Editors and publishers take a good deal of faith and comfort in the carefully crafted language of their standard publishing contracts, language that typically gives the publisher broad discretion in making a number of business and publishing decisions. 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 author is to receive royalties measured by the 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 author 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). All of this is not to say that only authors suffer disappointment from their publishing deals and at least one case has produced a determination that the author is similarly constrained to exercise his discretionary rights in good faith [Zim v. Western Pub. Co., 573 F.2d 1318 (5th Cir. 1978)]. Indeed, it is perhaps more often the case that publishers are left standing at the altar by once enthusiastic authors who have since moved on to other loves and distractions. And it is an editor's truism that many must be signed to publish few.

Nonetheless, when a project goes awry, nobody wins. So, my advice to authors is avoid these disruptive disputes by paying close attention to the contract language allocating responsibilities and rights, by not fostering unrealistic expectations in the publisher, and by living up to both the letter and spirit of your agreement. In short, do the right thing.