PUBLISHING LAW

The body of law relating to the publication of books, magazines, newspapers, electronic materials, and other artistic works.

Publishing law is not a discrete legal topic with its own laws. It is a collection of often disparate legal areas, such as contracts, intellectual property, torts, and the first amendment.

Publishing is the act of distributing or otherwise making public a visual or literary work. The key players in publishing are publishers and authors. Publishers are those persons or organizations that dispense information to the public. The term author commonly describes writers and journalists, but where publishing is concerned, the term also describes photographers, filmmakers, video artists, and other artists whose work is published. Most publishers designate a lawyer to review a publishable work and identify its potential legal pitfalls. This person, called a legal liaison, may confer with outside legal counsel to ensure that the publication does not ensnare the publisher or author in legal conflict. A legal liaison should be familiar with the many legal issues peculiar to publishing, including copyright and trademark infringement, sales, advertising, distribution policies, subscription agreements, special sales arrangements, insurance, free speech, tax matters, and antitrust concerns stemming from the publisher's membership in trade associations. Other employees of publishers, such as editors, also should be trained to spot potential legal problems with a publishable work and bring them to the attention of the legal liaison before publication.

Publishers may be held liable for omissions, mistakes, and transgressions of their authors, as well as their own omissions, mistakes, and transgressions. One of the first and foremost concerns of publishers is copyright and trademark issues. Publishers should conduct thorough research on copyright and trademark issues before publishing a work. Among other things, publishers should ensure that copyrights are properly registered; the appropriate copyright notice is placed in each work; copyrights for work published prior to the effective date of the most recent federal copyright act, the Copyright Amendments Act of 1992 (2 U.S.C.A. § 179 et seq.), are renewed; the work does not violate the copyrights or trademark rights of another publisher or author; all copyrights are duly affixed to the work; all copyrights from source materials have been released or paid for; the work does not defame anyone; the work does not invade a person's right of privacy; all obligations to authors, creators, and illustrators under the contract are being met; information from sources can be verified or has been confirmed; and any material derived from a dialogue between real people that is placed in quotation marks correctly sets forth the actual words spoken.

Failure to confirm quotations can lead to lengthy litigation if the quotations defame the speaker. In Masson v. New Yorker Magazine Inc., 686 F. Supp. 1396 (N.D. Cal. 1987), aff'd, 881 F.2d 1452 (9th Cir. 1989), and superseded, 895 F.2d 1535 (9th Cir. 1990), and rev'd, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), on remand 832 F. Supp. 1350 (N.D. Cal. 1993), 85 F.3d 1394 (9th Cir. 1996), psychoanalyst Jeffrey M. Masson sued New Yorker magazine, its publisher Alfred A. Knopf, Inc., and freelance writer Janet Malcolm after Malcolm wrote a quite unflattering article about Masson for the New Yorker that included quotations by Masson that Malcolm could not substantiate. The defendants ultimately prevailed but only after more than a decade of litigation.

Some publishable works run the risk of invading a person's right of privacy. A person whose privacy is invaded may recover damages for the loss of privacy, for mental and emotional distress suffered as a result of the intrusion, and for any specific injuries or financial losses stemming from the intrusion. The four basic types of privacy invasion are public disclosure of private and embarrassing facts, publicity that places an individual in a false light, intrusion into seclusion, and misappropriation of a person's name or likeness for commercial advantage. Generally, public figures do not receive as much privacy protection as do private individuals.

Publishers also must ensure that a work does not infringe upon a person's right of publicity. The right of publicity protects a person's exclusive right to control the exploitation of his name, likeness, or persona for commercial purposes. Generally, to qualify for this protection, the person must have commercially exploited his persona. A publisher violates a person's right of publicity by publishing, without consent, the person's performance, name, or likeness for advertising or trade purposes.

"I Can't Get No": The Publisher Satisfaction Clause

Of all the provisions in a book contract, the satisfaction clause is the most controversial. Under the satisfaction clause, a publisher may refuse to publish an author's work and demand reimbursement for any advance payments if the publisher is not satisfied with the final product.

