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

"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

Changes In Publishing, Signs Of Hope: A speech by Stephanie Laurens

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I just finished reading the keynote address Stephanie Laurens gave to the Romance Writers of America during their enormous, and enormously wonderful, yearly convention.

Stephanie Laurens admonishes writers not to lose hope but, rather, to embrace the changing world of publishing. It is a speech filled with hope and enthusiasm about the seismic upheavals rocking the industry. Here are a few excerpts, but I would encourage you to read Stephanie's address in its entirety (WEATHERING THE TRANSITION...KEEPING THE FAITH). It is beautiful.

[W]hile the shift from print to digital consumption is a major driver contributing to the critical transition that's causing the upheaval in our business, it's not the critical transition itself - which is the migration of readers from buying offline to buying online. Whether they buy print or digital doesn't matter - it's the fact that readers access our works online that's key, because once a reader is buying online, the author can reach that reader directly, and that alters one critical segment of our business irrreversibly.

.  .  .  .

[W]hat is the definition of success in our business? Recently I've heard some contend that success for an author is getting published. Really? Getting published is you handing your manuscript over for transmittal - how can that be success? No - we're entertainers, and as an entertainer's success is measured by their box office draw, our success is measured by the number of readers lining up to buy our next book. Not the book that just went out, but our next book. Our success is measured by the size of our already captured audience.

.  .  .  .

That - multiple routes instead of one - is one critical difference between the Online Industry and the Offline Industry. 

Here's another - in the Online industry, only Author and Reader are essential - meaning cannot be done without. Publishers and Retailers, no matter who they are, can never be or make themselves essential - not unless they can take control of the internet. Not just a part of it, all of it. Which is why I waste no time worrying about anyone controlling my business again - that's not going to happen while I can reach my readers direct. And thanks to JK Rowling and Pottermore for establishing that beyond question. One way or another, if authors are forced to it, it can and will be done.

.  .  .  .

My principal message for you today is this: We are the storytellers. Whether its offline or online, we are still the storytellers, the spinners of tales, the weavers of emotional magic, the essential creators. We tell stories - we create them, shape them, write them down - and none of that changes.

To successfully weather this transition, all we as authors need to do is keep faith with our calling, and remember all the things about it that do not change.

A good story well told will always find its audience - that will never change.

A great story excitingly, thrillingly, and intriguingly well told will establish a career - that doesn't change either.

And if you consistently tell stories that fall between the good and the great, you will have a long and prosperous career in this business - and that won't change.

.  .  .  .

Now it's entirely natural to stare out of the window at the earthquake that's rocking the property next door and worry that it's going to crack the foundations of your house. This earthquake won't. It will alter the landscape on the boundary between you and that publishing house next door, and it will certainly reshape that publishing house itself, but your house won't be materially affected as long as you protect the bedrock on which your house's foundations rest - as long as you keep telling your stories, and tell them well.

So yes, lots of things are changing in the industry segment of our business, but for us as authors, what we must do to succeed remains the same.

I SO want to go to the RWA conference next year, everyone comes back from there raving about the experience, energized. Thrillerfest looks great too, though. Choices, choices!

Related reading:
- Marketing Strategies For Writers
- How To Increase Your Sales: 6 Tips From A Successful Indie Author
- Forget NaNoWriMo: How To Write A Novel In A Weekend

So That's The Ebook Business, Eh

Here's a Canadian perspective on the changes in the publishing industry of the last few years. It's one of the more comprehensive and even-handed discussions I've come across so I thought I'd share.

According to The Vancouver Sun, the book publishing industry in Canada does 2 billion dollars a year and ebook sales account for about 18 percent of that. Speculation is that ebook sales are going to continue to increase as more people make the switch to digital books, especially if prices on books go down because of the Department of Justice suit against Apple and 5 of the 'Big-6' book publishers.

It's difficult to estimate the effect lower book prices would have on the publishing industry because, although lower prices would mean less profit, they would also mean more sales. Additionally, writers in 2012 have many more options available to them for selling their work. For example:

Sunshine Coast author Lars Guig-nard has published three books on Amazon, starting with Lethal Circuit, and says he is making a good living on ebooks alone. He makes about the same amount whether he sells a book in electronic or traditional format.

On the other hand,

Vancouver author Timothy Taylor said he would not consider giving up his relationship with his publisher (Random House) to create a self-published ebook because he values the editing and promotion provided by a traditional publisher.

On the whole, though, Taylor was optimistic:

"It almost feels like we could open up new markets - people who aren't buying physical books might buy ebooks," Taylor said.

