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“See Ya’, Bye”: Termination Provisions in Publishing Agreements

May 13, 2022

Mitch Tuchmann - Copyright Lawyer Durham - Intellectual Property Attorney
Insight by Attorney Mitch Tuchman

Try this for a paradox: “All provisions of this agreement shall survive its termination.”  For real: this was shown to me without a glimmer of irony during a contract review.

A publishing agreement either expires at the end of its term or is earlier terminated, generally by action of one or both parties.  Expiration aside, the parties to an agreement should articulate their respective exit strategies, be they amicable or hostile, total or partial.  Termination might be with or without cause.  Termination on account of the publisher’s bankruptcy is commonly included but not necessarily enforceable; the trustee in bankruptcy typically makes that call.

Termination provisions should be aggregated into a single section but often are scattered throughout a publishing agreement, where they might be difficult to find in a frenzied “get me outta here” moment.  Provisions that lack an express enumeration of the effects of termination are incomplete.  One such effect is generally a reversion of the author’s rights.  Another is the performance of both parties’ financial obligations arising prior to the effective date of termination.

Tied to expiration or termination are survivals, that is, provisions that remain in force even after termination: among them are definitions, governing law and venue for the resolution of disputes, the effects of termination and the survivals provision itself.

This is the 9th article in a series intended to introduce readers to publishing agreements. Other articles in this series include:

New to Publishing Agreements? What You Need to Know
How Long Should a Book Publishing Agreement Endure
Understanding Book Publishing Agreements: Territory
Book Publishing Agreements: Copyright Ownership & Licenses
World Rights in Book Publishing Agreements
Reps and Warranties in Publishing Agreements
“Dibs on Your Next Book”, Advice to Authors Publishing Their Second Work
How Not to Become a Banker: As an Author, Protect Your Revenue