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Publish America, LLP v. Stern

Court of Special Appeals of Maryland

November 20, 2013

PUBLISH AMERICA, LLP
v.
SALLY STERN A/K/A SALLY ANN MIKETA STERN

Kehoe Nazarian, Kenney, James A., III (Retired, Specially Assigned), JJ.

OPINION

Kenney, J.

During a three-day trial in the Circuit Court for Frederick County on October 27-29, 2010, the court granted judgment as to liability in favor of Sally Stern, appellee and cross-appellant, on her complaint for breach of contract against Publish America, LLP ("Publish America"), appellant and cross-appellee, and a jury awarded damages of $10, 880. Publish America presents one question, [1] and, Stern presents four questions for our review.[2] We have reworded those questions as follows:

• Did the circuit court err in granting judgment as to liability in favor of Stern?
• Did the jury err in its jury instructions and/or verdict sheet in regard to damages?[3]
• Did the circuit court abuse its discretion in granting Publish America's Motion for Protective Order Quashing [Stern's] Notice of Deposition and to Exclude [Stern's] Expert from Testifying at Trial?
• Did the circuit abuse its discretion in denying Stern's Motion for Leave of Court to Amend the Ad Damnun Clause?
• Did the circuit court abuse its discretion in denying Stern's motion to amend the complaint to conform to the proof by adding a count "for tortious interference with a prospective economic advantage"?
• Did the circuit court abuse its discretion in denying Stern's motion for costs?

For the reasons that follow, we shall reverse the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

While working as a librarian at the Ludington Library in Ludington, Michigan, Stern developed a manuscript for a book which she sought to have published.[4] She contacted Publish America, a publishing company. On February 7, 2008, Publish America offered to publish Stern's manuscript. In the offer email, Stern was "advise[d]" to "obtain written permission for all quotes used and for any real life individuals mentioned."[5]

Stern wrote back:

I am not using any real names in this book. If I choose to categorize the book as fiction, would I still need to get written permission for all quotes? . . . [H]aving to have permission to repeat what someone has said to you seems like a massive effort to conceal the truth rather than protecting individuals.

Publish America responded that "you would not have to concern yourself with this if you were to label your book as fiction" and "fictionalize the work[.]"

On February 11, 2008, Stern emailed Publish America about how she could "go about fictionalizing the book, simply call it fiction?" Publish America replied:

[Y]ou would have to change the names of anyone mentioned by their real names in the book. You must market the book as fiction, and during the production process, a disclaimer will be inserted into your book informing the reader that all contents are fictional.

On February 13, 2008, Publish America and Stern executed an "Agreement."[6] It states, in pertinent part:

1. The Author grants and assigns to the Publisher during a period of seven years from the date of the signing of this agreement by both parties thereto the exclusive right to produce, publish, sell or export, or cause to be produced, published, sold or exported, the above work in book form.
** *
3. The Publisher agrees to cause all copies of the said literary work to be printed as the market demands, and agrees, furthermore, to cause the copies so printed to be bound, from time to time, in sufficient quantities to supply purchasers of the said literary work therewith.
** *
13. Publisher may, in its discretion and without cost to the Author, edit or revise the manuscript. It is specifically understood and agreed, however, that the Publisher shall make no major revisions, changes and/or alterations therein without first receiving written permission to do so, provided that Publisher reserves the right to delete, modify and/or make such editorial changes and/or revisions as it deems advisable in the event that the context, or implication, of any part of the said literary work would, in Publisher's opinion, incite prejudice, or defame any group, or any member thereof, because of race, religion or nationality; or in the event that any part or parts of the said literary work may be considered, by the Publisher, to be against the public welfare. If the Author refuses to give Publisher permission to make any requested change or otherwise objects to any suggested change, Publisher may terminate this agreement at its discretion.
14. If, in the opinion of the Publisher, the manuscript of the said literary work requires editing or revision, Publisher may, in its discretion, direct Author to edit or revise the manuscript. Author shall make the changes suggested by Publisher or Publisher shall have the right to terminate the contract at its discretion.
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24. When in the judgment of the Publisher, the public demand for the work is no longer sufficient to warrant its continued manufacture, the Publisher may discontinue further manufacture and destroy any or all plates, books, sheets and electronic files without any liability in connection therewith to the author. However, the Publisher agrees to notify the Author of such decision in writing, and will offer to transfer to the Author the work and its rights in the copyrights thereon, the plates (if any), the bound copies and sheet stock (if any) on the following terms F.O.B. point of shipment: the plates at their value for old metal, the engravings (to be used only in the work) at one-half (½) their original cost, the bound stock at one half (½) the list price, and the sheet stock at cost of gathering, folding, sewing and preparing for shipment, all without royalties. In the latter event, unless the Author shall, within 30 days, accept said offer and pay the amount set forth in said writing, the Publisher may dispose of the work, copyrights, plates, books, sheets and other property without further liability for royalties or otherwise.
** *
27. The Author covenants and represents that the said literary work has not hitherto been published in book form; that it contains no matter that, when published, will be libelous or otherwise unlawful, or which will infringe upon any proprietary interest at common law or statutory copyright; that the Author is the sole proprietor of the said literary work and has full power to make this grant and agreement, and that the said work is free of any lien, claim, charge or debt of any kind; and that the Author and his legal successors and/or representatives will hold harmless and keep indemnified the Publisher from all manner of claims, proceedings and expenses which may be taken ...

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