Getting Back the Rights to Your Books - Part 1
One of the most remarkable changes I’ve witnessed in the time that I’ve been in the publishing business is the shrinking of the life span of books. When I entered the field, a book of any quality at all could be expected to be available to consumers for several years. Today, we project the age of many books in weeks. If you put a recently published book and a recently picked tomato side by side on a shelf, there’s a good likelihood that the book will rot first.
The change has triggered a pole-reversal in our attitude toward books. Whereas the thinking of authors used to be, “How can I keep this book in print as long as possible?” today it is, “How quickly can I get the rights back?” This shift is reflected in pressure exerted by agents on publishers to install language in their contracts enabling authors to recapture their rights the moment their books are removed from the marketplace. Publishers, too, fight to curtail the term of license they in turn grant to reprinters and other licensees. The idea is for the rights owner to take the dead or dormant property away from a publisher that is not exploiting it and resell it to one that will put it back into play.
Although one can get very nostalgic about the good old days when writers wrote for posterity, it would be foolish not to play by the rules that govern the modern-day game. If a publisher is committed to a book and works to keep it available to buyers, there are usually contractual provisions for retaining the rights or extending the term. But if a publisher can’t or won’t support that book, it stands to reason that the property should be recovered and recycled.
Most often new authors are so excited about selling their first book that they seldom look beyond publication date when they contemplate its fate. They cherish the perfectly understandable fantasy that it will remain in print for years and years and will be available in bookstores for the foreseeable future. That it might go out of print one day, considering it isn’t even in print yet, is a matter of very remote concern to them. And that the book might go out of print within a year or less after publication is so shocking that our first impulse is to dismiss the suggestion with a (nervous) laugh. Most books, however, do go out of print eventually, few being relegated to the status of deathless classics. Even more disturbing, an increasing number of them go out of print in a very short time.
The reason for this lies in the ferocious competition among publishers for shelf space in bookstores. Thousands of books sweep into the stores every month, enjoy their moment in the sun, and are swept out again on the tide of next month’s releases. None but the hardiest survive the deluge. Though you may receive royalty statements for years, the actual activity of your book can often be measured in days. The “sales” reported to you every six months may not really be sales at all, but merely released reserves – sales revenue held by your publisher until it is clear that the books shipped will not be returned for credit. Although your publisher lets a little of that money go every six months, it may actually have been collected during the first few months of your book’s existence.
One day, then, you may wake up to the realization that your book has had it. After a suitable period of mourning, your thoughts will turn to recovering the rights to it in the hope that one day you can sell them to another publisher. It is wise to try to recover them, for if you are normally ambitious, assiduous, and talented, you are going to become popular if not famous, and your earlier books may be in demand. They can be an asset of tremendous potential, and so you are well advised to look hard at the out-of-print and termination provisions of your contract when you are negotiating it, however difficult it is to conceive that you will need them.
Most publishers have some such provisions in their contracts as a matter of course. In some instances the termination clause calls for automatic termination of the contract and reversion of rights after a fixed period, generally three to seven years. From an author’s viewpoint this is highly desirable, as it completely eliminates debate over the definition of “out of print,” a debate that can hang you and your book up for years.
Naturally, if something is highly desirable to an author, there must be something seriously wrong with it from a publisher’s viewpoint, and that is the case here. The way a publisher sees it, even if a book is long out of print there is no telling when the author may be exalted to bestseller status with some future book, at which point those dormant early books take on tremendous value. Publishers will therefore try to bargain for an ambiguous out-of-print clause that will enable them to hold on to the rights for as long as possible. Something along these lines:
The book shall be considered in print if it is on sale by Publisher or under license granted by Publisher, or if any license for its publication remains in effect.
In other words, your book will be considered in print as long as it is available to the consumer in any edition controlled by the publisher, including its own and those licensed to other publishers such as reprint houses, book clubs, and foreign publishers. But the above wording raises more questions than it answers. What does “on sale” mean? Copies in the bookstore? Copies in the warehouse? Three copies in the bookstores? Ten copies in the warehouse? And what about those licenses to other publishers? Does your publisher have adequate termination provisions in his contract with the book’s Turkish publisher? And how do you ascertain the number of copies in stock, anyway? Visit your publisher’s warehouse? Visit your Turkish publisher’s warehouse? The nightmare potential here is very high.
