Lawsuits

Should I agree to a clause that says I can only sue the publisher where it’s located?

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Q. I am considering signing a contract directly with an overseas publisher, but it refuses to change the clause that says any lawsuits —whether brought by it or me— must be conducted exclusively in its country. If it sues me, even spuriously, there is no way I could travel there to defend myself. Any suggestions?

A. This is a provision that publishers frequently refuse to budge on, but here are several alternatives you can try.

  1. Provide that any suit by you against it has to be in the publisher’s country but any suit by it against you has to be where you live. This should discourage spurious lawsuits while not preventing a local lawyer (in whichever country) from being hired to pursue valid claims.
  2. Choose a third location that is convenient for both of you or one that is mutually inconvenient. Either would put you and the publisher on equal footing, which is what you are presumably trying to accomplish.
  3. Keep the clause but delete “exclusively.” It gives the publisher a significant part of what it wants but, from your viewpoint, doesn’t make it exclusive so any lawsuit can still take place in your home court (subject to getting jurisdiction over the publisher by properly serving it with a complaint).
  4. Omit the clause altogether, which leaves the dispute for another day (which may never come). The publisher may consider this a satisfactory way to resolve the impasse. Although omitting an important clause is not something I typically recommend, having it would be worse for you since you’re dealing with an overseas situation.

Each of these approaches (or at least the first three) deals with the issue head-on. What may also be helpful — whether or not one of those alternatives is accepted — is what computer-savvy people call a “workaround,” viz., getting to the place you want but by different means. Consider the following:

  • Accede to the publisher’s position but require that before a lawsuit can be brought by either side, both must mediate the dispute or attempt to do so (diligently and in good faith) for a specified period (e.g., 90 days). Mediation is a non-binding procedure in which a skilled third party seeks to work out a compromise acceptable to both sides. Giving both sides the opportunity to air complaints and suggest solutions can help to dampen emotions and overcome the kind of misunderstandings that frequently accompany seemingly irreconcilable disputes. It can be done long distance through 3-way phone calls or by the mediator speaking (or corresponding) separately with each party and then proposing solutions s/he thinks might be satisfactory to both. This alone may resolve the problem without your being required to travel abroad and without the publisher retreating from its position on location of litigation.
  • If you do decide to sign the publisher’s clause (with or without the “exclusive” language) and are eventually sued, be aware that in some jurisdictions contractual provisions requiring suits to be brought in a foreign court may not be enforced unless the clause also says that you 1) accept or consent to that court’s jurisdiction, and 2) waive rights relating to an “inconvenient forum” (often expressed as forum non conveniens). Because of this, if language indicating either of those things is in the contract you are asked to sign, delete them since it is possible the publisher will be satisfied with the clause without either.

By the way, you say that the publisher refuses to change its position. Is that truly so? Have you walked away from the deal and the publisher not called you back? In real hardball negotiating, only if you are truly willing to walk away do you have a chance of succeeding when there’s an impasse on a key issue and all attempts at compromise have failed. The downside of that, of course, is that you have to be prepared to abandon the deal.

Whether this particular clause should be that issue is a separate question. Many people would not consider it one to kill a deal for. However, if your publisher refuses to accept any of the above alternatives or the workaround option, you may want to consider how reasonable your publisher is in general. And if the answer is “not very”—which would be a valid conclusion since the alternatives are reasonable and certainly the workaround causes no harm other than to delay hauling you into court —then you may not want that company or person to be your publisher in any event.

(Originally published in the Winter 2010 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I sue my publisher? What about the company that bought foreign rights?

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Q. My contract for a medical how-to book has a clause which grants me full cover approval. I designed the cover, which includes powerful back cover endorsements from prominent doctors. When it came out in paperback, a year after the first hardcover run, the publisher had changed all the cover endorsements to industry praise as opposed to those I had included. They did this without my permission or knowledge. Is there any recourse? Can I sue them?

This same publisher allowed a foreign language house that bought Spanish-language rights for Mexico and Central America to edit the book to within 1/4 of its original content, thereby making it dangerous to the public. While this hack job was underway, they deliberately did not let me know since they knew I would not agree.

The foreign language house was told to “tear covers.” They then reprinted the same butchered book two years later, with another title slapped on it. They have been selling it in the United States, not their territory, and I have not been getting proper royalties. I have been phoning, emailing and faxing my publisher about this for 10 years ….to no avail. Can I sue my publisher and the foreign one?

