[See Earl of Stamford v. Dawson, 1867, L. R. 4 Eq. 355; London Printing and Publishing Alliance v. Cox [1891], 3 Ch. 297; Griffith v. Tower Publishing Company [1897], I Ch. 21. For subsequent proceedings, see 4 K. & J. 656.]
Copyright - Agreement - Author and Publisher - Partnership
An agreement between an author and a publisher that the latter should publish a certain work at his own expense and risk, and after deducting from the produce of the sale thereof the charges for printing, paper, advertisement, embellishments and other incidental expenses, including the allowance of £10 per cent. on the gross amount of the sale for commission the profits remaining of any edition that should be printed should be divided equally between the author and publisher. The books sold to be accounted for at the trade sale price, unless it should be thought advisable to dispose of any copies or of the remainder at a lower price, which was left to the publisher's discretion. Held, that this did not amount to an agreement for the sale of the copyright. That it was to be inferred from the agreement that the publisher was to fix the selling price of the book, and that he was to be at liberty to publish more than one edition.
Whether the agreement created a partnership pro hac vice between the author and publisher - quaere.
The higher scale of costs mentioned in the Orders of Jan 30th 1857 applies to all cases except those specified in such orders as subjects of the lower scale.
Mr. Reade, having written a book, called "Peg Woffington," entered into the following agreement with his publisher:-
"Memorandum of an agreement, made this 3d day of November 1852, between Charles Reade, Esq., of 10 Great Russell Street, Covent Garden, on the one part; and Richard Bentley, of New Burlington Street, publisher, on the other part."It is agreed that the said Richard Bentley shall publish, at his own expense and risk, a work at present intitled 'Peg Woffington,' and, after deducting from the produce of the sale thereof the charges for printing, paper, advertisements, embellishments (if any) and other incidental expenses, including the allowance of £10 per cent. on the gross amount of the sale for commission and risk of bad debts, the profits remaining of every edition that shall be printed of the work are to be divided into two equal parts, one moiety to be paid to the said Charles Reade Esq., and the other moiety to belong to the said Richard Bentley.
"The books sold to be accounted for at the trade sale price, reckoning twenty-five copies as twenty-four, unless it be thought advisable to dispose of any copies, or of the remainder, at a lower price, which is left to the judgment and discretion of the said Richard Bentley.
[272] "In witness whereof the said parties have hereunto set their hands this day. It is understood between the aforesaid parties that twelve copies of the said book are to be presented, free of charge, to the said Charles Reade, Esq.
"(Signed, interchangeably) CHARLES READE, RICHARD BENTLEY
"Nov. 13th, 1852."
An edition of 500 copies, at the price of 10s. 6d. a copy, was published under this agreement. Nearly the whole of these were sold, and some profits were divided. When the edition was nearly sold Mr. Bentley applied to Mr. Reade for permission to publish a cheap edition of the novel. Mr. Reade objected. Mr. Bentley, however, advertised the publication of an edition at 3s. 6d. a copy. Upon seeing this advertisement Mr. Reade's solicitor wrote to Mr. Bentley a formal notice not to publish any new edition of the work; and a few days afterwards Mr. Reade signed and sent to the Defendant a written notice to dissolve, as and from the 20th February 1857, the partnership (if any) subsisting between them by virtue of the said agreement.
Mr. Reade then filed the bill in this suit for an injunction to restrain the publication of the advertised edition.
An interim order had been obtained, and this was a motion to continue it.
Evidence was given on both sides; but, as the point of interest to the profession was the effect of the agreement, it is not necessary to state the evidence.
Mr. Rolt, Q.C., and Mr. Faber, for the Plaintiff. [273] The injunction must be continued. The case is governed by Stevens v. Benning, 1854 1 K. & J. 168. This agreement is not for a sale of the copyright, but only for the publication of one edition, and did not authorise any further publication without the consent of the author. [VICE-CHANCELLOR. Who then was to fix the price of the first edition?] The parties to the agreement by mutual consent. [VICE-CHANCELLOR. Is there not a partnership under the agreement until dissolved? Might not Mr. Bentley proceed to prepare a new edition until prevented by such dissolution?] If there were any partnership, it was only the joint adventure in the publication of this particular work, and no step could be taken without the consent of both parties. Otherwise Mr. Bentley might publish at such a price as would just cover his own expenses and profit as a publisher, and leave not a farthing to divide with the Plaintiff. Therefore, if a partnership for more than one edition, it was a partnership at will and determinable at the desire of either partner.
