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

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.

Do I have cover approval for the paperback edition of my hardcover book?

Q. My contract grants me cover approval but the paperback publisher never sent me the cover to look at. It’s totally different from the dust jacket on the hardcover, which was fabulous. I’m told that paperback publishers have the right to design their own covers. Is that true?

A. The contract between you and your publisher essentially covers only copies of your work published by that publisher, whether hardcover, paperback or electronic. With very limited exceptions, its provisions do not apply to copies of your work published by licensees of your publisher. If there are particular provisions in your contract that you want carried over to an edition published by any of its licensees, you should list those provisions, by repeating them or by cross-reference to the clauses containing them, in a section of the contract which says that the publisher must include them in its contract with the licensee. Another way would be to say, each time one of those provisions appears in the contract, that the provision must also be contained in any agreement the publisher signs with a licensee for another edition of the book.

Among the clauses that an author is most apt to want included are a prohibition against material by anyone else (whether advertising, the work of another author or anything else) being included in your book; the right for you to purchase copies of the reprint edition at a discount for resale; and cover approval. The most important provision—no changes to what you wrote—is generally covered by the publisher’s contract with the reprint publisher and not something you typically have to worry about.

If your publisher balks at including certain provisions you request because it thinks they might limit its ability to license the book for reprint, you have three alternatives. One is to agree with the publisher and omit them from the contract. The second is to remind the publisher that if the relevant provision in fact turns out to be an impediment to signing the license, it can ask you at that time to waive the requirement, so the provisions should be left in as mandatory. The third, for the arguably problematic provisions only, is to change the operative language in the section from “the publisher shall include the following provisions in the reprint contract” to “the publisher shall use its best efforts to include the following provisions….” I’m generally a fan of the second alternative.

(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.

Can I Get Approval Rights for the Cover’s Design?

Q. How typical is it to get approval in a contract for the design of the book’s cover?

A. It is extremely difficult—generally nigh to impossible—to get a provision in your contract giving you approval over design of the book’s cover or dust jacket. The best way to handle this situation, in practical terms, is to be in constant touch with your editor and be aware of the production schedule for your book, especially the dates when someone will be assigned to design the cover and the deadlines for its submission, approval and printing. This will enable you to ask the editor if you can see sketches of the design, cover proofs, etc. If asked properly (i.e., not as a demand or as a matter of right), many if not most editors will allow you to see them, though some reluctantly.

To make this more than an informal arrangement, there are provisions that many publishers will insert in their contracts that will give you the right to see the design and comment on it. Though this will (properly, in my opinion) not give you the right to substitute your judgment for that of your publisher’s marketing department, it will enable you to express your viewpoint and, in most cases, to hear the design and marketing reasons for their decision. Doing this also enables the publisher to get your input and particular knowledge of a subject to avoid gaffes (e.g., the use of the color orange in a book about Ireland—unless the subject is Orangemen— or the depiction of angels with wings in a book directed to Southern Baptists).

An example of the type of clause often accepted is the following:

“Cover Consultation. Publisher agrees to show Author the sketches and designs for the Work’s cover, as well as the proofs thereof, in time for Author’s suggestions and responses to be incorporated if Publisher agrees with them. Publisher shall use its best efforts to include the same or a substantially similar clause in any license for English language reprint editions of the Work, for publication primarily in the United States, which Publisher is permitted to license under this Agreement.”

(Originally published in the Winter 2007 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 new book.