Saturday, June 4, 2011

Very interesting information about rights reversion

One of these days I'm going to write a "short" on contracts. I've already given numerous talks on the subject for my meetup group and just last weekend I presented on this topic at Balticon. Authors are so excited to get a contract, that they don't read them carefully and consider the implications and this can be a HUGE mistake. In my talks I try to alert people as to where the landmines are and how to avoid them.

To me, one of the biggest issue about any contract is when and how you get your rights back. After all, once you have them again you are back in control. In an age when authors are making great money by e-publishing their own works this is an important consideration.

When I was at BEA at the end of May Richard Nash was boasting that his press, Red Lemonade, allows authors to leave after 3 years. I must say that this made me giggle a bit internally because a little known secret about the Ridan contract is that our authors can leave...ANY TIME THEY WANT. Yep, if they are unhappy with the way I've been handling their work, they can reclaim the rights and go elsewhere. They can even use this provision if they had been happy but want to trade up, say if a big-six publisher came knocking on their doors. I wish every author had this option available to them, but I know of no other company that has written a contract with such a stipulation -- and I doubt you'll find many rushing to do so. One day I'll blog on the Ridan's business model and why I can give authors this kind of freedom while no one else does - but that' s for another day. Let's get back to today's post.

The usual term of a contract (I was shocked to discover) grants the rights for "the life of the copyright". Which for those that don't know means for 50 years after the author's death (75 years for works of corporate authorship). That's a really, really long time and getting locked into anything with that long of a time worries me.

As mentioned above, some small press publishers will write contracts with a time limit. Heck, even the worst publisher in the world (we all know who you are cough--Publish America--cough) will revert your rights after seven years. I was pleased that when I sat in on a session for Dark Quest Books at Balticon that they write theirs for 3 years - a very good sign.

Now, the reality is that you'll probably get your rights back in your own lifetime because these contracts have provisions to revert the rights when a book goes "out of print". This too can be tricky in today's publishing climate as with ebooks and print on demand technology, it is theoretically possible for a publisher to keep the rights even if the book isn't selling well. For this reason it's important to specify a dollar value that if the books fall below this threshold will deem it as "out of print.

In any case, the reason for me bringing this up today is I found a FASCINATING blog post about a loop hole that will allow you to reclaim rights even if the contract stated for the life of the copyright. Apparently the copyright holder, or their heirs if they are dead, can terminate a copyright and since copyright law trumps contract law you essentially pull the rug out from underneath.

Now, before you start celebrating, you should know that you can only do this thirty-five years after the copyright filing which is still a long time, but better than forever. This provision was added to basically protect authors of older works from having to live with a bad deal they entered into when they had little negotiating skill or leverage.

This went into effect when copyright laws were changed in 1978 so in 2013 works such as Stephen King's The Stand could make use of this provision. I wish the time period was more like ten years than thirty-five but still its better than nothing, and something I found interesting.

If you have an older work that is locked up you would be eligible to start reverting those rights in 2013. You can read the full details at this link.

21 comments:

Stephen T. Harper said...

This is probably the most important thing for independent writers to be paying attention to right now.

The game is changing so fast that old rules can suddenly not be reliable anymore. With so many start up independent publishers taking advantage of the new realities in distribution, and so many authors looking for the help a team might provide... you have to really think carefully about the contracts. With POD and ebooks, what does "out of print" even mean?

I think, from the point of view of a start up publisher, they need to put a lot of thought into what a standard contract even looks like. And authors really need to pay attention such things. I'm not talking about people trying to cheat, I'm saying it would be easy to word contracts in such a way that will make things very confusing and difficult for both parties down the road.

@Robin - this post is in the same area that I was asking you about on JAK's blog. All so new. So much to consider. It's very exciting, but it really feels like the wild west sometimes too. Best to just keep writing, but writer's still need to pay attention.

Robin Sullivan said...

You are correct Stephen - for anyone signing contracts in these swiftly changing times examining them VERY carefully is VERY important.

I hope my comments on your particular situation at Newbie Guide has been useful. It sounded like you were drafting a contract...if you want me to look at it when you are done I'd be more than willing to.

Stephen T. Harper said...

Thank you, Robin. Yes you were very helpful. But no, I'm not drafting a contract. I was recently approached by some very nice people with a very new and creative business plan. I was looking for insight. But at this point it's just conversation because I haven't seen a contract, yet. My understanding of their concept is intriguing, but I need to see the actual wording to fully understand.

Richard Nash said...

Hi Robin, well the significance of what we're doing is that we're the only publisher who is printing books offset and shipping thousands on standard sale-or-return terms to traditional booksellers. We have other digital and direct-to-consumer channels too, but the only term-limited publishers I've seen are ones who avoid inventory risk by going digital and/or print-on-demand and/or direct to consumer.

Lois D. Brown said...

I would love to read that "short" on contracts. Honestly, I'd be happy to pay 99 cents on Amazon or Smashwords for it. Books about contracts can be so difficult to understand and translate into real life. If you made yours readable and understandable (which I think you can) it would be great.

Robin Sullivan said...

@Stephen - Oh I see, thanks for clarifying. As you progress along if you want to pass anything by me or ask questions (I know a few things on this subject ;-) Shoot me an email - my address is on the About Me page.

Robin Sullivan said...

Hey Richard - thanks for stopping by and clarifying. While there are many small press publishers that do offset printing/bookstore sales - you are probably correct that you are the only one I know of who will do both that AND have a 3 year and out contract. It's an interesting concept. There are a lot of very new business models in this new environment. I actually avoid the B&M model as it is too high risk for me. Huge up front costs, large discount requirements (50% or more), warehousing fees, high returns, shipping books back and forth or stripping, and issuing returns to avoid paying for inventory. I'll be watching with great interest to see how that works out.

Robin Sullivan said...

@Lois - yeah that would be the idea. Just too busy to write it at the moment. Of course I'm not a lawyer and there would have to be the cavet that I'm not giving legal advice. Over the past 4 years or so I've seen a lot of contracts from authors who asked my opinion on one thing or another so I have quite a few of them running around. I won't publish each contract nor indicate what clauses came from which publishers but just go over the points I found interesting and give "my take" on them.

Robin Sullivan said...
This comment has been removed by the author.
Carol Ervin said...

Robin, I've saved this post for (hopeful) future reference. Thanks for all the good stuff.

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