Can I change my work and seel it if I am published with no contract?

Question

I have had a falling out with my publisher. She has published many of my works and is telling me I am not legally able to resell my work anywhere. I have no contract to refer to. There is no verbal agreement other than she would publish and I would get royalties.

Since we had a falling out I would like to take my work and sell it elsewhere. I would be revamping my work with my own things. Title, clipart, adding and subtracting from the work itself.

My question is why, when we have no legal agreement (and there is nothing implied anywhere), could I not take my work, change it, and sell it?

Am I missing something?

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The issue I am now running into after reading, talking and reading some more is that I would like to do my own publishing.

The items in questions are a preschool line, the whole alphabet.

If I relinquish my rights and sign those over to her and she removes my name from them, would I then be free to create my own, ORIGINAL and completely different from what she has alphabet line. Yes, originally I was going to revamp what was there. I am no longer looking for that, it is to complicated. I am now looking just to do something original... from scratch.

I don't see how I can be in any violation of any agreement or copyright whether verbal or otherwise, but after all the reading I have done nothing would surprise me.

Answer 1

You do have a verbal contract.

You have an agreement that your publisher would publish your work and that you would get royalties. That is a contract. The fact that there are no further details is irrelevant to the question wether or not you have a contract.

In many jurisdictions, a verbal contract is as good as a written one. In fact, historically the verbal contract precedes the written one, and (verbal agreements) were only fixed in writing to preserve them beyond the life and memory of the original contractual partners and witnesses. Written contracts also replace witnesses if a dispute goes to court.

So if you have a verbal agreement (and witnesses) or any kind of communication (email, SMS) relating to your cooperation, that is (in many jurisdictions) as good as a written contract.

If there is no contract, or if your (verbal or written) contract lacks details, in many jurisdictions the most common form of contract is thought to exist. For example, if you buy a car and in your country such a car usually comes with a warranty, but it is legally possible to sign a contract that sells the car without warranty, in the absence of a contract (or in the absence of any mention of a warranty in your contract) a warranty is assumed because it is the common and expected case. This is so because basically the written law is only the written down version of social conventions and common morality and, mostly, cannot run counter to it.

So, in most jurisdictions, even if you don't have a contract, you in fact have one and are bound by what your contractual partner can reasonably expect.

In your case, the publisher can reasonably expect by convention that your cooperation does not simply end because you have been insulting each other and are no longer friends. Business contracts are not touched by how friendly or unfriendly the parties deal with and how they feel about each other. As you describe your case, I would assume that you are still bound to this publisher by convention, and that you have the usual options to cancel that cooperation but no right to cancel it one-sided or prematurely, if the publisher still does his part of the job of publishing your work correctly and appropriately.

But talk to a lawyer. I ain't one.

Answer 2

There are two issues, the copyright registration, and the contract.

First Make sure the copyright is registered to you. Right away, before you finish reading the answer. Now!

The second is the contract, if verbal is still there. In writing notify your publisher that you are terminating all rights to future publication of your works and that you are requiring a final accounting. A lawyer can help you write it. A good copyright attorney should be able to do this in less than fifteen minutes (templates are wonderful) and any lawyer should be able to do it in a couple hours. at this point you should (as long as you have not signed any licencing agreements or copyright assignments) be able to do what you wish with your work.

Answer 3

I am writing as a published author.

The "standard" contract term is the so-called "next work" right. That is, the author needs to offer the publisher the rights to the "next work" s/he produces. If the two parties, bargaining under good faith, can come to an accord on the work, the "next work" clause applies to the following product. If there is no agreement on the "current" work, the relationship is broken. Absent written evidence to the contrary, this is the interpretation that the courts may take based on the industry practice.

This practice would protect both parties' rights. The publisher gets the "right of first refusal" on the first subsequent work. The author would have the right to leave after one failed deal.

Answer 4

IANAL, but ...

You say you have no written contract. Do you have any correspondence? Letters, emails, etc? Anything in writing to say who agreed to what? If not, if all you have is a verbal agreement, then legally that is still a binding contract. But the problem with verbal contracts is that there's no way to prove what was agreed to, and the parties may well not remember exactly what was said. If there are no witnesses, I'd guess a court is just going to make assumptions based on what people typically do in such an agreement. I'm frankly not sure exactly what the "typical" publishing contract says. Most writers do not sign away all rights to their work.

Did anyone involved register the copyright? If so, is it registered under your name, or as a "work done for hire" for the publisher? If it's registered under your name, and there is no contract saying you sold the writes to the publisher, than you still own the copyright. If the copyright was never registered and never sold, than by default the author owns it.

You would have to have a VERY restrictive agreement to say that you cannot write a totally new book and publish it elsewhere. The law does not generally assume that because you sold something to person X that this means that you have given up all right for the rest of your life to ever sell something to anyone other than X. Like if my boss fired me from my current job, I can't imagine that any court in the world would say that I'm not allowed to ever work for any other company ever. Unless you have a contract saying that you give this publisher exclusive rights to anything you write for some period of time, I'd think you could take new material anywhere.

As always on legal questions, it would be smart to check with a lawyer. I don't know how lawyers work wherever you live, but lawyers I've worked with will generally give you an "initial consultation" for somewhere between free and $100.