Publishers insist on including a satisfaction clause in book contracts to protect their own interests. A publishing company typically uses the clause when it has signed a deal with an author for a book that has not been completed. Such speculative deals are common in the world of book publishing. Many authors do not write books unless they receive an advance payment, and few publishers receive completed books that need no additional work from the author.

If a publisher is interested in a book or an idea for a book, it may seek an agreement with the author to gain the copyrights to the final product. The agreement may include an advance payment for the expected final product. When the publisher makes an advance payment, it must have a way out of the contract if the author submits a final product that is unsatisfactory. Without a satisfaction clause, authors would have less incentive to submit quality work, and publishers could be faced with manuscripts requiring an unreasonable amount of editing and rewriting.

For authors, the satisfaction clause is a potential trap. Some authors have argued that a publisher may use the clause as camouflage to reject a book for an invalid reason. For example, a publisher might reject a manuscript and claim it was unsatisfactory when the real reason for the publisher's rejection was that another publisher had beaten it to press with a book on the same subject. Such a rejection would be a bad faith rejection and would give the author a cause of action against the publisher. However, bad faith is notoriously difficult to prove in court.

For decades, courts refused to examine the motives of publishers when they invoked the satisfaction clause to terminate a book contract. The first sign of a more stringent standard of review came in 1979 in Random House v. Gold, 464 F. Supp. 1306 (S.D.N.Y. 1979). In Gold, Random House rejected author Herbert Gold's novel Swiftie the Magician after learning that Gold's first two books had fallen short of commercial expectations. Gold had agreed to write four books for Random House in exchange for advance payments against royalties.

When Random House offered to renegotiate Gold's contract, Gold sold Swiftie the Magician to McGraw-Hill. Random House sued and won back the advance payments to Swiftie the Magician, but in its opinion the court observed that broad discretion for publishers in their predictions of commercial success "may permit overreaching by publishers attempting to extricate themselves from bad deals."

The case of Harcourt Brace Jovanovich v. Goldwater, 532 F. Supp. 619 (S.D.N.Y. 1982), created a new approach to author-publisher contracts. In Goldwater, author Stephen Shadegg and politician barry m. goldwater contracted with Harcourt Brace Jovanovich to publish Goldwater's memoirs. In return for the book rights, Harcourt paid to Shadegg and Goldwater a $65,000 advance. Harcourt rejected the final manuscript nineteen months after the agreement was reached without giving the authors an opportunity to make revisions and without giving them editorial assistance. Harcourt demanded a return of the advance. Shadegg and Goldwater refused, and Harcourt sued.

The court acknowledged that the law must afford a publisher "very considerable discretion," but it also noted that a publisher does not have an "absolutely unfettered license to act or not to act in any way it wishes and to accept or reject a book for any reason whatever." The Gold court had said nearly as much, but the Goldwater court made new law when it declared that "there is an implied obligation in a contract of this kind for the publisher to engage in appropriate editorial work with the author." Goldwater therefore created a publisher's duty to provide editorial assistance to prevent its wanton use of the satisfaction clause. An additional duty, the duty to give an author the opportunity to make a revision, was established shortly thereafter in Dell Publishing v. Whedon, 577 F. Supp. 1459 (S.D.N.Y. 1984).

The satisfaction clause is likely to remain a standard provision in author-publisher contracts. Under the clause, authors will be held to their obligation to produce a satisfactory manuscript—that is, one the publisher can publish. Publishers, on the other hand, must be fair in their use of the clause against an author. Courts will no longer allow publishers to walk away from any author agreement just by reciting the word "unsatisfactory."

Several other torts may be committed in the publication of a work. Among other torts, publishers should be on guard for intentional or negligent infliction of emotional distress, incitement and negligent publication, breach of confidentiality, trespass, assault, and battery. Trespass, assault, and battery are most common in news-gathering situations, where the competition to break stories can lead writers, photographers, and video artists to engage in questionable behavior. Battery, for example, can occur if a photographer or interviewer intentionally touches a subject in an offensive way. An assault occurs if a person puts another person in reasonable fear of a harmful or offensive physical contact, and a person commits trespass by entering on land without permission of the legal occupant.

