Article by Nicola Solomon published in The Author of Spring 2000. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME. Note, however, that one or two of Solomon's points below are echoed and elaborated in my essay All is Vanity, which I sent to both her and the Society of Authors, and to which readers are advised to proceed after reading this article (link recurs at end of file) - A. M.
Eight years ago, I wrote an article for The Author about publishers' shortcomings. Little has changed in the intervening years. I still hear complaints every week about publishers' failure effectively to print, sell and market books. What can an author do, other than grumble, to try to correct publishers' common failings?
Delay
It is extremely irritating to submit your manuscript, only to see the publishing date constantly delayed, or to have the publisher return the work to you for amendment. Although it is almost impossible to anticipate all the problems that might occur, this one, like most discussed below, might be avoided by ensuring that your contract deals with the situation.
Ensure that the publisher has an obligation to publish by a certain date. Most publishing contracts now include such a clause, but a few don't. Insist that the publisher has an obligation to publish if the work conforms to the synopsis. Don't agree to acceptance clauses that give the publisher the right to reject the work at its discretion. Negotiate as large an advance as possible to give the publisher a financial incentive to publish. Send in your work on time, or at least keep the publisher informed of any likely delays. Publishers these days work to publishing 'slots', carefully co-ordinating timing of editing, advertising, marketing and printing. A week's delay that causes you to miss your slot may lead to many months' delay in publishing your work.
If delays do occur, complain as quickly as possible. You may be entitled to threaten to terminate the contract and publish elsewhere. If the publisher doesn't publish at all, you have several remedies (see Failure to Publish,Winter 1995), but if it publishes after a delay you are unlikely to be able to claim damages unless you can prove loss of sales. This might occur, for example, if another competing book has been published in the meantime, or your book is now out of date e.g. A Practical Guide To The Millennium Bug.
Design
What if the publisher chooses a hideous cover or fussy layout? This is an area where standard contracts may not help you as they commonly say 'all details as to the manner and production of the publisher's edition shall be under the control of the publisher'. You are unlikely to be able to choose your cover but you should be able to negotiate a right to be consulted and possibly a right of veto. If you feel strongly about design, type of paper or whatever (and many do) then specify this at the outset and ensure it is in the contract. Otherwise, you are unlikely to be able to complain later unless the book is so shoddy as to be unmarketable - in a successful claim in a case against a vanity publisher, pages fell out when the books were held upside down. In extreme cases you could sue if the poor design was defamatory of you or amounted to derogatory treatment of your work - for example if your serious work was given a cover suggesting it was pornographic.
The other common problem with covers is credits; one author, a prominent cookery writer, found that her cookbook had become The Bigstore (I won't name it) Cookbook. Another found that he was mentioned with less prominence than his joint co-author. Such problems may be avoided if you state in the contract exactly how and with what prominence you will be named. You should also assert your moral right to be credited as the author (the Society can give you a form of words if this clause isn't mentioned in your contract).
Errors
Seeing your work published with howlers is excruciating. One of my clients found the Louvre had been put in the wrong street in her Paris guidebook. Errors are hard to anticipate (although it is always worth checking previous books by your publisher before signing a contract). Chase for proofs; correct them carefully and in good time. Some publishers, such as Hodder Headline, allow you to terminate if they don't want to take in your changes at proof stage.
If errors do slip in, remember that the mistakes probably look worse to you than to others. Your publisher has to use reasonable care in producing your book, but perfection is probably not demanded. A court would be unlikely to order that the book be withdrawn for a collection of small mistakes. You could only claim damages if you could prove that the errors led to reduced sales; perhaps if they provoked a scathing review. In the worst cases you could claim damages for 'derogatory treatment' if the errors were so bad as to amount to an infringement of your moral right not to have your work subject to distortion or mutilation or other changes which are prejudicial to your honour or reputation.
If severe editing changes are made, you could demand to have your name removed on the basis that they amount to a breach of your moral right not to be falsely credited as the author. You might also be able to claim damages for loss of opportunity to enhance your reputation.
Marketing
By far the most common complaint is that publishers didn't market the book. Your contract is unlikely to be of much help. While a publisher may go so far as to allow consultation or control over such matters as jacket, blurb, illustrations and free copies, it will be most reluctant to allow the author to interfere with sales, licensing or distribution. The obvious reason for this is that publishers are supposed to be the experts in publishing. They argue that the author came to them because of their publishing expertise and that it is in both parties' interest that publishers should maximise sales of the books. A publisher might say 'we do not tell authors how to write creatively and they should not tell us how to sell books'. However this analogy does not hold true; the author has a direct personal interest in the book while the publisher does not; the author is unlikely to change identity between contract and publication while it is very possible that the publisher or its staff will. With the trend towards larger publishing conglomerates there is more likelihood of lack of co-ordination, lack of interest in the book, or errors arising between different departments or different computers.