A. One of the first things law students learn in law school is that the proper question is not “Can I sue?” but “Can I win?” Virtually anyone can sue. Just have a lawyer draft the proper papers (or — not recommended — do it yourself) and pay the relatively low court filing fee.

Even though the proper question contains the same three words as yours and the law student’s, the answer is far from simple. And even if a columnist, friend or your lawyer says, “Yes, you can win,” it doesn’t mean that you will. Though people wanting to sue often refuse to believe it (I’m not saying that this is the case in your situation), there are frequently good factual or legal arguments on both sides of the issue and, even if you or your lawyer think you have the better case, a judge or jury could well side with your opponent in any dispute about the facts of the case (often depending on “he said/she said” testimony), the judge could find your opponent’s legal arguments more persuasive, or the lawyer for the other side could just do a better, more persuasive and effective job than the lawyer (s) you have hired. Even when you have citations to previous, analogous cases that appear to support your position, there may be one or two facts in your situation that differ somewhat from those in the case(s) you and your lawyer are relying on, or facts in that case that are missing from your situation or that exist in your situation but are not in the case you are relying on. These differing fact patterns could suffice from a legal viewpoint to distinguish your case from the ones you are relying on, enough to give a judge sufficient reason not to rely on the precedents you cite.

The cost of lawyers and related expenses, the amount of time it will take for the case to get to trial and through any possible appeals, the emotional toll and inconvenience of being involved in litigation, the possibility of the publisher filing counterclaims or related lawsuits against you in retaliation, and what you will win if victorious are all factors you need to consider in deciding whether to bring a lawsuit. You will also need to consider the effect that bringing a lawsuit will likely have on the publisher — its analysis for itself of the same factors listed above and such other factors as its reputation, the amount of management time the litigation will take up, the distraction the case might cause for the publisher, and the likelihood of it staunchly opposing the suit or deciding it’s better to settle and at what point in the process it might do so.

People often significantly underestimate the cost of litigation. To lawyers or sophisticated businesspeople, it is not surprising that lawsuits that non-lawyers think are “simple” can end up costing a plaintiff $100,000 or so in legal fees if the company being sued has its own lawyer (or can afford to hire one), decides to contest the suit vigorously, and the case goes to trial and is appealed. Even without realizing this, expense-conscious individuals considering a lawsuit often ask lawyers if they will represent them on a contingency basis. The reality is that virtually no knowledgeable lawyer who has a for-profit practice will take a publishing case or similar litigation on a contingency basis. The results in most of those cases are uncertain, the time and cost in properly preparing a case significant, and the amount on which the contingency percentage would be based likely much too small.

That being said, I would love it if someone with the funds, top-notch lawyers, perseverance, intelligence and emotional stamina would sue publishers like the ones you describe (and even some more reputable) who often ignore provisions in their author-publisher contracts because they assume that authors won’t have the money, lawyers or fortitude to sue and the amount apt to be won by the author not worth the investment involved.

(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I sue my publisher in the state I live in or must I sue it where it’s located?

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Q. I am thinking of suing my publisher. It’s located in Florida, and the contract says that it’s governed by Florida law. I live in New York. Do I have to sue the publisher in Florida or can I sue it in New York? Do I need a Florida lawyer to sue it in Florida?

A. Just because the contract says it is governed by Florida law does not mean you have to sue in Florida. The “governing law” provision (also called “choice of law”) only dictates which state’s laws must be used in interpreting the contract, not where the suit must be brought. If the proper procedures are followed, the case can be brought in New York (or another state where the publisher does business) regardless of whether the issue involved is a legal or factual one. To the extent the answer involves Florida law, the New York (or other) court could read the Florida statutes and cases and use Florida law to decide the case.

On the other hand, if the contract says that all lawsuits between you and the publisher must take place in Florida or has a sentence similar to “the jurisdiction of the courts in Florida is exclusive,” then you will have to bring your lawsuit there. Clauses like these are known as an “exclusive jurisdiction” or “choice of venue” clause. Not all publishing contracts have them.

