May 22 2007
Why You, the Reader, Should Care About S&S’s Contract Changes
Sometimes I’ll blog about information that seems to be directed straight at writers and I wonder if some readers think to themselves, but this isn’t for us. It doesn’t affect us. Aren’t you guys a readers’ blog? We are, but sometimes industry changes have a great affect on we, the readers.
Simon & Schuster’s announcement of its contractual changes is an example of that. Last week, it was discovered that Simon & Schuster intended to include language in its contracts that would essentially eliminate any reversion of rights. What does reversion of rights mean? A little copyright lesson. Stay with me. It’s not that boring, I promise.
When an artist creates a work of art, this art has a copyright. The copyright is a form of protection that is granted by the U.S. Congress. Essentially, the writer of a book has the right to
- reproduce the work (make a copy)
- prepare derivative works (i.e., a series of books like the Black Dagger Brotherhood series or Eve Dallas series)
- distribute copies to the public by sale or other transfer of ownership, by rental, lease or lending; (sell print rights)
- perform the work (i.e., sell the rights to have a movie or tv show based on it);
In a self publishing instance, the writer produces the book, creates the copies and distributes the copies to the public herself. In almost every other case, the writer produces a work and then sells the right to distribute the work to the public. The author says to the publisher the following:
you pay me $X amount of dollars; promise to print Y amount of my books and pay me $ in royalties and you can have the exclusive right to distribute my book to the fawning readership in the US or maybe even the world, if you pay me enough.
But, if my book goes out of print after so many years, I get the right of distribution back and can peddle my wares either myself (as Michele Albert is tinkering with) or I may sell them back to someone else.
Harlequin doesn’t allow certain books to go out of print. It republishes Nora Roberts, Jennifer Crusie, Diana Palmer, and other very popular authors so that those rights never revert back. It’s not necessarily a bad thing as the author gets paid royalties from every sale.
In the past, Simon & Schuster agreed that if ebook or POD sales fell below a minimum threshold “usually around 150 copies annually” the book would be declared out of print and the rights given back to the author. Not any more, says Simon & Schuster.
But why is that something we should care about? Here’s just a couple of ways this can adversely affect us readers.
- Simon & Schuster’s editors may want to buy a book that no other editor believes in but the author doesn’t want to be beholden to S&S for the rest of her life so she moves onto another book that another house may be interested in and we readers miss out on that book. No big deal you say? Not so. Look at the First Sale letters and how many books were rejected by house after house after house until just one editor believes. And then that author goes on to big success.
- Another, more insidious, way the contract changes affects readers is when a good book does poorly. Let’s say because of a bad cover, poor publicity an author’s career at Simon & Schuster is killed. We readers never really understand that beneath the boring background with a galloping horse lies an emotionally rich romance. The book dies and the author’s career dies. The book is never in print unless you specifically go and ask for it to be printed, perhaps at an extra charge, making you wait an extra period. Let’s face it ladies, when we go into a bookstore to buy books, we don’t want to have to order them and wait a week. We want them now. Even if they are only going home to lay on the TBR mountain.
- What if they decide to restructure like Luna did last year and instead of giving the rights back to Gail Dayton’s series or Laura Leone’s series, they held the rights to those books forever so long as one digital copy existed? Maybe Dayton with Juno Press and Leone with Daw will find revitalized success allowing readers who enjoy the series to continue to be readers of them. In the new Simon & Schuster contract world, those events would not happen.
And so books will go to the S&S vault and die, even if readers want to read them. Joan Wolf wrote this fabulous medieval series for HarperCollins. Due to poor sales, however, the series was canceled. Someday, Wolf will get her rights back and maybe she will be able to resell her idea with more books. I.e., get another advance for the bundle of rights and a promise of promotion and visibility whereas HarperCollins isn’t interested in pursuing this series thus Wolf isn’t going to write something that isn’t selling.
Connie Brockway wrote a character into her historical books by the name of Lord Strand. I have long wanted a book about him. Brockway wants to make money on her books and won’t write a Lord Strand book until she gets the rights back to All Through the Night.
Okay, here’s my fantasy. Bantam/Dell stops printing copies of All Through the Night. After three years (the period named in the original contract), I get the reversion of rights to the book. As I already have the rights to the first book in which Giles appeared, Promise Me Heaven, I then sell those two books, along with Giles’s story, to a publisher who packages the whole thing as a trilogy! Well, a girl can wish…
I would love to do Giles’s story. But until I get All Through the Night back, we’ll all just have to wait.
