by Aimée Bissonette

Our country’s recent economic troubles have had a direct effect on the publishing industry. Publishing houses are trimming staff, holding off on acquiring new works, and consolidating or eliminating imprints. Some have even been forced to close their doors. As a result, authors and illustrators are vulnerable.

This fall, in the span of a few short weeks, several of my clients experienced the industry’s economic troubles first hand: two saw their editors laid off; one had her contract canceled when her Publisher broke off negotiations mid stream in a “belt tightening” measure; one held her breath as the Publisher she had just signed with announced a freeze on acquisitions; one stood by helplessly as her Publisher was purchased by another with little interest in promoting the back list it was acquiring; and one lost the opportunity to capitalize on a subsidiary rights deal because her Publisher had gone bankrupt without making provision for the reversion of author and illustrator rights.

The industry’s economic woes won’t last forever, but authors and illustrators need to understand how industry problems affect them. They need to work to protect their interests. What should they do? Here are some suggestions:

Review publishing contract language to determine rights and obligations if the publisher fails to publish.

All publishing contracts contain some sort of “failure to publish” language. The following is an example of “failure to publish” language:

If the Publisher fails to publish the Work within 18 months from the date hereof, the Author may, at her option, by written notice to the Publisher, terminate this Agreement. Upon receipt of such notice by the Publisher, all rights shall revert entirely to the Author and the Author shall be free and clear to sell the Work elsewhere. The Author shall be entitled to keep any advances already paid. In such event the only damages recoverable by the Author shall be limited to the advance paid by the Publisher up to the date of termination. No other damages, actions or proceedings, either legal or equitable, including (but not by way of limitation) specific performance, shall be claimed, instituted or maintained by the Author against the Publisher. The Author by reason of the notice of termination releases the Publisher from any damage, claim, or expense.

As the language indicates, the Publisher may choose at any point to not publish works it has under contract. Publishers like having this option for a number of reasons, including the need for flexibility in times of economic distress. When Publishers decide not to publish works for economic reasons (i.e. when the author/illustrator has not done anything wrong), “failure to publish” language also determines what the Publisher must pay as damages to the author or illustrator for its breach of contract. In most cases, as above, those damages are restricted to the amount of the advance monies paid the author or illustrator. Generally, authors and illustrators also receive back all rights to their work, which they may then try to sell to another house. (The exception is “work for hire” contracts. Authors and illustrators entering into work for hire contracts should address this issue of rights in the event the Publisher fails to publish in their contracts, as well.)

Communicate with the publisher—ask specifically about its plans for the work.

If an editor is laid off or if production of a book is put on hold,\ authors and illustrators are entitled to (and should press for) information about the Publisher’s long term plans for the book. In the case of an editor being laid off, it is important to know whether responsibility for the book is being assigned to another editor. If it is being reassigned, the author or illustrator needs to contact and establish a relationship with the new editor. If there is no reassignment and it appears the book will simply languish until the publication date determined by the contract comes to pass, the author or illustrator (or his/her agent) should push to terminate the contract and get all rights back. There is no reason for the Publisher to hold on to the rights in the book for months and months if it has no intention of publishing it.

Aimée Bissonette

Aimée has worked as a lawyer, teacher, and writer for more than 20 years. Through Little Buffalo Law & Consulting, she helps her clients understand legal and ethical issues, institute compliance and training programs, and develop best practices for their businesses. She has negotiated book contracts on behalf of writers, including children’s book contracts with Clarion and Boyd’s Mills Press. She is a member of CLN and currently is working on her own middle grade novel.