by Jodé Millman
Originally in this month’s column, I had intended to examine some of the key provisions of a publishing agreement, but overnight our world seemed to change. Topics such as royalties, subsidiary rights, the advance, and author’s input regarding book title and artwork will have to wait for another time.
As a nation, we’re not dwelling on the big national issues like the presidential election, the environment, and education. Instead, we’re focused on a microscopic organism that is threatening our country and the world.
Similarly, I’d like to draw to your attention an often overlooked, boilerplate provision that appears in most contracts—leases, house purchase contracts, bank loans, manufacturing contracts, etc.—called force majeure. Since we are writers, I’m going to zero in on its application to publishing agreements, and how the effects of this obscure paragraph may linger longer than the pandemic.
It is unprecedented that a virus could be the impetus for declaring force majeure, but COVID-19 is not your common cold.
In March 2020, the Authors Guild updated their Model Trade Book Contract—for the first time in a decade—in an attempt to remove contractual biases against authors. Among other things, they suggested subtle changes to the Publication section of publishing agreements, which deals with such topics as acceptance of work for publication, contract termination by the publishing company for the author’s failure to submit the manuscript, or termination by the author for non-publication of the manuscript by the company. They recommend the insertion of the following language in that section:
Publisher’s failure to Publish or cause publication within the time period provided in this Section 9 will not be deemed to be a material breach of this Agreement (and Author shall not be entitled to any of the remedies set forth above) if the failure (i) is permitted by any provision of this Agreement; (ii) results from any business decision made by Publisher with the prior written approval of Author; or (iii) is attributable to strikes, war, governmental restrictions, fires, natural disasters, acts of God, or any other cause beyond Publisher’s reasonable control for the time covered by the conditions, and in no event for more than 6 months past the original publication date.
The last subsection of this article, (iii), is the force majeure provision. This legal concept dates back to Roman times, and recognizes that certain unforeseeable events may render the performance of an agreement impracticable. In the modern publishing world, and in the context of the current world health crisis, this provision has long-lasting, widespread implications for authors.
Force majeure releases publishers from publishing your novel in a timely fashion as otherwise agreed to in the contract between the parties. Generally, the standard contract provides that a publisher shall publish the work within 12 to 18 months after acceptance of the manuscript. Often there is no deadline for the release of an audiobook or foreign edition, but some authors insert a reversion of those rights if the publisher does not use them within two years of the initial publication of the book.
It is unprecedented that a virus could be the impetus for declaring force majeure, but COVID-19 is not your common cold. It is quarantining cities, overwhelming hospitals, and leaving streets, stores, and workplaces vacant, to say the least. It is a nightmare that we are all living with as best we can, with the hope that it will soon be over.
If a publisher invokes the force majeure clause claiming that COVID-19 prevents immediate publication, they will be entitled to delay publication for an additional six months, extending the time from manuscript acceptance to bookshelf to a period of up to two years. For several reasons, the book may not be published at all, or at least not in a print edition.
At the present time, publishers like Simon & Schuster are delaying their scheduled releases. Publishers Weekly has compiled a list of over seven hundred titles that have been delayed due to COVID-19. Included in that list is Stephen King’s long anticipated Under the Dome, which was pushed back until Christmas Eve, when only the e-book will go on sale at the same price as if it were in print: $35.00!
In the grand scheme of life, the force majeure provision of a publishing agreement may seem trivial. However, as writers, our joy and our livelihood exist to share our stories with the world.
According to Publishers Weekly, presently there is a boom in all formats, especially e-books, as readers hunger to fill the void—and empty time—in their lives. These digital and audio formats are also easier, quicker, and cheaper to produce, and easy for the reader to purchase and download with the click of a button. However, with the scale of the epidemic, government lockdowns, and the closures of bookstores and other distribution channels, the future of book buying appears to be uncertain. This uncertainty may be factored into a publisher’s decision to apply force majeure.
What steps can authors take?
While most contracts award force majeure to the publisher, it is noteworthy that the provision is not mutual. In other words, there is no force majeure favoring the author. An author can be held to the contractual deadlines for submitting their manuscript to the publisher during a crisis, while a publisher is not similarly bound to publish. It would be prudent to negotiate a provision extending the author’s delivery and editing deadlines for the same force majeure reasons as given to the publisher.
Additionally, a provision should be inserted that any publisher delay cannot exceed six months beyond the original publication date. Further, that if publication does not occur after the expiration of the six-month force majeure period, and after author has demanded publication in writing, that the publishing company forfeits its right to publish the work. Then, the author should have the right to terminate the agreement, recover all rights granted, and retain the full advance.
Readers depend on us to entertain them, spark their imaginations, and transport them to faraway places—which is dearly needed in these distressing times.
Clearly, what is good for the publisher is good for the author. If you presently have a book pending publication, discuss this wrinkle with your agent or your publishing company. With a small press, you have a direct line to the editors and publisher, so have a frank discussion with them about their plans regarding your book. Communication is key, so keep the dialogue open and understanding about both sides of the issue to achieve a goal that is in everyone’s best interests. After all, they’ve invested in you and your manuscript, and will have no income without publishing your book. Suggest digital format releases as a way to keep the book on schedule.
In the grand scheme of life, and while we are worried about our friends and families, our jobs, our towns, first responders, our medical community, the economy, and our country, the force majeure provision of a publishing agreement may seem trivial. However, as writers, our joy and our livelihood exist to share our stories with the world. And without publication, there are no royalties and no income.
Also, readers depend on us to entertain them, spark their imaginations, and transport them to faraway places and times, which is dearly needed in distressing times like these. Moving forward, writers should beware that even the most obscure contractual provisions can have lasting, unexpected results, and take heed. Make sure that your contract is reviewed by a lawyer prior to signing it and don’t forget to ask for a few simple changes to level the playing field.
To keep abreast of the latest publishing news, special offers, events and discounts, Publishers Weekly is offering a free e-subscription during the COVID crisis. Also, the Authors Guild has compiled a guide to help authors find economic relief.
Remember to think positive. We’re all in this together.
Jodé Susan Millman is an attorney practicing in New York’s Hudson Valley, a member of the New York State Bar Association, and a contributing editor to the Kaminstein Legislative History Project analyzing the Copyright Law of 1976. She is a regular reviewer for booktrib.com and the producer/cohost of the “Backstage with the Bardavon” podcast. Her debut thriller, The Midnight Call, was published by Immortal Works in June 2019 and won a 2020 Bronze IPPY Award for Suspense/Thriller. It is now available in audiobook format.
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