Getting Back the Rights to Your Books, Part 2
Although you may succeed terminating your agreement with your publisher and getting back the rights to your book, certain provisions of your original contract may survive its termination, depending on how the termination clause is worded. If the publisher has an option on your next book, it may remain in effect even when the first book goes out of print. Your warranties to the publisher that the book is not obscene, libelous, defamatory, and so forth generally remain in effect after the contract is terminated; any still-active sublicenses contracted by your publisher also continue until they are terminated.
It is legitimate, too, for the publisher to require you to pay back any debts to the firm you may have incurred. For instance, if you bought fifty copies of your book from Random House and charged them against your anticipated royalties, but the book did not earn those royalties, Random House has the right to ask you for a check for those copies before giving you a reversion of rights. Some publishers try to require you to pay back the unearned portion of your advance in order to get your reversion, but that is totally unacceptable. Another legitimate “debt” you may incur is an overpayment of royalties to you, owing to your publisher’s underestimate of a reserve against returns. Considering the high reserves against returns publishers often retain, I would consider an overpayment to be one of the least likely events in the spectrum of publishing possibilities.
Your termination clause should give your publisher the right to sell off the remaining stock of copies after termination, though of course not to print more. Authors should request the right of first refusal to purchase from the publisher all overstock or remainder copies at the best prevailing market price. You may want to buy some to stock your library, submit to prospective new publishers, or resell at a profit.
Finally, upon termination of the contract you should be entitled to a final accounting from your publisher. As we’ll see, there may be an undisclosed reserve against returns on your publisher’s ledgers, and now is the time for it to be disclosed and for any balance in your favor to be settled up.
To sum up: generally speaking, the more specific a contract is about reversion procedures, the better it is for securing a reversion. For instance, if the reversion language says something like, "If sales in all formats for two consecutive royalty periods combined total less than 500 copies, the right shall automatically revert to the author." Or, "This agreement shall be in effect for five years from the date of first publication, after which all rights conveyed herein shall automatically terminate." Those are slam-dunks because they require nothing at all for the author to do except add up sales or look at the calendar.
However, few publishers incorporate that boilerplate in their contracts, nor will they go that far in a contract negotiation. In all likelihood, there will be such conditions as:
1) At the end of the term the publisher shall have X months to decide whether or not to do a new printing, and Y months after that decision to actually print a new edition; or,
2) The reversion is not automatic, but the author must instead serve notice, failing which the contract is deemed automatically extended until such notice is served; or
3) Instead of a specific number of copies sold, the contract has a vague out of print clause such as, "Should the Work no longer be available for retail sale."
Wherever definitions are vague, it's best to get written reversion confirmation from the publisher. You can't say, "My royalty statements show zeros and in my opinion the book is out of print and you have thirty days to give me my rights back because after that I'm going to sell the book to another publisher." Not only will the publisher of the first part dispute your claim, but the publisher of the second part may refuse to offer you a contract until you furnish that reversion letter from your publisher.
Putting all these elements together, we arrive at a rather formidable clause, but one well worth pushing for, however hard it is for you to envision that one day your book’s life – at least its first life – will come to an end. Here it is. Negotiable provisions are left blank:
Many authors believe that there is a strong market for the recycling of previously published books, but it just isn’t so. Publishers are seldom interested in acquiring reverted books unless (1) the author has become a big name, and (2) the reverted books can ride on the coattails of new books by that author. In fact, though publishers might offer next to nothing for your reverted title, that same “retread” (as the industry sometimes deplorably refers to it) could fetch a handsome price when coupled with your new, unpublished work. Many authors choose to reissue their reverted titles in e-book or print on demand publishing programs. They can generate royalties and the print on demand format can replenish author stocks to service foreign and movie interest.
I have often referred to a backlist of reverted titles as money in the bank. It may be of modest value now, but it will appreciate as your career grows, and when you achieve stardom you can withdraw those books from your ‘’bank” and cash them in for tons of money – unless, upon rereading your early work, you decide that a quiet burial is the more prudent course.
- Richard Curtis
This article is adapted from How to Be Your Own Literary Agent by Richard Curtis, Houghton Mifflin Co., © 1993, 1994, 1996, 2003 by Richard Curtis
It is legitimate, too, for the publisher to require you to pay back any debts to the firm you may have incurred. For instance, if you bought fifty copies of your book from Random House and charged them against your anticipated royalties, but the book did not earn those royalties, Random House has the right to ask you for a check for those copies before giving you a reversion of rights. Some publishers try to require you to pay back the unearned portion of your advance in order to get your reversion, but that is totally unacceptable. Another legitimate “debt” you may incur is an overpayment of royalties to you, owing to your publisher’s underestimate of a reserve against returns. Considering the high reserves against returns publishers often retain, I would consider an overpayment to be one of the least likely events in the spectrum of publishing possibilities.
Your termination clause should give your publisher the right to sell off the remaining stock of copies after termination, though of course not to print more. Authors should request the right of first refusal to purchase from the publisher all overstock or remainder copies at the best prevailing market price. You may want to buy some to stock your library, submit to prospective new publishers, or resell at a profit.