It's a lengthy article, but a good discussion. Check it out: Publishers try to read the industry's future

Photo Credit: The Voice Designs

Writers: Don't Despair

At nineteen they can card you in the bars and tell you to get the fuck out, put your sorry act (and even sorrier ass) back on the street, but they can’t card you when you sit down to paint a picture, write a poem, or tell a story, by God, and if you reading this happen to be very young, don’t let your elders and supposed betters tell you any different. Sure, you’ve never been to Paris. No, you never ran with the bulls at Pamplona. Yes, you’re a pissant who had no hair in your armpits until three years ago – but so what? If you don’t start out too big for your britches, how are you gonna fill ‘em when you grow up? Let it rip regardless of what anybody tells you, that’s my idea; sit down and smoke that baby.
- Stephen King, The Darktower 1: The Gunslinger, Revised Ed.

Yea!

At the end of the 2010 Surrey International Writer's Conference Robert Dugoni gave a rousing speech entitled, "This Day We Write!" based on the one Aragorn gave at the Black Gate. Close to 1,000 writers were on our feet stamping, clapping, hooting and chanting. There were even some tears. But, mostly, there were face-splitting grins. We left that conference the most inspired we had been in our lives!

One of the things good writing can do, something that is often ignored, is this: It can inspire.

Today I was going to do a follow up on an article I wrote some months ago, Writers Despair, which was about how traditional publishing has changed over the years and how this change has effected writers, especially midlist writers.

But I'm not going to do that.

It's true that many writers despair, and with good reason. Their series have been dropped by publishers, their contracts haven't been renewed, their new work hasn't been accepted. It's not hard to find these stories and it's not hard to find credible predictions that the trend is not only going to continue, but accelerate.

But wait! There's good news. Actually, there's good news and there's great news.

The good news is that good writing will always have an audience. Heck, as Stephen King would stay of James Patterson, it doesn't even have to be all that good! (BTW, I've read a few of Patterson's books and enjoyed them. Personally, I'm rooting for the man, it's great to know a writer can make the kind of money even the CEO of a multinational corporation would be envious of.)

That was the good news, here's the great news: writers now have the ability to create our own audience, one that the vicissitudes of the publishing industry can't cut us off from. We do this by putting up our own websites, by blogging and by being open to the possibility that a self-published book or two could get us exposure and some money without making us a pariah in the industry.

What could we publish? A professional writer usually has a backlist, and it's generally not the case that all those books/short stories/articles are in print. Too often it has been the case that fans have wanted a book but they can't get it. Also, every writer I've met has manuscripts wedged into shoe boxes languishing under beds. Granted, many of those works were first attempts and should stay in exile, but many times they have been rejected, not because they weren't good, but because the publisher couldn't figure out how to market them. Joe Konrath has made hundreds of thousands of dollars selling books his publisher rejected.

I'm not saying that if others can do it then so can you. I'm saying: If others can do it, then why not try? What's it going to cost you? A bit of time and money.

I want to make it clear that I'm not bashing publishers. I know being a traditional publisher is one of the highest risk endeavors on the planet. Restaurants are notoriously high-risk but when restaurant owners get depressed they say to themselves, "It could be worse. At least I'm not a publisher." Traditional publishers, especially small or medium sized publishers, are in business because they love books and are passionate about writing. A few years ago I took a publishing course taught by the owner of a small literary press, one of the most successful small presses in the country, and he approached his work with an evangelistic furor. These men and women are dedicated to their craft.

Unfortunately, though -- and small and medium sized traditional publishers would be the first to tell you this -- it is vanishingly unlikely that the overwhelming majority of writers who are published by them -- not those who submit their work, but who are accepted and published -- will be able to live on what they are paid.

But that doesn't mean you can't make a living as a writer. Times have changed and we must change with them.

This pep talk was as much for me as for anyone else. I think, really, it comes down to this:

Write what you are inspired to write, get what you've written out to people however you can, through any medium you can, and eventually success will follow.

I believe that.


Recommended Reading:
Stephen King: On Writing

Other blog posts of mine you might like:
Writers Despair
How To Publish On Amazon
The Starburst Method

Links:
Stephen King's Greatest Lesson For Writers
Surrey international Writers Conference
Robert Dugoni

Photo credit: Recruiterpoet's Blog

"Writers: Don't Despair!" copyright© 2012 by Karen Woodward

Are Gatekeepers Necessary?

Occasionally I read a post by an author and they not only nail what I have been thinking and feeling about a subject but they express it more eloquently than I ever could. Kristine Kathryn Rusch has done just that with her article, "The Business Rusch: Slushpile Truths", a response to Eric Felten's article, "Cherish the Book Publishers—You'll Miss Them When They're Gone", that appeared in The Wall Street Journal.

She writes:

Let me tell you, Mr. Felten, as a person who read slush for a decade, discovered lots of new writers, and won both a World Fantasy award and a Hugo award for her editing work, the slush pile isn’t some growing, breathing, horrible thing to be avoided. It’s a tower of hope, of dreams, of writers who want to do something with their lives.

