original property fiction. But it's the author's choice. It's not unusual for a publisher to publish a successful series, buy another series from the author and let the author come back to the first series when the author gets around to it, wants to do it. That way they may have two strong series.
Robert Jordan originally planned Wheel of Time to be a six or seven book series. His publishing history is unusual for the fiction industry because of his wife, Harriet McDougal. McDougal was a big editor at Ace who worked for Tom Doherty there but then left and moved out of NYC. She did editing for Doherty at his new company Tor and also had her own imprint/press of books, co-owned with Dick Gallen from Dell. She met Jordan at a bookstore, and Jordan had a fantasy novel that he'd sold to Jim Baen at Ace (Baen had worked under McDougal,) but when Baen left to go work for Tor and then his own publishing company, Jordan then had the contract cancelled/rights reverted. She decided that she didn't want to publish that fantasy novel in her imprint but she did license a historical fiction trilogy from Jordan that he published under a pen name (Jordan is also a pen name.) In the process of working together on the first two books of that trilogy, they fell in love and got married. Jordan wrote other fiction under pen names with other publishers and contributed to the Conan reboot series. He started working on the first book of WOT in 1986 and Harriet decided to show it to Tor, which licensed the first book. The folks at Tor thought the first book might be a breakout hit in the vein of Tad Williams' The Dragonbone Chair, which had been out a year or so before from DAW. So they did a big launch in 1990, etc., (which again doesn't always work) and the book was a big hit from also big word of mouth, hitting the bestseller lists. They then did a multi-book deal with Jordan for the next couple of books in the series. As Jordan wrote the very complex series, it got longer and longer. Jordan tended to underestimate how long each book might be. The last book in the series, which had to be finished by Brandon Sanderson after Jordan's unfortunate death, had to be turned into three large books to incorporate all of Jordan's manuscript fragments and notes. Tor probably would have preferred the series to be shorter in the end but all the books were bestsellers, books #8-11 being #1 on the NYTimes list.
I think of cautionary tales, like what happened with Paul Kearney's Sea Beggars series. Not only did Bantam drop it mid-series, but they didn't release the publishing rights so Kearney is unable to finish it with his new publisher (Solaris/Rebellion). I imagine that sort of thing is rare, though, or at least Bantam not releasing the rights to a series they don't want to publish. I'm sure there's more to the story...
From what I can gather, Paul planned a four book series and sold book 1 and then book 2 to Bantam Spectra in the U.S. with whom he'd worked before. The first book did well, Bantam did not do as well marketing the second one and was unhappy with the sales of the first, trade paperback edition of the second novel. They decided not to take it to a mass market paperback edition, which is rather weird, and not to buy the next one. I don't know if Paul lost his editor at Bantam in the middle -- which is something that can happen -- and those who then took it up soured on the series or if there were business issues where they decided to just cut it along with other titles that didn't meet whatever sales metrics they were using (this was right before the Great Recession.) Paul took the series to Solaris, which publishes its titles simultaneously in the U.S. and U.K. territories. They wanted to publish an omnibus with either the first two or the first two and the third new one. But Bantam's editions of the first two were still in print, so Solaris wouldn't be able to do that unless they only put out the books in the U.K. Solaris could have bought reprint sub license rights in the first two books from Bantam, which is a very common thing, but I guess they couldn't come to a deal either or both publishers liked. Paul should eventually be able to get rights reverted from Bantam if he ever wants to revive it, but with e-books the "out of print" issue has gotten trickier. He could also just revamp it so that there are new Sea Beggar books that aren't dependent on having Books #1 and 2 with them and Bantam no longer becomes an issue. Don't know all the details though.
One more thing. I see a fair amount of discussion around the idea of starting with self-publishing with the hopes of eventually (within any luck) transitioning to a publishing house. But how often does the reverse occur, as far as you can tell? Meaning, either newish authors who "fail" their probationary period in publishing--say, their first two or three books--and don't garner enough sales for the publisher to keep around, or veteran mid-listers who want to keep writing but can't find a publisher due to stagnant sales...how often do they transition to self-publishing?
Lots. It's always been a viable option, even before Amazon juiced the e-book market and POD got a lot easier. If a series got dropped, an author might self-publish print editions of new books in the series. I had an author who self-published his non-fiction as his own small press and we got him a deal with Berkley for his mystery series for their Prime Crime line. But recessionary issues caused them to drop the series after the first several books, so he self-published the last novel in the series he had. Established authors will often take a series that got dropped and continue it or do spin-offs and sequel series in self-publishing now or they'll take their old, well-known titles that went out of print and self-publish them again. And those authors tend to be the ones who sell best in self-publishing because they have an established fan base and recognized name. Liz Williams had her bestselling fantasy series Inspector Chen with Nightshade Books -- one of their leads. But when they messed up the money and went under, she got her rights back but ended up self-publishing the last book in the series, The Iron Khan. A lot of authors end up with a mix of self-publish and license publish (hybrid), especially if they are doing shorter fiction.
The reason I ask is that I remember some years ago, people complaining about the "death of the mid-list," that publishers only wanted best-sellers and new authors who could become best-sellers, and thus my use of "probation" (or perhaps, audition). Obviously only a very few become best-sellers, with a few more selling enough to keep going with a big house. But where in the past, being a known mid-list author could be a career-killer, it seems that the rise of self-publishing could be keeping a lot of these careers alive.
