Authors: has your publisher cancelled your contract?


In my previous post, I talked about how some publishers are reacting to the economic situation by cancelling authors’ contracts in order to reduce costs. I discussed the legal principles that are applied by the English courts in assessing the damages that an author is entitled to in such a situation.

Of course, publishers will do everything they can to minimise the amount they pay to an author in this situation — after all, it’s a cost-cutting exercise.

Advances are normally paid to an author in three equal instalments (one-third on signature of contract, one-third on delivery and acceptance of the manuscript and one-third on publication). Sometimes the advance might be payable in only two instalments — one-half on signature of contract and the other half on publication — for example, if the work was more or less complete and accepted when the contract was signed.

In general, when cancelling an author’s contract, the publisher will say to the author that he or she can keep any advance that has already been paid (usually only the amount paid on signature of the contract, but possibly also the amount paid on delivery and acceptance of the manuscript, depending on when the contract is cancelled), but would not ordinarily offer as well the amount payable on publication. What the publisher and the author may not realise is that the author’s strict legal entitlement might well greatly exceed the full amount of the advance.

The publisher will endeavour to get the author to sign away his or her right to make any claim for anything over and above the advance, in return for getting back the rights to the book. Any authors out there reading this, who have had their contracts terminated by their publisher, should take legal advice before signing any release put forward by their publisher. Likewise, any agent whose author is in this situation should also consider carefully — and take advice, if unsure — what their author’s real entitlement is.

No one likes going to court to enforce their legal rights. In practice, if an author claims to be entitled to more than the publisher has offered on termination of the author’s contract, and is prepared to instruct a lawyer to advance the claim against the publisher, then it’s quite likely that a negotiated settlement will follow, where the publisher pays more than it originally offered and the author settles for less than his or her strict legal entitlement. In that way, both parties avoid the stress, publicity and potentially huge cost of a court case. There are some examples where this type of case has reached the courts — see my previous post. Indeed, the Andrew Malcolm case went all the way to the Court of Appeal, where Malcolm won. But it was a hard-fought battle, and the Court of Appeal hearing wasn’t the end of it, as there then had to be an assessment of the damages to which he was entitled — and that was itself was hard-fought court hearing, with a great deal of prior preparation, too.

There are more civilised ways for an author and publisher to settle a dispute!

If both author and publisher acknowledge that the author is entitled to more than just the contractual advance, but cannot agree on an amount, even after negotiation directly or between lawyers, or between the author’s agent and the publisher, then one alternative way of resolving the matter without going to court is mediation — sometimes known as Alternative Dispute Resolution. This involves appointing an independent individual to assist the parties in finding a way in which the dispute can be resolved to both parties’ satisfaction. It might involve both parties coming together at a neutral venue, camped in separate rooms, with the mediator shuttling between them until an agreement is reached. Once an agreement has been arrived at, it is then recorded in a legally binding document. It seems to me that this process is well-suited to this type of dispute between author and publisher, although in my view it would probably be better if the parties’ respective lawyers could thrash out a deal first, with at least some reference to legal principles.



Publisher’s breach of contract to publish a book


It’s a fact that publishers are feeling the squeeze in these difficult and uncertain economic times. It’s also a fact that when this happens, there is pressure on publishers to cut costs. One way of doing that is to cut back on their publishing programs. Not only might this involve contracting, and therefore publishing, fewer books, but also cancelling existing contracts for books. What is the legal situation here?

If a publisher cancels a contract without good cause, the publisher is in breach of contract. In practice, it’s very difficult for an author in that situation to get an order from the court compelling the publisher to honour the contract and publish the book — particularly if the book still requires some editing. The author is therefore left with a claim for damages.

How would the damages be assessed?

There are two main recent authorities for the basis on which damages are awarded for breach of a publisher’s obligation to publish a book: Malcolm v. Chancellor, Masters and Scholars of the University of Oxford [Court of Appeal decision on liability December 1990; damages assessed August 1991]; and Myers v. Macmillan Press Limited [March 1998].

