The New World of Publishing: Publishing Reversion Clauses

In all the craziness of people getting angry at Random House for no advances and forcing authors to also pay for production, a major point was glossed over by almost everyone.

When and how do you get your book back?

Now John Scalzi touched on this in a fashion in a couple of his posts, but I always got the feeling from those posts he felt it didn’t matter that much. And for him, at the moment, it doesn’t. All his books are in print and Tor is treating him well for now.

But that simple question will be the one aspect of your contract that in twenty years you will still be swearing about. You will have forgotten all about your non-advance or your royalty rates and will be focused only on this one aspect of your very old contract.

I am NOT going to go into specific language of reversion clauses. That is the clause (or clauses) in your publishing contract that tells you when you get your book back. Every clause is different from contract to contract and from publisher to publisher.  You need an IP attorney (not an agent) to tell you what each clause means from publishing house to publishing house.

(In this modern world, if you think your agent will handle this, you get what you deserve I’m afraid. Even if you have an agent, hire an IP attorney for the contract. If your agent objects, for heaven’s sake, RUN from that agent. Not wanting an attorney to double check your contract is a huge sign you are being scammed.)

Even though I am not putting actual contract terms up in this post, I can outline some problems and what they mean to you in reality.  And then outline some solutions you can hope to get in the right circumstances. But let me say this one more time: Get an IP attorney to look at your book contract. Just to tell you what it means.

(Kris did a post on reversion clauses as well last October. Worth the read for a slightly different take on this.)

The General Problems First

On a standard traditional publishing contract these days (in the States), you are signing over the rights in the contract for “the life of the copyright.” Now, under contract law in the States, a contract must have a firm end date, and this has been tested to be a firm end date. 70 years past the death of the author. Firm amount of time, so legal.

So the publisher is trying to get most rights to your book for your life, your kid’s life, and into the old age of your great-grand kids. Head-shaking, but true. (In other words, if you live for 50 more years, the contract could be good for 120 years. The same as if someone had signed a contract in 1893.)

Why do they need or want this? Because a license for a copyright is a form of property. And has value to the bottom line of corporation accounting ledgers.

The corporate value has many ways of being assigned and changes from year to year and often company to company. Future income value, actual cost value, and so on and so on. You name it, they have figured out a way to value the copyright license(s) you sell them.

Now stop and think about that for a moment. The copyright license you signed over in your contract has value, so why should they just give it back to you?

Starting to see the problem? Pretend you bought a rental property. It is part of your net worth. Would you want to just give it back to the seller because they asked even though you paid money for the property and your contract says you don’t have to? Not likely.

So corporations have wrapped up and paid for these rights from you, put them on their ledger sheets as having a value, which then increases the value of the publishing company in general.

But wait, you say!!! (I can hear you.)  Right there, in my contract, is a reversion clause that allows me, under certain conditions, to get my book transferred back to me so that I can get it back into print indie publishing or resell it to another publisher.

On the surface it seems that way. And that land for sale in Florida looks great as well in those pictures.

Under all contracts I have seen lately, that reversion clause is phrased in such a fashion that almost no circumstance would ever allow that property to leave the corporate balance sheet. At least for the life of the copyright.

In other words, you will never see your book again.

(Note that I must add here: You can get it back in 35 years. I understand that, but you need to know copyright to do that, and if you signed a contract with a bad reversion clause, had no attorney, chances are you don’t know copyright either, and that date will go right past you unless you catch a clue at some point or another. And trust me, your agent won’t remember it either. For you old-timers like me, that date at the moment is for books and stories published in 1978.)

Also, I want to be clear to all of you traditional-published old-timers out there who keep telling writers this isn’t a problem. This clause in contracts for new writers has changed in the last eight years or so. Kris and I got every book we sold to New York publishers (that we owned) reverted except for one. (Not the work-for-hire books. All the reverted books had contracts done before the changes started.)

These new reversion clauses are one of the major reasons I won’t sign a traditional publishing contract at the moment unless it is a media or work-for-hire, which I don’t expect to ever own.

Why?

— Because a publisher can basically, for all intents and purposes, put my novel out of print and I will never see it again. Or they can keep it in print at a low level with poor scans and bad formatting, hurt my career, and there is not one thing I can do about it. Not one.

— Because after a short time, I can make more money with a backlist novel indie publishing it than any traditional publisher ever could.

— Because no publisher knows what is coming twenty years from now, let alone 120 years from now. If I allow them to hold my book that long, I have made a really bad business decision for my book and my career.

Some basic aspects of a reversion clause in a modern traditional novel contract. In English

(Again, ask an IP attorney for the exact meaning of your clause and ask the attorney directly when you can have your rights reverted under that clause).

— Speed limits. (Sales limits) In paper publishing days, these worked for writers because of warehousing and tax issues and such, but in the POD and electronic publishing days, these “speed limits” no longer work.

