This is clearly contract breaching on multiple levels, right?!


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Thread: This is clearly contract breaching on multiple levels, right?!

  1. #1

    This is clearly contract breaching on multiple levels, right?!

    Hey guys. Just wondering if anyone with a bit of publishing contract know-how can confirm what I already suspect to be a pretty clear case of contract breach!

    So I have this poetry pamphlet that's been out for a few years with a small independent press. In November last year, they said they were going to make it available as an e-book, and asked me to send the PDF version of the work, which I did. I heard nothing from them afterwards, despite inquiring how things were progressing a month later. I just assumed they weren't going forward with it.

    Jump forward till earlier this week, and I've been offered publication of a collection of short stories (yay!). I want to include the poem in question in the collection as it's been doing nothing with the publisher, and the contract I have with them states if the work remains unpublished for nine months after the author notifies them of this, then the contract automatically expires. I figured the non-publication of the ebook version would constitute this, so I sent them a polite email asking if we could cordially terminate our agreement so I could include the poem in my collection.

    The publisher replied earlier, saying the poem has been available as a free to download e-book on their own website since January, but that I could buy myself out of the contract if I wanted.

    Couple of things with this. They never told me the e-book had been created and made available so I could promote it, they certainly never asked me if I was ok with them making it available for free, and when I checked the website, the download button for the e-book doesn't even work!

    Pretty open and shut case, right? If nothing else, the failed attempt to put the work out for free without even telling me is more than a tad offside! As always, any advice much appreciated.

    D
    "If at first you don't succeed, aff wi' the bunnet, and in wi' the heid." - Old Glasgow proverb.
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  2. #2
    Speaking as a former lawyer (though not specializing in IP) and somebody who has read and signed a few publishing contracts:

    Here's a problem you potentially have:

    Quote Originally Posted by Dave Watson View Post
    In November last year, they said they were going to make it available as an e-book, and asked me to send the PDF version of the work, which I did. I heard nothing from them afterwards, despite inquiring how things were progressing a month later. I just assumed they weren't going forward with it.
    You know what they say about assumptions, right?

    Formal publishing contracts are not legally required to publish work. There's no standard for release approval provided the publisher can prove consent was sought and received in some way, in a courtroom if necessary. Publishing contracts are more a legal convenience than requirement. They are there to reduce the liability that stems from possible misunderstandings, like this one. They protect both parties, but both parties agree to not use them and rely on good faith and trust...that's allowed. It's allowed just like it's allowed for you to buy a car from somebody without a bill of sale. Yes it's kind of foolish, and not terribly common, but it's allowed, and it sounds like that is the gray area in which you are now.

    Unless I'm missing something then, by sending them the PDF and presumably indicating your agreement in response to the request, you accepted the terms. It doesn't necessarily matter there was no written contract behind this action, by sending them the requested file and email saying 'sure!' or whatever, that creates a sufficient verbal contract and cover for them.

    You did not ask first if they were putting it out free, right? They did not say 'we'll let you know the release date'? So what contractually guaranteed item do you believe has been breached here? Usually when you sign over use of work it is up to the publisher if they want to charge a zillion dollars or no dollars for it and they're not obligated to communicate with you regarding the release or how much they were planning to charge - you should have asked those questions prior to authorizing the use of the poem. The fact you contacted them again a month later to ask when this e-book was going to be released is even worse because it supports the argument you just really wanted it published ASAP and it sounds like you never asked about the circumstances.

    You need to check your original contract, though, and speak to a lawyer (in your country, as that might matter) if concerned. They definitely sound unprofessional and unethical but unfortunately neither of those is necessarily 'contract breaching', and it's up to you if it's worth pursuing. Still, check!
    Last edited by luckyscars; August 8th, 2019 at 02:41 PM.
    "If you don't like my peaches, don't shake my tree."

  3. #3
    Thanks Scars. I'll give the original contract a good going over and have it checked by the Society of Authors.
    "If at first you don't succeed, aff wi' the bunnet, and in wi' the heid." - Old Glasgow proverb.
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  4. #4
    As usual, never take advice off an internet forum when it comes to legal matters. Definitely get it vetted by an IP lawyer, preferably in the state where it says legal action should be handled in your contract. E.g., I'm UK, but my publisher is American, where the contract mentions which US state legal proceedings will be held. I wouldn't talk to a UK lawyer and didn't when it came to contract breaches.

    I'm no lawyer, and this is in no way legal advice...

    You signed an original contract for this poem as a pamphlet, and the publishing company later said they wanted to include it in a different format a little later, is that right? Most contracts will take rights to have the work published in a variety of ways: ebook, paper, not to mention audio, translation etc, it can also then be included in an anthology or the likes much further down the line. Does it say that on the original contract for this poem? That they take all those rights, it could cover what happened to our your work the second time? Can you also see if there's a clause in the contract that states you have to buy your rights your back? Usually, it's advisable to stay away from any contract that's non-negotiable on digital and fair termination rights. I wouldn't personally touch a publisher who adds a clause saying you have to buy rights back. If they are at fault, it shouldn't come at your expense. Most good publishers will offer a very fair termination clause, not one that only favours their interest.


    As you're talking to the Society of Authors, I'd check this publisher out with the BRB forum on AW to see if there have been any other complaints. You might come across other poets from there. I'd also keep Victoria Straus in mind from Writer Beware: she gets multiple contracts from publishers who behave badly.

    And good lucK!

  5. #5
    It's probably going to cost you money either way. Either you buy it back, or hire a lawyer to go after them. It's definitely unethical on their part. I hate people/companies like that. You should probably report it to the BBB too if you can. (Not sure how that works with online stuff.)

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