Chapter XII Publishing and Printing Agreements
Publishers’ Agreements.—These agreements are governed by the law of contract, and only incidentally involve questions of copyright. The contract between an author and his publisher is a personal one and cannot be assigned; each party is presumed to have relied on the personal skill or reputation of the other.1215 Thus it was held that a half profit agreement could not be assigned by a publisher’s firm to a firm which had succeeded to their business but which contained none of the partners of the original firm.1216 The same principle has been applied in the case of a limited company carrying on a publishing business.1217 A publishing agreement ought to provide for an assignment of the publisher’s rights and obligations to the person or persons who may succeed to the business. Unless otherwise agreed, the death or bankruptcy of a publisher will terminate a publishing agreement.1218 Similarly if an author had not performed his part of an agreement, viz. to write and revise the manuscript, his death1219 or bankruptcy1220 would terminate his obligations in that respect. The publisher could not insist on the author’s representatives completing the work, nor could they if they completed the work insist on the publisher publishing.1221
An agreement to write a book or an article cannot be enforced by specific performance.1222 The only remedy for breach is an action for damages,1223 or, if the author has agreed not to write on a particular subject for any one else, that may be enforced by an injunction.1224 An agreement to assign a copyright may be enforced by specific performance,1225 and probably also an agreement to furnish an unpublished manuscript already completed. An undertaking to write a book on a particular subject is not fulfilled by furnishing a translation of a foreign work on that subject.1226 If A agrees with B to write an article for a certain publication or series of publications, and if before the article can be published the publication or series has been discontinued, A is not bound to deliver his article for publication in another form; but he is entitled to a quantum meruit for the work he has done.1227
If an author has entered into a royalty agreement with a publisher he is not, apart from express agreement, under any obligation not to publish the work through another publisher before the first edition has been sold out.1228 An author should therefore be bound not to publish elsewhere so long as the publisher is willing and ready to publish, and if this is done the publisher may restrain the author or another publisher who publishes with notice of his agreement.1229 In a half profit agreement where nothing was said as to future editions, it was thought that the contract might probably be determined by either party on the expiry of each edition and before any expense had been incurred in respect of a future edition; but until that was done the publisher had the exclusive right to publish and recoup himself for his outlay and earn profits.1230
It is not illegal as being in restraint of trade for an author to contract to write only for a single publisher or theatrical manager,1231 nor for a publisher to contract not to publish a particular class of work.1232 If an editor engages to give his whole time to a publication, he will be restrained from engaging in or advertising any rival work.1233 Unless there is an express stipulation an author will not be prevented under a publishing agreement from writing and publishing other books on the same subject provided they do not reproduce in whole or in part the former book.1234 If there is an express stipulation against publishing similar works, both the author and his publisher would be restrained from doing so.1235 Apart from express agreement a publisher is probably free to publish any other rival work he pleases, even although it may seriously affect the sale of the former book.1236
In the absence of express stipulation, the publisher under a half profit agreement has been held entitled to fix the selling price, choose the embellishments, and generally control the publication.1237
In a publishing agreement it should always be expressly stated who is to hold the copyright. It has been held that where no mention of the copyright was made a half profit agreement did not import a transfer of the copyright to the publisher.1238 In editorial agreements as to newspapers or magazines similar careful provision should be made as to who is to own the copyright and the goodwill in the name, otherwise difficult questions may arise.1239
Where the author of a novel sold the copyright therein to the owners of a periodical, reserving to himself the right to publish in “volume form,” it was held that under this agreement he was entitled to publish the work in weekly parts, which when completed could be bound into a volume.1240
An indemnity given by an author to a publisher against proceedings for libel is void if the publisher knew or ought to have known that the matter was libellous.1241 The publisher, however, would be entitled to rely on such an indemnity if he acted innocently. The same principle would apply to proceedings for infringement of copyright.
A publishing agreement may be made orally unless, which will seldom happen, it cannot be performed within a year from the making thereof, in which case there must be a written memorandum of the terms to satisfy the Statute of Frauds.1242
The agreement, if in writing, must be stamped with the usual sixpenny agreement stamp. If it contains a conveyance of a copyright it will probably have to be stamped with ad valorem duty under section 53 of the Stamp Act.1243 If the work is unpublished at the time of the agreement the whole interest in the manuscript can be conveyed by delivery; in the case of a published work the copyright could be conveyed by entry on the register, so that in neither case need there be a conveyance in the agreement, and the stamp duty can thus be avoided. If a copyright is conveyed by entry on the register, the Copyright Act expressly exempts the conveyance from duty.1244
Printers’ Agreements.—A printer has a lien on the books printed by him for his printing charges.1245 He has no lien on stereotype plates for the amount of the bill for printing from them.1246 If the printer does not print his name and address on a book as required by Act of Parliament1247 he will not be entitled to recover his printing charges.1248 An order to print a certain number of copies of a book must as a rule be treated as an entire order, and no payment will fall due until the whole are complete and ready for delivery, so that if when half finished they are destroyed by fire he will not be entitled to recover for the work done.1249 A printer does not insure the manuscript when in his possession,1250 but is only liable for loss occasioned by his negligence.
A printer cannot maintain an action in respect of his charges for printing an immoral or seditious work, knowing it to be such.1251 If while a book is being printed by him he discovers that it contains libellous, seditious, or immoral matter, he would be entitled to discontinue the printing and sue for the work already done.1252
Addendum
Musical Copyright, Summary Remedies.—A Bill has passed both Houses of Parliament and awaits the Royal Assent whereby, after October 1902, owners of copyright in music may proceed in a Court of summary jurisdiction against persons dealing in pirated music. Piratical copies which are being hawked or offered for sale may be seized by a constable without warrant and brought before the Court, which, on proof, may order the copies to be forfeited or destroyed, and inflict a penalty not exceeding twenty pounds on any one offender in respect of the same transaction. This Act will not apply outside the United Kingdom.