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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Intellectual Property Law
Satisfied Customers: 118210
Experience:  Attorney practicing all aspects of copyright/trademark law
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Imposes a fiduciary duty upon a publisher with regard to its

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imposes a fiduciary duty upon a publisher with regard to its duty to render accountings to its authors? California citations are preferable, but any jurisdiction would be helpful.
JA: Have you talked to a local attorney? Has anything been filed in court?
Customer: Yes, it involves a pending litigation in San Francisco area. I am the plaintiff's attorney. Both this question and your answer need to be confidential.
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Customer: No thank you.
Submitted: 11 months ago.
Category: Intellectual Property Law
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Civil Code section 2295 states: "An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (3) Any person may be authorized to act as an agent, including an adverse party to a transaction. (See Naify v. Pacific Indemnity Co. (1938) 11 Cal.2d 5, 7 [76 P.2d 663, 115 A.L.R. 476]; Orfanos v. California Insurance Co. (1938) 29 Cal. App.2d 75, 78-81 [84 P.2d 233]; 2 Witkin, Summary of Cal. Law (9th ed. 1987) Agency and Employment, § 33, p. 47.) "Whether a person performing work for another is an agent ... depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent. [Citations.]" (Malloy v. Fong (1951) 37 Cal.2d 356, 370 [232 P.2d 241].)
The CA Courts hold that an agent is a fiduciary. (Kennard v. Glick (1960) 183 Cal. App.2d 246, 250-251 [7 Cal. Rptr. 88] [agent entrusted with duty of receiving and disbursing moneys and keeping accurate records of the transactions]; Estate of Arbuckle (1950) 98 Cal. App.2d 562, 569-570 [220 P.2d 950, 23 A.L.R.2d 372] [business manager unable to produce will entrusted to him]; 2 Witkin, Summary of Cal. Law, supra, Agency and Employment, §§ 41, 43 et seq., pp. 53, 55.) Agency may be implied from the circumstances and conduct of the parties (see Bergtholdt v. Porter Bros. Co. (1896) 114 Cal. 681, 685-688 [46 P. 738]; Brand v. Mantor (1935) 6 Cal. App.2d 126, 130 [44 P.2d 390]; Pollack v. Lytle (1981) 120 Cal. App.3d 931, 940 [175 Cal. Rptr. 81]; Brea v. McGlashan (1934) 3 Cal. App.2d 454, 464 [39 P.2d 877].) (4) When the principal in reliance on the agent does not have the service performed by others, the agent is liable for failure to perform. (See Lab. Code, § 2851; Poile v. Stockton Merchants Assn. (1959) 176 Cal. App.2d 100, 104 [1 Cal. Rptr. 284, 76 A.L.R.2d 1151] [collection agency liable for amount of check it failed to collect and was under duty to inform principal of failure]; Rest.2d Agency, § 378; 2 Witkin, Summary of Cal. Law, supra, Agency and Employment, § 62, p. 68.) (5) A contract between parties that includes the rendering of services does not preclude recovery for breach of a confidential relationship where property is misappropriated. (Agair Inc. v. Shaeffer (1965) 232 Cal. App.2d 513, 517 [42 Cal. Rptr. 883].)
Thus, as your publisher is your agent for your book sales and has a contractual duty to account for sales, they stand in a fiduciary relationship with you to provide that accounting.