Date of Publication

One of the issues I discussed in a previous article entitled Why You Need A Valid Publishing Contract?¹ was that a contract to be valid must contain certain "material terms". This issue was recently brought to mind when I read Uncollecting Cheever - The Family of John Cheever vs. Academy Chicago Publishers². I highly recommend Uncollecting Cheever for reading by all publishers. Uncollecting Cheever discusses the interminable lawsuits, over a four year period, that were based on the contract between Mary Cheever and Academy Chicago Publishers and it describes with exhaustive detail the risks and pitfalls that could accompany a poorly drafted publishing agreement.

The Illinois Supreme Court in the Academy Chicago Publishers v. Mary Cheever³ case declared the contract between Mary Cheever and the Academy Chicago Publishers invalid because it lacked "essential terms" and because the missing terms involved publishing decisions that were left solely to the discretion of publisher. The end result of the Illinois Supreme Court's decision was that Academy Chicago Publishers was unable to publish, after expending significant time and expense in preparing the work for publication, an anthology of John Cheever's previously uncollected short stories.

The decision in Academy Chicago Publishers clearly illustrates the draconian implications that could face a publisher when there is an indefiniteness or absence of "material terms" in a contract. This is because a court may use such evidence to show that the "parties never intended that there was a contract" or that the "parties never actually entered into a binding contract". Therefore, in the event that the content of the agreement is unnecessarily "ambiguous" or "uncertain" a court could decide, as it did in Academy Chicago Publishers, that the parties had not entered into a valid contract and that the contract between author and publisher was void and unenforceable. One of the material terms that the court found missing from Mary Cheever's contract was that the contract failed to include "a date certain" for publication.⁴

Although the great majority of author and publisher contracts do provide for a publication date, there are some publishers who do not include a publication date in their standard publishing agreement. A publisher's reason for the absence of a publication date is probably based upon a belief that the absence of such a date allows the publisher greater flexibility in determining the particular time to publish.

CONTRACT SPECIFIES TIME PERIOD DURING WHICH PUBLISHER MUST PUBLISH

A publisher has a duty to publish an author's manuscript within the time period stipulated in the publishing contract. This assumes that the author has delivered the manuscript to the publisher according to the terms of the publishing contract. These terms usually include that the manuscript is (i) delivered to the publisher by a "specific date", (ii) "complete" and (iii) "satisfactory in form and content" to the publisher. Upon delivery of the manuscript the publisher may "reject" the manuscript if it does not meet the conditions set forth in the contract⁵ or "accept" the manuscript and proceed in meeting its duty to publish.

Most publishing contracts stipulate a time period during which the publisher, outside of extraordinary circumstances, must publish the author's accepted manuscript. The publication date is traditionally set as a number of months from the publisher's acceptance of the author's manuscript, but there are occasions where it is in the interest of both parties to set a particular date for publication, such as a book written on time sensitive subject matter or where publication is to occur at or about the same time as a particular event. The time period for publication normally ranges from as short as three months to as long as two years, with the norm usually twelve to eighteen months. When a publisher fails to publish an accepted manuscript within the time period specified in the contract the publisher may have breached the contract with the author. What are the publisher's and author's options in this situation?

The author and publisher could then mutually agree in writing to a later publication date. If this solution is not possible, many publishing contracts will include terms that permit the author to terminate the contract. An example of one such clause is the following:

"If the Publisher fails to publish the accepted Work within the agreed time period, the Author may, at the Author's option, by written notice to the Publisher, terminate this Agreement, whereupon all rights granted to the Publisher shall revert to the Author."

CONTRACT DOES NOT SPECIFY TIME PERIOD DURING WHICH PUBLISHER MUST PUBLISH

What are the publisher's and author's options in the event a contract fails to specify a publication date and a "promised" publication date has passed, on possibly more than one occasion? At such time the author usually wants to know whether there is there anything he/she could do to force publication within the next few months or whether is there a way he/she may terminate the contract, obtain back the rights granted to the publisher and attempt to have the manuscript published elsewhere.

Even when a contract fails to stipulate a publication date for the author's accepted manuscript the publisher still has a duty to publish the author's manuscript unless the publisher has bona fide reasons for not publishing the manuscript. Further complicating matters for the author is that it is also highly unlikely, especially when the contract does not include a publication date, that the contract includes terms that permit the author to terminate the contract and have the rights in the manuscript revert to the author.

The author should first review the contract and ascertain whether there are any contract terms that address the issue of the publisher's failure to publish. If these terms exist the author, author's agent or attorney should then discuss them with the publisher. In the event the author still wants the publisher to publish the manuscript, then the author and publisher should attempt to mutually agree upon a "firm" publication date. The author should obtain the publisher's commitment, if forthcoming, in writing. This writing should also address the issue of what happens if the publisher fails to publish by the mutually agreed upon date.

In the event the publisher will not commit to a firm publication date, and where the contract fails to address the issue of the publisher's failure to publish, the author may then need to terminate the contract through arbitration or litigation so that all rights that were granted to the publisher will revert to the author. Some of the key issues that would need to be decided during arbitration or litigation would include the following: (i) whether the author delivered the manuscript under the terms of the contract, (ii) whether the publisher "accepted" or "rejected" the manuscript, (iii) a publisher's reasonable time within which to publish an accepted manuscript and (iv) whether the publisher had bona fide reasons for not publishing the manuscript, and (iv) remedies for the author if the publisher was found to have breached the contract.

CONCLUSION

I am of the opinion that in addition to the issue of "fairness" that is in the publisher's best interest, as well as the author's, especially after the Academy Chicago Publishers decision, to include a specific publication date or time period in the publishing contract for an author's accepted manuscript. Although an author cannot "force" a publisher to publish an accepted manuscript the contract should provide for what happens in the event publication does not occur by the specified date in the contract.