Friday, January 4, 2013

Rights reversion

First: I AM NOT AN ATTORNEY. Theresa is, so she can smack me down if I'm wrong on all or some counts.

Second: This will be of limited interest if you don't have old publishing contracts. Then again, if you see a publishing contract in your future, you probably ought to research this: Reversion of Rights.

Third: Goodness, we writers sure are quick to kneel down and let the industry beat on us like a hard rain.

When I "sell" a book to a publisher, I'm not really usually selling it in the sense of giving them all rights to the book in perpetuity in exchange for some doubtlessly inadequate amount of money. (I have done that with a book or two, sold all rights forever. I don't advise it-- depends, however, on the $$. :) I am instead "licensing" the book, giving the publisher the right to publish, distribute, and sell the book for a certain period of time under certain conditions. The contract spells out the conditions (like usually the publisher must publish the book and have a certain number of copies for sale within a specified timeframe). Most contracts have some end -- they are not in perpetuity, and aren't supposed to be.

So as nasty as most publishing contracts are (and I've signed a lot of them, and usually they're so nasty attorneys consulted have to take antacids-- "there's an option required, but no consideration for it???"), they usually do have a "reversion clause". That means that if the publisher doesn't keep the book for sale in a certain quantity, the rights can revert to the author. The weird thing is-- this is part of the nastiness--  there is a specified time to the licensing period (seven years is common). But the publisher can often "retain rights" past that period by keeping the book in print and for sale.

Notice "in print" used to mean they had to go to the expense of printing and shipping physical books. Now "in print" can mean virtually no expense for the publisher, as it might mean just having an electronic version available for sale. Many contracts used to have specific requirements for this (like one of mine was that the publisher, to keep the rights, had to do a print run of 10K), but more and more, the clauses are pretty open, so that just having it for sale on Amazon might be enough to keep the rights. This is pretty pernicious, IMHO.

Another truly pernicious part of some of these clauses is that the rights claimed include "all rights including those not yet invented". In the 90s, electronic books hadn't been invented (not really), and so now many publishers are saying that, even for books 20 years old, they "own" not just the print rights (which have long since lapsed probably) but also have the right to put out an electronic edition whenever they want. And sometimes they do that, not to earn any real money or goodness knows to pay royalties to the author, but just to do a rights-grab-- you know, in case I turn out to be the next Stephen King or something. (Don't hold your breath!)

Many of us were puttering along, sadly giving up on old books. After all, we couldn't afford to get new versions printed, and anyway, the near-monopolistic control of bookselling until recently made it hard to get popular fiction self-pubbed books into the stores (not impossible, but hard). And even though we knew that our old publishers weren't likely ever to sell our books again, it wasn't like any other publisher was eager to reprint old romances or Westerns. So we just went on, assuming those books were lost forever. But then came, finally, the wonderful hardware that would present our wonderful books to new readers, and a host of new online booksellers to let us reach those readers. And all at virtually no cost! A miracle!

That's when many of us unearthed those old contracts and started trying to get our rights back to those old books, which could now reach a brand new audience.

The first mistake was thinking we needed to "request the rights back." In fact, usually we just need to "serve notice that the rights have reverted." That is, the publisher needs to do something affirmative (put out that new print edition, maybe) in order to keep the rights after a certain period where the book has been out of print.

What's been happening a lot is that an author will write to the old publisher and say, "I request that you return my rights to (title)," and the publisher JUST NEVER RESPONDS.  I can't tell you how often I've heard authors moan about books lost because the publisher never signed off on this rights reversion. Cough. Of course, every contract is different, but really. A publisher can't just ignore the letter and retain rights. We authors need to remember, these are OUR books that we licensed to them, often for pennies, and the contract did not cede the books to the publisher forever. And if the publisher doesn't respond to the letter, that means they have refused or neglected to assert any claim. (And even if they do assert a claim, that doesn't mean they have one. We as the creators have a claim. They probably don't if the book has been out of print. Check the contract. Hire an attorney. These days, it's worth it.)