Lack of effective distribution, selling and advertising is difficult to prove since there is no absolute standard. In the case of Malcolm v OUP Lord Justice Nourse suggested that in the absence of express terms the publisher has the right to make all the decisions on presentation and promotion, subject to a requirement to act in good faith towards the author and not to detract from the purpose of the contract - which is to sell as many books as practicable. The publisher's expert knowledge should make it best placed to make the decisions, taking into account cost benefit effectiveness. A court would be unlikely to second-guess this process by implying a term, say that the book should have been advertised in Underground stations. A court will, however, probably imply a general term that a publisher must carry out its obligations and exercise its rights with reasonable care and diligence, and recent cases concerning vanity publishers have seen courts awarding damages where a publisher did nothing at all to sell the work. The fact that your mother couldn't find the book in her local bookshop won't be enough since a publisher cannot force bookshops to stock it. However evidence from bookshops saying that they ordered a copy but were unable to get it would be far more serious.
Try to negotiate a marketing plan and agree a print-run and promotional budget. Once you have delivered the work, keep in touch with the publisher and tactfully give your suggestions regarding marketing. Inform the publisher well in advance and in writing of all talks and other promotional activities that you are undertaking, and ask for confirmation that copies of your books will be available. Make sure that your contract provides for the rights to revert to you if the book goes out of print or if the publisher sells less than a minimum number of copies per year. If you do sue for poor marketing and are successful, the most usual remedy the court will give will be financial compensation for any loss caused by the incompetence. Loss may be extremely hard to prove; one could try to calculate it by looking at sales of previous works, publishers' forecasts and sales of comparable books, but publishing is known to be a fickle business and it may be difficult for you to persuade a judge that your publisher's failure to register the book's ISBN has caused you a loss of thousands of pounds.
Subsidiary rights
Many authors complain that while their publisher did a reasonable job with its own edition it did not properly exploit subsidiary rights. One of my clients sold a novel to a publisher who then negotiated a sub-licence in France. The publisher never tried to collect any of the sub-licence royalties even though the French publisher had written saying enthusiastically how well the book was selling. The author was able to claim from the publisher all the sub-licence royalties owing, together with interest. Obviously everyone would agree that it was an implied term of the contract that the publisher should attempt to collect sub-licence monies. However, many cases are not so clear cut; the problems I see are often much more a question of degree. It is arguable whether the publisher would have had a duty to sue the French publisher to collect the royalties if the French publisher had simply refused to pay, or whether you could complain if your publisher failed to negotiate a French sub-licence at all. Remember that subsidiary rights can be very valuable; don't give them to your publisher without first checking whether they are set up to sell, for example, overseas or merchandising rights. Ensure any unexploited rights can revert to you. In particular, keep electronic rights unless the publisher can convincingly show you how it intends to exploit them.
Guidelines
The following guidelines might help to prevent publishers' incompetence. First, check that the proposed publisher is right for your book. Before signing the publishing contract get a proper commitment from the publisher as to the likely print-run and sales of the work. Discuss how it intends to market and distribute the work and ask for written commitments if possible. Check that it is able to deal effectively with your subsidiary rights and, if not, consider granting UK publishing rights only and selling the subsidiary and foreign rights separately (if you have an agent, this usually happens anyway). Ask to have a copy of all sub-licences or at least to be notified of the territories in which sub licences have been granted. Insert into the contract rights of control and consultation about the matters which are important to you such as cover, blurb, credits, adverts and free copies, and a right to reversion of unexploited rights.
Monitor your sales and royalty statements and ensure they are correct. Publishers, like anyone, are more efficient if they know they are being watched. However they become less efficient if they are nagged, so try to strike a sensible balance. If any problems do arise, contact the publisher immediately and try to sort them out. Make your complaint in writing, ensuring that all letters are to the point and not vitriolic, however badly you have been treated. Follow up the complaint promptly; picking up the telephone often works wonders and so do face-to-face meetings. If this does not resolve matters, ask the Society of Authors or a solicitor to intervene on your behalf. No one expects publishers to be perfect, and all recognise that there may be genuine differences about the best way to market a book, but you should not have to suffer financial loss through inexcusable incompetence.
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