The Malcolm case concerned his book “Making Names”, a philosophical text, which had been accepted for publication by a senior editor, the main evidence of which was a telephone conversation which Andrew Malcolm had fortuitously recorded. Oxford University Press strenuously denied that there was a contract. When the case went to the High Court, the judge, albeit reluctantly, decided that there was no contract, as key terms did not seem to him to have been agreed. The Court of Appeal decided otherwise and found in favour of the author. An inquiry as to damages was ordered both to recompense the (previously unpublished) author, Andrew Malcolm, for loss of the opportunity for him to enhance his reputation by securing the imprimatur of the Oxford University Press on his work and also to compensate him for loss of royalties. Where the time of publication, number of copies and price and form of the book are left to the discretion of the publisher, the damages for failure to publish are based on a reasonable estimate of the amount that the author would have earned if the publisher had complied with his contract to publish. This will require consideration of everything likely to affect the amount of the profit, such as the nature and popularity of the subject matter, the reputation of the author, the cost of producing a book on that subject, the price of such a book, the business capacity of the publishers and the chances of earning profits by sales of the book.

In the Myers case, it was accepted by both parties that if the claimant author succeeded on liability (which he did), he could elect between two alternative bases for assessing damages:

  • the loss of profits which, on the court’s assessment, he would have made had the defendant performed its obligations under the publishing agreement; or
  • a quantum meruit.

The judge said that the second basis is less satisfactory, as it involves carrying out an exercise which does not reflect what happens in practice, i.e. assessing what would have been a reasonable number of hours for the claimant to have spent in writing the work and what would have been a reasonable hourly rate to pay for that work. In the event, the first basis of assessment would clearly have resulted in a higher award, and so damages for loss of profits were awarded. If the author has incurred specific expenses in connection with the agreement, such as preparing illustrations for the text, these can be claimed as special damages.

Where a publishing agreement requires the defendant to publish the first edition of the claimant’s book, and the agreement also contemplates that further editions will be published, the failure by the defendant to publish the first edition of the book will entitle the claimant to damages both for failure to publish the first edition and also for the loss of the chance to establish the title, by the success of the first edition, which would lead to repeat editions in the future, and hence generate royalties on those further editions. This would, for example, extends to US editions, foreign-language editions and electronic editions.

Bearing all this in mind, a publisher must weigh up carefully the pros and cons of cancelling an author’s contract, since a claim for breach of contract could end up costing the publisher more than it would have cost to publish the book, while leaving the publisher without the revenue from the sale of the book. And that’s without taking into account all of the headaches that litigation can cause: management time used up; adverse publicity — possibly leading to further claims by other authors; documents examined in open court; legal costs and the uncertainty of the outcome; and so on.

Making Names by Andrew Malcolm

As a footnote, Andrew Malcolm ended up self-publishing his book through AKME Publications. His website makes very interesting reading.

Tweeted novel bought by publisher


In an earlier post, I posed the question whether tweets are protected by copyright. I concluded that the vast majority will not be protected by copyright, but I specifically suggested examples that, in my view, would be protected by copyright:

  • A poet publishes a longer poem on Twitter, one line at a time — each line being a separate tweet;
  • An author publishes a novel on Twitter, one sentence at a time (bearing in mind that many years ago, books were often originally published in serial form, in weekly instalments — including works by Charles Dickens — so publication on Twitter might be a way of taking this to an extreme!).

Well, it looks like it’s happening. GalleyCat reports that an author, Matt Stewart, has published a 480,000 character novel, entitled “The French Revolution” on Twitter, and a publisher — Soft Skull — has bought the book on the strength of that.

I say well done to all concerned.

Are Tweets Copyright? – revisited (as a Wordle)

Are Tweets Copyright?

Are Tweets Copyright?

Above is the previous post — “Are Tweets Copyright?” — in the form of a Wordle.

What is (a) Wordle, I hear you ask? In the words of the inventor, Jonathan Feinberg:

“Wordle is a toy for generating “word clouds” from text that you provide. The clouds give greater prominence to words that appear more frequently in the source text. You can tweak your clouds with different fonts, layouts, and color schemes. The images you create with Wordle are yours to use however you like. You can print them out, or save them to the Wordle gallery to share with your friends.”

Go to the Wordle website and have fun creating your own!

Are Tweets Copyright?


