Does a written agreement entitle me to a kill fee?

April 28, 2009 1:38 PM

I'm trying to build the best argument for why a company that committed in writing to licensing some IP of mine but are two years tardy in furnishing a contract owes me something.

In summer '06 my colleagues and I presented this company with a potential license that well fit their product line. We made a few changes over the course of '06 at their request and in Jan '07 received this message:

"We are delighted to let you know that [the publisher] would like to license and publish [the property] from you. The details of our proposal will be sent over to you next week and then I'd like to schedule a phone meeting to discuss this project further."

We had a totally amenable in-person meeting a month later to discuss details ... but no contract ever arrive. We have seen them in person four times since, but always with some excuse as to why they have never furnished a contract. In person, they are pleasant in a way that totally fails to trip my "insincere" detectors, and so we have allowed ourselves to hope against hope that their excuses represent legitimate difficulties. But we're now almost a year from our last person-to-person meeting and nine months from the last e-mail or voicemail that they actually returned.

Now, the publisher is, from all I know apart from our dealings with them, totally reputable and in business with "name" talent. We're going to be seeing them in two months at an event. In our industry, delays and sluggishness is expected, but waiting more than two years for a contract is not. We approached this publisher because their product line was best for our product, and they still are, but we all feel the situation has become ridiculous.

My concern is that if we say, "Fine, never mind," they will willingly relinquish their interest but also what seems to me to be their obligation to pay an industry-standard advance commensurate with their written agreement to publish. They said yes, and in the interim we have in good faith withheld that property from other prospective publishers. I think that's worth something, and by something I mean dollars, and I would ask the Hive Mind to either talk me out of this position or help me craft the most convincing argument.

posted by blueshammer to work & money (6 comments total)

Having dealt with a very, very similar publisher myself (feel free to MefiMail me, I'll name names), I can say that of all the publishers with whom I have published books, the only one to ever cause me real and lasting grief on a huge number of levels = the one whose contract department took FOREVER to get something sent over. Uncool. Very uncool. Danger Will Robinson! etc etc.

The likelihood of you ever getting money from them for something they never published and took ages to do anything with = slim to none.

Start pitching other publishers and let them know you're doing so since they never got back to you -- that'll perk them right up if they still want it and are willing to cough up the cash.
posted by bitter-girl.com at 1:50 PM on April 28

You need to contact a competent lawyer in your jurisdiction. You want one that will give you a free consultation, which should not be hard to find. Once you have the options laid out, you can make an informed choice about which course to pursue.

I won't go into details, as I'm not a lawyer and this isn't legal advice, but there is at least one potential cause of action that may apply, depending on the particular facts and your jurisdiction, so do see a lawyer. You may not actually have to bring a suit: just having a well-written letter on attorney letterhead may be sufficient to get things moving on the other end.
posted by jedicus at 2:00 PM on April 28

jedicus is right. This is something you should consult a lawyer about, as it's a pretty fact- and jurisdiction-specific issue. In the basic principles of contract law, you don't have an agreement -- you have an offer to begin bargaining. However, because you acted in reliance on their word, you might be able to get damages if your reliance was in good faith. Note that almost every one of those words has a specific legal definition which may be different in your jurisdiction than in mine -- and which almost never lines up with the common-sense definition of the word. All that is to say that, without knowing the law of your jurisdiction, common practice in the industry, and the exact wording of the letter and the details of your subsequent dealings with the publisher, the internets can't really tell you which way to go on this.
jedicus is also correct in that you should be able to get a free consultation. If you need help finding a lawyer, post back and someone can undoubtedly help you with that.
posted by katemonster at 2:14 PM on April 28

Volunteer Lawyers for the Arts might be worth checking in with. (Obligatory "I am not your attorney" disclaimer.)
posted by DavidNYC at 3:48 PM on April 28

Just to caution you that it may be very difficult for you to evidence damages. I mention that not to dissuade you from seeing a lawyers, but just as one thing to talk with the lawyer about, and one reason to consider mending fences rather than threatening to sue -- bear in mind that the lawyer's interests are not necessarily going to be served by a speedy, cash-free resolution, which may color the advice you receive.
posted by Clyde Mnestra at 3:52 PM on April 28

I don't want to pursue legal action per se; I want to mend fences. (I want to believe they're still interested.) But above all, perhaps, I want to be able to help ensure that there's a little more parity in my world, to help affirm a precedent where a publisher's "yes" is meaningful and worthy of good faith. Any kind of legal action is so much a last resort that it's almost no resort, but I feel like in order to advance this stalled conversation in anything other than the supplicant's role I need to know the ways in which the law is on my side.

I know how to seek pro bono counsel locally for this, but the publisher is half the nation away and I don't know if I can expect my local pro bono crew to bone up on Cali law for me. I'll call the VLA and report back on how that goes.
posted by blueshammer at 10:24 AM on April 29