Volume 11, Issue 2 - January 2013

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“HURRY UP PLEASE ITS TIME”: The Growing Need for ADR Methods in the Publishing Industry

Lindsay Nichols

Literature and the publishing industry are difficult arenas for the judiciary to negotiate. One reason is that literature, like other art forms, often takes on a life of its own after being published. Furthermore, the publishing process involves many moving parts, including original contracts between the author and publishing house, the author’s estate, constantly evolving technology, and the eternal question of who owns new rights that come up after the contract is signed. Because of the complexity of many of these publishing disputes, they often end up being litigated. But litigation is not always the best answer for the parties. Entire contracts have been dissolved in court, and authors and publishers have had their disputes played out through newspaper headlines. Surely there is a better, more collaborative way of resolving these disputes privately between the author and the publishing house.

Enter ADR methods: mediation, negotiation and arbitration – techniques that allow for collaborative decision-making, confidentiality, and customization. ADR methods are flexible enough to deal with issues arising from a wide-spread publication of a book in various countries, all containing different copyright laws. In fact, key players in literature were essentially using ADR techniques even before they became mainstream.

This paper examines the key, mediator-like role Ezra Pound played in the publication of T.S. Eliot’s The Waste Land and the negotiation-like communications between James Joyce and Random House’s Bennet Cerf concerning the publication of Ulysses. It also explores ways that publishers and authors might incorporate ADR methods into the publishing process. Perhaps the simplest way to do this is to provide a mediation or negotiation clause in the publishing contract itself, proactively laying out what might create a dispute and how the dispute is to be resolved before any disagreement has even occurred.

With the complexities and constantly changing nature of the publishing industry, disputes between authors and publishers are sure to arise. Using ADR methods allows the two parties to resolve disputes amiably, effectively, and outside of the public court system.

Posted in: Volume 11, Issue 2

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