First of all, I must make it clear that this is nothing to do with Tweetie Pie,  Tweetythe canary character from the Warner Brothers series of animated cartoons, usually also featuring Sylvester

Sylvester J Pussycat

Sylvester J Pussycat

the cat. Having said that, it’s a good excuse to include some pictures and I suppose it’s just about possible that there might be some actual connection — if anyone knows the answer to that, do please let me know.

For the purposes of this item, tweets are about Twitter. Most people have heard of Twitter by now. It’s a way of finding out what people are up to and letting others know what you are up to.

Basically, you just type in an answer to the question “What are you doing?” in 140 characters or less, and then these messages, which are called “tweets”, are posted to your profile or your blog, sent to your followers, and are searchable on Twitter search.

But are tweets protected by copyright? And who cares anyway?

At 140 characters or less, tweets are very short. It’s quite likely that the absolutely vast majority of tweets will not fulfil the legal requirements to constitute a copyright literary work under UK copyright law or the equivalent under copyright laws of other jurisdictions, primarily because not enough skill and labour will have gone into writing them (UK legal requirements) or will not be regarded as sufficiently original under copyright laws elsewhere.

Until very recently, the number of words alone and might have been enough to make a reasonably-informed judgment as to whether something is likely to be protected by copyright. However, the European Court of Justice has just decided that as few as 11 words can constitute a sufficient part of a copyright work to be protectable, if the words reproduced “are the expression of the intellectual creation of their author”, and the ECJ went on to say that it is for the national court to make this determination.

Consider the following situations:

  • A poet publishes a complete (albeit short) poem, such as a haiku, on Twitter
  • A poet publishes a longer poem on Twitter, one line at a time — each lie in being a separate tweet
  • An author publishes a novel on Twitter, one sentence at a time (bearing in mind that many years ago, books were often originally published in serial form, in weekly instalments — including works by Charles Dickens — so publication on Twitter might be a way of taking this to an extreme!)

Some of the above individual tweets might not be protected by copyright, e.g. individual sentences from the novel postulated above. But others might well be protected by copyright if they involve sufficient skill and labour or are sufficiently original. And if any individual tweet in such circumstances might not be protected by copyright, would a collection of two, or three, or more such tweets together constitute a protectable copyright work? I think that might well be the case.

Consider the following scenario:

  • Someone searches through Twitter for all, or many, of the posts by a particular celebrity, say Stephen Fry, and reproduces them in a book or on a website.

Does that infringe Stephen Fry’s copyright? Does that infringe any rights (such as database right) that might be owned by Twitter, even though they disclaim ownership of Intellectual Property Rights in users’ tweets?

Retweeting is the process whereby someone sends the whole or part of someone else’s tweet either with or without something they themselves have added. Clearly this is a reproduction of someone else’s work and, if the material reproduced is protected by copyright, then questions of copyright infringement arise. However, it’s possible that there might be implied some sort of limited license to “retweet”, as this appears to be a key feature of Twitter.

Twitter themselves are clearly aware that their service has the potential to be used in such a way that it infringes copyright, since they provide a means for resolving disputes in their Terms and Conditions.

I’d be interested to hear other people’s thoughts on copyright and other IP aspects of Twitter — or indeed other social networking websites.

Catcher in the Rye sequel injuncted


JD Salinger wins again. The US Federal Court in New York issued a preliminary injunction on 1 July 2009 preventing the various defendants (also, publisher, distributor) from manufacturing, publishing, distributing, shipping, advertising, promoting, selling or otherwise disseminating any copy of “60 Years Later: Coming Through the Rye”, or any portion thereof, in or to the United States. See various previous posts below for the lead up to the grant of the injunction. The judge, Deborah A Batts, had taken some time for consideration before issuing her judgment, which can be read here.

The issue of a preliminary injunction does not necessarily determine the final outcome of the case. It preserves the status quo until the matter can be argued in full at trial. And the issue of a preliminary injunction can be appealed — which the defendants in this case have indicated they intend to do. Nevertheless, there is a tendency for legal cases to end with the preliminary injunction — by this stage, both parties are likely to have spent a lot of money, not to mention time, and their appetite for a fight may have become sated.

It’s worth looking at how the court approached the application for a preliminary injunction in this particular case. As this is a US case, I will mention the US Court’s approach.

