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.