Mr. James, Q.C., and Mr. Whitbread, for the Defendant. The Publication is to be at the sole risk of the Defendant; therefore there is no partnership. Partnership only exists where there is a participation in loss as well as profit. The Defendant had to determine all matters relating to the printing, paper and embellishment, and advertising the work. He had to incur all expenses and take all the risk; therefore he must fix the price. Having published a first edition, incurred all the risk, and the work having become popular, it is absurd to suppose that it could be the meaning of the agreement that the Plaintiff should be at liberty [274] now to put an end to it just when some profit might be expected. The Plaintiff has no right to interfere with the publication: Sweet v. Cator 1841 (11 Sim. 572). [VICE-CHANCELLOR. According to your argument he has virtually parted with the copyright for the life of Mr. Bentley.]
Mr. Rolt, in reply.
VICE-CHANCELLOR SIR W. PAGE WOOD. It is unfortunate that publishers and authors should frame their agreements with so little precision, as from the case of Stevens v. Benning, 1854 1 K. & J. 168; 6 De G. M. & G. 223 and this case it appears they are in the habit of doing. At the same time, from what I see in this case, I feel more confident than I did in Stevens v. Benning that there was no intention to dispose of the copyright by this agreement, because I cannot suppose that authors and publishers are so unaware of the importance and value of that right as not clearly to express their intention when they mean the copyright to pass. I have no hesitation in coming to the conclusion that this agreement is not, and was never intended by either party to be, a contract for the sale or purchase of the the copyright.
The only real difficulty in the case is to determine the true construction and effect of the agreement, and how far the Plaintiff is entitled, under all the circumstances, to come here at this moment for an injunction to restrain the Defendant from publishing a cheap edition of the work in question.
Now the agreement was that Mr. Bentley should publish at his own expense (I do not know whether the words [275] "and risk" make any difference, because expense and risk have the same meaning) a work at present intitled "Peg Woffington;" and after deducting from the produce of the sale thereof the charges for printing, paper, advertisements, embellishments (if any) and other incidental expenses, including the allowance of £10 per cent. on the gross amount of the sale for commission and risk of bad debts, the profits remaining of every edition that shall be printed of the work are to be divided into two equal parts, one moiety to be paid to the Plaintiff, and the other moiety to belong to the Defendant.
So far, I think, there can be no doubt that the contract provided, as long at all events as it should be subsisting, that Mr. Bentley was to be the publisher of this work; and it was in the contemplation of both parties that, in so publishing, he should publish several editions. I do not say whether that might not be put an end to; but the original contract, I think, contemplated the possibility at least of Mr. Bentley publishing several editions, and that all the editions should be published at his risk; and that, after deducting certain charges and his commission, he should hand over to the Plaintiff a moiety of the profits of the several editions which should be so published. The question then arises, if Mr. Bentley was to publish at his own risk, who was to fix the price of the work? The agreement is entirely silent upon this point, and it is left to be inferred from the nature of the contract between the parties.
I am decidedly of opinion that the Plaintiff's view, that he was to have a voice in fixing the price, is not consistent with the terms of the agreement. I think, if he intended to retain such a power, it is scarcely possible to conceive that he should have allowed a term so important to be omitted from the agreement; and when I look to the words of the agreement, I see that Mr. Bentley is to be the publisher, that he is to bear the expense and to make all payments; [276] and considering also that it is the business of the publisher to make his expenses and profits balance, that he is the person to whom the author has entrusted that department, the publisher taking the whole charge and risk and the whole duty of bringing out the work as he thinks best for the interest of both parties, it seems necessarily incident to the duty which he has to perform that he should have the right also of determining the price at which the work should be brought out. I think the construction of the agreement is plain enough up to this point, that the Defendant, the publisher, is to fix the price of the work; that he is to choose the embellishments and everything else connected with its publication; and that he is to do this for all editions which should be brought out during the subsistence of the agreement.
Several difficulties arising upon such a construction have been suggested. It was argued, can it be supposed that the Plaintiff intended to give to the publisher the power, if he chooses, of bringing out the work with absurd embellishments beneath its character and injurious to the reputation of the author? The simple answer to that is, the author will take care of himself in that respect by going to a respectable publisher who would not commit any such absurdity. If he employed a publisher who was in the habit of adding ridiculous illustrations to his works, he would not have reason to complain if the work were so published. The author would select a publisher who, he would presume, would bring out the work in a manner creditable and desirable.
