Posted on

Q&A: Can you switch textbook publishers once you are under contract?

Q: “What can you do if you feel that your publisher is not doing a good job handling your book? Is it possible to switch publishers? What legal issues are involved?”

A: Stephen E. Gillen, Attorney, Wood Herron & Evans:

“The publisher’s obligations to market your book are set out in your publishing contract. Generally speaking, most standard publishing contracts reserve very broad discretion to the publisher when it comes to these obligations. And editors and publishers take a good deal of faith and comfort in these carefully crafted provisions.. But the truth is that many courts have declined to read these provisions literally, relying in a number of cases on an implied obligation to deal in good faith as a means of reining in a publisher which may have abused its discretionary powers.

In every contract whereby rights under a copyright are transferred or licensed, there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing [3 Nimmer Sec. 10.11[A] (1987).]

Moreover, at least where the grantor (author) is to receive royalties measured by the grantee’s (publisher’s) exploitation of the work, certain additional covenants on the part of the grantee are implied. In such circumstances, there is an implied covenant that the grantee will use reasonable efforts to make the work as productive as the circumstances warrant. Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918 (2d Cir. 1977); In re Watterson, Berlin & Snyder, 48 F.2d 704 (2d Cir. 1931); Schwartz v. Broadcast Music, Inc., 180 F. Supp. 322 (S.D.N.Y. 1959).

Even where the publishing agreement reserves to the publisher the sole right to determine the number of volumes to be printed and the advertising budget, the publisher may nonetheless be obliged to undertake a first printing and to provide an advertising budget adequate to give the book a reasonable chance of market success. Zilg v. Prentice-Hall, Inc., 717 F.2d 671 (2d Cir. 1983), cert. denied, 104 S. Ct. 1911 (1984). To read the contract without such an implied covenant would be to destroy the fruits of the agreement for the author, a construction resisted by the courts. Original Appalachian Artworks v. S. Diamond Assoc., 911 F.2d 1550 (1990).

Of special concern to publishers in this age of mergers, acquisitions, fold-ins, and list sales, this line of cases might be read to support the proposition that the publisher has an implied obligation to preserve the value of an author’s work by either committing to a timely revision or releasing those revision rights to the author (provided that this can be done in a way that does not impair the publisher’s ability to exploit those rights it lawfully retains). A publisher that is neglecting your work may be doing so for any number of reasons. If the publisher has lost interest in or enthusiasm for your work, it may be possible to convince them to release the rights to you so that you can attempt to place it with another publisher. If the publisher is unwilling, at first, to do so, you may be able nonetheless to persuade or compel them to do so depending on the particular circumstances of your situation, whether there is evidence that the publisher has dealt with you in bad faith, and the depth of your resolve.”