If the suit must be brought in Florida and you know a good Florida litigator who is knowledgeable about book publishing and is within your price range, seriously consider hiring him or her. But the person you hire need not be a member of the Florida bar; you might find it more convenient to deal with a knowledgeable, experienced lawyer near where you live. In areas like contract law, the laws of various states rarely differ significantly in key respects. And many experienced litigators in New York know lawyers in Florida (and other states) who, for relatively small amounts, will nominally act as co-counsel on your lawsuit to assure compliance with the procedural requirements in the relevant state (primarily reviewing the papers to make sure they comply with technical procedural requirements of law and allowing the Florida counsel’s name to appear on the legal papers as “local counsel”). If you and your lawyer decide to file the lawsuit in a federal court located in Florida instead of a Florida state court, then those steps should not be necessary.

In negotiating a contract where author and publisher are in distant states and the publisher’s form provides that the jurisdiction of its home state is exclusive, authors should try to change “exclusive to “non-exclusive.” If the publisher won’t accept that, seek to provide — on the “what’s good for the goose is good for the gander” theory — that litigation in either of your home states will be permitted. In offering the latter, authors can point out that they are still giving up a lot because, without the contractual limitation, they would be entitled to sue the publisher in any state where it does business.

(Originally published in the Winter 2009 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

How much material can I use from one of my earlier books?

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Q. I currently have two manuscripts that I am trying to place. One is a collection of essays, the other a memoir. The collection includes an essay called “Relief.” The memoir grew out of this essay, whose contents are dispersed throughout the memoir’s four main sections. The total number of words from “Relief” comprises approximately 7 percent of the entire memoir.

My questions:

  1. If a publisher takes the memoir first, would a second publisher need to acquire rights to reprint the essay in the collection?
  2. If a publisher takes the essay collection first, would a second publisher need to acquire rights to reprint the parts of “Relief” that are included in the memoir?

A. The best way to handle your concern is not via a lawyer’s analysis of whether publication of the second book (whichever it is) violates the copyright in the first book or is permitted because of the “fair use” doctrine, even if the lawyer doing the analysis is a specialist in copyright law. Questions of “fair use” are frequently subjective rather than objective. Lots of money is spent in lawsuits where both sides are convinced they are right and have written memoranda from their respective lawyers saying why. It is far better — less expensive, less emotionally distressing and more certain — to resolve the matter in the contract with the publisher with whom you sign a contract first, regardless of which book it is for. This will avoid any unnecessary misunderstanding or dispute, as well as any question as to whether publication of the second book violates the copyright of the first book or whether the second violates the typical provision in a publishing contract which prohibits an author from publishing competing books.

If the publisher of the first book (whichever it is) agrees with you that the second book does not compete with the first, then the way to handle your concern from a contractual viewpoint is to insert a paragraph in your contract for the first book that says (i) nothing in the contract prohibits you from publishing the second book, and (ii) if anything in the second violates the copyright in the first, permission is granted to you to publish the second upon whatever terms you decide on with its publisher.

You should consult a publishing lawyer to draft the precise language for you since there are several ancillary items that should be covered in the provision, e.g., that the right to publish the second book includes both the right to publish it yourself and the right to license publication rights to others; the extent to which the manuscript for the second book may be revised and still be considered the same version for which the first publisher is giving its permission; that the right to publish the second book is not a one-time right but extends to multiple editions, whether published by one or different publishers, and in English or in translation.

(Although some might question how one book you wrote could violate the copyright in something else you also wrote, the answer – implicit in your question – is that once you have granted the first publisher the right to publish your book, that publisher must grant permission to you and the second publisher in order for the second book to be published since the first publisher, in essence, now shares the copyright in your first book. Otherwise, you would be unable to warrant to the second publisher, as typically required in publishing contracts, that nothing in the second book violates the copyright of any other book.)

For the purpose of this answer, it makes no difference which of the books is published first.

Without seeing the two books, I’m reluctant to say whether anything in one would violate the copyright in the other. Once you get a publisher interested in either book, and assuming that publisher won’t add a section to your contract like the one I suggest (which would effectively sidestep the issue but still accomplish what you want by mutual agreement, a less expensive and more conciliatory approach), you could then consult an experienced copyright lawyer if you wish to proceed. My initial reaction, however, is that publication of the second book—whichever it is – would violate the copyright of the first. Keep in mind that the percentage of one work used in another is only one criterion for determining whether permission is needed or whether the “fair use” exemption applies and, generally speaking, should not be relied on as the sole factor in determining that permission is not required. Moreover, note that the language relating to this factor in Section 107 of the Copyright Act is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” not the percentage of the second work that the copyrighted work (in your case, the essay) constitutes. Indeed, from what you write, 100 percent of a complete, copyrighted work – the essay “ Relief” — appears in the memoir; the 7 percent number – the percentage that the essay bears to the entire memoir — is irrelevant for purposes of this test.

