I’ve heard a lot of questions lately about what happens if your publisher decides not to publish your book after signing a contract with you. While this is obviously a matter of contract law—and contracts vary between publishers and between projects—the following is an overview of the types of situations that can arise and the issues you should check in your contract, preferably before you sign it!
There are a number of reasons why a publisher may decide not to publish your work, even after signing a contract for it. The main situations are:
1/ the publisher goes out of business or is acquired by another company and the new owners don’t want to proceed with publication;
2/ the publisher is not satisfied with the final draft of your manuscript; or,
3/ the publisher is concerned about market factors that might lead to poor sales or reputational harm.
Publisher Goes out of Business or is Acquired by Another Company
While it is extremely unfortunate if your publisher goes out of business prior to publishing your book, it does happen and there are usually contract clauses that provide for who gets what rights and what money if this does occur. Your contract may include a termination clause that reverts all rights in the book to you on the publisher’s bankruptcy and you want to check that you get to keep any advance monies already paid in that situation.
There will likely also be a clause in your contract about what happens if the publisher is acquired by another company—usually the publisher gets the right to transfer your contract to the new owners. If the new owners don’t want to proceed with your book, their right to terminate your contract will likely be governed by the provisions of your original contract. That contract should contain clauses that explain what happens if the publisher decides not to proceed and who gets what rights/money in that situation. You should get your rights back to allow you to sell the manuscript elsewhere—so it’s a good idea to make sure there’s a clause to that effect in the original contract.
A publisher usually has the right to terminate your contract if you fail to deliver a final manuscript that is editorially satisfactory within the time specified in your contract for final delivery. The idea of a “final delivery” date may sound odd to authors who have sold completed drafts of books to publishers, but remember there is always some editing to be done after you sell the manuscript so there is typically a “final delivery date” specified in the contract that is later than the date you actually signed the contract. When you negotiate the contract it is important to check that the final delivery clause contemplates the work being “editorially” satisfactory rather than generally satisfactory to the publisher. If the contract’s “satisfactory delivery” concept is too broad, theoretically a publisher could claim that they decided they just didn’t like the contents of what you wrote, rather than that there was too much editorial work to do to make it worth continuing with the book.
Court cases have been argued about what it means for a manuscript to be “satisfactory” or “editorially satisfactory” under these kinds of clauses, and how much work a publisher should be doing to help get the manuscript into an editorially satisfactory state. Make sure that when you sign a publishing contract you understand the kinds of situations in which the publisher could claim that your work isn’t satisfactory to them, as the contract will typically give them a right not to proceed with the book if they are not satisfied with your final manuscript.
A publisher may also decide not to proceed with your book because the market has changed since they signed your book and they don’t think they can sell it anymore. This can be because there are suddenly too many similar books on the market or because social or political circumstances have changed which make your book potentially less appealing to the target market. It could also be because you have engaged in conduct that the publisher thinks might negatively impact sales of the book or harm their reputation.
These situations are probably the most challenging in legal terms. Publishers will try to draft their contracts so they have as much discretion as possible about whether to publish the book so it’s important to read your contract carefully and understand the kinds of situations in which the publisher might decide not to proceed and, importantly, what you get in those situations—hopefully a full reversion of your rights in the book and an entitlement to retain any advance monies paid to you.
One clause that’s become more common in publishing contracts in recent years to give the publisher more discretion is the morality clause. The Author’s Guild has some useful information on morality clauses here. These clauses are a phenomenon borrowed from other sectors of the entertainment industry, like film/TV contracts where, say, an actor can be replaced from a project if they behave in a manner likely to harm the project. While there may be good reasons for publishers to want to include these clauses, they do give publishers a lot of discretion in deciding what kinds of conduct are immoral or objectionable, giving rise to their right to terminate the contract. The Author’s Guild article includes some examples of the typical wording of these kinds of clauses and explains why those clauses can be so problematic for authors.
Hopefully none of your books ever get cancelled for any reason, but before you sign a book contract, it is important to understand the situations in which a publisher might decide not to proceed with publication and what rights/money you will receive in which situations. As always, this column is not intended as formal legal advice, and if you are concerned about how your particular contract works, and what might happen if it is terminated, you should seek advice from an expert.