Yep, there’s bad stuff in it. But the bad stuff is less common than the dull stuff, the mediocre stuff, the unoriginal stuff. The bulk of the slush pile is boring, not terrible. You start reading one of those manuscripts, your eyes glaze, and you set it down, and move onto something else.

Sound familiar, readers? Of course it does. The slush experience mimicks your own reading experience with traditionally published books. Yep, you folks do it with books that have already been published. [Italics in original]

Go Kris! She nailed it. "The bulk of the slush pile is boring, not terrible."

I have heard folks say things like: Indie authors write crap, just pick up 10 indie published books, you're lucky if you find one you'd want to read. I don't disagree, but the same is true for traditionally published books. The books I'm not interested in reading are not terrible books, they just failed to grab my attention.

One last quote:

Why am I taking this guy on? Primarily because so many of you sent me this silly piece, which just goes to show how many of you read The Wall Street Journal as opposed to the more obscure bloggers on the NPR website. (They covered this issue last summer.) I think a bunch of you also sent it to me because you agree with him, because you’ve bought that piece of swampland in Florida with the sign that says “Professional Gatekeepers Necessary.”

That was my much needed laugh of the day. Thanks Kris. Looking forward to next Thursday.

Writers Despair

Kristine Kathryn Rusch writes:

[W]hat I've seen this past month from established writers is an abundance of despair. I got a sad phone call from a friend, had a lot of sit-down conversations with writers who were ready to give up their dreams, and a nine-page single-spaced e-mail from a hell of a writer of dozens of published books, wondering whether or not to quit altogether.

What are these writers despairing about? Lots.

Books that would have sold five years ago don’t sell now. Series that are growing are getting bounced from their publishers for not growing enough. Agents, unable to sell product, are telling their mystery clients to write romance novels and their romance clients to write thrillers. Other agents are starting backlist e-pub companies and robbing their clients blind. Still other agents are blaming the writers for the fact that nothing is selling well and encouraging them to sign terrible book contracts.

Bookstores don’t carry paper books any longer. New York Times bestsellers can’t find their backlists in stores. American authors with bestselling novels overseas are being told that foreign countries never pay the promised royalties, only advances.

Traditionally published bestselling writers look at their royalty statements, see that their e-books sell only 30 or 100 or 200 copies in six months, and wonder how the hell upstart self-published writers whose books have ugly covers and whose interiors need copy editing manage to sell tens of thousands of e-books each month.

Editors who once had to tiptoe around their biggest authors are telling those writers to change what they write because their sales have decreased, and clearly, their writing has gotten worse over the years. Writers whose rabid fan base numbers 10 or 20 or 50K get told that their books no longer sell to that fan base even though the writer is constantly getting e-mails from that base and is signing brand new books for that base.

Publisher sales figures are impossible to get. An estimated laydown of 50,000 becomes an estimated 17,000 one month later. On the royalty statements issued six months after that, that laydown then becomes 5,000 books with another 5,000 in the reserve against returns. But, that same book, tracked by Bookscan (which only covers 50%-70% of the book market [and maybe less now]), shows sales, sales (not books shipped), of 30,000.

But even if Bookscan’s numbers are true, the book’s editor says, thirty thousand is pretty insignificant for that genre or for that particular series or for that particular writer. The writer will have to take a smaller advance and accept worse contract terms. Or the writer doesn’t get offered another contract period.

And of course, of course, it’s the writer’s fault. The writer misread the numbers, wrote down the wrong amount in the initial phone call with the editor on the laydown. Oh, it wasn’t a phone call, but an e-mail? My bad, the editor says. It was a typo. I didn’t mean 50,000. I meant 5,000.

So, the writer says, if you only printed 5,000 and I sold 5,000 and the book is still in print and still being ordered, then my book is doing well, right?

Wrong. We overpaid your advance, the editor says. We never ever should have paid that much money on a book that would only sell 5,000 copies.

What's the solution?

First: Know that

It’s not you. You’re fine. Your writing is as good as ever. The business is changing and you’re caught in the crossfire. It’s not personal, even though it feels personal. You are caught in the middle of a nightmare. The rules are changing, and no one knows where any of this is headed. Talk to other writers. You’ll see. It’s happening to all of us.

Second: Read Kristine's article.

Photo credit: "Between life and death" by Kathryn under Creative Commons Attribution 2.0.

The Business of Writing

There are some wonderful blogs about the business of writing. I've already mentioned Dean Wesley Smith's blog and Joe Konrath's blog. Thanks to Dean, I've discovered another rich source of information on the state of writing and publishing: The Author's Guild, specifically their series on e-books and the difference between the economics of e-book publishing and traditional publishing.

Here are the Author Guild blogs, in order:

How Apple Saved Barnes & Noble. Probably.
E-Book Royalty Math: The House Always Wins
The E-Book Royalty Mess: An Interim Fix

Enjoy!