Friday, October 26, 2012

Doing What's Right: How To Get The Rights To Your Books Reverted

How To Get The Rights To Your Books Reverted To You
"Roaring Lion" by Tambako the Jaguar used under CC by 2.0.

Awesome business post from Kris Rusch today! She talks about rights reversion and how you can get the rights to a book back from your publisher.

Rights Reversion


First, though, what is rights reversion? Kris writes:
When a writer signs a contract with a publisher to have a book published, that contract includes which rights the publisher is licensing and at what cost/percentage of that cost. All of this is based on the copyright, which can be sliced down to minute fractions, and each fraction licensed.
Essentially, you're asking your publisher to give you back all the rights you licensed to them.

Out of print = not available for sale

You might be wondering why an author should have to ask for their rights back. It seems as though the publisher should just give them back after some point. The question is, what point? It used to be that if a book was out of print--you couldn't buy it in any bookstore--then you got your rights back.

Nowadays we have Amazon and (to a lesser extent) Barnes & Noble and Kobo and Smashwords and ... you get the idea. Books never really go out of print, they continue life as ebooks or as print-on-demand paper books. Kris has experienced this herself:
[O]nly recently [writers and their agents] started adding the phrase along the lines of “the availability of a print-on-demand edition of the book does not count toward the in-print definition in this contract.”

The only reason I can’t get my rights back on my last remaining title with Simon and Schuster is because my very old contract with them does not have that line, and S&S counts the POD availability as “in-print.”

If contract terms can be bent or stretched to the publishing house’s favor, the publishing house will do so.

Out of print = sales velocity

It's a problem! How do we, as authors, determine when our publisher(s) should give us the rights back to our work? Some writers have used sales velocity. This is the idea that if your book sells less than X amount of copies in Y amount of time that it's out of print. For instance,
If a book sold fewer than 500 copies in a six-month period (for example), then that book would be considered out of print, and would, for the sake of the contract, be eligible for reversion.
The first time I read about using sales velocity as the criterion for rights reversion I thought it was a great idea, but I'd forgotten about something: Freebies!

You wouldn't think it, but free copies of books given away on, say, Amazon, can count toward copies 'sold'. Under this model all a publisher would have to do to keep the rights to your book from reverting to you would be to offer it every six months or so as a freebie on Amazon.

Out of print = limited term

Your publisher would like to hang onto your book forever, they don't want to give you the rights to it because they think they'll be able to make money on it down the road. And you know what? They probably will if they manage to keep it. After all, that's part of the reason you want the rights back!

What should you do? Never sign with a traditional publisher again? No, just make sure that your contract has a limited term. Kris writes:
... I’ve started recommending to writers that if they want to have a traditional publishing contract for their book, that contract has to have a limited term. The contract can exist for ten years from the date of the contract (or seven from the date of publication, which may not be unreasonably delayed), and can be renewed at the same or more favorable terms.
So just include in your contract that, regardless of where the book is being sold, and regardless of how many copies are being sold, the rights to the book will revert to you 10 years after you sign it.

That's a simple, clear criterion. So, problem solved. Right? Not so fast. Kris writes:
That’s how all of my foreign contracts work [they have a limited term] and most of my Hollywood contracts have worked. In fact, all of my subsidiary rights contracts work like that. But my former traditional book publishers in the United States have all balked at that suggestion—so I walked.
The problem: book publishers might say no.

Out of print: Which criterion should I use?

Whichever criterion you end up using in your next contract remember to plug the loopholes. Make sure that:
- Print-on-demand books and ebooks don't count toward sales.
- Free books and deeply discounted books don't count as sales.

How to get the rights to your book back: Getting a release letter from your publisher


Okay, let's say you've pulled out your contract, read it, and determined that according to it's terms your book is out of print and you should be able to get your rights back. Now what? How do you go about doing that, putting the legal wheels in motion?

