Caveat Auctor

12.9.07 | | 14 comments

I was caught by surprise recently on a book I tried to bring back into print. I thought I had done everything right. I tracked down the author, signed a contract on the book, which had previously been published by two different publishers. The author claimed (and legally claimed in the contract) that he had the rights back to the book and could allow me to publish the new edition.

But it was only after I had completed all the layout and design work for the book and began to promote the book that I was contacted by the first publisher. They said they still had the rights to the book, and asked why I thought I could legally publish it.

Their contract, like all book publishing contracts, was exclusive. Book publishing contracts generally give the publisher a license to various rights in the book “for the life of the copyright,” and prohibit the author from licensing the same rights to anyone else. Of course the author, when he or she signs the contract, assumes that the publisher will try to use these rights as much as possible, and keep the book in print for as long as possible.

Unfortunately, this can be abused by the publisher. Even if the publisher doesn’t keep the work in print, it can prevent anyone else from publishing the book either. The author can end up stuck, unable to get the work he slaved over into print so friends can at least find, if not purchase, copies.

This situation is avoided in the publishing contracts of most publishers, including all the major firms here in the U.S. These contracts usually have a ‘reversion of rights’ or ‘out-of-print’ clause that allows the author to get the right to publish back IF the publisher doesn’t keep the work in print. The mechanics of how this works vary, but most if an author asks, these clauses usually force the publisher either to put the work in print, or give the rights back to the author so he can sell them elsewhere.

Is this term important? The major U.S. organization for support of book authors, the Author’s Guild, thinks so. Their website gives nine tips for what authors should avoid in contracts. The 9th tip include the following:

Your publisher should only have the exclusive rights to your work while it is actively marketing and selling your book, i.e., while your book is “in print.” An out-of-print clause will allow you to terminate the contract and regain all rights granted to your publisher after the book stops earning money.

My author, unfortunately, doesn’t have this protection. His contract apparently doesn’t include an out-of-print clause. And the first publisher, who stopped me from republishing the book, told me that, as a matter of policy, THEY DO NOT RETURN THE RIGHTS TO THE AUTHOR.

As a result, this work, a classic in its field, won’t be back in print. The first publisher doesn’t see the value in putting the book back in print, but also won’t allow anyone else to do so without a stiff upfront payment and royalties.

To me this is, while legal, ethically suspect. Its one thing to hold on to rights that you are using, and quite another to retain rights that you aren’t using. Its like a farmer letting his land stay uncultivated during a famine, or like a landholder who owns a lake refusing to let others use its water during a drought. Its legal, yes. But is it right?

For authors, the bottom line is Caveat Auctor. Beware author! Read and understand your contract. Use the author’s guild guidelines (only one of them — advances against royalties — is so widely ignored among Mormon publishers that it isn’t worth following) when you review your contract.

Fortunately, I can end this post on a somewhat happy note. The most recent revision of the copyright law (the Sonny Bono Copyright Extension Act), recognized the difficulty that authors like mine above are in, and provided a way out. This way out, according to what I’ve read, exists regardless of what your contract says. The only hitch is, you have to wait 35 years.

Under the law, authors have the right to get any right licensed back 35 years after publication. As I understand it (I am NOT a lawyer, and if you are in this situation you should consult a good copyright attorney), in order to get the right back, they must give the publisher at least 2 years notice (and no more than 10 years notice), that they intend to terminate the license. For a book published in 1980, for example, the author could have given notice as early as 2005 to get the rights back as early as 2015. And most importantly, no language in the contract can keep you from being able to get the rights back!

For my author, this is an option, although one that will take time and require drafting a proper notice.

But my author would have been better off if he had insisted in an out-of-print clause in the contract. He didn’t know.

Caveat auctor.

14 comments: “Caveat Auctor

  1. Kent Larsen Post author

    In order to get a bit more information about publishing contracts in the Mormon industry, I’ve decided to issue a call for copies of contracts from all publishers in the industry. I’ll compare those contracts and write about any issues I discover here.

    If you have a contract you would like to submit, please contact me at kent at motleyvision dot org. If your contract includes information that you believe is confidential, I’m happy to accept a copy with that information blacked out or deleted. I’m only interested in the information that is standard — the same for any new author.

    Please submit your contract!

    Kent

  2. Stephen M (Ethesis)

    In some jurisdictions (and not others) the publisher will have a duty of good faith and fair dealing.

    It is much like a volume lease to a grocery store where they sublease to a low volume business in order to keep the space from another grocery store. Do a westlaw search for albertsons and lease …

    Anyway, check the contract for a choice of venue clause and your contract law.

    What about derivative works? Your author may be able to just write another similar but different book. Again, laws and rules vary by jurisdiction.