Infliction of emotional distress is tortious conduct that causes severe emotional distress to the subject of a work. For example, a publisher could be held liable under this theory of recovery for printing a photograph in a pornographic magazine and incorrectly identifying the person in the picture if the identified person experiences work interruptions, nightmares, terror, humiliation, or other emotional distress as a result. A plaintiff in such an action may recover for both physical and mental harm resulting from the tort. A subject need not suffer physical or bodily injury to recover damages for this tort; emotional damage is sufficient. The main issue in such torts is whether the conduct by the author or publisher was so extreme and outrageous as to permit recovery for the subject's emotional distress.

The tort of incitement is speech directed to inciting or producing imminent lawless action that is likely to incite or produce such action. Such speech must be explicit to constitute incitement. Publishers generally will not be held liable if warnings are included in the work or the publication does not produce a clear and present danger of imminent injury. Negligent publication is the unintentional publication of incorrect facts that results in injury. This tort requires that the publisher owe a specific duty of care toward the injured party. This duty is difficult, but not impossible, to establish. If, for example, a publisher markets a flight manual to airplane pilots and the manual contains errors, the publisher may be liable for injuries if an airplane crashes because its pilot followed the faulty information.

Breach of confidentiality generally arises from an individual's assertion that the publisher had a duty not to disclose certain information about her. The duty may be expressed in a written or oral agreement between the parties. It also may be implied or required by law. Such statutes are designed to protect an individual's general privacy interest, protect certain sensitive information, or shield certain government information or functions from public knowledge. For example, some states maintain statutes that prohibit the publication of the full name of a juvenile accused of a crime. Another example is the federal statute that creates a cause of action against persons who tape conversations without consent for criminal or tortious purposes (title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. § 2520 [1997]). If a publisher or author breaches confidentiality, she may be liable to the exposed party for injuries and financial losses stemming from the publication. In some states breach of confidentiality does not itself constitute a cause of action, but aggrieved plaintiffs may seek recovery under a breach of contract or invasion of privacy action.

The First Amendment guarantee of free speech, and free press is a frequent refuge for publishers. Publishers assert the First Amendment as a defense to claims for invasion of privacy, breach of confidentiality, intentional or negligent infliction of emotional distress, incitement and negligent publication, breach of confidentiality, and right of publicity claims.

Starstruck Strikes Out

On September 7, 1977, actor Tony Curtis, inspired by the success of his first novel, Kid Cody, agreed with Doubleday & Company to write a "rags to riches story of a lascivious Hollywood starlet" called Starstruck (Doubleday & Company v. Curtis, 763 F.2d 495 [2d Cir. 1985], rev'g, 599 F. Supp. 779 [S.D.N.Y. 1984], and cert. denied, 474 U.S. 912, 106 S. Ct. 282, 88 L. Ed. 2d 247 [1985]). On the strength of negotiations by his agent, Irving Paul ("Swifty") Lazar, Curtis received an advance of $50,000, which would be offset against the future royalties expected from sales of the Starstruck novel. The contract specified that Curtis should submit a satisfactory manuscript by October 1, 1978, but Curtis submitted nothing until April 1980, when he delivered a partial first draft.

In August 1981, Doubleday editor Elizabeth Drew concluded that the Starstruck manuscript was "junk, pure and simple, " and concurred with editor Adrian Zackheim, who was "appalled at the product," that Curtis's contract should be terminated under the contract's satisfaction clause. Doubleday asked Curtis to return the advance, but Curtis refused. Doubleday then sued for recovery in the Southern District of New York, and Curtis counterclaimed for third-party payments that Doubleday had received for Kid Cody.

