The (Un)Satisfactory Manuscript

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The traditional publishing process begins with an editor’s enthusiastic response to an author’s outline, proposal, and sample chapter, followed by an offer and contract from the publisher. Once the contract is signed the focus shifts to the quality of the final manuscript. The publishing contract includes a “d & a” (abbreviation for delivery and acceptance) clause, which requires the author to deliver a manuscript that is complete and satisfactory to the publisher in form and content. If the manuscript is unacceptable to the publisher for any reason it can terminate the contract and demand return of the portion of the advance already paid.

Both Federal and state courts have interpreted the unsatisfactory manuscript clause to allow publishers wide discretion to terminate contracts provided that the termination is made in good faith. Determination of the publisher’s good or bad faith is tricky. In a federal lawsuit for return of a $350,000. advance paid by Random House the judge noted that “evaluations of editorial acceptability are based on the subjective judgment of the publisher” and “[what] in good faith may be acceptable to one publisher may be, in equal good faith, not acceptable to a different publisher.” (By paying a large advance Random House had taken a calculated risk that the author’s next work would be as commercially successful as his earlier books.). At the same time, to properly reject a manuscript the publisher must demonstrate that it did not “arbitrarily change its mind.” There must be good reason other than a change of market conditions for the publisher’s decision to terminate the contract.

Following guidelines set out in several important cases, “good faith” is arrived at by examining the publisher’s efforts to provide editorial assistance to the author to produce a book the publisher believes can be profitably sold. Even if the publisher has accepted and paid for portions of the manuscript it may only terminate a book contract on the basis that the completed manuscript is unsatisfactory if it has provided editorial assistance to the author and reasonable time for the author to make revisions.

New York courts have ruled that there is an implied good faith obligation in publishing contracts “for the publisher to engage in appropriate editorial work with the author of a book”. This means giving the author editorial suggestions and an opportunity to make revisions. In a lawsuit by the publisher Harcourt Brace Jovanovich against Senator Barry Goldwater [Harcourt Brace Jovanovich, Inc. v. Goldwater, 532 F. Supp. 619, 624 (S.D.N.Y. 1982)] for return of the advance after delivery of a memoir the publisher rejected as unsatisfactory, the judge concluded

It cannot be … that the publisher has absolutely unfettered license to act or not to act in any way it wishes and to accept or reject a book for any reason whatever. If this were the case, the publisher could simply make a contract and arbitrarily change its mind and that would be an illusory contract. It is no small thing for an author to enter into a contract with a publisher and be locked in with that publisher and prevented from marketing the book elsewhere.

In an action by Random House against the novelist Herbert Gold [HBJ, Random House, Inc. v. Gold, 464 F. Supp. 1306 (S.D.N.Y.), aff'd mem., 607 F.2d 998 (2d Cir. 1979)] another judge held that “allowing unfettered license to publishers to reject a manuscript submitted under contract would permit overreaching by publishers attempting to extricate themselves from bad deals.”

The major unsatisfactory manuscript cases have had varied outcomes: Senator Goldwater was permitted to keep his $65,000. advance. In that case the publisher simply rejected the manuscript and did not work with the author. In the Random House case the publisher terminated the contract after two rewrites and the author had to return $350,000. A fundamental rule emerges: the party that breaches the contract pays, either the publisher who fails to give the author editorial guidance or the author who fails to submit an acceptable final manuscript. Both parties have rights and obligations which should be clearly expressed and acknowledged in their contract.

The legal issues I discuss are the underpinning of the delivery and acceptance clauses in publishing contracts. If you or your lawyer or literary agent is negotiating a contract, try to include the following protective provisions:

1. All communications from the publisher relating to acceptance or rejection of the manuscript will be in writing.
2. The publisher is required to either accept the manuscript or direct the author to make editorial revisions by a specified time after delivery of the complete manuscript.
3. The editor’s suggestions for revisions will be reasonably detailed and specific.
4. The author will have a reasonable time to deliver a revised manuscript; and
5. The publisher is required to make a final decision about the revised manuscript within a specified time after delivery.
6. A “first proceeds” provision. If the final manuscript is unsatisfactory the author is permitted to defer repayment of the advance until she resells the book and receives another advance. In the past some publishers would agree to limit repayment to the amount of the second advance, even if it was smaller. Most traditional publishers’ contracts now require the author to repay the entire first advance within a stipulated period after the contract is terminated, even if the author fails to resell the book.

A final point: By both industry custom and most literary agents’ agreements, if the contract is terminated the agent does not repay the 10% or 15% commission she received for making the sale to the publisher.

Re-posted with permission from: Legal Corner for Authors


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Why Selling Yourself First Matters

Image courtesy of Gregory Szarkiewicz / FreeDigitalPhotos.net

As an aspiring writer, you’re far from being alone. In fact, you’re really just one voice saying “pick me!” in a chorus of thousands. Not the greatest odds, huh? Still, people turn them in their favor all the time by marketing themselves well enough to entice publishers to their cause.

It’s proof positive that selling yourself first matters. Keep reading and keep the following in mind and you can magnify your voice, too.

1. You don’t have an audience.
Veritable unknowns are a publisher’s worst friend. Their low sales potential makes them a huge risk to undertake, and whenever one shows up with a book in hand and a smile on their face, the publisher’s first instinct favors rejection. You fall into that category, and without an audience of your own (no, your network of family, friends and colleagues won’t fly) you might never overcome its obstacles.

Those who roll up their pants and wade into the deep waters of their target market to sell themselves first, however, have much more luck charming the contract out of a publisher.

2. Your competition is more noticeable than you are.
There are bunches of people out there who are trying to write to the same audience as you are. Some of them are already well-known to their market, too, hosting popular blogs, frequenting key forums and making names for themselves. Oh, and they’re quite possibly pitching their books to the same publishers and agents you’re pursuing.

Now, would you sign the writer who is noticeably present or the one who you’ve never heard of before?
Exactly. By selling yourself first, you will earn the upper hand over your competitors.

3. Your book can only build a certain amount of momentum on its own.
Books aren’t magical money makers. They can only sell so much on the merit of their contents before you have to infuse them with a few extra doses of momentum. Try to do that without a loyal audience and you’ll find yourself falling well short of your goals. Why? Simple. You need people to carry the marketing torch for you and nobody’s going to do that for a total stranger. Loyalty matters so, so much and the best way to earn it by selling yourself early in the writing/publishing process.
In the end, writers will never sell as well as personalities do. Become a personality before you’re published and you’ll be writing yourself as the loveable, supportable protagonist of your story.

Reposted from ‘Books and Buzz.’

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