Article by Nicola Solomon published in The Author of Summer 1991. 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.
Authors come to me with a wide range of complaints about their publishers' failure effectively to print, sell and market their books. The most common complaints include poor printing of the illustrations, delay in publication or missing an important market, no evidence of marketing, advertising or approaches to retail outlets other than listing in the publisher's catalogue, unavailability of books, no ISBN listed on booksellers' microfiche so that books are wrongly stated to be out of print, lack of effort in selling and administering subsidiary rights. What can an author do, other than grumble, to try to correct these complaints? What is the exact extent of the publisher's obligations?
A lawyer will first consider the original publishing contract. This is unlikely to be of much help because even the Society of Authors' MTA [Minimum Terms Agreement] states 'all details as to the manner of production and publication of the Publisher's edition of the work... shall be under the control of the Publisher' (subject to some limitations such as consultation on illustrations, cover, date of publication, review copies and size of print-runs). 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 since this is the only way that publishers will recoup their costs and make a profit. 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. Michael Pountney (The Author, Spring 1991) cited the case of an author who signed a publishing contract with a company which changed hands three times in the three-and-a-half years before the book was published. Although the publisher may lose money if a book is not marketed effectively there is unlikely to be a direct effect on any individual's pocket except the author's. With the trend towards larger publishing conglomerates there is more likelihood of lack of coordination or interest in the book or error between different departments or different computers.
The author might try to include in the publishing contract terms imposing standards of obligations. However this may not prove realistic because publishing agreements are mainly written by publishers and most authors are not in a good bargaining position when they come to sign them. While a publisher may go so far as to allow consultation or control over such matters as jacket, blurb, illustrations and free copies it is most unlikely to allow the author to interfere with sales, licensing or distribution (although some agents negotiate publicity budgets). As Liz Thomson points out (The Author, Spring 1991), a Publishers Association pamphlet states 'at the heart of all Publishers Association activities is the drive to ensure a suitable legal, commercial and social environment in which publishers can operate with minimum constraint and maximum profitability'. Publishers perceive limits on their absolute discretion as efforts to limit their profitability. They fear, rightly or wrongly, that authors might demand unreasonable efforts or investment from them in selling books. Further, it is almost impossible to anticipate all the problems that might occur. Litigation lawyers make their money out of dealing with eventualities no-one ever thought of and a publishing contract that covered all the publisher's functions would be so long as to be completely unwieldy.
If the contract is silent about the publisher's obligations one should next consider what terms are implied into the contract. Implied terms are best described by what the law calls the 'officious bystander test'; that is , if an officious bystander had asked when the author and publisher were making the contract 'do you intend that this term should be part of the contract?' both parties would have said 'of course'.
In a recent case one of my clients had sold a novel to a publisher who had entered into a sub-licence in France. The publisher never tried to collect any of the sub-licence royalties even though the French publisher had written to it enthusiastically telling it 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 much more a question of degree. Would the officious bystander have said that the publisher had to sue the French publisher to collect the royalties if the French publisher had simply refused to pay?
Lack of effective distribution, selling and advertising are even more difficult to prove since there is no absolute standard. 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 particularly in view of the Publishers Association Code of Practice which says 'a publishing contract must be clear, unambiguous and comprehensive and must be honoured in both the letter and the spirit'. Such an implied term is necessary in publishing contracts because of their unusual nature; first they tend to be for the life of copyright so an author is stuck with the original publisher and cannot just terminate the contract and take the work elsewhere. Second the author's main obligation is to deliver the work - thereafter the obligations are mainly on the publisher and if it fails to carry them out efficiently the author cannot retaliate by refusing to carry out any part of the contract. These special features put a higher obligation on the publisher to carry out its duties efficiently. In the recent 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.
What are the remedies if an author can prove that a publisher is in breach of its obligations? It is possible to terminate the contract, leaving the author free to take the work elsewhere if there is a fundamental breach of a central obligation such as a failure to publish or failure to pay royalties. However the types of carelessness or incompetence described at the beginning of the article are unlikely to amount to a fundamental breach of the contract. They are matters of detail, not the central purpose of the contract.
The most usual remedy the court will give will be financial compensation for any loss caused by the incompetence. Such loss may be extremely hard to prove - one could try to calculate it by looking at sales of similar or 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.
Guidelines
The following guidelines might help to give a remedy for 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 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 be notified of the territories in which sub-licence have been granted. Insert into the contract rights of control and consultation about the matters which are important to you such as cover, blurb, adverts and free copies, and a right to the return of the manuscript and illustrations.
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 giving and ask for confirmation that copies of your books will be available. 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 the complaint then 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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