At trial, Curtis argued that Doubleday had breached the contract in bad faith. According to Curtis, Doubleday had provided inadequate editorial assistance, and it had canceled the contract to avoid the terms of a related printing contract. The trial court dismissed Doubleday's claim on the theory that it had waived its right to reject the manuscript under the satisfaction clause by waiving deadlines. The trial court also dismissed Curtis's counterclaims.

On appeal, the Second Circuit Court of Appeals reversed the dismissal of Doubleday's claim. The appeals court examined the case history and found that Curtis had refused editorial assistance offered by Doubleday, including the suggestion that Curtis consult a "novel doctor." The court also held that Doubleday had not waived its rights under the satisfaction clause, that Doubleday's editors, "who were forced to harmonize an inferior manuscript, a lucrative reprint agreement and a recalcitrant author," had acted in good faith, and that Doubleday was entitled to a return of its $50,000 advance, plus interest. Curtis appealed to the United States Supreme Court, but the High Court refused to hear the appeal.

In some situations the First Amendment also provides members of the press a right of access to information. If the press has historically been granted access to a certain proceeding, and if press access would further societal interests, journalists may have a right to be present at a proceeding or to gain access to certain information (Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 [1980]). In Richmond, the Supreme Court held that a First Amendment right of access prohibited trial courts from excluding journalists and the public from criminal trials.

The Supreme Court has recognized a journalist's right to access judicial documents, but it has yet to recognize a constitutional right to access all government records. However, most states, as well as the federal government, have enacted so-called sunshine laws, which, with some exceptions, give the general public access to public records.

Most publishers maintain insurance against risks of loss. In-house or outside insurance specialists may negotiate coverage for an assortment of risks, ranging from personal injury and property damage to media perils such as invasion of privacy, copyright and trademark infringement, unfair competition, injuries related to faulty advertising, errors and omissions in the published product, and defamation, an intentionally false communication that injures another person's reputation or good name.

Only a handful of insurers protect against media perils because of the large potential losses involved. The few insurers that do protect against media perils do not provide coverage for all forms of media liability, and some do not offer coverage for both damage awards and legal defense costs. It is common for insurers to automatically cover authors of books in blanket policies for book publishers, but software, newspaper, and magazine publishers usually must obtain coverage for their writers by negotiating their inclusion in blanket policies.

Publishers often find that they are in legal conflict with their own authors. The conflicts between authors and publishers are usually contractual in nature, and courts use ordinary contract law principles to resolve the cases. One of the most common complaints of authors is that a publisher did not sufficiently promote their books. In deciding such a claim, a court generally looks at the facts surrounding the case to determine whether the publisher used its best efforts to market the book. Another point of conflict for authors is the satisfaction clause, a boilerplate clause in book contracts that allows publishers to reject a final manuscript and demand the return of any advances if the work is not satisfactory to the publisher.

further readings

Balkin, Richard. 1994. A Writer's Guide to Book Publishing. 3d ed. New York: Plume.

Bunnin, Brad, with Peter Beren. 1998. The Writer's Legal Companion. 3d ed. Reading, Mass.: Perseus.

Fischer, Mark A., Gabriel Perle, and John Taylor Williams. 1999. Perle & Williams on Publishing Law. 3d ed. Gaithersburg, Md.: Aspen Law & Business.

Fishman, Stephen. 2003. The Copyright Handbook: How to Protect and Use Written Works. 7th ed. Berkeley, Calif.: Nolo.

Polking, Kirk, and Leonard S. Meranus, eds. 1985. Law and the Writer. 3d ed. Cincinnati: Writer's Digest.

Sitarz, Daniel. 1989. The Desktop Publisher's Legal Handbook: A Comprehensive Guide to Computer Publishing Law. Carbondale, Ill.: Nova.

Strauch, Bruce, ed. 2001. Publishing and the Law: Current Legal Issues. New York: Haworth. Information Press

cross-references

Art Law; Censorship; Entertainment Law; Evidence "Journalists' Privilege" (In Focus); First Amendment; Freedom of Speech; Freedom of the Press; Intellectual Property; Libel and Slander; Literary Property; Music Publishing; New York Times Co. v. Sullivan; New York Times Co. v. United States; Roth v. United States; Royalty; Trademarks; Tort Law.