The advent of electronic publication produced a solution to many of these issues. Publishers Weekly reported in the fall of 1998 that as soon as he saw a print on demand press, one publishing executive exclaimed, “Now, we can keep books in print forever!” Many agents, including yours truly, reacted very badly to this remark, because print on demand and e-books clearly gave publishers an excuse to hold onto rights in perpetuity. A book could be out of print for decades, yet its publisher would be under no obligation to give back the rights because the text was still in the memory of its computer, where it could be summoned to fulfill an occasional print on demand order or deliver the text to an e-book buyer.
Agents and authors began promoting a new definition of “out of print” that would no longer be as vague and ambiguous as the one that had prevailed up to then. The prevailing model now is that as long as the publisher reports X copies sold every year or pays the author Y dollars annually, the publisher may keep the rights to the book. This becomes a sort of annual rent on your property.
Though I staunchly advocated this arrangement, I was skeptical that publishers would spring for it, and I wrote, “As this solution is imaginative and simple, I cherish little hope that it will be adopted by American publishers.” I’m happy to report that my pessimism was unjustified. Almost all American publishers have adopted it, or at least will accept it when an author or agent demands it. However, the X’s and Y’s must still be negotiated. Obviously, your strategy is to bargain for a threshold defined as the lowest number of copies sold or fewest dollars reported annually.
Bear in mind that your publisher doesn’t necessarily have to reprint the book to maintain control. It can also license certain rights to other publishers. Suppose your Random House book is out of print and you serve notice that Random must either print a new edition or revert the rights. Rather than opt for either alternative, Random could sell paperback rights to Pocket Books or Berkley or some other reprint house, and would be within its rights to do so. Of course you might be glad to see your book back in print; you might also die a little every time you contemplate Random House taking its 50 percent share of that paperback reprint money.
Is there any way you can prove that your book is out of print? One simple but time-honored way is to get a friend, or a friendly bookstore, to order a copy of your book from the publisher. If the book is out of print, a clerk at the publishing company or warehouse will send back a written notice to that effect. You now have written evidence straight from the horse’s mouth. However, the publisher might state not that the book is out of print but that it is out of stock, which is not quite the same as out of print. “Out of stock” means your publisher has exhausted its inventory, a state of affairs that may be temporary, for the stock can be replenished either by returns from bookstores or by new printings. A book can therefore be out of stock without being out of print. But frequently, “out of stock” is a prelude to a book going out of print, so it can help your case to ascertain from your publisher that the book is out of stock.
Sometimes the only thing that prevents a publisher from declaring a book out of print is a large stock. You can therefore expedite a declaration of out of print by offering to buy back the remaining inventory. Having determined that your book is no longer active, you should then serve notice on your publisher that you want your rights back. Even if your contract provides for automatic termination, it’s a good idea for you to get the company to send you a letter declaring the contract terminated and reverting the rights to you, so that you will have written evidence that you are free to enter into a contract with another publisher.
The clock starts ticking from the date your publisher receives your request, and though your publisher may respond promptly, it’s more likely that you won’t hear for many months, if at all. There are two reasons for this. The first is that many reversion requests are accorded extremely low priority by publishing houses. Each publisher has a procedure for evaluating such requests, but because many factors go into making a determination, as we have seen, the decisions are by no means cut-and-dried. I find that getting action from most publishers on reversion requests is much harder than getting money from them, so we’re talking hard, my friends. One publisher told me that its committee for reviewing reversion requests meets only twice a year. But there’s another and more disturbing reason why publishers balk on handling reversion requests: they may want to stall for time while preparing the book for e-book or print on demand editions, which would in effect enable them to keep the book in print in perpetuity. A degree of tenacity, then, is called for in following up reversion requests.
It is not always desirable to go by the strict letter of the contract, however, and a certain amount of common sense, compassion, or both, comes into play. There have been occasions when, after I pounced on a publisher with a request for reversion, I’ve received a call pleading for more time to evaluate the situation. “Look, we know the author’s first book is out of print and you have us dead to rights. But if you could extend our deadline until we bring his second book out, we’ll do a new printing of the first to tie in with publication of the new one. And as long as you’re being so literal about the wording, may we remind you that we haven’t canceled her contract even though her new book is three months late. So, how about cutting us a little slack?”
In such circumstances (and even if the new book isn’t late), I sometimes counsel my author to grant the publisher that extension, for in the overall picture such a course may be of greater advantage than recapturing rights that are of little value at the present time.