Our serving them notice of the intention to take back the rights does not need their approval (depending of course on the contract, etc.). We just need to be able to prove (maybe registered mail receipt) that we did in fact serve them the notice. Sometimes there's a waiting period after service-- mine was 60 days. If they didn't do whatever that affirmative action was (10K copies in print for mine) in those 60 days, then the book is mine all mine again. Forever.

In fact, I've sent rights reversion letters about ten times. Once the publisher responded promptly with a letter recognizing the reversion. Once the letter came back (publisher out of business). Four times the publisher waited many months before finally sending the letter of acceptance. Four times I never heard anything. Every single one of those books, I put up for sale as soon as the specified waiting period was up. I never waited for the publisher to get around to responding to the letter. And if the publisher had responded by refusing? I'd send another letter saying, "The contract period is up. I've served notice of reversion. Your rights are terminated." They're welcome to come to Indiana and sue me. (They won't. They'd lose, so why bother?)  I don't mean to be cavalier, but we should not allow fear of litigation that probably will never happen get in the way of claiming our rights to our books.

Now there are all sorts of tricks publishers have used to get around our own ownership of our own books. I wish they'd put that much ingenuity into marketing books! And more recent contracts have been much more restrictive in the rights reversion clause. However, if you're signing a new contract, this is one clause it will pay to keep author-friendly. If you have an agent, talk through what you want and insist on getting that. And decide if you're willing to go to the mat to keep eventual control of your own work.

To tell you the truth, I'd advise giving up rights for a long time only if this is otherwise a great deal. It's one thing to license a book for $2500 advance when you can get the rights back in 10 years. It's entirely different to pretty much give the book away forever for a piddly advance, especially now when there are so many other options. There are many reasons for accepting a traditional publishing contract, and go for it if that's what you want. But I have to say I am very glad that my early contracts had what in retrospect was a pretty loose reversion clause so that now I'm making far, far more money selling the books on my own. Yeah, you know, when I was 32, I didn't look ahead and think that I might want the rights back 20 years later. But I did, and I'm really glad I asserted my rights and took the books back and offered them up for sale. I would not sign a contract now that pretty much took all rights unless the money was pretty darned good.

And I have to say this to publishers. Stop being obnoxious. This rights grab many of you are embarking on is alienating authors and driving us away. We have other options now! And often you're grabbing rights you have utterly no intention of exercising. Hey, you make money for us, you don't have to grab the rights! We'll rent them to you very politely. But if all you're going to do is hold on to rights to deprive us of benefitting from our own work? Well, how very Gordon Gecko of you. You need us more than we need you, and it really is about time publishers realized that.

I recently heard a publisher say, "These books are our intellectual property!" Arrgggh! No! They are the intellectual property of the person whose intellect created them. The author. Maybe instead of being nasty and asserting control over our own creations, publishers should try to be equitable and reasonable and offer us a reason to license our books to them. What a crazy idea. But you know, it just might work. Publishers can no longer rely on a near-monopoly to corral authors into the publishing paddock. If a book is good enough for a publisher to want it, it's probably good enough to be sold by the author herself. (Not that publishers are all that reliable in choosing books that will sell well. Many books that got rejected by the big publishers became bestsellers. I have one of those, as a matter of fact, published by a small press and rather lucratively. Not quite -- not near-- a seller like Harry Potter, of course, which was rejected by a dozen publishers.) And in that case, the publisher will need to make a good sales pitch about what the author will gain from this relationship when there really are other options.

And if worse comes to worst, after 35 years creators have the right to terminate anyone else's use of their work.
It's a limited period (five years, I think), so set your clock. Also this means all copyrights should be mentioned in your will and specifically left to one person (to reclaim the rights, the person has to have more than 50% ownership, it sounds like). You might not live to get your rights back under the termination law, but your heirs can.

Anyway, let's just stop talking about "requesting our rights back" or saying the publishers "gave us the rights back."  These are our rights. We need to know how to contractually assert our ownership. But usually we still own them, and they are OUR intellectual property, and publishers will do well to recognize for perhaps the first time in decades that authors are not "fodder" but rather essential partners in the bookselling trade. And if not, well, now we can go it alone. The liberation of saying that! Ah. I'll say it again. Now we can go it alone.


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