May 17 2007
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.