For a publisher, one of the biggest concerns is what happens if a writer breaches a publishing contract? There are various scenarios in which this can happen, but perhaps the most concerning for publishers is when the writer lies in the originality of their work. For example, in 2003 Norma Khouri’s supposedly non-fiction novel Forbidden Love about an honour killing in Jordan was exposed as a literary hoax as the author had grown up in the United States and had likely appropriated someone else’s story as her own.
Breaching a Publishing Contract
A publishing contract can be breached by a writer intentionally or unintentionally. Often unintentional, writers may breach the author sales clause of a contract that allows them a certain number of free copies of their books. Writers that take these books to sell at speaking events are technically in breach of contract since the contract will stipulate that books must be sold through the publisher and not the writer.
Most publishing contracts also contain warranties that are designed to protect the publisher and limit their liability. Warranties are a kind of promise that the author gives to the publisher once they sign the contract, and can include warranties such as:
- That the work is original;
- The work does not infringe any copyright, the trade marks, or any other intellectual property of another party;
- There is nothing defamatory; and
- Any statements given as facts are true.
Contracts will vary depending on the publisher. However, these warranties are beneficial as they set out to the writer the publisher’s expectations and protects the publisher in case the writer misleads regarding the book content’s originality or truthfulness.
Breaching a publishing contract, in particular, the warranties, will mean that remedies are available to the publisher. But what remedies can publishers get?
Publishers Can Seek Damages
If the breach by the writer is not a serious one, in general, the remedy available to publishers is to seek monetary compensation in the form of damages. Often, publishing contracts will contain an indemnities clause, which provides that the writer should reimburse the publisher for any damages suffered as a result of the warranties being breached. The publisher can choose to enforce this clause and seek damages this way.
The publisher can also sue for breach of contract against the writer for breach of the warranties. In this case, the publisher will have to prove that they were ready and willing to perform their obligations under the contract.
Discharge for Serious Breach
A serious breach, such as the case of Norma Khouri, may result in a complete discharge of the publishing contract by the publisher. This means that the contract will be terminated, and both publisher and writer become free of their obligations under it.
To discharge the contract, publishers must show that they were ready and willing to perform their obligations and that they would not have entered into the contract had they known the writer would not uphold their promises.
For publishers, it is important to have a publishing contract that protects their interests against intentional or unintentional breaches by writers. These clauses should protect publishers’ liabilities but be fair. In the event of a breach, seeking damages in the form of monetary compensation is the most common remedy for publishers. However, serious breaches can trigger a discharge of the contract completely.
If you’re a writer or a publisher with a budding contractual dispute on your hands as a result of breaches of key terms or warranties contained in the publishing contract, our contracts lawyers can assist with reaching a swift and cost-effective resolution.
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