Kris writes:
So it might look like your rights have reverted, but you don’t have full legal title to those rights until you have a release letter from your publisher.
Be sure to check your contract and make sure that, according to its terms, your rights really have reverted and make note of any special things you have to do to get the rights to revert. Generally, though, here's what you have to do:
Let’s assume, though, that the book is out of print by whatever standard is set in the contract. Then you have to go through the hoops that the contract establishes for rights reversion.

Generally, those hoops are pretty simple. You must write a letter asking for the rights to revert to you.

The letter should be formal. It should cite the contract, its date, the clause that pertains to reversion, and the proof you have that the book meets the definition of out of print. Then you should ask for a letter reverting the rights to you.
Let's break this down. In your letter to your publisher you need to include:
1. Cite the contract, its date and the clause that pertains to reversion.
2. Include the proof that your book meets the definition of out of print used in the contract.
3. Ask for a letter reverting the rights to you.
Kris writes:
Send this letter to the legal department at your publisher by snail mail with a delivery confirmation attached. Also send it to the legal department by e-mail.

You probably won’t get a response. Usually, they’ll just put the reversion letter into a pile and deal with it at a biannual meeting on rights reversions.
What NOT to do:
I would avoid both your agent and your editor in this process. They both have a vested interest in keeping that book under contract. In fact, contacting your editor before writing the letter might get that back-in-print process underway before your letter even hits the desk at legal.
Kris warns that you very well may not receive a response from the publisher. They don't want to give you back the rights so you're job is to become the squeaky wheel. The persistent, irritating-as-water-dripping-from-a-rusty-faucet, squeaky wheel. Kris writes:
If you get no response in a month, go through this process again. And then do so a month later. By then, someone will respond. They’ll be pretty irritated and they’ll probably tell you that they will get to you when they get to you.

Remind them that they have six months from the date of your original letter to put the book back into print, or they lose the right to publish the book. (If, indeed, that clause is in your contract. If it isn’t, simply state that they must respond to this legal request in a timely manner.)

What you want to do is get them to release your rights. You want to be that annoying person they grant the release to because they don’t want to deal with you any more.
The publisher may not release the rights to you even after six months and, if this places them in breach of their contract, you have to tell them. Or better yet, Kris recommends hiring a lawyer to tell them.

Don't be shy about keeping the pressure on your publisher.
If you want your rights reverted, then you need to be proactive about getting them back.  You have to show the publisher that this is important to you, and you will continue to push until you get your way.

Because publishers have so many writers and so much backlist, they won’t push back against a squeaky writer unless they believe that writer’s book (reissued) will make a lot of money. In most cases, the publisher won’t even do enough research to learn that the book would make money.

If you push consistently and politely, you will succeed more times than you’ll fail. But it’ll take a concerted effort on your part.
Well, what are you waiting for? Get those rights back! 

All quotations are from Kris Rusch's article The Business Rusch: Rights Reversion. I highly recommend you read Kris' article from top to bottom, I only covered a fraction of it. Kris is remarkably generous in sharing her prodigious experience in the world of publishing (thank you!!).

Other articles you might like:
- Making A Scene: Using Conflicts And Setbacks To Create Narrative Drive
- NaNoWriMo: How To Reach Your Daily Wordcount
- Dialogue: 7 Ways of Adding Variety

Photo credit: Tambako the Jaguar

2 comments:

  1. Every time I read one of these my disgust for the industry rises, and I say, "Thank God," that I didn't try harder to get traditionally published.

    May they all become as relevant as the UN, by...say...next Wednesday.

    Faster if we're lucky.

    ReplyDelete
    Replies
    1. lol Thanks R., I needed a laugh!

      It's a bit off topic, but Passive Guy has a great article about how warranties can be a potential nightmare for an author. Why I mention this here is that the same nightmare clause is in Amazon's and Barnes & Noble's publishing contract that indie authors have to sign.

      (sigh)

      Here's the link to PG's article:
      http://www.thepassivevoice.com/10/2012/is-this-the-worst-paragraph-in-a-publishing-agreement/

      As always, thanks for the comment. :)

      Delete

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