A publishing
contract is like any other contract. It establishes a business relationship
between the author and the publisher. It is not an admission to a private
social club. Although an author may feel privileged and proud to have a work
under contract, the purpose of the contract is to exploit and disseminate the
author’s work, not to stroke the author’s or the publisher’s egos.
I. “Shall” vs. “May”
The publishing
contract sets out the road map for the parties’ dealings, specifying what
actions are required and so must be performed, and what actions are permitted
and so are within the parties’ contemplation, but may or may not occur.
Mandatory or required actions are frequently, though not exclusively, found in
a clause containing the word “shall”.
Section 3--Within ten (10) days of
the execution of this Agreement, Author
shall deliver three, right justified, printed copies of the Work on 17”x 23.529411”
green paper to Publisher at Suite
123, Drilling Platform 138, North Sea.
Under this Section 3, the Author is required to deliver
three copies of the work in a specific form, at a specific place, within a
specified time period. Failure to perform any of these requirements constitutes
a breach of the contract. Even though 20” x 20” paper has the same total
surface area as 17” x 23.529411” paper, Author is required to use the latter
paper.
Permissive
actions are frequently, though not exclusively, found in a clause containing
the word “may”.
Section 4—Author may, in its sole
discretion, substitute an electronic copy in PDF format for any written
document or notice required or permitted to be sent under this Agreement. Any
such substituted document or notice may be sent by facsimile transmission or
e-mail in accordance with the contact provision of Section 3, 287 of this
Agreement.
Under this Section 4, Author has the right, but not the
obligation, to fax or email a document, rather than send a printed copy.
II. Basic Contract Construction
“You keep using that
word. I do not think it means what you think it means.” Inigo Montoya in The Princess Bride (1987)
The primary
purpose of putting the parties’ agreement into writing is to make the parties’
rights and obligations clear. Unfortunately, sometimes the agreement isn’t as
clear as the parties expected. Courts assume that everything in a contract was
put there for a reason. Accordingly, wherever possible, a court will attempt to
give meaning to every word in a contract. Therefore, just because the parties
may disagree as to the meaning of a contract clause, it does not follow
necessarily that the contract clause is ambiguous or unenforceable as written.
Courts rely on a
number of different kinds of rules for interpreting a contract. The most
important rule, of course, is one that supports your position. That said, let’s
take a look at a few of the more common rules.
The first rule of
contract construction is that there is no need to interpret a contract if the
meaning is clear. Words are given their plain and ordinary meanings. If a
simple reading will suffice, then a court will look no further.
Section Five—Author shall stand on
the corner of Fifth Ave and Main Street in a chicken suit for one hour,
commencing at 1:00 p.m. central standard time, on the third Tuesday in each
calendar month containing the English letter “Y”.
This Section Five provides clear and unmistakeable
direction. Author is required (“shall”) to stand in a specified place, at a
specified time, for a specified duration, in a specified manner of dress. There
is no question as to Author’s obligations under this clause. A court will not
resort to any rules of interpretation beyond the plain and ordinary meaning of
the words in the clause. (The wisdom of such a clause is not the court’s
concern. The clause was important to the parties or it wouldn’t have been
included in the contract.)
If there is some
question as to a party’s rights or obligations under a particular contract
clause, the next step is for a court to look at the contract as a whole to
determine the meaning of clause.
“The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth…” JARECKI v. G. D. SEARLE & CO., 367 U.S. 303 (1961)
The meaning of general words that follow specific ones is limited by the meaning of the specific words.
"The
rule of ejusdem generis, while firmly established, is only an
instrumentality for ascertaining the correct meaning of words when there is
uncertainty. Ordinarily, it limits general terms which follow specific ones to
matters similar to those specified...” Gooch v. United
States, 297 U. S.
124, 297 U.
S. 128 (1936)
Similarly, contract clauses that are specific take
precedence over general clauses (generalia
specialibus non derogant rule). Although
the Publisher may have the general right to control the cover design, if the
Author has the right to review or reject a cover, that exception will take
precedence.