Often they say something general like…You could ask of the book back if the sales fall under 200 copies per reporting period (normally six months.) Note, sales are not defined in any fashion. And you must ask for the book back and the publisher has six months or a year to cure. (Meaning they could drop the price of your book to free, let 500 copies go out electronically, calls those “sales,” and then put it back to where it is selling 10 copies in six months.)

— Life of copyright end date. If you have clout, meaning your advance is mid-six figures and up, you can get a termination date on the contract. Many brand names give a publisher ten years which I feel is a fair and decent time. But us normal writers can’t get a termination date on a contract. Most contracts out of Europe have either termination dates or totals sales terminations. Very simple and good for the writer. But most traditional contracts in the States define the termination date as the life of the copyright.

— No termination mechanism at all. Lately I have seen reversion clauses that actually have no mechanism to terminate the contract at all from the author side. Publishers can terminate, authors can’t. Yet authors sign them.

— No out-of-print definition. Some contracts go on and on about how an author can jump through a ton of hoops to get their rights back if the book goes out of print. It all looks wonderful from the author’s point of view and many agents I know have fallen for this scam.

What is the scam? It looks good on the surface for the author. The problem is that “Out of Print” is not carefully defined either in type or length. Simply loading a book to Amazon can keep the book in print under these clauses.  One author I know challenged this, so the publisher did a bad scan of the paperback edition of the book, uploaded it to CreateSpace, and thus got the book back “Into Print.” The book embarrasses the author because readers don’t know the publisher would do such a thing and thus blame the writer. Nothing the writer can do. Nothing.

— Out-of-print definition is worthless. Yet another trick by traditional publishers, defining the out of print definition carefully, yet when looked at in reality, it means nothing. You’ll see this sort of thing when there is a time line on the “out of print” meaning no sales can happen for a year before you can ask for your book back. The book can be in one place, publisher buys one copy themselves, and you must hold off another year. And so on.

In summary, midlist and new writers have no options with traditional publishers these days. You sell them a book, just realize you will never again have control of that book. (Unless someone along the way knows copyright law and remembers 35 years from publication and cares enough to do something.)

You sign a modern traditional contract, you must trust the publisher, a large corporation, to watch out for your interests for the life of your copyright. We all know how well that always works.

Some Things to Ask For in a Reversion Clause

I want to give you some basic touchstones to try to get in your reversion clauses in one form or another. These will be ideal, I understand that, because they balance the needs of both parties, not just the publishers.

And unless you are a bestseller, or an indie-published writer and the publishers are coming to you, you won’t get any of these terms. Then you have the choice of giving them your work forever or walking away from the offer. Walking away is a great option these days, folks. There are choices for writers now.

— Termination date. Ten years is fair for both parties.

— Renewal date. Publisher has the option to renew the contract for a percentage of the advance and for half the term. This allows a publisher to hold onto a book that is still selling well. Fair to both parties. This renewal can also be out at ten years.

— Exclude print-on-demand, electronic book sales, and audio editions from your “out of print” definition. That brings the meaning of “out of print” down to only what is printed offset and stored in a  warehouse. (This basically takes this reversion clause back to a standard that was normal ten years ago. And will allow you to get out if the book is dead to the publisher.) If the book is still selling well and going into multiple printings, it will be fair to both parties to continue. Make sure this is an automatic termination when the book is out of print. Don’t allow the publisher time to cure at all.

— Put a statement value on the book. For example, after five years, the publisher must pay the author a minimum $5,000 per statement period to maintain the book. If the book isn’t earning, the publisher will release it. If the book is earning well, the publisher keeping the book will be fair to both parties.

And so on.

My suggestions are fair to both the publisher and the writer. But they require writers to stand up for themselves, that their agents not work for the publishers, and that writers be willing to walk away from offers.

As in many of these posts, I know I am dreaming of a new world where writers know business, stand up and believe in their own art and work, and play an equal partnership with publishers. I honestly think (in baby steps) we are moving that way with the choices writers have as indie publishers now.

But first writers must respect their own work. They must not give it away to simply get the “Random House” or “Simon and Schuster” name on their work. They must be willing to say “No” to offers that try to take their work for the life of a copyright with no hope of ever getting it back.

As I said before, I admire John Scalzi for finally taking a stand on the vanity presses being set up by traditional publishers like Random House and Simon and Schuster. But there is so much more besides advances that writers need to be worried about in these contracts.

So from this point forward, just ask yourself one simple question when faced with any contract.

When Can I Get My Story or Book Back?

If the answer is never and you can’t get that changed, walk away. Go to another publisher or indie publish it. You will thank me in twenty years.

————————————————

Copyright © 2013 Dean Wesley Smith

Cover art copyright Philcold/Dreamstime
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