(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I sue my publisher?

Posted on by Mark Levine Leave a comment

Q. My contract for a medical how-to book has a clause which grants me full cover approval. I designed the cover, which includes powerful back cover endorsements from prominent doctors. When it came out in paperback, a year after the first hardcover run, the publisher had changed all the cover endorsements to industry praise as opposed to those I had included. They did this without my permission or knowledge. Is there any recourse? Can I sue them?

This same publisher allowed a foreign language house that bought Spanish-language rights for Mexico and Central America to edit the book to within 1/4 of its original content, thereby making it dangerous to the public. While this hack job was underway, they deliberately did not let me know since they knew I would not agree.

The foreign language house was told to “tear covers.” They then reprinted the same butchered book two years later, with another title slapped on it. They have been selling it in the United States, not their territory, and I have not been getting proper royalties. I have been phoning, emailing and faxing my publisher about this for 10 years ….to no avail. Can I sue my publisher and the foreign one?

A. One of the first things law students learn in law school is that the proper question is not “Can I sue?” but “Can I win?” Virtually anyone can sue. Just have a lawyer draft the proper papers (or — not recommended — do it yourself) and pay the relatively low court filing fee.

Even though the proper question contains the same three words as yours and the law student’s, the answer is far from simple. And even if a columnist, friend or your lawyer says, “Yes, you can win,” it doesn’t mean that you will. Though people wanting to sue often refuse to believe it (I’m not saying that this is the case in your situation), there are frequently good factual or legal arguments on both sides of the issue and, even if you or your lawyer think you have the better case, a judge or jury could well side with your opponent in any dispute about the facts of the case (often depending on “he said/she said” testimony), the judge could find your opponent’s legal arguments more persuasive, or the lawyer for the other side could just do a better, more persuasive and effective job than the lawyer (s) you have hired. Even when you have citations to previous, analogous cases that appear to support your position, there may be one or two facts in your situation that differ somewhat from those in the case(s) you and your lawyer are relying on, or facts in that case that are missing from your situation or that exist in your situation but are not in the case you are relying on. These differing fact patterns could suffice from a legal viewpoint to distinguish your case from the ones you are relying on, enough to give a judge sufficient reason not to rely on the precedents you cite.

The cost of lawyers and related expenses, the amount of time it will take for the case to get to trial and through any possible appeals, the emotional toll and inconvenience of being involved in litigation, the possibility of the publisher filing counterclaims or related lawsuits against you in retaliation, and what you will win if victorious are all factors you need to consider in deciding whether to bring a lawsuit. You will also need to consider the effect that bringing a lawsuit will likely have on the publisher — its analysis for itself of the same factors listed above and such other factors as its reputation, the amount of management time the litigation will take up, the distraction the case might cause for the publisher, and the likelihood of it staunchly opposing the suit or deciding it’s better to settle and at what point in the process it might do so.

People often significantly underestimate the cost of litigation. To lawyers or sophisticated businesspeople, it is not surprising that lawsuits that non-lawyers think are “simple” can end up costing a plaintiff $100,000 or so in legal fees if the company being sued has its own lawyer (or can afford to hire one), decides to contest the suit vigorously, and the case goes to trial and is appealed. Even without realizing this, expense-conscious individuals considering a lawsuit often ask lawyers if they will represent them on a contingency basis. The reality is that virtually no knowledgeable lawyer who has a for-profit practice will take a publishing case or similar litigation on a contingency basis. The results in most of those cases are uncertain, the time and cost in properly preparing a case significant, and the amount on which the contingency percentage would be based likely much too small.

That being said, I would love it if someone with the funds, top-notch lawyers, perseverance, intelligence and emotional stamina would sue publishers like the ones you describe (and even some more reputable) who often ignore provisions in their author-publisher contracts because they assume that authors won’t have the money, lawyers or fortitude to sue and the amount apt to be won by the author not worth the investment involved.

(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.