You're under contract to publish your manuscript of an innovative textbook with a major publishing house, say Prentice-Hall or Wiley & Sons. After two years of frantic drafting and editing (the manuscript was originally scheduled to go to print in 1998), your work is now completed and has been well received by the publisher's reviewers. If only your editor would return your calls.

Sometimes, a publisher's decision not to publish the work of an author already under contract is based on a legally impermissible ground rather than the quality of the work. Examples:

• The publisher decided the market is no longer sufficiently lucrative.
• A competitor's work is subsequently favored.
• A new editor is put in charge of the work and has a different agenda from that of his predecessor.

LIMITS TO A PUBLISHER'S CONTRACTUAL RIGHT NOT TO PUBLISH. In educational book publishing, the author's contract generally provides the publisher with wide discretion in publishing a work. Usually the contract governing the publication of a textbook provides that the work must be "of publishable quality," or "satisfactory to the publisher in content and form." In essence, the contract's pact consists of the author granting the publisher the exclusive license to his work (or work in progress) in exchange for the mere promise to publish and a share of the royalties. Additionally, unlike a work of fiction, a textbook's manuscript generally will be subject to review by a number of outside experts, as well as the curriculum requirements of the schools and universities.

Can a reticent publisher simply proclaim dissatisfaction with an author's work and thereby avoid any obligation to publish? Could a publisher select reviewers who are less likely to approve the manuscript or suddenly declare that a long forgotten deadline was, in fact, crucial to publication?

Under New York law, which covers many textbook contracts, courts impose a covenant of good faith and fair dealing between parties to a contract, particularly where one party is granted an exclusive license over another's work. So even where a contract grants one party with the authority to cancel the venture, courts require that such decision-making be made in good faith. In regard to a publisher's decision not to publish a work purportedly on the basis of its content, "good faith" means the publisher must "appraise a writing honestly," with the decision not to publish based on an "honest dissatisfaction" with the manuscript. As the United States Court of Appeals for the Second Circuit stated in deciding a 1985 dispute between Mr. Tony Curtis and Doubleday & Co.: "A publisher's duty to exercise good faith in his dealings towards an author exists at all stages of the creative process." The Court further added: "To shield from scrutiny the already chimerical process of evaluating literary value would render the 'satisfaction' clause an illusory promise, and place authors at the unbridled mercy of their editors."

This legal covenant of "good faith" also prevents publishers from unreasonably reducing a work's printing, promotional and advertising budgets and generally requires the publisher to use its normal resources through at least the first printing of the work. Please note, however, that this legally imposed obligation does not compel publishers to use "its best efforts" or "full resources" in connection with the publication of the author's work. For example, absent an express provision in the contract, the publisher could conceivably discount the sales price of the author's work or only promote the work through a book club whereby the author's royalties could be substantially reduced. The courts' line in the sand is that publishers do not have an absolute right not to publish.

STEPS TO ENSURE A FAIR DEAL WITH YOUR PUBLISHER. Courts tend to be reserved with their involvement in contract disputes involving a publisher's failure to publish. There is a general legal principal that courts are to give effect to the plain terms of the contract. For example, if the contract itself does not provide an author with any authority in the promotion over the work (i.e. an author objects to his book being only promoted in a certain market), a court generally will not change the terms of the contract if the parties themselves were silent on the matter. Courts also are reluctant to usurp a publisher's editorial judgment.

Any input or conditions that you have negotiated for yourself in connection with the publication of your textbook should be set forth in the contract (or in an addendum or separate letter agreement if the publisher complains that no changes are permitted to their standard form contract).

The review process for the manuscript by outside experts can be a source of frustration and difficulty for the author. If not permitted as a clause in the contract, the author should by subsequent written or oral agreement (confirmed by correspondence) obtain authority to approve the reviewers for the manuscript.

Most authors cannot obtain a guaranty that the publisher will not publish a competing work. However, before being placed under contract, publishers will generally prepare forecasts on your book regarding its market, prospective costs, pricing and revenues. Obtain written representations from the Publisher regarding their fiscal plans and proposed markets and marketing for your work. If a competitor is subsequently favored by your publisher, you may be able to prevent your work from being completely displaced.

If a dispute arises between the author and publisher, do not be misled by assurances before the contract's signing that the publisher would never seek to collect on the paid advances. If an author cannot obtain grants, the advances should be only be repaid from any future royalties and are otherwise forgiven.

Again, if a dispute arises between the author and publisher, a publisher's cavalier attitude regarding draft/chapter deadlines will metamorphosize into charges that the author's delays killed the publication of the textbook, as well as cost the publisher a substantial amount of money. Accordingly, any extension to or waiver by the publisher of a deadline should be confirmed in writing by the author.

The author-publisher relationship is a business arrangement; the author should not limit all communications to the editor, but attempt to keep apprised of the publication process by communicating with other personnel, i.e. the marketing manager, advertising manager and production staff.

As with any business relationship, keep copies of all your correspondence, contracts and other communications between you and the publisher's representatives. Equally important, be judicious about the statements you memorialize in writing to your publisher (they will be used against you in litigation).