Shouldn't Publishers Pay Interest on Late Checks?

It happens every recession.

Anyone who has lived through enough business cycles can predict that whenever there's a downturn in the economy book publishers are going to attempt to cancel contracts on overdue books. You can also bet they're going to step up pressure on authors of overdue books to repay advances issued when they signed contracts. Given the double plunge of the national economy and the trade book business, a story by Leon Neyfakh in the New York Observer, Note to Authors: Make Your Deadlines!, comes as no surprise. "Many literary agents are growing increasingly worried that publishers looking to trim their lists will start holding authors to deadlines and using lateness as an occasion to renegotiate advances and, in some cases, terminate contracts altogether," writes Neyfakh.

Authors and agents will ignore Neyfakh's cautionary article at their peril: it is absolutely true that late authors are vulnerable to cancellations and demands for refunds. Though arbitrary or vindictive terminations are rare, a breach of deadline removes an author's most important legal defense against having a late book chopped arbitrarily. And though wholesale cancellations are equally rare, Neyfakh reminds us that the waters are still roiling from HarperCollins's termination of as many as 100 contracts for tardy books back in 1997. Another reason why authors must either deliver their books on time or work out deadline extensions with their editors - and get them in writing.

If you haven't taken these measures, don't despair. There's plenty you can do to defend yourself. This may be a good example of the saying that the best defense is a good offense. A little attitude might make publishers think twice before pulling the plug on the book you've worked on for years - for more years than you contract granted you.

The first thing you need to do remind yourself is that lateness is the medium in which the publishing process is bathed, and publishers are as guilty as authors are. "We breathe late manuscripts and eat late checks and drink late contracts," I observed on one of those occasions that publishers rattled their sabers about coming after delinquent authors.

However dearly publishers would like to turn authors into automatons, the fact is that they are artists, and artists just don't live in the same time zone as the suits who expect their publishing companies to generate the predictable cash flow generated by the pantyhose or shoe store divisions of their global conglomerates. It also behooves publishers to remember that professional authors are proud and conscientious people who would rather take a little extra time to get the work right than to turn in crap on deadline. Nor should it be forgotten that authors are as much motivated by self-interest as publishers are: writers don’t get paid until they deliver their manuscripts. So, publishers can rattle sabers all they want: their book will be turned in when it’s turned in, and if that means a day or week or even a month or longer past deadline, they’ll simply have to grin and bear it.

Whatever the suits might expect, most editors understand that late books are more the rule than the exception, and these men and women are patient, tolerant, resigned and (most of the time) good natured about it. They realize that writers are creative people possessed of a somewhat atrophied internal clock. Writers also have lives to live, and stuff happens to them - the same stuff that happens to editors, except that editors collect their paychecks every week when stuff happens, and authors don't.

For most editors most of the time, a late book isn't the end of the world. Editors are resourceful; a book that falls out of the spring list will, with some muttering and scrambling, be replaced by another. Sure, there’ll be some awkward patches in their catalogs - "Postponed", "Delayed", etc., and some budget considerations will have to be reconfigured - but, short of a late James Patterson or Stephenie Meyer on whose shoulders a year's profit projections rest, few postponements make a dent in a publisher’s bottom line.

Lateness, then, is an understandable and forgivable quality in authors. In publishers, however, it is less excusable. The internal clocks of publishing companies are precisely calibrated – until it comes to paying money to authors. For most trade book houses, the time between the handshake and the arrival of a contract takes several months, as does the time from execution of that contract to the arrival of the advance due on signing. During which time the author is expected to be working in good faith on the manuscript.

Because the editorial departments of publishing companies are usually separated from the accounting departments (they are often located in different states), editors are seldom aware that their author is hurting for money, at least not until some plaintive cry (or homicidal rant or suicide threat) from that author sends them into a frenzy of phone calls and emails to accelerate the check and "walk it through" the corporate precincts. That the author may have been forced to take on other work to boil the pot until the the publisher finally got around to paying up does not always register on editors and their superior officers.

Though delays in processing contracts and payments are the products of normally slow-moving corporate machinery, those delays are sometimes the result of deliberate policies designed to hold onto money as long as possible. And that is simply deplorable, especially these days when the interest to be earned on withheld funds is neglible. I have never known an author to be deliberately late with a book, but I have known many a publisher to be deliberately, or at least suspiciously, late with a check. I have a standing bet with publishers that an author can write a book faster than the publisher can issue a check. Not surprisingly, nobody has taken me up on it.

And so, when publishers start talking about penalizing authors for late manuscripts, I start talking about charging publishers interest for late checks, or withholding the manuscript one week for every week the check is delayed.

Publishing attorneys are scarcely fountainheads of empathy for the hardships of writers and sympathy for the excuses offered by dilatory authors. So, if you don’t think you’re going to make your deadline, negotiate a comfortable contractual extension. And if you’re worried that your publisher is going to pull the plug on your book, it’s a good idea to keep a record of when checks became due and when they were actually received. That way, you have some recourse to fight back or at least plead that your publisher had some responsibility for your delayed book.

Publishers have a great many weapons at their disposal to recoup money paid to authors who fail to deliver their books on time. Contractual language gives them a kind of lien on the sale of the book to another publisher, and it is therefore hard for an author to get away scot-free even if he or she should manage to find another home for the book. Publishers harass authors with demand letters even though everyone knows the authors have long ago spent the money and don't have it to repay. And, though no responsible agent will ever condone it, there is some anecdotal support for the likelihood that if an author strings a publisher out long enough, the demand letters will eventually cease and the matter will fall to the bottom of the publisher's to-do box. For, if the truth be known, publishers realize that it is simply bad public relations to sue an author.

Still, the times being what they are, publishers are much more disposed to give delinquent authors a hard time, and in this regard Neyfakh makes a revealing slip. "Like so many other practices associated with the 'gentleman’s business' that the book business used to be", he writes, "eating advances in the service of good humor has become a luxury most publishers do not indulge in as readily as they once did."

It was not called the gentleman's business, Mr. Neyfakh. It was called the gentleman's profession, and in this incorrect choice of words is all the difference between what publishing was and what publishing has become. But if it truly is a business, publishers need to be more businesslike and pay authors promptly. They might be pleasantly surprised to see the delinquency rate for manuscripts plummet.

Richard Curtis

Every Blogger owes a debt of gratitude to newspapers and magazines. This posting relies on original research and reporting performed by the New York Observer.