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| The Society of Academic Authors monitors trends in authoring contracts. Please let us know your negotiation experience so we may share useful information with other members. Confidentiality is assured. Contact: Editor
SATISFACTORY MANUSCRIPT The contract boilerplate that publishers present to authors to start negotiations always has a provision requiring the author's manuscript to be satisfactory to the publisher. As worded, the provision gives the publisher unilateral authority to terminate a project and usually to recover advances that had been paid to the author. The language in the John Wiley & Sons boilerplate is typical. After detailing deadlines and formats, the boilerplate says: "(I)f any of such material, as delivered, is unsatisfactory to the publisher, then, upon the publisher's written request, the author will promptly repay all sums previously paid to the author by the publisher under this agreement, and the publisher upon receipt thereof will terminate this agreement...."Recommendation: The standard "satisfactory manuscript" provision is so problematic that it should be stricken. In its place should be provisions for either the publisher or author to abandon a project. See Termination Provision. What is the problem with the "satisfactory manuscript provision"? Defining satisfactory. The concept satisfactory cannot be measured to everyone's satisfaction. It's a matter of judgment. People can honestly disagree about quality or the lack thereof. With a manuscript, not unnaturally, pride of authorship can color an author's perceptions. Also, as demonstrated in numerous court cases, publishers can have ulterior motivation to scrap a book project besides manuscript quality. The Authors Guild tried in 1980 to put qualitative issues to a third party. In disputes over quality, the Guild proposed that a judge or arbitrator "make a determination of professional competence on the basis of testimony by critics, publishers, and other experts." The Guild proposal went no where. Publishers inferred it as a vehicle to force unwilling publishers to proceed with unwanted projects. Expansion application. Another problem with "satisfactory manuscript" provisions has been an expansive interpretations by publishers that go beyond the quality of the manuscript. A classic case emerged after the Watergate scandal erupted in 1973. The William Murrow publishing house changed its mind about a book being written by a former speech-writer for President Nixon on grounds that a "positive book" about the first Nixon term wouldn't sell well (Safire v. Morrow). In a somewhat similar case, West Publishing used the "satisfactory manuscript" provision to abandon a book that didn't fit the company's revised strategy for developing its list (Chodos v. West). As the Safire and Gold cases illustrate, the typical "satisfactory manuscript" provision lends itself to expansive misapplications by a publisher. Uneven risk. The provision puts almost all the risk at the manuscript phase of a project on the author, who expends time and immeasurable creative energy on a project with the possibility looming that the publisher can back out at any time. As the Wiley provision specifies, the author shall "promptly repay all sums previously paid" if the publisher decides to walk away from a project. The provision leaves an author vulnerable, with no compensation. The publisher, meanwhile,with hardly any investment in the manuscript phase of a project, can walk away with minimal financial damage. Coercion not a solution. "Satisfactory manuscript" provisions evolved from publishers' occasional bad experience with bad authoring. Publishers needed to protect themselves from being contractually forced to proceed with an irreparable manuscript. It's reasonable that a publisher have the option to walk away from a project that it doesn't want to pursue. It's also reasonable for an author to have the option to walk away. A good contract should be an agreement in which the parties choose to do something together -- not coerce one or the other. The solution is a termination provision in book contracts that provides for both the author and the publisher to leave the project with minimal financial loss to the other party. See Termination Provision. Author experience file: Case Study Number 1: An author was negotiating a contract to produce Powerpoint supplements to a textbook. His account: "When I read the contract, I realized that it gave me no protection at all: Not only did they have to right to refuse to pay me based on a subjective judgment of what was satisfactory, they gave almost no guidance about what they wanted (so that I would have reasonable expectations of what would be satisfactory) and the contract also said that they could use whatever portion of my otherwise-unsatisfactory material they wanted. I told them there was no way I would sign a contract that, legally speaking, permitted them to keep all my work and pay me nothing. After I struck the provisions that gave them this right, their vice president signed it but specified that all deletions were refused -- providing no explanation for why they needed a contract that tilted all of the legal protections to their side. Finally, the editors stuck between the vice president and me had their legal department come up with a compromise contract that I was willing to sign and they would have been willing to recommend to the vice president. The revision mainly did two things: It assured me pro rata payment, rather than a summary judgment, so that I would get paid for anything they used.This was acceptable to me -- it did not protect me from wasted effort if they changed their minds about wanting to distribute the product, but it did protect me from being manipulated or ripped off during the development of a real product." Case Study Number 2: "I have been arguing with a major textbook publisher about the satisfactory manuscript clause. They insist they "can't" agree to a provision to let me keep the advance for a new book no matter how arbitrary they might later be in deciding whether to publish. I won't sign a contract without some reasonable protection. To their creedit, they gave me a "good faith clause" for the third edition of onbebook but won't do so for a shorter version of the same book, arguing that it's a new book." For your further reference: Among court and arbitration cases that have dealt with the issue, most recent at top: Chodos v. West: (9th Cir. 2002). Doubleday v Curtis: 763 E. 2d 495 (2d Cir.), cert. dismissed, 106 S.Ct 282 (1985). Dell v. Whedon: 577 F. Supp. 1459 (S.D.N.Y. 1984). Harcourt v. Goldwater: 532 F. Supp. 619 (S.D.N.Y. 1982). Random House v. Gold: 464 F. Supp. 1306 (S.D.N.Y.), aff'd mem., 607 F.2d 998 (2d Cir. 1979). Safire v. Morrow: American Arbitration Case No. 1310-1230-73 (1975) Among explorations on the issue, most recent at top: Sara B. Sluss. "Interpreting and Applying the Acceptability Clause in Book Publishing Contracts," Book Research Quarterly, Volume 6 (Summer 1990), Pages 29-36. Calvin R. House. "Good Faith Rejection and Specific Performance in Contracts: Safeguarding the Author's Reasonable Expectations,"Brooklyn Law Review, Volume 51 (Fall 1984), Pages 95-145. Robert A. Carter. "See You in Court," Publishers Weekly, Volume 226 (September 7, 1984), Pages 39-43. Melvin Simensky. "Redefining the Rights and Obligations of Publishers and Authors,"Entertainment and Sports Lawyer, Volume 2 (Spring 1984), Pages 3-11. Carol Rinzler. "How Much Editing? Decision in 'Dell-Wheldon' Causes Stir,"Publishers Weekly, Volume 225 (February 10, 1984), Pages 26-28. Carol Rinzler. "When Is a Manuscript Acceptable?"Publishers Weekly, Volume 224 (September 23, 1983), Pages 16-17. Jeremiah F. Healy and Beth M. Alonso. "Authors' Rights: Waiver, Estoppel, and Good Faith of Book Publishing Contracts,"New England Law Review, Volume 15 (1980), Pages 485-520. Madalynne Reuter. "Authors Guild Urges Reform, of 'Satisfactory Ms.' Clause,"Publishers Weekly, Volume 218 (November 14, 1980), Pages 12, 14. Mark Fowler. "The 'Satisfactory Manuscript' Clause in Book Publishing Contracts,"Columbia-VLA Journal of Law and the Arts, Volume 3 (Fall 1987), Pages 8-17. Daisy Marlys "Morrow vs Safire: The Author Keeps His Money, But Loses the Issue,"Publishers Weekly, Volume 207 (January 20, 1975), Page 21.
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