PUBLISHING

New Houses

Writers require publication, and publishers need books. The 1920s were a golden era for American writing and publishing. During the decade twenty influential trade publishing houses and seven university presses were launched. (An influential publisher is one that publishes significant authors and widely read books, good or bad; the longevity of the imprint is also a factor in its influence.) More enduring major American houses were founded during the 1920s than in any other decade.

PUBLISHING HOUSES LAUNCHED
DURING THE 1920s

Opportunity

Apart from the availability of ambitious young men who wanted their own companies, the cause for this proliferation was economic. A publishing company could be started with comparatively little financing: Richard L. Simon and Max L. Schuster launched their house with a $4,000 bankroll and hit pay dirt with their first book, the first crossword-puzzle book. The culture of America was print-based. Despite the increasing competition from radio, reading was still the chief source of pleasure and instruction.

Personal Publishing

As impressive as the number of new imprints was the range of their editorial rationales. Most of the lists represented the taste and judgment of one or two men—the owner or the partners. Publishing was personal; some of the young owners regarded themselves as crusaders. Thus, Emanuel Haldeman-Julius of Girard, Kansas, published some two thousand titles of the Little Blue Books at ten cents each. These paper-covered books were 3 ½″ x 5″ in format and had from 32 to 128 pages. Some of the titles expressed Haldeman-Julius's socialist convictions, and some had titillating titles (Confidential Chats with Husbands by Dr. Lay); but most of the Little Blue Books provided worthwhile literature (Greek and Roman classics) and self-education (Botany for Beginners) for millions of readers who would otherwise not have had access to it. Vanguard Press was started by Charles Garland to disburden himself of his inheritance; its purpose was to publish inexpensive books to promote social justice. W. W. Norton organized his firm for the main purpose of educating readers, and it developed into an important trade and textbook publisher.

AMERICAN BOOKS AND AUTHORS PUBLISHED BY SCRIBNERS, 1920-1929

Conrad Aiken, Blue Voyage (1927)

—, Costumes by Eros (1928)

Edward W. Bok, The Americanization of Edward Bok (1920)

James Boyd, Drums (1925)

—, Marching On (1927)

Thomas Boyd, Through the Wheat (1923)

Morley Callaghan, Strange Fugitive (1928)

—, A Native Argosy (1929)

Calvin Coolidge, The Price of Freedom (1924)

F. Scott Fitzgerald, This Side of Paradise (1920)

—, Flappers and Philosophers (1920)

—, The Beautiful and Damned (1922)

—, Tales of the Jazz Age (1922)

—, The Vegetable (1923)

—, The Great Gatsby (1925)

—, All the Sad Young Men (1926)

Ernest Hemingway, The Torrents of Spring (1926)

—, The Sun Also Rises (1926)

—, Men Without Women (1927)

—, A Farewell to Arms (1929)

Will James, Cowboys North and South (1924)

—, The Drifting Cowboy (1925)

—, Smoky: The Story of A Cow Pony (1926)

—, Cow Country (1927)

—, Sand (1929)

Ring W. Lardner, How to Write Short Stories (1924)

—, What of It? (1925)

—, The Love Nest and Other Stories (1926)

—, Round Up (1929)

John P. Marquand, The Unspeakable Gentleman (1922) [first novel]

—, The Black Cargo (1925)

Thomas Nelson Page, The Red Riders (1924)

Theodore Roosevelt, An Autobiography (1920)

—, Diaries of Boyhood and Youth (1928)

Theodore and Kermit Roosevelt, East of the Sun and West of the Moon (1926)

George Santayana, Character and Opinions in the United States (1920)

—, Soliloquies in England, and Later Soliloquies (1922)

—, Dialogues in Limbo (1925)

—, Platonism and the Spiritual Life (1927)

—, The Realm of Essence (1927)

Robert E. Sherwood, The Road to Rome (1927)

