Publishing Contract

How to Avoid Unfair Delivery and Acceptance Clauses in a Publishing Contract

Of the many provisions in a publishing contract, two are extremely important to the author-publisher relationship: the delivery and acceptance of a manuscript. These provisions delineate the timing for submission and quality of the final manuscript. The author must deliver on a designated date a manuscript that is satisfactory to the publisher. If the manuscript is unacceptable for any reason, the publisher can terminate the contract and demand the advance be returned.

We can easily understand why a publisher should not be forced to publish a book that is editorially unsatisfactory. Maybe the manuscript is poorly written, or the research faulty, or the tone and style not up to snuff. But that does not mean an author should be burned by the subjective whims of a publisher when rejecting a manuscript for market or non-editorial reasons. Nor should an author be precluded from publishing elsewhere until the advance has been repaid.

To avoid such subjective and one-sided provisions, it is imperative that contract modifications be made to place an author on equal footing so both author and publisher can work together to produce the best book possible.

The Delivery Clause

Typical publishing contracts provide a deadline for the writer to deliver a complete manuscript. Besides the specific delivery date, often the clause provides details as to the manuscript format like computer-generated, double-spaced, and approximate word count or page length. If the writer fails to meet the deadline, the publisher can terminate the contract and require the portion of the paid advance return. Naturally, a missed deadline can cause a riff with the publisher, and financial discomfort for the writer returning an already spent advance.

Consider these points when negotiating the terms of the delivery clause.

  1. When agreeing to the delivery date, be realistic as to how long it will take to write the manuscript. The old business truism “under-promise and over-deliver” comes to mind. Better to estimate how much time is needed to finish the manuscript and add time for unavoidable delays than to agree to an unreasonably short delivery date, not meet the delivery commitment, and suffer the consequences.
  2. One way to provide the author more flexibility is add language to the delivery date that extends it for unexpected delays, like illness or accident.
  3. I have seen contract language in the delivery clause that “time is of the essence.” If possible, delete such verbiage. Courts have allowed writers reasonable grace periods for late delivery unless the contract language specifies that “time is of the essence.” In such cases, a late manuscript (even if one day late) constitutes a breach of contract and grounds for termination.
  4. Depending on the project and market concerns, some editors might not force a writer to adhere to the delivery date provided there is good reason. If a writer is having trouble meeting the manuscript delivery deadline, keep the editor informed of the delay. If the editor agrees to extend the delivery deadline, formalize the change with an amendment in writing signed by all parties to the contract.

The Acceptance Clause

The sister provision to the delivery clause is the acceptance clause, which gives the publisher a means to exit the publishing contract should the manuscript be unsatisfactory. Usually the contract language gives the publisher “sole discretion” in making that determination for a variety of reasons — the manuscript is poorly written, the editor is no longer employed with the publisher, the manuscript might subject the publisher to a defamation or invasion of privacy lawsuit, the author’s new work will not be as commercially successful as her earlier work, or even because the publisher’s financial outlook has changed.

As you can see, the clause language is inherently broad and favors the publisher in terminating the contract when the author fails to deliver what was promised or expected (even if the manuscript was professional competent). Evaluations of editorial acceptability are based on the publisher’s subjective judgment. What is satisfactory to one publisher may be unsatisfactory to another. Once a manuscript is rejected, the publisher has no obligation to publish, and the writer, who has breached the contract for failure to submit an acceptable manuscript, has every obligation to return the advance.

To lessen the sting of unfairness, a few protective provisions should help.

  1. Add language that changes delivery of a “satisfactory manuscript” to a “professional competent manuscript” or “manuscript that is satisfactory in form and content to the publisher.” If the publisher is willing, require the acceptance clause specify what the publisher considers satisfactory: length, content, style – anything that will provide the writer with a benchmark for the publisher’s subjective right to reject.
  2. Require that the publisher’s rejection be made “in good faith,” or with “reasonable judgment.” Under such limitations, the publisher will not have an unrestricted license to reject a manuscript merely because it arbitrarily changed its mind. The contract language could even go as far as to state the “publisher will not reject the manuscript because of a change in market conditions.”
  3. The contract should require the publisher to make a satisfactory determination within a specified time once the manuscript has been delivered – “within ninety days and in writing.” If the publisher fails to respond within that given period, the manuscript “shall be deemed accepted.”
  4. If the publisher deems the manuscript unsatisfactory, the contract should require the publisher to provide “detailed and specific editorial comments in writing why the manuscript is rejected.” The author should then have reasonable time to make revisions – “sixty days, with the publisher’s written editorial assistance.” Asking for written editorial suggestions gives the writer guidance in correcting any problems and meeting the publisher’s subjective standard for “satisfactory manuscript.” Once revised, the publisher should be given a specified time to make a final decision about the manuscript.
  5. To avoid financial hardship, add contract language that allows the writer to retain the advance received prior to the manuscript delivery, especially if the publisher decides to reject a manuscript because of market or other non-editorial concerns. At a minimum, the author should be allowed to delay repayment until the manuscript finds another home with a publisher and author receives another advance. Never agree to be precluded from publishing elsewhere until the advance has been repaid.

Even with the above protective provisions in place, the courts still give publishers wide discretion when terminating a contract for an unsatisfactory manuscript. To help make the process less subjective, an author should correspond with the editor regularly. If possible, provide the editor with portions of the work in progress and get the publisher’s acceptance on each portion. If you involve the editor prior to the delivery submission date, it will be harder for the publisher to reject the manuscript.

One final point, if the manuscript is rejected and the publishing contract terminated, make sure the contract provisions provide for all rights to revert to the author.

Photo Credit:  Smithsonian Institution via Visual hunt / No known copyright restrictions

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