When an Australian author signs a publishing agreement, they expect the publisher to honour its promises – whether that is to publish, market or pay royalties on time. But what if the publisher fails to deliver?
This article, by our publishing law team, explains the contractual, copyright and consumer-law remedies available to authors when a publisher breaches the agreement. It also outlines practical steps, key case law and answers to frequently asked questions so you can protect your creative work and income.
Key Takeaways
- Identify whether the breach is minor (a warranty, which allows for damages) or fundamental (a condition, which may justify contract termination)
- Monetary damages aim to place the author in the position they would have been in, but for the breach
- Serious breach or repudiation lets the author terminate and, if the contract allows, trigger copyright reversion
- Equitable remedies such as injunctions can stop ongoing misuse of the work
- Australian Consumer Law offers extra protection for authors against misleading or unconscionable conduct
What Is a Breach of a Publishing Agreement?
In practice, a breach occurs when the publisher fails to do something they promised under the contract. Common breaches include:
- Failure to publish within the timeframe promised
- Non-payment or late payment of royalties or advances
- Not supplying royalty statements
- Unauthorised edits or lack of attribution (copyright infringement)
- Ignoring agreed marketing or promotional obligations
Check out our article on how writers can protect their work to ensure you’re covered when things go wrong.
Is the Breach Minor or Serious?
Under Australian contract law (see Koompahtoo v Sanpine (2007) 233 CLR 115), breaches are categorised as:
- Condition – An essential term of the contract. If breached, you may terminate the agreement and claim damages.
- Warranty – A non-essential term. Breach only allows you to claim damages, not terminate.
Correctly classifying the term is critical before taking drastic steps such as termination. Misclassifying a breach could lead to wrongful termination of the contract and further legal risks.
Legal Remedies for Authors
Depending on the breach, you may have access to the following remedies:
1. Damages (Compensation)
Courts can award money to compensate the author for loss directly caused by the breach. The idea is to place you in the position you would have been in if the contract had been honoured. This may include:
- Unpaid royalties or advances
- Lost sales due to delayed release
- Marketing expenditure incurred by the author
2. Termination for Serious Breach or Repudiation
You may terminate the contract if the breach goes to the root of the agreement, or the publisher clearly shows they don’t intend to fulfil their obligations, the author should:
Review the contract and identify breached clauses
Issue a formal breach notice (specify breach, required remedy, timeframe)
If no response, send a termination notice
Enforce any copyright reversion clause, if included
3. Specific performance and injunctions
While rare in personal service contracts, courts can:
- Order the publisher to perform (e.g. issue royalty statements)
- Restrain further unauthorised exploitation of the work (via injunction)
4. Australian Consumer Law (ACL) remedies
Where the publisher’s conduct is misleading, deceptive or unconscionable under the ACL (ss 18, 20, 21):
- The author may seek damages, compensation orders and injunctions in the Federal Court or state Supreme Court
- Civil penalties and pecuniary fines may also apply to the publisher
Copyright Implications
Reversion of rights
Section 196(1) Copyright Act 1968 (Cth) allows copyright assignment or licence subject to conditions. A well-drafted publishing contract should:
- State that all rights revert automatically on specified breaches or on termination
- Require the publisher to deliver electronic files and revert ISBNs
If a rights reversion clause is not included in the publishing agreement, there is no automatic statutory reversion. The author must then rely on breach of contract, equitable relief or infringement proceedings.
Learn more in our copyright and intellectual property law guide.
Post-termination infringement
If the publisher continues to exploit the work after valid termination or reversion, they infringe copyright. Remedies under ss 115-116 of the Copyright Act 1968 (Cth) include:
- Damages or an account of profits
- Injunctions
- Delivery-up or destruction of infringing copies
Practical steps for Authors facing a Breach
Here’s a step-by-step guide for authors:
Action | Details |
Review the contract | Identify obligations, breach clauses, and dispute resolution procedures |
Gather evidence | Emails, royalty statements, sales data, marketing promises |
Issue a formal notice of breach | Specify the breach, required remedy and timeframe to comply |
Consider mediation | Many contracts compel negotiation or mediation before litigation |
Escalate to litigation if necessary | Choose state/territory courts or the Federal Court depending on quantum and copyright issues |
Preserve potential copyright reversion | Serve any contractual notice needed to activate reversion |
Reclaim your work | Once rights are reverted, register new ISBNs and update distributors |
Real-World Example
An emerging novelist’s contract states the book must be published within 12 months. Eighteen months later the publisher has not released it and ignores emails. The term is drafted as a condition. After serving notice and no cure occurring, the author terminates, activates the reversion clause and self-publishes. They later sue for lost early-release royalties and recover damages equal to estimated sales in the first year plus legal costs.
If your publisher has failed to meet its obligations, contact our publishing contract lawyers for a confidential discussion about enforcing your rights.
Frequently Asked Questions
Can I terminate my publishing agreement for late royalty payments?
Only if the payment obligation is drafted as a condition or the breach is so serious it amounts to repudiation. Otherwise, your remedy is limited to damages.
Will my copyright automatically revert if I cancel the contract?
No. Reversion occurs only if the contract expressly says so, or you secure a court order transferring rights back.
This is why it’s important to have your publishing agreement reviewed by an experienced publishing lawyer.
How long do I have to sue for breach of contract?
In most Australian states the limitation period is six years from the date the cause of action accrues.
Is mediation mandatory before I can go to court?
Many publishing contracts include a tiered dispute-resolution clause requiring negotiation or mediation first. Always check the wording.
Can I claim under Australian Consumer Law as well as breach of contract?
Yes. Contract and ACL remedies operate concurrently, provided the publisher’s conduct meets the ACL threshold for misleading, deceptive or unconscionable behaviour.
What evidence should I keep to prove my losses?
Royalty statements, sales reports, marketing correspondence, invoices and any communications showing the publisher’s promises or admissions.