John W. Thomason Jr., Fix Bayonets! (1926)

Arthur Train, Tut! Tut! Mr. Tutt (1924)

—, Page Mr. Tutt (1926)

—, When Tutt Meets Tutt (1927)

S. S. Van Dine, The Benson Murder Case (1926)

—, The Canary Murder Case (1927)

—, The Greene Murder Case (1928)

—, The Bishop Murder Case (1929)

Edith Wharton, In Morocco (1920)

—, A Son at the Front (1924)

—, The Writing of Fiction (1925)

Edmund Wilson, I Thought of Daisy (1928)

Thomas Wolfe, Look Homeward, Angel (1929)

Autodidactism

The 1920s' concern with education was evidenced by the success of books that made accessible the things that educated people are supposed to know. The most successful one-volume works were H. G. Wells's The Outline of History (1920) and Hendrik Van Loon's The Story of Mankind (1921). Will Durant's The Story of Philosophy: The Lives and Opinions of the Greater Philosophers (1926) started in the Little Blue Books series and grew into the multivolume The Story of Civilization. All of these volumes actually became best-sellers; Van Loon's book—which was originally published for juveniles—earned him $200,000 in two years. The popularity of these volumes was probably more an indication of the social insecurity of the new leisure class than an expression of a hunger for knowledge for its own sake. The organization of education in convenient, time-saving packages was characteristic of the 1920s. The self-made man and the woman he had married before they had time or money for culture were buyers of books that would allow them to become self-educated. The market for autodidactism cut across class boundaries. Newspaper and magazine ads offered correspondence courses that would teach salesmanship, piano playing, and grammar. A long-running ad asked, "Do you make these mistakes in English?"

BONI & LIVERIGHT HIGHSPOTS (1920-1929)

Sherwood Anderson, Dark Laughter (1925)

Anderson, Tar: A Midwest Childhood (1926)

Gertrude Atherton, Black Oxen (1923)

Djuna Barnes, A Book (1923)

Barnes, Ryder (1928)

Hart Crane, White Buildings (1926)

E. E. Cummings, The Enormous Room (1922)

Cummings, Is 5 (1926)

Cummings, Him (1927)

Hilda Doolittle, Collected Poems of H D. (1925)

Theodore Dreiser, Hey Rub-a-Dub-Dub (1920)

Dreiser, A Book About Myself (1922)

Dreiser, An American Tragedy (1925)

Dreiser, Chains (1927)

Dreiser, A Gallery of Women (1929)

Isadora Duncan, My Life (1927)

T. S. Eliot, The Waste Land (1922)

William Faulkner, Soldiers' Pay (1926)

Faulkner, Mosquitoes (1927)

Ben Hecht, Gargoyles (1922)

Hecht, The Florentine Dagger (1923)

Ernest Hemingway, In Our Time (1925)

James G. Huneker, Painted Veils (1920)

Robinson Jeffers, Roan Stallion; Tamar and Other Poems (1925)

Jeffers, The Women at Point Sur (1927)

Jeffers, Cawder (1929)

Jeffers, Dear Judas (1929)

Anita Loos, "Gentlemen Prefer Blondes" (1925)

Loos, "But Gentlemen Marry Brunettes" (1928)

Edgar Lee Masters, The New Spoon River (1924)

Eugene O'Neill, Beyond the Horizon (1920)

O'Neill, The Emperor Jones, Diffrent, The Straw (1921)

O'Neill, Gold (1921)

O'Neill, The Hairy Ape, Anna Christie, The First Man (1922)

O'Neill, All God's Chillun Got Wings and Welded (1924)

O'Neill, Desire Under the Elms (1925)

O'Neill, The Great God Brown, The Fountain, The Moon of the Caribbees and Other Plays (1926)

O'Neill, Marco Millions (1927)

O'Neill, Lazarus Laughed (1927)

O'Neill, Strange Interlude (1928)

O'Neill, Dynamo (1929)

Dorothy Parker, Enough Rope (1926)

