Editor
ASJA Newsletter
To the Editor:
Sallie G. Randolph's
answer to the member who queried regarding possible
courses of action in the case of a potentially
unauthorized Spanish-language edition of a book
was certainly exhausting -- but not exhaustive,
and not particularly helpful. ("The Legal
Department: It's Not Illegal Unless It Violates
the Contract," ASJA Newsletter, April 2000.)
Indeed, it seemed to follow the dictum at the
end of her next response: "[F]ree legal
advice . . . [is] worth what you paid for it."
Randolph is quite right,
of course, to suggest that step 1 involves reading
the original contract to ensure that translation
rights and/or rights to publish in that particular
territory (if not North America) were not relinquished
therein by the author. However, let's assume
that the contract was in fact breached and/or
copyright was violated. The writer has recourse
of several kinds.
The first, and simplest,
is fact-finding. The breach may have been deliberate;
it may also have resulted from neglect (if,
for example, the author negotiated a translation-rights
clause substantially different from the publisher's
usual terms, and this got overlooked in-house).
So a simple letter of inquiry in that regard
might in fact set in motion a process of compensation
for a publisher's error.
The second is good-faith
negotiation. If a breach of contract has occurred,
inadvertently or intentionally, the publisher
may well be willing to set things right without
coercion once the problem has been brought to
light. So setting up a meeting to review the
matter couldn't hurt, and might be all that's
needed.
Both these steps, if
undertaken in writing, would also begin to establish
the paper trail that any subsequent legal proceeding
would require.
If it turns out the breach
was intentional, and the publisher refuses to
pay up, then coercion is called for. So step
3 would be for the author to send a cease-and-desist
letter by registered mail, or to call in the
hired guns by joining a professional organization
-- such as the Authors Guild or the National
Writers Union -- that has a grievance committee
specifically put in place to help pursue such
matters on behalf of its members free of charge,
and putting the matter in their hands.
If that's not sufficient,
there's step 4: A letter from a lawyer, outlining
the breach, promising a lawsuit, and threatening
to have publication and/or distribution enjoined,
might well do the trick -- and would certainly
cost less than a lawsuit.
Finally, there's step
5: Sue the bastards. Depending of course on
the amount of money at stake, a small-claims
suit could be filed by the author. This is a
minimal-cost form of legal redress, available
to all for a filing fee in the low two figures.
If the total amount owed is over the limit for
small-claims suits, the claim could be delimited
in some way (e.g., the first year's royalties);
if the case were adjudicated in plaintiff's
favor, the court would almost certainly order
the defendant to continue to make appropriate
payments.
So, in fact, one does
have varied recourse in such situations. None
of these remedies would cost the author more
than $200 out of pocket. Don't they deserve
a mention? Randolph spent a good fifty percent
of her answer explaining at great length (and
unnecessarily) the differences between criminal
suits and civil suits, and no time at all offering
practical suggestions. The result left me (putting
myself into the author's shoes) feeling that
the situation was hopeless, and that I had no
ready remedy -- and very glad that I wasn't
paying her by the hour (or by the word).
Yours,
/s/ A. D. Coleman
This letter appeared
in print under the title "Letters: Alternatives
to Lawsuits" in the ASJA Newsletter,
Vol. 49, no. 6 (June 2000), p. C3. This publication
is the newsletter of the American Society of
Journalists and Authors.