First of all, you have to bear in mind that an application for a preliminary injunction is not a full trial of all the issues. Accordingly, under applicable rules in the US, to obtain a preliminary injunction a party must demonstrate:

1. That it will be irreparably harmed if an injunction is not granted; and

2. Either:

(a) a likelihood of success on the merits; or

(b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of the hardships tipping decidedly in its favour.

Since the Defendants’ case was based on “fair use”, much of the careful judgment was directed towards whether or not such a defence had any prospect of succeeding. The “fair use” doctrine was codified in section 107 of the US 1976 Copyright Act, which provides that “…  the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching… scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

The court looked at all of these in quite some detail. In particular, under the first leg of the “fair use” doctrine, the court examined closely the defendants’ claim that “60 Years Later” is a parody of “Catcher in the Rye”, Holden Caulfield and/or of Salinger. This is a particularly interesting analysis and worth reading in its own right to see how a court assesses whether one work is a parody of another and the difference between parody and satire. Ultimately, however, the court leaned against the defendants on this.

As regards the second factor (the nature of the copyrighted work), the Court held that “there is no question that in this case, the novel The Catcher in the Rye is a “creative expression for public dissemination [that] falls within the core of the copyright’s protective purposes”, and therefore this factor weighed against a finding of fair use.

In assessing the third factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), the Court held that the defendants “have taken much more from Salinger’s copyrighted works than is necessary to serve their alleged critical purpose”, and this factor weighed heavily against a finding of fair use.

The court then looked at the fourth factor — the effect of the use upon the potential market for or value of the copyrighted work. Although the court found that “it appears unlikely that 60 Years would undermine the market for Catcher itself”, it held that you also have to take account of the effect on the market for a Catcher sequel or other derivative works, and that 60 Years could substantially harm that market, whether through confusion as to which is the true sequel or companion to Catcher or simply because of reduced novelty or press coverage. Further, even though Salinger himself had made it clear that he had no intention of publishing a sequel or other derivative work of Catcher, the US courts had established that it is the “potential market” for the copyrighted work and its derivatives that has to be examined. The fact that US copyright law specifically gives the copyright owner the exclusive right to authorise the creation of derivative works may have been a significant element here. So the court found that this fourth factor weighed against fair use — “albeit only slightly”.

Ultimately, the court found that the plaintiff, JD Salinger, is likely to succeed on the merits of his copyright claim, and case law established that in such a case irreparable harm may be presumed. Inevitably, therefore, the grant of the preliminary injunction followed as Salinger had met the necessary requirements.

Further developments to look out for:

  • The defendants have indicated they will appeal the grant of the preliminary injunction – according to GalleyCat;
  • Will the defendants publish outside the US?
  • If so, will Salinger sue outside the US?
  • And if he did, would he be likely to win?

Depending on the respective parties’ willingness to continue the fight, and availability of money, this one could keep us entertained for years to come.

Former Tom Waits Manager Sues British Author for Libel in US


It is reported on the Billboard website that Herb Cohen, former record executive and manager for Tom Waits, has sued British journalist Barney Hoskyns and Random House, Inc, his publisher, for $1 million over claims allegedly made in Hoskyns’ “Lowside of the Road, A Life of Tom Waits”.

The claim has been brought in California.

According to a release announcing the lawsuit, the book states that during the time that Cohen was Waits’ manager, from 1971 to 1982, Cohen “robbed” money from the artist and that Waits sued Cohen and his company, Third Story Music, Inc. for fraudulent accounting practices. Hoskyns is also said to have stated in the book that Cohen “helped himself” to money from his other management clients. Cohen has alleged that these statements are false and defamatory.

Hoskyns’ book, “Lowside of the Road, A Life of Tom Waits”, was published in the United States in May 2009 and in the UK by Faber on 5 March 2009.

The allegations against Herb Cohen are plainly extremely serious and highly defamatory. One can only assume that the publishers, both here and in the US, had the book read for libel and that the author produced sufficient evidence to satisfy the libel lawyers. If not, the consequences could well be serious. In the meantime, notwithstanding the lawsuit, the book remains readily available on and on (both in print and for download to the Kindle).