Is this Ethical?

By Jaden Terrell

Last Friday, I was reading a post from the ever spectacular Nathan Bransford, as I do as often as I can. It was his "week in publishing" post, where he sums up all the big stories of the week, with links, so those of us who are busy with those pesky things like day jobs can keep up with what's going on in the world of publishing.

One of his links was to this post, by Penelope Trunk. In this post, she talks about how she sold her book to a mainstream publisher, whose book marketing efforts were so unsatisfactory to her that she kept the part of the advance she had been paid and withdrew her book. Later, in this follow-up story, she said, "I’m lucky I did. That was really fun for me,” she said. “But that’s not germane to [the rest of her argument] . . . When’s the last time you heard about a publisher going after someone in court?”

There was quite a lot of discussion in the comments about how badly Big Six marketing departments suck and how stupid they all are, but I've only seen a little commentary about the ethics of Trunk's actions. I can understand keeping the advance if you've kept your end of the bargain and they drop the title. But when the author withdraws her book of her own free will, isn't she obligated--morally, if not legally--to give back the money they  paid her for it?

Is it really okay to take money for a product, decide not to deliver the product, and then keep the money just because the odds are they won't come after you in court?

Isn't that a lot like dumping the groom at the altar and keeping the ring?

The articles do mention that the publisher said if she didn't stop berating their marketing team, they would not publish the book, but that doesn't seem the same to me as dropping her. They told her she needed to be less confrontational with the marketing team, or else,and she chose "or else." (Their phrasing makes me wonder if she would have gotten more cooperation from them had she started by thanking them for their work on her behalf and then made her suggestions in a spirit of cooperation rather than attacking them. Who can say? Maybe they're just jerks, or maybe they just don't like to be condescended to.)

Here are Penelope's own words:

In the middle of the meeting, the high-up guy who had come in to make peace got so fed up he said, “If you don’t stop berating our publicity department we are not going to publish your book.”

I said, “Great. Because I think you are incompetent. And also, you have already paid me. It’s a great deal for me.”

Is this legal? I have no idea. I would have thought not, but maybe some of you attorneys out there (Ben?) can help me out on this.

But legality aside, what do you think? In what's fast becoming a bitter battle between self-publishing authors and traditional publishers, is this acceptable behavior?

Wouldn't it have been more ethical to honor the contract and do more promotion on her own (as she will end up doing anyway), or to cite irreconcilable differences and give back the advance?

Are we're going to see more of this in the near future? 

In her place, what would you have done?