First of all, there is a content warning to what you might find via links or googling (as there is with almost any media matter ever mentioned on this or any blog, but I feel like reminding readers on this one).
The word “dooced,” if you look it up, has come to mean fired from one’s job for blogging about work. It comes from the name of Heather Armstrong’s blog. Frankly, I don’t have much immediate sympathy with the victims of such a verb. People don’t want to work with people who badmouth them or who they think might be badmouthing them. Of course, in many cases there are reasons to think the fears of badmouthing are unfounded. But, in a free country, the same right to speak one’s mind (or whatever) entails the right to associate with people who you don’t fear will say things about you. So, one can expect reactions and over-reactions in the messiness of life. Not always happy about it, but not willing to campaign for job security for bloggers.
But now “dooced” is about to mean something else. It is about to mean that a publisher can sue you for not wanting to write books for them. “What?” you say. (If you’re in the spirit of Dooce you might say something more colorful.) “When did publishers get authorized to send out press gangs in the streets looking for keyboardist to nab?”
Well, it is like this. The publisher can’t come out and claim the stature of the robber gang eighteenth-century British Navy. What they do is talk to you and reach the point that they send you a contract to sign. And what does that mean? It apparently means you are already legally bound to the terms of the contract and obligated to sign it. Heather Armstrong, by changing her mind about publishing, has broken a “binding oral agreement” with Kensington Rebel Base Books.
I’m sure that publishers hate it when something they thought was certain suddenly vaporizes. And I wouldn’t be surprised if authors with money and reputation do sometimes get away with breaking written contracts. But taking one’s frustrations out on the potential authors without the needed largesse required to have any chance in our crime syndicate legal system is not a just way to deal with those issues.
The reason people sign contracts is to enter into accountable relationships. I highly doubt the publisher had already sent Armstrong her advance or that she was refusing to return it. This was a nasty rapacious thing for the publisher to attempt. The fact that they appear to have gotten away with it is bad news for everyone.
Perhaps the next time you try to buy a car you might find yourself in court because you led the salesman on and then decided against the purchase. Imagine how this precedent might transform real estate.
You can find some links through Chris’ entry.
I guess it’s an illustration of the modern age that we naturally think that an agreement should be observed only if it’s written down.
As I recall, a contract technically exists when there is a meeting of the minds. A writing is evidence of the contract, not the contract itself.
So you’re at a meeting, negotiating a deal. You finish negotiating the deal, and say, “It’s a deal,” and shake hands. A contract has just come into existence.
Now, let’s say two seconds later you say, “I’ve changed my mind; I revoke my agreement.”
What damages? A court will not necessarily force you to abide by the contract (particularly in personal service cases). But a court may impose damages in the amount of the other party’s reliance interests. In the case above, reliance costs would be about zero.
But you’ll note that, in the case of the publisher, the publisher made expenditure in reliance on the agreement to publish two books, prior to the written formalization of the agreement.
I’d suspect that the publisher seeks reimbursement for those costs. If the author has a better deal, and if the amount she’ll get from the second publisher is greater than the amount from the first publisher plus reliance costs, then it’s an “efficient breach.”
It may be modern. In the middle ages it used to be just fine for two people to get married on that sort of “handshake” (often sealed with something more than a handshake) leaving the parish priest with a huge headache sorting out he-said/she-said.
Writing and witness are better.
Now maybe publishers have started to use public vow ceremonies and perhaps Armstrong made one. But, in the world I live in, until you sign the contract you are not contractually obligated. As I see it it is tautological.
By the way, writers invest a great deal of time because of verbal assurances by publishers only to have their investment vaporized by a change of mind on the part of the editor. If publishers want to live by this standard, lets watch them apply it evenly.
If the situation as reported is accurate, I think Armstrong had every reason and right to believe she had the right to back out of the deal until she signed the contract. If that is no longer the case then we need to all be warned.
[1] Ah, yes, but would you say that a private exchange of marriage vows between an unmarried man and an unmarried woman is insufficient to constitute a marriage? I concede that “private marriages” are an administrative problem (read Don Quixote). But as I understand history, no one ever doubted that private marriages weren’t valid marriages.
Even today, while the solemnization of vows before a pastor might be a nice thing to do, and getting a marriage certificate serves civil needs, on what basis do you reject a private exchange of vows between a man and a woman as constituting a valid marriage?
(Sort of funny, private marriages are opposed in Lutheran circles, not because they are not valid marriages, but because the solemnization ceremony is then something of a fraud on the public: they’re pretending to be married when they were already married. Or they were really married even though they publically pretended not to be married.)
[2] Remember that anyone can file a lawsuit, it’s winning that is the tough thing.
[3] The fact that the agent e-mailed a message that said they had reached an agreement also seemed suggestive to me. That’s a bone-headed thing to do if you don’t want to be committed.
What about this: The agent says, “We agree to X, Y, and Z, but we need to talk about A.” And writes it down in an e-mail. The publisher we responds: “We also agree to X, Y, and Z, and we agree to talk about A more as well.”
Is there a contract as to X, Y, and Z?
[4] Lots of deals are still done on a handshake, or in an exchange of e-mails, or on a napkin. We do not now, nor have we ever lived in a world in which the only enforceable contracts were those written on a piece of paper that says “contract” on the top of it.
Further, I suspect if you thought about it, you wouldn’t really want to live in such a world either.