For the past several months, I have been researching aspects of a publishing contract. Specifically, the acceptability clause and why it seems like no one except publishers like them. I researched the purpose this clause serves, the reason for controversy surrounding it, and what possible solutions there are through case studies and scholarly research.
The acceptability clause allows publishers to determine whether a submitted manuscript is acceptable. The general definition is a provision of contract law that allows the hiring party (in this case the publisher) to say whether the job was completed to their satisfaction. Many of these clauses tend to be similar to this one from Simon & Schuster: “The Publisher shall not be obligated to accept or publish the Literary Work if, in its sole editorial judgment, such work is not satisfactory to it” (Sluss 30). For authors who don’t have any legal knowledge or literary agent to help them negotiate the contract, they are often left to do their own research or accept what’s offered to them. This leaves the author with very little power over the development of their work, resulting in a generally unfavorable opinion of the clause (Sluss). On the other hand, it’s important for the publisher to have the power to determine what’s satisfactory because, should the manuscript contain content that’ll expose them to lawsuits, they’ll only accept it once it’s cleared by legal counsel. However, as it’s the publisher that writes the initial contract, it’s stacked in their favor.
Thankfully, the law will protect the author by requiring the publisher to “display a commitment…by making explicit efforts to assist the author” (House 107). This usually appears as providing editorial assistance. What hasn’t been quantified is what exactly this editorial support should look like so a judge will deem it enough to fulfill the publisher’s obligation. It’s determined on a case-by-case basis due to the uniqueness of each manuscript.
The three cases I looked at are: Random House v. Gold, Harcourt Brace Jovanovich Inc. v. Goldwater, and Dell Publishing v. Whedon. Each case established a precedent, but whether it benefitted authors’ negotiation power depends on the case. Gold decided that authors have the burden of proof and that financial reasons are acceptable factors in the decision to reject a manuscript. Goldwater established a publisher’s obligation to provide editorial services, giving authors the potential for more bargaining power. Finally, Whedon established the precedent that authors are owed “more concrete and specific…obligations in certain key areas” of the satisfaction clause (Simensky 112).
As the law is incredibly slow to adapt to societal changes, few major changes have occurred since then and courts still abide by this precedent. Given the controversy surrounding the clause, there have been several theorized solutions proposed over the years by legal scholars and literary agents alike.
One of the solutions I found in my research that has the most promise was proposed by House, which includes the idea of something similar to a kill fee. In publishing contracts it might say that if the manuscript is rejected for anything other than dissatisfaction “the publisher will pay the author an amount agreed upon at the time the contract is signed” (House 143). However, as most agreements are standardized, it would be difficult for an author to negotiate a similar provision being added.
Since the acceptability clause won’t be leaving contracts soon, perhaps a middle ground can be found that appeases everyone involved. The clause serves a necessary purpose for publishing houses and is something authors should be aware of going in. However, publishers have a duty to be as fair and transparent as possible to these writers who spend years or decades on their craft.
Blog written by Maliea Ruby.