Another rule of construction worth noting
is the rule that “the expression of one thing excludes other things” (expressio unius est exclusio alterius). Sometimes,
what isn’t included in a contract is just as important as what is. When a
contract clause expressly provides that the Publisher has the right to do “A”,
“B” and “C”, then it does not have the right to do “D”. If the Publisher has
the right to review and correct the text, that does not mean that it has the
right to line edit and change those portions of the text that are not
erroneous. The right to correct means that the Publisher can fix mistakes such
as closing open quotations and replacing misspelled words with the proper
spelling. It doesn’t mean it can change the Author’s word choices.
Finally, while there are other rules of
construction, one rule particularly needs mentioning. When all else fails, and
a contract provision’s meaning is still unclear, then a court will construe a
contract against the party that drafted the provision (contra preferentem rule). In most cases, the contract will be
drafted by the publisher, and presented to the author on a “take or leave it”
basis. In such a case, where any doubt remains as to the meaning of a clause,
the court will construe the provision in question against the publisher.
III. The Zipper Clause
"Th-Th-Th-Th-Th-...
That's all, folks." Porky Pig
Somewhere near
the end of the contract, there is probably a “zipper” clause. The zipper clause
(also known as a “merger clause” or “integration clause”) states that the
contract represents the entirety of the parties’ agreement. Any other writings
or representations to the contrary are of no force or effect. What the court
sees, is what it gets. A strong zipper clause can cause a court to ignore
evidence about what was discussed in the formation of the contract (parol
evidence).
It is important
before signing a contract with a zipper clause to make sure that the contract
fairly and accurately reflects Author’s negotiations with Publisher. If the
Publisher talked about sending Author to an all expenses paid writer’s retreat
in Fiji,
it better appear in the contract. If it doesn’t, Author will not be permitted to
argue, “But they said they would. That’s why I signed the contract."
IV. Non-compliance –
Cure – Termination of Agreement
“Once more unto the
breach” Shakespeare
A failure to
follow the requirements of a contract is known as a “breach”. While every
breach of a contract constitutes some kind of violation of a party’s rights or
responsibilities, there is no hard and fast rule about the parties’ course of
conduct following a breach. Some breaches can be fixed or “cured”. Other
breaches cannot be fixed, and may lead to claims for damages and/or termination
of the contract.
How the parties
respond to different breaches depends in part on their general course of
dealings. If the parties have been dealing professionally and respectfully with
each other, then it is more likely that minor breaches such as sending a
document a day late where time is not of the essence will be ignored by the
receiving party. However, where there is antipathy between the parties, even
minor breaches may become major issues.
Treating the
other party professionally is more than a mere platitude or common sense. I
recently had a problem with a publisher that had total control over the cover
of one of my works. When I raised my concerns over the proposed cover with the
publisher, instead of attempting to address those concerns, the publisher
claimed its rights to control the cover under the contract. However, instead of
stopping at an assertion of its rights, the publisher chose to add in
gratuitous ad hominem attacks on me
for having the audacity to question its judgment. When the publisher committed
several breaches of the contract that were time sensitive and could not be
fixed or cured prospectively (a bell once rung cannot be unrung), I exercised
my right to terminate the agreement. Had the publisher addressed my concerns
over the cover in a professional manner, even if I was unhappy with the final
result, I might have been more forgiving of their subsequent breaches.
Some contracts
may include specific procedures for handling alleged breaches. For example, a
clause may require the aggrieved party to notify the offending party of the
nature of the breach, and give the offending party a certain amount of time to
fix or cure the problem. However, if the breach is not cured in a timely
manner, the offended party may be entitled to certain specified damages, or may
even be entitled to terminate the contract. If there are specific procedures in
the contract for raising the issue of a breach with the other party, then the
complaining party may be required to follow those procedures before seeking
relief in a court.
V. And in Conclusion…
The best contract
is one that the parties never need to consult. By maintaining a professional
relationship, it may be possible to resolve many issues without ever resorting
to the agreement. However, if it becomes necessary to review the contract, then
be sure to read not only any provision in question, but also any other
provisions that may help you understand it. Finally, when in doubt, don’t be
afraid to consult with legal counsel.
CK 2/19/12