So again, with regard to the price, it is suggested that the publisher might just so arrange the balance of prices as to enable himself, by an accurate calculation, to get his £10 per cent. commission, and leave nothing to pay the author. The answer is similar; it is not to be supposed [277] that the author would deal with any publisher who was in the habit of so treating authors. If a publisher were to act in such a manner, although perhaps such conduct could not strictly be called a fraud, because it might not be a violation of the specific terms of the agreement, the result would be that the author whom he so treated would never contract with him again. But it by no means follows that the contract is absurd upon the face of it because Mr. Bentley might possibly make it less advantageous to Mr. Reade than Mr. Reade had a right to expect. It is not very likely that a publisher should act in the manner suggested, because, of course, it is for the interest of the publisher as well as the author that the work should sell in such a manner as to produce a surplus profit after payment of commission and of other charges, as the publisher is to have one-half of such profit. It was argued, however, that the clause as to price, which I am about to read, militates against that view. It provides that the books sold shall be accounted for at the trade sale-price, reckoning twenty-five copies as twenty-four, unless it be thought advisable to dispose of any copies or of the remainder at a lower price, which is left to the judgment and discretion of the said Richard Bentley. There being this special clause shewing that in a particular case the diminution of price is to be left to the discretion of the publisher, it was argued that the inference is that the publisher has no such discretion, except in the particular case there mentioned. It is quite obvious that this clause was introduced with no such view, but because Mr. Bentley is to bring out the work, and in bringing it out he is to fix a certain price to the trade; he is aware that there are persons who are in the habit of purchasing all these works for resale; there is a certain quantity in the first instance offered to the trade, as it is called, who send in their orders, each buyer for a certain quantity of copies, and it is brought out to the trade at a price [278] which is fixed upon each edition. Then it might happen that some copies would remain unsold. Mr. Bentley first agrees to account with the author for all copies at the trade price; but then, as that might be rather too hard upon the publisher, who has had all the expense of bringing out the work, it is agreed that, if any copies remain unsold, he is to have liberty, as regards that edition, to dispose of the unsold copies at a lower price. That is the obvious meaning of this clause, and it has no reference to the general question of fixing or not fixing the price.
The only remaining question upon this contract is how far Mr. Reade is at liberty to determine it; and it appears to me, for the purpose of this injunction, that he is not at liberty to determine it as regards this edition. I do not think it necessary to go beyond saying that I regret that these contracts are drawn with so little precision: and I think it may be a point of considerable difficulty, if it is to be determined hereafter, what the true purport of a contract of this description may be as between the author and publisher, with reference to the power of Mr. Reade to determine it with regard to subsequent editions. On the one hand, if he be not at liberty to determine it, then as long as Mr. Bentley performs his part of the contract, and is ready and willing to publish a series of editions during his lifetime in the manner provided for by the agreement, so long Mr. Reade is bound as though he parted to that extent with the copyright in his work, or at all events he would be in this position, either he would, according to Sweet v. Cator, have wholly parted with the copyright, so as to be excluded from bringing it out by another publisher, or Mr. Bentley would be considered entitled to publish a concurrent series of editions; that may be in some sense a hardship upon Mr. Reade: on the other hand, Mr. Bentley's counsel have argued that it might well happen that the sale of the first edition might be [279] just that which would be necessary to make the work known, but which would not pay its expenses; and if the contract were to be then determined, it might leave Mr. Bentley minus a certain quantity of expenses that he has incurred, and which he could not be recouped. This agreement expressly refers to the profits of this and all other editions being divided between them; and I think there is a good deal to be said on both sides upon this question.
But, as regards the existing edition, it seems to me that Mr. Reade cannot interfere with it, for this reason: if I am right in my construction of the agreement, Mr. Reade must take steps to dissolve the partnership, if it be a joint adventure, before any expense has been incurred by Mr. Bentley in respect to future editions. It may be urged on Mr. Reade's behalf that he did not know of the intended publication of a new edition; but that, according to my construction of the agreement, is not material; Mr. Bentley was entitled to go on publishing that or any other subsequent edition until the dissolution of the joint venture, and was not bound, though he might, as a matter of courtesy, think it right, to make some communication of his intention to Mr. Reade. Mr. Reade does not allege that the act complained of is fraudulent, but that it is an evasion of the contract and contrary to the spirit and truth of the agreement. Mr. Reade says that his reputation will, in his judgment, be injured by the publication of the proposed cheap edition of his work, but I do not think that it has been proved that this will be the necessary consequence of such a publication. The interim injunction was obtained against Mr. Bentley after he had incurred the expense of putting the new edition in type and issuing the advertisements, and I believe before any great expense was incurred, and before any copies were struck off; but I think that Mr. Bentley has a right to be recouped the expense that he had incurred, and to have the benefit of all the [280] profit, the hope of obtaining which was the cause of his making such expenditure. I am therefore of opinion that, as regards the present edition, Mr. Reade is not in a position to ask the Court to interfere; and accordingly I must discharge the interim order with costs.
The Plaintiff's solicitor in this case certified the value of the property in dispute to be under £1000, in order to bring the case within the lower scale of charges fixed by the orders of Jan. 30th, 1857.
The Vice-Chancellor, however, on the point being referred to him, thought that it came within the higher scale, as it was not one of the cases specified by the orders as subjects of the lower scale.
Continue to Reade v Bentley 2 (1858)
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