INTERPRETING YOUR NEW PUBLISHING CONTRACT

     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