- Richard Curtis
This article is an expansion of a chapter in How to Be Your Own Literary Agent, Houghton Mifflin Company, copyright (c) 1983, 1984, 1996, 2003 by Richard Curtis. All rights reserved.
The change has triggered a pole-reversal in our attitude toward books. Whereas the thinking of authors used to be, “How can I keep this book in print as long as possible?” today it is, “How quickly can I get the rights back?” This shift is reflected in pressure exerted by agents on publishers to install language in their contracts enabling authors to recapture their rights the moment their books are removed from the marketplace. Publishers, too, fight to curtail the term of license they in turn grant to reprinters and other licensees. The idea is for the rights owner to take the dead or dormant property away from a publisher that is not exploiting it and resell it to one that will put it back into play.
Although one can get very nostalgic about the good old days when writers wrote for posterity, it would be foolish not to play by the rules that govern the modern-day game. If a publisher is committed to a book and works to keep it available to buyers, there are usually contractual provisions for retaining the rights or extending the term. But if a publisher can’t or won’t support that book, it stands to reason that the property should be recovered and recycled.
Most often new authors are so excited about selling their first book that they seldom look beyond publication date when they contemplate its fate. They cherish the perfectly understandable fantasy that it will remain in print for years and years and will be available in bookstores for the foreseeable future. That it might go out of print one day, considering it isn’t even in print yet, is a matter of very remote concern to them. And that the book might go out of print within a year or less after publication is so shocking that our first impulse is to dismiss the suggestion with a (nervous) laugh. Most books, however, do go out of print eventually, few being relegated to the status of deathless classics. Even more disturbing, an increasing number of them go out of print in a very short time.
The reason for this lies in the ferocious competition among publishers for shelf space in bookstores. Thousands of books sweep into the stores every month, enjoy their moment in the sun, and are swept out again on the tide of next month’s releases. None but the hardiest survive the deluge. Though you may receive royalty statements for years, the actual activity of your book can often be measured in days. The “sales” reported to you every six months may not really be sales at all, but merely released reserves – sales revenue held by your publisher until it is clear that the books shipped will not be returned for credit. Although your publisher lets a little of that money go every six months, it may actually have been collected during the first few months of your book’s existence.
One day, then, you may wake up to the realization that your book has had it. After a suitable period of mourning, your thoughts will turn to recovering the rights to it in the hope that one day you can sell them to another publisher. It is wise to try to recover them, for if you are normally ambitious, assiduous, and talented, you are going to become popular if not famous, and your earlier books may be in demand. They can be an asset of tremendous potential, and so you are well advised to look hard at the out-of-print and termination provisions of your contract when you are negotiating it, however difficult it is to conceive that you will need them.
Most publishers have some such provisions in their contracts as a matter of course. In some instances the termination clause calls for automatic termination of the contract and reversion of rights after a fixed period, generally three to seven years. From an author’s viewpoint this is highly desirable, as it completely eliminates debate over the definition of “out of print,” a debate that can hang you and your book up for years.
Naturally, if something is highly desirable to an author, there must be something seriously wrong with it from a publisher’s viewpoint, and that is the case here. The way a publisher sees it, even if a book is long out of print there is no telling when the author may be exalted to bestseller status with some future book, at which point those dormant early books take on tremendous value. Publishers will therefore try to bargain for an ambiguous out-of-print clause that will enable them to hold on to the rights for as long as possible. Something along these lines:
The book shall be considered in print if it is on sale by Publisher or under license granted by Publisher, or if any license for its publication remains in effect.
In other words, your book will be considered in print as long as it is available to the consumer in any edition controlled by the publisher, including its own and those licensed to other publishers such as reprint houses, book clubs, and foreign publishers. But the above wording raises more questions than it answers. What does “on sale” mean? Copies in the bookstore? Copies in the warehouse? Three copies in the bookstores? Ten copies in the warehouse? And what about those licenses to other publishers? Does your publisher have adequate termination provisions in his contract with the book’s Turkish publisher? And how do you ascertain the number of copies in stock, anyway? Visit your publisher’s warehouse? Visit your Turkish publisher’s warehouse? The nightmare potential here is very high.
The advent of electronic publication produced a solution to many of these issues. Publishers Weekly reported in the fall of 1998 that as soon as he saw a print on demand press, one publishing executive exclaimed, “Now, we can keep books in print forever!” Many agents, including yours truly, reacted very badly to this remark, because print on demand and e-books clearly gave publishers an excuse to hold onto rights in perpetuity. A book could be out of print for decades, yet its publisher would be under no obligation to give back the rights because the text was still in the memory of its computer, where it could be summoned to fulfill an occasional print on demand order or deliver the text to an e-book buyer.
