A: Stephen
E. Gillen, a member of the TAA Council of Advisors and a publishing
and copyright attorney at Greenebaum Doll & McDonald PLLC (SEG@GDM.com): "The publisher's obligations to market your book are set out in your
publishing contract. Generally speaking, most standard publishing contracts
reserve very broad discretion to the publisher when it comes to these
obligations. And editors and publishers take a good deal of faith and
comfort in these carefully crafted provisions.. 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 grantor
(author) is to receive royalties measured by the grantee's (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 grantee 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). A publisher that is neglecting your
work may be doing so for any number of reasons. If the publisher has
lost interest in or enthusiasm for your work, it may be possible to
convince them to release the rights to you so that you can attempt
to place it with another publisher. If the publisher is unwilling,
at first, to do so, you may be able nonetheless to persuade or compel
them to do so depending on the particular circumstances of your situation,
whether there is evidence that the publisher has dealt with you in
bad faith, and the depth of your resolve."
