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Simon & Schuster Wants You . . . Forever

Just as a prefatory matter, I want to explain a bit about copyright law and how that works in relation to authors. Authors create a unique work to which they own a copyright. That copyright gives them the right to copy and distribute that work. Authors sell that right of copying and distribution to publishers. These rights can be very specific, i.e., U.S. hardcover rights which means the publisher who purchased the rights can only distribute the book in the U.S. and in hardcover format.

Most rights are more general and these days include all formats, including e-formats. In return for the bundle of rights granted to the publisher, the publisher pays the author money in the form of an advance. If the author earns out the advance (sells enough copies so that her royalties meet the advance), she then is entitled to royalty payments. The advance is really a prepayment of royalties.

Most contracts state that if there is a matter of time in which the book is not in print, these bundle of rights revert back to the author. Such is the case with author Michelle Albert. The rights for two of her books reverted back to her. Now she can decide whether she wants to resell them to a publisher or try to sell and distribute her own copies.

Simon & Schuster wants to change the landscape. If you recall, this was one issue that is an aggravation for Ellora’s Cave authors. Ellora’s Cave does allow the reversion of rights which for ebooks would mean they are no longer offering it for sale OR if sales drop below a certain amount within a year. The Author’s Guild has this to say:

***

Simon & Schuster has changed its standard contract language in an attempt to retain exclusive control of books even after they have gone out of print.

Until now, Simon & Schuster, like all other major trade publishers, has followed the traditional practice in which rights to a work revert to the author if the book falls out of print or if its sales are low.

The publisher is signaling that it will no longer include minimum sales requirements for a work to be considered in print. Simon & Schuster is apparently seeking nothing less than an exclusive grant of rights in perpetuity. Effectively, the publisher would co-own your copyright.

The new contract would allow Simon & Schuster to consider a book in print, and under its exclusive control, so long as it’s available in any form, including through its own in-house database — even if no copies are available to be ordered by traditional bookstores.

Other major trade publishers are not seeking a similar perpetual grant of rights.

We urge you to consider your options carefully:

  • 1. Remember that if you sign a contract with Simon & Schuster that includes this clause, they’ll say you’re wed to them. Your book will live and die with this particular conglomerate.
  • 2. Ask your agent to explore other options. Other publishers are not seeking an irrevocable grant of rights.
  • 3. If you have a manuscript that may be auctioned, consider asking your agent to exclude Simon & Schuster imprints unless they agree before the auction to use industry standard terms.
  • 4. Let us know if other major publishers follow suit. Any coordination among publishers on this matter has serious legal implications.

Via May

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

15 Comments

  1. Sandra Schwab
    May 17, 2007 @ 14:22:29

    Wow, this is bad, bad, BAD news. No author should sign such a contract.

  2. Jules Jones
    May 17, 2007 @ 14:32:15

    Thanks for highlighting this — it’s something authors need to know about, especially authors who don’t yet have an agent and might not know that this is a Bad Thing.

  3. Raelene Gorlinsky
    May 17, 2007 @ 14:46:39

    Dear Dear Authors,

    A blatant fact error in your article on S&S and contracts has been brought to my attention, and I ask that you correct your article.

    Ellora’s Cave, like almost all major publishers, has a contract with grant of rights for life of copyright. HOWEVER, our contract does indeed include the standard and normal clause allowing the author to get their rights back if the book is out of print (which for ebooks would mean we are no longer offering it for sale) OR if sales drop below a certain amount within a year.

    It is that minimum sales requirement clause that S&S is reported to be eliminating – thus leaving an author with no way to reclaim their rights to the book even if S&S chooses not to offer it for sale any longer.

  4. Holly
    May 17, 2007 @ 14:57:23

    Wow. I can’t believe they’re going that far. I’m kind of curious as to why. Why would they want to retain the rights of a book they don’t plan to continue selling..or that has very low sales?

    I can understand, to a point. From what I understand (and please correct me if I’m wrong) J.R.Ward didn’t sell very well when she was writing as Jessica Bird. Now that she’s gained a larger fan base, however, I would imagine her JB books are selling much better. I can see how a publisher would want to continue to make a profit in cases such as this.

    But…well, aren’t they hurting themselves?