Well mid-list is a rather flexible term. It includes bestsellers who are on lower rungs of bestseller lists, including in SFF what we call category bestsellers -- books that are lead titles for the category SFF imprints, well known in the category market and sell well on the lower rungs of the general bestseller lists and high on the SFF specialty bestseller lists but they aren't higher yet. Most of the list of authors is mid-list and if a debut does reasonably well, that makes the author mid-list going forward too. An author may bounce around from mid-list to high bestseller and back again, depending on the book title. (Because again readers care about the novels, not the author.) Bestsellerdom is not a lock and most bestsellers aren't making their authors rich. Most bestselling authors still have their day jobs.
Mid-list authors are immensely valuable to publishers, however, with always potential for growth, particularly in the category genre markets. In SFF they are vital to specialty SFF bookstores as they make up the main selling stock. Bestsellers are invaluable also but in established authors, the new title from them that is expected to be a bestseller (front list) is sold at tremendous discounts plus advertising is more effective so is more likely done but expensive. So publishers and booksellers often lose money on the frontlist bestsellers but then can make it up by selling the backlist of the bestselling author through the lure of the frontlist new release. Mid-list authors do this too but they are also the ones who always get squeezed when there are economic issues.
In the 1990's, as we've discussed, there was first off a recession and then the Great Paperback Depression, which started and was biggest in the U.S. and spread through the English-language global market. The wholesale market collapsed and shrunk, losing wholesale distributors for non-bookstore vendors who were less interested in selling printed goods. Comics, newspapers, magazines, mass market paperbacks -- all the things that you'd find at newsstands and in grocery store racks -- all took huge hits. The newspapers and magazine industry never recovered, comics companies like Marvel nearly went bankrupt and the comics industry ended up with just one wholesale distributor up until recently -- Diamond. The category fiction markets which were majority mass market paperback -- the wholesale market -- went into freefall. Fantasy was one of the few that survived relatively well but mainly in secondary world fantasy because of the development of the gaming industry (tie-in fiction, interest in heroic fantasy) and the growth expansion of the late 1980's from several large hits that came out first in hardcover. But in all the genre fiction areas and other categories as well mid-list titles got slashed or had a lot less time to build audiences as publishers couldn't afford to do them all if they weren't bringing in more sales. Specialty bookstores went under from it. The used bookstore market also actually didn't have a lot of fun.
Things improved in the late 1990's and into the oughts with a lot of growth expansions. Bulk sales in mass market pbk continued to be way down but they moved them into the bookstores, which had produced superstores that needed filling, and vendors like Amazon, which wanted loads of stock also. And then Amazon launched the Kindle in late 2007, forcing publishers to pivot at high speed into the tech industry they weren't prepared for with e-book editions. And it was really bad timing because we had the Great Recession. Which also squeezed mid-list authors, etc. And the big chains also started using BookScan, which was a version of the Nielsen ratings for book sales in some of the bigger venues. And BookScan is a really bad system that doesn't work for the fiction market. But big book chains wanted it to work because they wanted it to be more predictable about what would sell, the eternal lament of the book industry. So a lot of mid-list authors are caught because even if they launch a new series that they and their publisher think is going to do well, that the author's previous series only did middling makes the big chains less interested in the new and ordering less, which can make the new series title less visible and not do as well. The problem they have is that past sales figures of an author's works do not predict future sales of an author's works -- because again, readers are into novels, not authors. They may love one title/series from an author and not the other titles/series from that author. One series may be a hit, the next not as much.
Publishers still do lots of mid-list authors and need them, but the license deals aren't as good (because the wholesale market is still much smaller than it was,) the amount of time they get to build an audience may be much shorter, they're the first to get tossed in a recession/bad period, etc. And oddly enough, there are just tons and tons of books. The publishers are publishing more titles than ever before and then there are millions of self-published books and a lot of them are fiction. It's always been a pyramid selling distribution -- small bestsellers at the top, mid-list larger group in the middle, larger base that don't do as well.
New authors debuting are essential to publishing too because there needs to be a constant stream of new discoveries for readers to find, especially in the category genre markets which only exist because dedicated readers like to try new authors. And they don't have a sales record. They don't get dinged by BookScan or sales expectations. Bookstores save room for a certain number of new titles to see how they do, so publishers know they can get some orders on new titles if the bookstores like the sound of them. It's harder to get reviews and attention/visibility for new authors, though. During a recession, publishers usually have to limit their acquisitions, do fewer book contracts. That's when mid-list authors find they can't get new deals often and publishers will also be very picky about new authors. They may take ones they hope to break out slowly or they may limit it to only those titles they think are going to be very big, possibly fast-burn bestsellers. So that's why during a bad economic period, publishers seem to concentrate on bestsellers -- which are draws -- and new titles -- that could blow up big -- and less on mid-listers who may be able to grow their audience but are in the middle -- no romance of the new, not enough sales for advertising to be effective like bestsellers and usually slower growth. But they also really need mid-list for their list and for many of their lead titles because they do sell decently. So mid-list isn't dead (remember nothing in fiction publishing ever dies.) It's just not sexy.