If Simon & Schuster is successful, I suspect that many other houses will follow suit. HarperCollins president and CEO Jane Friedman, believes that no fiction title should go out of print.
The statement by Simon & Schuster is that the contract “reflects the fact that print on demand titles may now be readily purchased by consumers at both online and brick and mortar stores.” Alas, while Simon & Schuster has a nice selection of ebooks, its catalog is by no means complete. I also don’t know how to obtain a POD book at a brick and mortar store. How will the reader know that this elusive backlist title is even available? Certainly our first instinct would be to hit the used bookstores if it is not readily stocked in the shelves.
S&S indicates it will negotiate this clause on a case by case basis which Georges Borchardt of the Borchardt Agency says will create a two-tiered system whereby big name authors, like Johanna Lindsey, would get a favorable contract and midlist author like Laura Moore would get the big shaft up the ass contract.
What’s good for authors, in this case, is good for readers. And it’s not good for Simon & Schuster because if this rights grab takes a foothold in publishing, Simon & Schuster will miss out on buying books that some other publisher may have bought the rights to initially but failed to see the promise. It’s just a bad deal all around.
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May 22, 2007 @ 05:04:50
Dear Jane,
Why aren’t you an agent?
Seriously.
May 22, 2007 @ 05:43:59
I’m not entirely sure. The whole mess is scary but I was talking to somebody in the know about it.
Apparently authors and agents have raised enough hell that S&S did a bit of backpedaling. A smart agent will refuse a contract with lifetime written into it. Authors will have to make sure they get a good agent. If S&S want the book bad enough, they’ll back down on the lifetime thing.
And if they don’t back down, after they lose the next big author (like JR Ward, Dan Brown, etc) maybe they’ll learn their lesson.
May 22, 2007 @ 06:17:32
Thank you, Jane. It’s true, this is bad for readers as well as authors. And I’m glad to hear S&S is backpedaling, Shiloh.
May 22, 2007 @ 06:27:26
Great insight into this issue, Jane!
Off topic but you mentioned Laura Moore. I met her at Celebrate Romance a few years ago, she was fabulous and I loved her books. I wonder what ever happened to her?
May 22, 2007 @ 06:33:29
My initial thought after reading this was “no big deal.” Of course, that’s easy for me to say, I’m not an author and as a reader this has the possibility of leaving a would be future read languishing in an out of print or POD world or a sequel never written because of publishing rights. But we’re already frustrated by the sequel situation.
My second thought ran along the lines of Shiloh, a decent agent isn’t going to negotiate this and eventually S&S will back down from the requirement.
PS…
For 90% of what I buy new I already do this. I order almost everything through a local indie bookseller, give her a book list once a month and I pick them up as they’re released. Works very nicely for me and I support a small locally owned business. Though I will agree that I wouldn’t be willing to pay extra “printing costs.”
May 22, 2007 @ 08:20:17
I felt the impact when you mentioned Gail Dayton. I really loved her series and couldn’t believe Luna let her go. Idiots. I did a happy dance when I found out Juno was printing her next book.
May 22, 2007 @ 08:28:00
What if the very good agent has clients who are so desperate for a publishing contract, ANY publishing contract, that they’ll sign against the agent’s advice? This sort of thing happens all the time. It’s not the agent’s ultimate responsibility to fight this–it’s the author’s.
May 22, 2007 @ 08:52:09
Heh, Nora, are you leaving Writer House?
Shiloh – Pub Rants is saying that it looks like tough times ahead at the negotiating table. I hope for all our sakes that isn’t true, but in the short term, this looks like a great deal for publishers and authors who want to be published will likely sign.
Angie – I have no idea. I read two Moore books and they were both good. Not spectacular but definitely good. Of course, her books were straight contemps (like Marianna Jameson) and I guess those aren’t selling these days unless your name is Susan Elizabeth Phillips.
TM – Here’s the big deal that I see and that is promotional dollars. Publishers aren’t going to promote books they’ve given up on which means careers will die or series will die. I cannot wait to read another of Leone’s Manhatten Mysteries books. I thought the first one was great (needed more romance, but . . .). So the fact she can take her series onto Daw and revitalize that makes me thrilled. If Harlequin had the rights, they could spend very little in it and put it out on the internet and call it a day and if the sales are there, why would Leone write another Manhatten book? She’d move on and I would miss Esther.
May 22, 2007 @ 08:53:52
No, it’s not the agent’s ultimate responsibility. It is definitely the authors an I hope I didn’t sound like it’s all the agent’s head.
