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Ask Author Law

Termination of contract because of breach

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.
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