Why You Can't Sue for Copyright Infringement If Someone Doesn't Pay

The thought of suing a publisher for copyright infringement if it doesn't pay is tempting. I once asked my publishing lawyer about the concept (not for a specific reason, but just because it's good to know about these things before you actually need them). He said that, in general, a court would not accept that approach and, instead, view the issue as a breach of contract.

I hadn't thought that much about the concept until someone brought it up on a writers' board. I passed on what I had heard and was asked by someone who had the same initial thought as I why this wouldn't work. Here's what I answered, though, please remember it's my own ramblings here, not the explanation of someone really qualified in legal issues.

The problem is that copyright infringement happens when one party uses another's copyrighted material without permission. However, in a dispute over a publishing contract, there *is* permission. Causing the conflict is that one side has not upheld its side of the contract (which is actually a private law drawn up between the two parties - this will become important in a moment). Therefore, the court focuses on that dispute as the one needing resolution.

If the writer were able to sue for infringment, he/she would be free to back out of the very same contract, changing terms after the fact, which is the egregious action of the publisher. That reduces the private law - the contract - to something with no power to compel people to meet the terms. Looking to an analogy for a moment, just because someone breaks the law by robbing a bank doesn't give the state authority to also ignore the law and use unreasonable search and seizure in prosecuting the crime. To say that the framework of law no longer applies when one party disregards its obligations is to say that we live in a world of chaos, because law will be out the window every day.

Now, my lawyer did say that there could be cases under which a writer *might* withdraw permission. For a contract to be valid, there are some basic assumptions. One is that there is a commercial transaction - the reason why if you're giving away something through a contract, you may require the payment of a dollar, because then there is something given on both sides. Another is that both parties enter the contract in good faith.

You'd pretty much have to show a pattern of such behavior on the part of the publisher to demonstrate that it entered the contract in bad faith. Then a court could find that there was never a contract in the first place, and you might be able to sue for infringement. However, that is an extreme situation that a court will be naturally reluctant to enable. You would be asking the court to assume that you, the writer, would be truthful and absolutely correct on first principles. As virtuous as I'm sure you are, you don't want a court to assume that, because then it could just as easily assume that the publisher was the party presumed to be accurate and honest. Instead, the court sees the possibility that there might have been a mistake, or some problem that caused a breach, and that's not the same as bad faith.

In short, to have the automatic right to sue for copyright infringement because of a payment dispute would essentially be to give everyone the right to act as though a contract had never been signed because of virtually any disagreement. And there's no court that wants to go down a slippery slope, let alone a slippery vertical drop.