Refusal to publish: What you need to know
What would you do if your textbook publisher asked you to work on a 3rd edition of your textbook only to have them tell you they won’t publish it after you’ve worked on revisions for 14 months? That’s exactly what happened to TAA member and textbook author, Phil Tate. His publisher, McGraw-Hill, asked him to author a 3rd edition of his textbook. After working 14 months on the project and having a first draft of the text submitted to McGraw-Hill, Tate was told his book project was on “pause.” This meant his book was neither being cancelled nor was it being published. Ten months later Tate’s book was moved from “paused” to “cancelled.” Did he have any recourse? Hadn’t it been McGraw-Hill that initially asked Tate to write a revision for a 3rd edition? Tate questioned these things himself and started seeking answers from other authors and attorneys.
Below, Tate shares lessons learned and what textbook authors need to know to help protect themselves from possibly enduring the same fate.
Here is what I have learned:
1. I am not the only author that has experienced working on a project only to have it cancelled with no compensation. It has happened to other McGraw-Hill authors and to authors with other publishers. For some, the time, effort and commitment was even greater than mine. It is a sad commentary on the publishing business that the bottom line is more important than integrity.
2. I have consulted several attorneys and others with expertise and knowledge of the publishing business. They gave me thoughtful and kind feedback.
- Contracts are written to favor the publishers. The wording in my contract is so broadly stated that McGraw-Hill can cite almost anything as a reason not to publish and be within legal bounds.
- There is in contract law an implied covenant of good faith and fair dealing. However, it is difficult to prove a publisher broke the covenant. The probability of winning a lawsuit on this basis is low.
- Most authors do not have the financial resources to challenge publishers. My contract, and probably many others, requires legal matters to be settled in New York County, New York. This is convenient for publishers with offices and lawyers in New York County, but expensive for authors.
- Win or lose, authors usually have legal fees. Attorneys are not willing to take a case on a contingency basis unless they think there is a good chance of winning. Even if an author reaches a settlement with a publisher, the compensation is typically small and is offset by legal fees. Mostly, attorneys make money.
- Settlements usually come with a nondisclosure clause. Winning a settlement, instead of winning a judgment in court, does little to establish precedent that could help other authors.
- Although other authors have experienced cancellation of work without compensation, a class action suit is not a viable option because the details of each case can differ significantly.
3. Contract language might prevent authors from taking their rejected work to another publisher.
- If publishers have the rights to a text, they can refuse to return the rights to the authors. Even if they do return the rights, they can drag the process out for years.
- If there is a noncompete clause, authors cannot produce new work that is similar to the rejected work.
- For revision work that is rejected, authors have the rights to original new work, but that can be of little value without the materials from the previous edition on which the new work is based.
4. TAA provides an Ebook dealing with contracts. Aspiring and established authors would be wise to read it carefully. Contracts can have language that protects authors. However, persuading publishers to agree to such terms could be difficult or impossible. Know that promises mean nothing – only what is written in the contract counts. The take home message is to protect yourself as best you can and understand what can happen if you are not protected.
5. The publishing business is changing. See the article “Textbook Publishers’ Changing Product Strategies” by Sean Wakely. In my case, the decision to do a third edition was made and work began two months prior to the sale of McGraw-Hill Education by McGraw-Hill Companies to Apollo Global Management. I can only speculate that a change in goals affected myself and other authors at McGraw-Hill.
6. Self-publishing avoids many of these problems, but has its own shortcomings.
As a public service, I encourage authors to use TAA to discuss their contract issues. When negotiating with publishers, if authors could bring up cases in which other authors were treated badly, it might give them bargaining leverage. Please pass my experience on to other authors. A smart person learns from his or her mistakes, but a wise person learns from the mistakes of others. Consider your self warned if your contract gives the publisher the right to publish or not based solely upon the publisher’s judgment of the Work’s form, content, and marketability.
Well, life lesson learned. Sometimes you eat the bear, and sometimes the bear eats you.
Tate’s comments were originally posted in the TAA Online Member Community’s Textbook Writing & Publishing Discussion Circle.
Have you experienced something similar? Share your experiences in the comments below.
Learn more about textbook contract negotiations by purchasing Guide to Textbook Publishing Contracts, by Stephen Gillen, a partner at Wood Herron & Evans. The book offers a step-by-step guide to the key provisions of a typical textbook contract and how to determine what’s important to you so that you can enter into the contract negotiation process better informed. Buy today. TAA members receive discount pricing.