  3. Kent Larsen Post author

    Stephen:

    Unfortunately, the value of the work in question makes any kind of legal action almost silly. Why would you even pay a lawyer for 1 hour of time when the amount you can reasonably make from the book in the short term could be less than 5 times the lawyer’s fee?

    You are a lawyer, and you are probably right about the legal situation — I’m not a lawyer, so I can’t say much about the law. My point here is twofold — ethically, this publisher’s position is suspect, and, more importantly, authors, read and understand your contract, and beware of unfair clauses.

    As for derivative works, the work in question is fiction. And worse, the author is a craftsman, agonizing (I’m told) over every word. Creating a new work covering the same ground would simply not be possible, and if it were, would take years. I don’t see the author doing that.

  4. S. P. Bailey

    Kent: Title and author? Name of publisher withholding consent?

    The publisher may have the right to attempt to exact a payment from you for republication. But consumers ought to know that this is the way this publisher does business…

  5. Kent Larsen Post author

    Sorry, I’m not ready to reveal those involved, at least not yet.I suspect the author might be embarrassed, even though he did nothing wrong. As for the publisher, I don’t want to slander them.
    But, if I can get enough contracts to evaluate, I believe we can establish what publishers have clauses that need to be changed in their contracts.

  6. William Morris

    Thanks for turning your attention to this issue, Kent. And for your discretion.

    [quote]Why would you even pay a lawyer for 1 hour of time when the amount you can reasonably make from the book in the short term could be less than 5 times the lawyer’s fee?[/quote]

    Mormon Authors Copyright Recovery Fund?

    That’s a (feeble) joke, of course. There are so many obvious needs for fundraising in the Mormon arts and culture world I can’t even begin to think of where one should start. And who one would target for donations.

  7. S.P. Bailey

    “Slander” = an untruthful statement. I think you must mean something else.

    And William: never ever question the wisdom of paying a lawyer for an hour of work!

  8. Kent Larsen Post author

    S.P.

    I may be mixing it up with libel or defamation. Regardless of the correct term, I do know that even a true statement can lead to lawsuits. I’m also keenly aware that even if the lawsuit is unjustified, it can still be expensive and even accomplish its goal.

  9. S. P. Bailey

    Truthful statements generally = no liability regardless of whether we are talking slander, libel, or defamation. (But that is beside the point. Not revealing identities doesn’t bother me at all. I can see that doing so might make future dealings with this publisher difficult …)

    Anyway, thanks for this post. Most authors can’t expect much money from a publishing contract. But authors can prevent their work from being held hostage and out of print with a little bit of effort up front! I would not sign a contract in which I didn’t reserve some rights to my own work.

  10. Karlene

    One other aspect to look at in the reversion of rights clause is the definition of “out of print”. With print on demand capabilities now, a publisher can keep a book in print forever without actively marketing or promoting it.

    The upside is the book stays on their website and people can purchase it. The downside is if they’re not marketing it, people forget it exists. This becomes a problem if there is another publisher willing to market/promote it, but the original publisher still defines it as “in print”.

  11. Kent Larsen Post author

    Karlene, you are correct.

    I’m afraid that the publishing world hasn’t yet completely figured out how to accomodate new technologies, and I think it will be years before the industry figures out the best way to handle this.

    I’ve seen quantity limits (if the publisher doesn’t sell enough copies, rights can revert), but I have doubts about that also — what if the publisher is doing all it can, and the book is just not selling?

    On the other hand, the title belongs to the author, not the publisher. So the author needs to be able to get the rights back, in the end. POD just muddies the water.

  12. MoJo

    This situation is avoided in the publishing contracts of most publishers, including all the major firms here in the U.S. These contracts usually have a ‘reversion of rights’ or ‘out-of-print’ clause that allows the author to get the right to publish back IF the publisher doesn’t keep the work in print.

    and

    One other aspect to look at in the reversion of rights clause is the definition of “out of print”. With print on demand capabilities now, a publisher can keep a book in print forever without actively marketing or promoting it.

    This is especially true in e-publishing where I’m hearing authors now are having to deal with this fairly aggressively as publishers are coming back to them with new contracts on their backlists.

    Also, this article’s a little outdated, but it might serve:

    Is “Out of Print” Outdated?”

    And yeah, I’m know I’m late to this party. :)

  13. Stephen M (Ethesis)

    The publisher may have the right to attempt to exact a payment from you for republication. But consumers ought to know that this is the way this publisher does business…

    Reminds me of Tolkien, Ace and Ballentine Books. Ace was within its rights (and thought that Tolkien was long dead), but the public shame approach worked wonders.

    It often does.

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