    Ellora's Cave, like almost all major publishers, has a contract with grant of rights for life of copyright. HOWEVER, our contract does indeed include the standard and normal clause allowing the author to get their rights back if the book is out of print (which for ebooks would mean we are no longer offering it for sale) OR if sales drop below a certain amount within a year.

    I’m not sure I understand this. What, exactly, does that mean? I don’t think I’ve ever heard of a book selling forever. I.E. if I published a book tomorrow, I don’t think it would still be flying off the shelves ten years after the fact. So at some point, whether it be a week after publication or ten years after, the sales are going to drop, aren’t they? So why have the “life” clause then?

  5. LinM
    May 17, 2007 @ 15:02:48

    I suspect open-ended contracts have been a problem in the romance genre for a long time – the number of authors who have commented on their own rights (or lack there-of) to their own backlist is huge.

    However, I have been wary of S&S ever since their publication of Ian Kelly’s biography of Beau Brummel. They promised this book as an e-release and then reneged. The biography may not have done well in print but I suspect that over a longer period of time it may have performed well as an e-release.

    Based on this experience, my perception is that S&S have problems on the e-pub side. I signed up for news of the Brummel book. Every month, I get an email thanking me for a current purchase (none) followed several days later by an apology (noting that I have no recent purchases). Damn, this looks bad.

    I would recommend that any author signing a contract with S&S should have the contract examined by an agent and a lawyer.

  6. Raelene Gorlinsky
    May 17, 2007 @ 15:16:44

    Thank you very much for so quickly correcting your article! We appreciate it.

    Every publisher has a “boilerplate” contract that fits almost all their authors/books. I cannot stress enough how important it is that authors read and understand their contract before signing. If you don’t understand something in it, ASK. And get experienced, professional advice. Then consider your own priorities and career plans, and what elements of the contract may or may not be negotiable.

    Raelene Gorlinsky, Publisher, Ellora’s Cave Publishing Inc.

  7. » Simon & Schuster tightens up on publishing rights » Velcro City Tourist Board » Blog Archive
    May 17, 2007 @ 16:02:33

    […] to be a place where our books are permanently squirreled away.” It’s a sentiment that Jane Litte at Dearauthor.com wholeheartedly agrees with. “The publisher is signaling that it will no longer include minimum sales requirements for a […]

  8. Karen Scott
    May 17, 2007 @ 16:33:48

    The thing is, newbie authors will sign up, and think themselves lucky that they got a contract, period, until the rose-tinted glasses start clearing up. By then, it’s usually too late.

    I wonder how many established authors will sign up to this?

  9. Nonny
    May 17, 2007 @ 22:13:40

    I’m not “established,” but speaking as someone pursuing a career as a NY print-published author… no way in hell would I sign something like that. Can we say “fuckjob” here?

  10. The Mess in Progress » News From the Author’s Guild Regarding Simon & Schuster
    May 17, 2007 @ 22:45:06

    […] Author’s Guild has just released the following — and thank you to Alison Kent, Dear Author and others who posted this before me. SIMON & SCHUSTER APPEARS TO BE SEEKING A PERMANENT STAKE […]

  11. Nora Roberts
    May 18, 2007 @ 04:24:06

    This is scary, imo.

    While Harlequin retains the rights to my backlist for them, they do so according to the terms of the contract, by keeping the books in print. I believe the oop term for reversion is 5 or 7 years. I’d check that, but that’s what agents are for.

    The 5 or 7 is a long time from some standpoints, but at least there’s a defined end–and I believe it’s in the same neighborhood for my contracts with Putnam/Berkley. I assumed that was industry standard.

    Forever just isn’t acceptible to me. I can’t imagine it would fly well with most agents either.

  12. Chris Meadows
    May 18, 2007 @ 05:52:54

    What’s the actual language of the contract?

    I see a lot of people holding forth on what the contract does, but nobody posting what it says.

  13. Jules Jones
    May 18, 2007 @ 13:03:17

    Victoria Strauss of Writer Beware gives a detailed explanation of why this matters, with an example of the reversion clause in her own existing contract with S&S.

  14. Jules Jones
    May 18, 2007 @ 16:27:33

  15. Angelle
    May 18, 2007 @ 19:16:07

    Publishers Weekly wrote a short article about it. Kristin and Victoria aren’t the only unhappy industry people.

    BTW — I agree with Nonny and Nora. I would feel very uncomfortable signing a contract that ties me to any one entity forever.

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