Authors have to be aware of what they are signing. I’d think an author who’s been around for a little bit would realize why this is such a bad idea. It’s the newer authors that are going to have problems, I’d think.
May 22, 2007 @ 09:10:41
I'd think an author who's been around for a little bit would realize why this is such a bad idea.
One would hope, but I’ve heard this week of a big women’s fiction author signing a contract with this very clause – and from another major house.
May 22, 2007 @ 09:13:51
Great Post, Jane
Personally, it sounds to me like they want to treat a writer as though they’re the employee of the publisher and everything the writer creates is a work for hire. This is such BS.
My goal is to be published by NY, but I’ll be damned if I’ll sell a book to any publisher with this type of clause, no matter how badly I might want that NY contract. I’ll stick with my ePub, small press.
I can only hope Shiloh’s right about their backpedaling. Sounds like hunker down in the trenches time.
May 22, 2007 @ 10:25:43
Thanks so much for posting all this information! I find it very helpful.
SWAK,
Lucinda
May 22, 2007 @ 10:44:59
From my observations clauses like this become standard through a gradual trickle of authors that sign because they are eager to be publsihed and don’t see the harm in it. After awhile, thta tickle becomes a flood, and what was abhorrent eventually becomes standard.
I always go through my contracts clause by clause. I make sure I know exactly what every combiination of words implies, look at the worst case scenario, and then make changes. I’ve turned down NY contracts because a compromise couldn’t be reached. I’ve gone on to sign others. Every time I’ve walked away there’s that heartbeat of panic that says, “What if I never have this chance again?”
Sometimes the hardest thing for an author to believe in is themselves. And they can do something they really don’t want to for fear of never having another chance, but the bottom line is, a writing career can easily span thrity years. Where there’s one opportunity there will be more, and shooting oneself in the foot is rarely a good plan if the goal is to stay on the path.
May 22, 2007 @ 11:07:40
Great post. Yes, readers are interested in this news.
I’m more interested in print to ebook than ebook to print (off-topic: I take my ereader everywhere including the hammock and the bathtub. No case, no plastic wrap, no screen-protector. So far no ill-effects from steam, falling down the stairs, bouncing off the pavement or being carried away by the dog. And, it works wonderfully as a light source during an overnight power outage).
In the past year, I have signed up for news of a few S&S announced ebooks that have never materialized (maybe because the print releases were not promising). My hope is that some day digital releases of these books will appear in conjunction with some other marketing bundle on a personal web site or with S&S or with another publisher. An eternal contract with S&S would make this impossible.
May 22, 2007 @ 13:52:34
Thanks for the breakdown, Jane. You make me want to go to law school, even though I’ve already had enough of school. :-)
May 22, 2007 @ 14:50:23
No, Jane, WH and I are pretty well joined at the hip, but I think you’ve got the stuff!
I agree with Sarah, that this sort of thing can trickle until it becomes a standard. And with Julie that not every writer will listen to her agent’s advice–or have an agent at all, or an agent with the stuff. (Call Jane!)
S&S, or any publisher for that matter, would likely negotiate more congenial terms with an established author, certainly with one who hits the lists hard and regularly. But negotiations aren’t as clear-cut with those who don’t fall into that area. And there’s the danger.
Most of us remember what it’s like to want, so much, to be desperate for a chance. It’s easy to give too much for that chance, only to regret it later.
And I certainly hope a writing career can span 30 years, as I’m at 27 and counting.
May 22, 2007 @ 15:32:53
The basic concept of OOP seems to fall apart with the use of POD and e-books.
In the past, I’ve seen some pretty nasty things happen when old ideas, and old laws, clash with new technology.
Why can’t the POD/e-book rights stay with the original publisher, but be terminatable on notice. Why do they have to revert in the same way as the right to produce a conventionally printed edition? After all, there’s no capital tied up in inventory.
I’m not even sure that counts as a new idea….
May 22, 2007 @ 16:31:45
I’m glad to see people making a huge fuss about this. I hope it not only forces S&S to back down but gives other publishers a big clue that this is a bad, bad idea.
From the first day Luna started, I bought every book they put out. Every one. I was appalled when Luna cut loose some of my favorite authors, and I have to say that it’s made me somewhat reluctant to buy more books from them.
Wednesday Midday Links: More plagiarism at major publishers - Dear Author
Nov 30, 2011 @ 10:07:33
[...] actually discussed this on Dear Author in 2007. How the world changes and doesn’t. In 2007, I referenced Connie Brockway’s inability [...]