Ask Author Law

When the publisher doesn't pay

December 2, 2014

Tags: Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property, Collecting Overdue Fees, Small Claims Court

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: A magazine owes me several thousand dollars and hasn't paid. I'm afraid that the publisher is experiencing major money problems. Do you think I should sue for my money? Can I go to small claims court?

A: A lawsuit is certainly one way to get your money, although I would advise it only after you have exhausted your other options, such as requesting intervention from a writers organization. When all else fails, though, litigation is something to consider. Sometimes the credible threat of a lawsuit will precipitate payment. Often the actual filing of a suit brings about a settlement. Sometimes a trial must be held. If you are going to threaten litigation, though, you should be prepared to go ahead. If you aren't ready, willing and able to sue, don't threaten. This means that you should carefully evaluate the potential for litigation at the first sign of trouble. Your collection strategy will be dictated in part by this evaluation.

Whether or not small claims court is practical for you depends on a variety of circumstances such as exactly how much you are owed, where the magazine is located and where you live, how strongly you feel about the situation, and how much time and effort you are willing to invest. Small claims courts are state courts and the rules vary from state to state. In most small claims courts there is a ceiling, called the jurisdictional limit, on how much can be recovered. The figure varies widely from state to state.

Most states require a small claim to be filed in the jurisdiction where the defendant is located. In New York, the suit must be filed in the same county, city or township where the defendant has a postal address. This means that if you live on the West Coast and wish to sue a Manhattan-based magazine, you'll have to file your suit in the small claims court in New York County, which is a division of the Civil Court of the City of New York. You can have someone file on your behalf, but you'll eventually have to appear in court yourself. So, if you live near New York and can appear in court easily, small claims court can be an effective way to get your money from a New York publisher. But if you live far away from the publisher or are owed more than the jurisdictional limit, then it's a much less practical option.

Something else to keep in mind is that even if you win a judgment, in small claims court or another court, you still have to collect it. If the magazine is, as you suspect, tottering on the brink of insolvency, winning in court may not get you any of those dollars you are owed.

Using trademarks in fiction.

November 24, 2014

Tags: Trademarks, Author Law, Writing, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: I am writing a novel and was told by an editor that I must remove the words “Ford,” “Greyhound,” “Chrysler,” etc. or be prepared to fork out royalties. I've never been told this before, and don't know what to do. I've researched trade name law but can't find anything pertaining to this in particular. If I'm using say, “Ford,” for example, as simply stating what it is my character drives, (i.e. Ford pick-up, etc.) does this pose legitimacy to said editor's advice? Any information you can share is most sincerely appreciated.

A: This editor is way off base. Of course you can write about trademarked products in your fiction. What the trademark protection prevents you from doing is marketing your own automobile under the brand name of another or using the trademark in commerce or advertising without identifying it as a registered trademark. Your proposed use is legally acceptable and the editor is incorrect. Which leads me to ask just how credible this editor is about publishing issues. Is this someone you plan to do business with? If so, please be careful.

One point to consider -- most of the time when you write about something that has trademark protection you should capitalize. That's courteous and correct. You do not need to use a trademark symbol in editorial copy.

Termination of contract because of breach

November 17, 2014

Tags: Breach of contract, Author Law, Sallie Randolph, Authorlaw, Copyright, Publishing, Books, Contracts, Contract Termination, Collaboration Agreement, Writing, IP Law, Intellectual Property

Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship.

Q: My publisher has violated our contract in several ways. The most serious problem is that royalty payments are always late. On two different occasions, the payments were not enough and I had to raise a fuss in order to get what was owed me. The publisher is not marketing the book as aggressively as he could. Is there any way I can get out of this contract?

A: The first step is to consider diplomatic action. Talk to your agent if you have one. She should be able to apply pressure to the publisher.

If you seek a legal solution, you should be aware that the publisher must usually fall far short of its contractual obligations before the author can terminate or rescind the contract. A court will generally permit termination only in the event that the licensee has committed a material breach of the publishing agreement. Courts define a material breach as a breach of so substantial a nature that it “affects the very essence of the contract and serves to defeat the object of the parties.” The breach must, in fact, constitute “a total failure in the performance of the contract.” This is a high standard.

In various cases, courts have applied the above test and concluded that delays in royalty payments and certain short falls in amounts paid do not amount to a material breach. However, while a publishing agreement can rarely be terminated entirely, there are circumstances when the high standard for a material breach does not apply. Furthermore, even though you are might not be entitled to terminate the contract, you may be entitled to damages for the publisher’s breach. Accordingly, it is best to consult a knowledgeable attorney who can review your contract and the facts of your case.