Parker, Sunset Gun (1928)

Ezra Pound, Poems, 1918-21 (1921)

Pound, Personae (1926)

Upton Sinclair, Oil! (1927)

Sinclair, Boston (1928)

Jean Toomer, Cane (1923)

The Five-Foot Shelf

Autodidactism achieved respectability with The Harvard Classics. Having stated that a man could acquire an education in the liberal arts by reading for fifteen minutes a day from books that would occupy five feet of shelf space, Harvard president Charles W. Eliot backed his assertion by editing a set of fifty volumes with selections from hundreds of great books. Sold mainly by mail during the 1920s, the "five-foot shelf" became a fixture in many American homes.

Sources:

Peter Dzwonkoski, ed., American Literary Publishing Houses, 1900-1980: Trade and Paperback; Dictionary of Literary Biography, volume 46 (Detroit: Bruccoli Clark/Gale, 1986);

Emanuel Haldeman-Julius, The First Hundred Million (New York: Simon & Schuster, 1928);

John Tebbel, A History of Book Publishing in the United States, volume 3 (New York: Bowker, 1978).

PUBLISHING

Bigger, Not Better

The 1980s was a decade in which publishers' business decisions changed the sorts of works available to readers and markedly altered the format in which those works were presented. The combination of recession and inflation that afflicted the American economy in the late 1970s and early 1980s adversely affected book sales and made publishers easy prey for large conglomerates more concerned with profits than good books. At the same time, independent bookstores, often owned and staffed by book lovers, were giving way to large chain stores that had large advertising budgets and could sell books at lower prices because publishers gave them discounts for buying in large quantities. Even after publishers responded to complaints from independent store owners by offering them discounts as well, the small bookshops had difficulty competing with the chains. The result was a growing standardization of offerings nationwide, with both publishers and bookstores merchandising best-sellers and books by popular authors at the expense of books with acknowledged merit but limited sales potential.

Takeovers and Mergers

The trend of publishing houses being swallowed up by larger and larger conglomerates picked up speed in the 1980s and continued into the 1990s. By 1992 seven giant conglomerates dominated the publishing industry and accounted for 80 percent of all best-sellers. Several of these companies brought together book publishing with other media, including newspaper chains, television networks, and movie studios. In 1980 the Newhouse newspaper chain made news when it paid between $65 million and $70 million for Random House—which had earlier merged with Knopf (1960) and Pantheon (1961), become a subsidiary of RCA (1966), and then bought Ballantine paperbacks (1976). Bertelsmann AG, a German company that became the largest media conglomerate in Europe, bought Bantam paperbacks in 1980 and Doubleday in 1986. The merger news in the late 1980s centered on the actions of two controversial media moguls: Englishman Robert Maxwell and Australian Rupert Murdoch. After an unsuccessful attempt to take over Harcourt Brace Jovanovich, Maxwell acquired a foothold in the United States in 1988, when he bought Science Research Associates from IBM and Macmillan. Murdoch spent several decades creating a newspaper empire before turning to book publishing, buying the British firm William Collins in 1981 and the U.S. publisher Harper and Row in 1987. In 1989 he merged these firms with several other publishers—including Basic Books, T. Y. Crowell, and Scott Foresman—to form HarperCollins. Murdoch's News Corporation also owns 20th Century-Fox movie studios and the Fox Broadcasting television network. Gulf and Western, which had owned Paramount Pictures Corporation since 1966 and book publisher Simon and Schuster since 1975, expanded further into publishing in 1984, when it bought Esquire, Inc., Prentice-Hall, and Glen and Company. By 1989 Gulf and Western had sold its consumer-and-industrial-products and financial-services divisions, becoming exclusively an entertainment and communications company and changing its name to Paramount Communications. In 1991 the company bought Macmillan and moved into pay-per-view television. Three years later Paramount was bought by Viacom, Inc.

Looking for "Blockbusters."

