Monday, May 26, 2014

Authors, Take Back Your Book Rights Before It's Too Late!

This is part one of a series of blogs I am writing about publishing book contracts (and the LDS market in particular). Interesting information and some really important things I wish I had known before signing a contract. Now the required disclaimer (that publishers love to remind us to include to avoid their lawsuits): Keep in mind I am not an attorney, so this is not legal advice. This is only what I have learned after eighteen years of contract-signing and publishing 45 books.

Today’s post comes from Teyla Rachel Branton’s blog post entitled Authors—Take Back Your Book Rights Before It’s Too Late. (Reprinted with permission.) See the original post here.

Did you sign away your rights without really understanding what you were doing?  Well, a little-known copyright law allows authors to eventually get back their rights. So authors who had the misfortune to sign a contract with an unscrupulous or small publisher, who did not include a return of rights, have some recourse besides paying big bucks to get back what should been returned to them as a matter of course. Authors can retake the rights to their books thirty-five years after their book was published. This is for all authors who signed contracts since 1978, but authors who were published in 1978 to 1988 need to act NOW because there are time constraints and stipulations.

How It Works
Authors have a five-year window to exercise the right but must provide notice to the publisher at least two years in advance but no more than 10 years before their eligibility date. Authors who published in 1978 are eligible to reclaim their rights in 2013, but they have only five years to act, so the  window of opportunity is closing. So please pass this along to any authors.
You can find the actual copyright law text in section 203 here. (Look at (3) for particulars about the times.)

Some of you have a few more years to wait, but you can plan now to get back those rights. I plan to submit to my publisher ten years before and offer them a deal if they give me back the rights earlier, so maybe something good will come out of this for me and my family. I know better know and I will NEVER, EVER sign another contract with a publisher if they do not return rights at some point.

Meanwhile, here’s a little non-legal advice from someone who has been in the business a few decades:

  1. Don’t ever sign a contract unless it includes a return of rights that states a threshold at which point the book right revert back to you.

  2. Make sure the rights revert COMPLETELY. Shared rights is NOT acceptable. No other publisher will accept the book with shared rights, and you can't invest any kind of money in a project that you don't have full rights to.

  3. This is YOUR intellectual property. Unscrupulous (or uneducated) publishers will be happy to keep your rights forever because even if they make only a buck off your product from a random handful of ebook sales, they are making money without additional effort. Without a return of rights, they are not vested in pushing your book over the entire term of the copyright law.

  4. You and your descendants can make far more on your property than a publisher who is doing nothing with it except listing it in a catalogue. You can revise, resell, etc. and keep profiting—especially in this digital age. You will also have something to pass down to your children as a legacy.

  5. Check Predators and Editors before you sign with any publisher. If there are any complaints there, it is likely serious enough that several authors have not only complained but sent in their contracts as proof (because the site has to protect itself with proof).

  6. Be careful of unscrupulous publishers who “pretend” to give you back rights but in other clauses take them away.
Here is an example of a "pretend" return of rights clause:
If after the expiration of three years from the date the work is first put into print, the Work is then out of print, Author may make a written demand to Publisher to republish the Work. Publisher shall have 90 days after receipt of the demand letter to give notice of its intent to comply. Publisher shall be deemed to have complied by publishing in one or more of the formats identified above or by entering into a sublicense agreement with a third party for publication of the Work. If, after Publisher fails to comply for a period of six months, then Author shall have the right to terminate this agreement and all rights shall be returned to the Author. Notwithstanding, the Publisher shall have the right to retain all electronic rights in the Work.

NO! This is a terrible and fake return of rights meant only to fool the author. There is no threshold of sales that must be met and since the publisher also snuck in a print-on-demand clause in the paragraphs above this one and wants to keep erights, they will NEVER consider that book out of print. That author can ask until they keel over from pleading, but that publisher doesn’t have to do anything. Make no mistake: this is an immoral clause.

Here are some good examples:
Example 1: If sales fall below 100 copies in any given six-month period, all rights will revert back to an author for that book.

Example 2: In any 12-month period fewer than 250 units of the Work have been sold, or the Work has generated less than $250 in revenues for Author, the Work shall be deemed out of print and author may request back rights.

Example 3: Victoria Strauss lists her Harper Collins contract terms online: If for two consecutive accounting periods neither the Publisher nor a licensee of the Publisher has printed copies of the Work . . . but the Work is available for sale from the Publisher or a licensee of the Publisher by some means of on-demand printing, or electronic transmission or reproduction and within those two accounting periods, the Publisher and its licensees, collectively, have sold less than 250 copies of the Work, the Work shall be deemed out of print.

Example 4: If the Work is not in print, Author may request in writing that Publisher keep the Work in print. Publisher will have six (6) months to comply. If Publisher fails to comply . . . then at the end of such six (6) month period this Agreement shall terminate and all of the rights granted to Publisher shall revert to Author. The existence of an individual print on demand edition or an electronic edition shall not constitute the Work being in print unless there are total combined sales of $500 or more a year for these editions.

So there you have it. Be wise. Think of the future. If you sign away your rights now with no recourse, you will probably be kicking yourself years down the road like the dozens of authors I know, most of whom published with small, local publishers they trusted. The bottom line for publishers is money, and we authors need to think that way too.

For a great article that will help you understand the return of rights clause further, please click here.