Agents and authors began promoting a new definition of “out of print” that would no longer be as vague and ambiguous as the one that had prevailed up to then. The prevailing model now is that as long as the publisher reports X copies sold every year or pays the author Y dollars annually, the publisher may keep the rights to the book. This becomes a sort of annual rent on your property.
Though I staunchly advocated this arrangement, I was skeptical that publishers would spring for it, and I wrote, “As this solution is imaginative and simple, I cherish little hope that it will be adopted by American publishers.” I’m happy to report that my pessimism was unjustified. Almost all American publishers have adopted it, or at least will accept it when an author or agent demands it. However, the X’s and Y’s must still be negotiated. Obviously, your strategy is to bargain for a threshold defined as the lowest number of copies sold or fewest dollars reported annually.
Bear in mind that your publisher doesn’t necessarily have to reprint the book to maintain control. It can also license certain rights to other publishers. Suppose your Random House book is out of print and you serve notice that Random must either print a new edition or revert the rights. Rather than opt for either alternative, Random could sell paperback rights to Pocket Books or Berkley or some other reprint house, and would be within its rights to do so. Of course you might be glad to see your book back in print; you might also die a little every time you contemplate Random House taking its 50 percent share of that paperback reprint money.
Is there any way you can prove that your book is out of print? One simple but time-honored way is to get a friend, or a friendly bookstore, to order a copy of your book from the publisher. If the book is out of print, a clerk at the publishing company or warehouse will send back a written notice to that effect. You now have written evidence straight from the horse’s mouth. However, the publisher might state not that the book is out of print but that it is out of stock, which is not quite the same as out of print. “Out of stock” means your publisher has exhausted its inventory, a state of affairs that may be temporary, for the stock can be replenished either by returns from bookstores or by new printings. A book can therefore be out of stock without being out of print. But frequently, “out of stock” is a prelude to a book going out of print, so it can help your case to ascertain from your publisher that the book is out of stock.
Sometimes the only thing that prevents a publisher from declaring a book out of print is a large stock. You can therefore expedite a declaration of out of print by offering to buy back the remaining inventory. Having determined that your book is no longer active, you should then serve notice on your publisher that you want your rights back. Even if your contract provides for automatic termination, it’s a good idea for you to get the company to send you a letter declaring the contract terminated and reverting the rights to you, so that you will have written evidence that you are free to enter into a contract with another publisher.
The clock starts ticking from the date your publisher receives your request, and though your publisher may respond promptly, it’s more likely that you won’t hear for many months, if at all. There are two reasons for this. The first is that many reversion requests are accorded extremely low priority by publishing houses. Each publisher has a procedure for evaluating such requests, but because many factors go into making a determination, as we have seen, the decisions are by no means cut-and-dried. I find that getting action from most publishers on reversion requests is much harder than getting money from them, so we’re talking hard, my friends. One publisher told me that its committee for reviewing reversion requests meets only twice a year. But there’s another and more disturbing reason why publishers balk on handling reversion requests: they may want to stall for time while preparing the book for e-book or print on demand editions, which would in effect enable them to keep the book in print in perpetuity. A degree of tenacity, then, is called for in following up reversion requests.
It is not always desirable to go by the strict letter of the contract, however, and a certain amount of common sense, compassion, or both, comes into play. There have been occasions when, after I pounced on a publisher with a request for reversion, I’ve received a call pleading for more time to evaluate the situation. “Look, we know the author’s first book is out of print and you have us dead to rights. But if you could extend our deadline until we bring his second book out, we’ll do a new printing of the first to tie in with publication of the new one. And as long as you’re being so literal about the wording, may we remind you that we haven’t canceled her contract even though her new book is three months late. So, how about cutting us a little slack?”
In such circumstances (and even if the new book isn’t late), I sometimes counsel my author to grant the publisher that extension, for in the overall picture such a course may be of greater advantage than recapturing rights that are of little value at the present time.
- Richard Curtis
This article is an expansion of a chapter in How to Be Your Own Literary Agent, Houghton Mifflin Company, copyright (c) 1983, 1984, 1996, 2003 by Richard Curtis. All rights reserved.
Labels: Essays, Literary Agents, Publishing Industry, Richard Curtis, Writers