In 1980 a Supreme Court decision changed the way publishers accounted for un-sold books and had an adverse effect on the availability of books to the public. The court upheld an Internal Revenue Service ruling that the value of unsold merchandise could not be discounted for tax purposes. Faced with having to pay taxes on the full value of books sitting in warehouses, publishers began remaindering or destroying unsold books much sooner than they had in the past. The ruling, combined with the conglomerates' emphasis on profits, made publishers less willing to take chances on quality books that seemed unlikely to become best-sellers immediately. The ruling had a particularly adverse effect on scholarly and technical publishers, who typically expect to sell their books slowly but steadily over several years, but it also hurt commercial publishers committed to maintaining the availability of books of genuine merit regardless of their sales. At the same time, publishers began to gamble on "blockbusters," paying larger sums of money for books by authors with proven track records of best-sellers. For example, in 1980 Bantam Books paid $3.2 million for Judith Krantz's novel Princess Daisy, a move widely deplored as proof that publishing had become "a money-mad branch of show business," as John F. Baker said in Publishers Weekly (13 March 1981). In 1981 Simon and Schuster paid popular astronomer Carl Sagan a $2 million advance for a novel he had not yet started to write. By the middle of the decade the ante had increased. In 1986 William Morrow and Avon Books paid $5 million for James Clavell's novel Whirl wind, and in 1988 Simon and Schuster paid Mary Higgins Clark a $10 million to $11 million advance for her next four novels.

The Paperback Trend

During the runaway inflation of the late 1970s and early 1980s, book costs increased sharply, and consumers began to balk at paying high prices for hardcover books. Bookstores began stocking more and more paperbacks and fewer hardbacks. Main-stream publishers responded to the trend by publishing some books simultaneously in hard and soft cover and by starting their own lines of trade paperbacks, including old, proven moneymakers as well as new books brought out only in paperback. This break with the traditional practice of first publishing a book in hardcover and later selling reprint rights to a mass-market paperback publisher also had an effect on mass-paperback publishers, who began publishing more and more paperback originals. Often these books were genre fiction, such as science-fiction or romance novels, and these publishers continued to bid high for softcover rights to hardcover "blockbusters." Yet they bought fewer and fewer of the sort of moderate sellers on which they had been willing to take chances in the past. The trend hurt hardcover publishers, who depended heavily on the subsidiary-rights income generated by sales of paperback rights, and it adversely affected readers, whose selection of inexpensive paperbacks became more narrowly limited to books with proven sales records.

The Birth of Desktop Publishing

In general publishers were slow to understand the implications of the computer revolution for their industry. John F. Baker, editor of Publishers Weekly, commented in early 1983 that in most publishers' offices only billing and record keeping had been computerized and added, "oddly enough, authors seemed in many cases to be more technically sophisticated than their publishers." The situation soon changed, however, after the resolution of problems arising from the incompatibility of different brands of computer hardware and software. Where once publishers depended on outside typesetters to set type from edited typescripts, by the mid 1980s they could avoid printers' errors by entering editorial changes directly into the version provided by the author and then create their own pages directly from desktop computers.

New Technologies Create New Markets

In 1984, while publishers were finding ways of using new technologies in book production, they also began efforts to bolster sagging profits from book sales by exploiting the markets created by the development of VCRs, small audiocassette players, and home computers. Self-help books and best-sellers on audio tape turned out to be hot marketing news in 1985, catching on faster than the higher-priced videos, which eventually found a niche in the market. Publishers' efforts at creating and marketing computer software were largely unsuccessful. By the end of 1984 they had flooded the market with some four thousand software titles—far exceeding the needs of a still-limited number of home-computer owners. The problem was compounded by the fact that the software was being sold in bookstores, where salespeople lacked the expertise to advise customers about selection and installation. Publishers saw potential in computer software, but the market was not yet established. Even in the early 1990s traditional publishers avoided digital publishing, which was taken over by software entrepreneurs.

Source:

The Bowker Annual of Library & Book Trade Information (New York & London: R. R. Bowker, 1981-1990).

Publishing. See Printing and Publishing.

publishing see book publishing .