The Death of a Contract

I was expecting to make this post under more depressing circumstances, but I reached an agreement with my editor. I decide to make the post anyway, because it's informative.

Let's say you've got a book deal with a publisher, agent or no agent. You get the long contract in the mail - easily 10-17 pages - and it feels like you're signing away your work. While you are signing a binding legal agreement, you're not actually selling your soul, nor is your publication really guaranteed, though it's mostly guaranteed. Once the contract is signed by both parties, there are three essential ways a contract can be severed:

(1) The author fails to live up to the obligations stated in the contract. The author doesn't deliver the manuscript by the agreed-upon date, the author refuses to revise, the author dies (the company is not obligated to publish the book if the author dies before delivering the contract, though the estate of the author can push for publication if the manuscript has been delivered), etc.

(2) The publisher fails to live up to the obligations stated in the contract. The publisher does not pay the advance money by the agreed-upon dates or in the agreed-upon amount(s). The publisher does not publish the book within the agreed-upon time (usually a year after signing, sometimes two years). The publisher goes under and stops publishing books. Etc.

(3) The author and the publisher do not reach an agreement on the final version of the manuscript. Either party can sever the contract over this, though it tends to be mutual because there's been a ton of fighting leading up to it. Generally editors buy manuscripts that they like, then ask for some revisions to clean up the manuscript. Sometimes the author will deliver a manuscript radically different from the one that was bought (the version that is "delivered" is a version delivered AFTER signing the contract, not necessarily the version the editor read when deciding whether to buy the book). Sometimes the author will refuse to do revisions because they're too radical (in the author's opinion). Sometimes the real life situation the book is based on, especially if it's a political book, will change dramatically and the author will feel that the book is no longer relevant or needs so much altering that it's not worth publishing.

Either way it's a painful process, feeling a tiny bit like a divorce. If the book is not published, any advance money paid must be returned, though if the author decides to just keep it, the publisher has to then sue to the author to try and get it, and if the advance is small enough the legal fees won't be worth it. The author, if they have other books at the same company, may say, "Take it out of my future royalties for book X" so that the author doesn't have to write a check and the publisher doesn't have to process it. Any money not involving the advance spent by the publisher - in editorial hours, promotion, sales, design, etc - is considered lost and the author is not responsible for publisher's expenses.

Publishers try not to let this happen, but it does. Authors die, or disappear, or don't deliver manuscripts. Publishers are bought by other companies and forced to reduce their line. Publishers go under. The editor who bought the book moves to another company and takes the author with them, involving a whole new contract. It happens. It's one of the reasons the contract is so long, covering a ton of possibilities that are not likely to ever happen but occasionally do. The contract is meant to state what everyone's responsibility is in the production of the book and what happens when situation X or Y occurs, and who is responsible for resolving it. Authors and publishers only go to court when (a) huge sums of money are involved and (b) someone is wildly violating the terms of the contract.

There was a case a year or so ago where someone sued their publisher for "failing to promote the book successfully." Essentially she blamed the publisher for the failure of the book and its low sales. I don't remember who it was or how this case turned out, but it would be a difficult case for a judge in my opinion, as nowhere in the contract does it stipulate what the publisher has to do to promote the book, just that it has to do something. The money allotted to publicity and promotion is not a number the author sees at any point, and would look like monopoly money anyway, because it's impossible to tell what those numbers represent unless you work for that particular company's imprint and know precisely what they typically spend on a book in that genre in the area of publicity and what the budget was when they were deciding and how feasible it was to promote this book anyway. In other words, you would have to be the publisher.

Anyone know how that case turned out?