Finally, upon termination of the contract you should be entitled to a final accounting from your publisher. As we’ll see, there may be an undisclosed reserve against returns on your publisher’s ledgers, and now is the time for it to be disclosed and for any balance in your favor to be settled up.
To sum up: generally speaking, the more specific a contract is about reversion procedures, the better it is for securing a reversion. For instance, if the reversion language says something like, "If sales in all formats for two consecutive royalty periods combined total less than 500 copies, the right shall automatically revert to the author." Or, "This agreement shall be in effect for five years from the date of first publication, after which all rights conveyed herein shall automatically terminate." Those are slam-dunks because they require nothing at all for the author to do except add up sales or look at the calendar.
However, few publishers incorporate that boilerplate in their contracts, nor will they go that far in a contract negotiation. In all likelihood, there will be such conditions as:
1) At the end of the term the publisher shall have X months to decide whether or not to do a new printing, and Y months after that decision to actually print a new edition; or,
2) The reversion is not automatic, but the author must instead serve notice, failing which the contract is deemed automatically extended until such notice is served; or
3) Instead of a specific number of copies sold, the contract has a vague out of print clause such as, "Should the Work no longer be available for retail sale."
Wherever definitions are vague, it's best to get written reversion confirmation from the publisher. You can't say, "My royalty statements show zeros and in my opinion the book is out of print and you have thirty days to give me my rights back because after that I'm going to sell the book to another publisher." Not only will the publisher of the first part dispute your claim, but the publisher of the second part may refuse to offer you a contract until you furnish that reversion letter from your publisher.
Putting all these elements together, we arrive at a rather formidable clause, but one well worth pushing for, however hard it is for you to envision that one day your book’s life – at least its first life – will come to an end. Here it is. Negotiable provisions are left blank:
If after ______ years from date of publication the work is out of print, and the Author makes written demand to reprint it, the Publisher shall, within sixty days after receipt of such demand, notify the Author in writing if it intends to comply. Within six months of notifying the Author of its intention to comply, Publisher shall reprint the work unless prevented from doing so by circumstances beyond its control. If Publisher fails to notify Author within sixty days that it intends to comply, or within six months after such notification the Publisher declines or neglects to reprint the work, then this agreement shall terminate and all rights granted hereunder except those deriving from the option and warranty provisions shall revert to the Author, subject to licenses previously granted, provided the Author is not indebted to Publisher for any sum owing to it under this agreement, with the exception of an unearned advance. After such reversion, the Publisher shall continue to participate to the extent set forth in this agreement in monies received from the sale of remaining stock or from any license previously granted by it. Author shall have the right of first refusal to purchase from Publisher all overstock or remainder copies at the best prevailing market price. Upon termination of this agreement, Publisher shall provide Author with a final accounting detailing copies printed, copies shipped, copies sold, copies returned, and reserve against returns, and shall release said reserve to Author. Upon termination, Author shall have the right for thirty days thereafter to purchase the films, plates, PDF file or other production materials from Publisher at one-fourth of their cost (including typesetting). For the purposes of this paragraph, the Work shall be considered in print if it is available for sale in the United States in a full length English language edition and is contained in Publisher’s customary reorder materials and at least ____ print or electronic units in the aggregate are sold in the last ____accounting periods immediately prior to the Author’s request for a reversion of rights, or if a contract for its publication by a sublicensee of Publisher for publication within ____months is outstanding.Like most other ambiguous provisions in publishing contracts, termination clauses can be made satisfactory through negotiation. Most publishers have committees or other systems for reviewing the in-print status of their books, and will give up their rights if it can be reasonably argued that those rights are no longer valuable to them or have no potential value in the near future. But the chances for a decision in your favor will be increased if you frame your contractual language carefully to begin with. The rest is a matter of persistence.
Many authors believe that there is a strong market for the recycling of previously published books, but it just isn’t so. Publishers are seldom interested in acquiring reverted books unless (1) the author has become a big name, and (2) the reverted books can ride on the coattails of new books by that author. In fact, though publishers might offer next to nothing for your reverted title, that same “retread” (as the industry sometimes deplorably refers to it) could fetch a handsome price when coupled with your new, unpublished work. Many authors choose to reissue their reverted titles in e-book or print on demand publishing programs. They can generate royalties and the print on demand format can replenish author stocks to service foreign and movie interest.
I have often referred to a backlist of reverted titles as money in the bank. It may be of modest value now, but it will appreciate as your career grows, and when you achieve stardom you can withdraw those books from your ‘’bank” and cash them in for tons of money – unless, upon rereading your early work, you decide that a quiet burial is the more prudent course.
- Richard Curtis
This article is adapted from How to Be Your Own Literary Agent by Richard Curtis, Houghton Mifflin Co., © 1993, 1994, 1996, 2003 by Richard Curtis
Labels: Literary Agents, Publishing Industry, Richard Curtis, Writers
