In the wake of the sad news of the death of incredibly talented author and journalist Richard Ben Cramer comes an update on a story that's reflective of the state of the publishing industry at large. Back in September of last year, you may remember, The Smoking Gun broke the news that a number of big-name authors — including The New Yorker's Rebecca Mead, blogger Ana Marie Cox, and Prozac Nation author Elizabeth Wurtzel — were being sued by Penguin Group for "breach of contract" having failed, according to the publishing house, to "deliver books for which they received hefty contractual advances, records show." Those three women, among a total of 12 authors named, found themselves in the dubious position of not only being asked to return advances—with the threat of having to go to court over it—but also making New York magazine's Approval Matrix in the upper left corner of the highbrow and despicable quadrant.
In a story that didn't get quite the same attention around the Internet, in December of last year, The Smoking Gun also reported that the Hachette Book Group had sued Richard Ben Cramer, "seeking repayment of a $550,000 book advance" for a "behind-the-scenes account of Alex Rodriguez of the New York Yankees." The manuscript, part of a $1.5 million two-book deal with Warner Books, which is a subsidiary of Hachette, had originally had a due date of 2008, which was extended to a February 2010 due date that Cramer also failed to meet. Of course, we know now that Cramer was likely battling the lung cancer that would end his life. But according to Hachette, responding via a statement upon the death of Cramer, his publisher (or at least, their legal team?) didn't even know he was ill. Sarah Weinman of Publisher's Marketplace, who received the statement, tweeted the following:
1. We were very surprised to hear of Mr. Cramer’s illness. We had been trying to contact him for well over a year...— Sarah Weinman (@sarahw) January 8, 2013
2. and unfortunately received no response despite repeated attempts, so litigation was a last means recourse." Didn't say if suit continues.— Sarah Weinman (@sarahw) January 8, 2013
The book deal had been terminated by Hachette in September of 2011 (and a repayment of the advance demanded), but in an interview with the New York Daily News last summer, per The Smoking Gun, "Cramer said that he had placed the Rodriguez book 'in abeyance' while he worked on another project."
Quotes from Cramer in the Daily News now seem a veiled reference to his illness, though again, we don't know if that's what he meant:
Cramer, who’s been working on the book for at least three years, declined to get into specifics about the hiatus he is taking from reporting and writing the bio.
“I just have another thing I have to get done,” he said.
He is also quoted as saying, “I’m eager to get done with what I’m doing so I can get back on the book.”
Should publishers sue their writers for manuscripts not delivered? It seems more complicated than a firm yes or no answer from the blog-reading public — sure, it's easy to say you should give back money for work not completed, but do we know all the facts? Clearly, in the case of Cramer, we did not — and instead is something to decided in each situation, with a lot of communication between publisher and writer. The literary agent world, as it would stand to reason, is pretty firmly against such lawsuits, though. Ana Marie Cox's agent, Gary Morris of the David Black Agency, responded to our request for comment on the lawsuit against his client with the following via email, "Given the cataclysmic challenges publishers face by monopolistic retailers, changing consumer habits, devalued and uncontrolled pricing, the decline in readership, pirated intellectual property, dwindling media attention to authors, and the hampered discoverability of books, these suits are a ludicrously misguided allocation of time and resources. In the time these complaints cover, Penguin has tolerated hundreds—perhaps thousands—of books that, for one reason or another, never came to fruition, and I would venture that good faith efforts were made by all parties to come to satisfactory arrangements."
Another agent, Trident Media's Robert Gottlieb, responded to the news of the Penguin lawsuits by saying there's been an overall degradation of the former "gentlemen's agreements" of publishing, and leaving a comment about the "wrong headed" effort at The Smoking Gun. Still, 12 authors sued by one publisher, another author sued by another. Three is a trend, right? Compare the lawsuit love now to the time back in the late '90s, when "a struggling HarperCollins canceled a number of authors' contracts and then tried to require the writers to pay back advances if the books sold elsewhere," writes the L.A. Times' Carolyn Kellogg, but the publisher eventually reversed their decision after taking a lot of heat from people who felt they were being greedy and wrong. As more and more publishing houses are merged, with leadership that may be more bottom-line business side than editorial minded, maybe it's a given that lawsuits will become commonplace. That doesn't mean everyone in publishing feels that way, of course. Still, the lack of communication between Hatchette and Cramer seems a strange thing, and not a good one, in terms of how we'd like to imagine publishers and authors interacting.
The saddest part about this latest twist in the story, though, along with the loss of Cramer at the age of 62, is that we'll never get his A-Rod book, which would have been an absolute beauty if Cramer's published work is any indication. Take a few minutes and read his profile on Ted Williams published in Esquire in 1986. It's phenomenal.