Wednesday, January 15, 2014

Breaking Up Is Hard To Do

by Janis Patterson/Janis Susan May
But it shouldn’t be.

Like so many other writers I am in the process of trying to get my rights back. Why is it such a hassle?

Most new contracts are written where it seems the publisher controls all the rights forever, with little or no hope of reversion to the writer. Apparently many publishers feel that they own the book instead of just having the license to publish it, and that’s just wrong, especially if they do little or nothing to sell the book. Instead they just sit on it.

A friend of mine has had several books with a major publisher for years now and try though she will, she cannot get the rights back. There is a catch in her contract that she can expect her rights to be reverted only after her book has been on sale for a certain length of time. As her sales had been okay but not spectacular she wanted to try for the gold ring in self-publishing. Every time the magic reversion date comes close, though, the publisher brings out a new, cheapie edition in Rumania or Patagonia or somewhere. It’s a new edition, however potentially unprofitable, and that resets the reversion clock. I guess they don’t want the author to make any money that they don’t control or the ability to put the book on the market where it might be bought instead of one of theirs. Either way it’s a dishonorable practice, whether or not it’s contractually legal.

Even worse is the publisher who has a distinct reversion of rights protocol in their contract, but who simply refuses to acknowledge it. Certified letters are refused, takedown requests are ignored, sometimes even royalties are withheld, but like a dog in a manger they keep the books – usually without doing anything for them. The books are simply held hostage and the author is forced into getting a lawyer to regain her property. I believe that I am facing this prospect now.

To add insult to injury, there are publishers who do not pay the proper amount of royalties earned and, as there is no law that sales figures (from their website or from third party retailers) have to be shown to the writer, the author must just take on good faith that the publisher is telling the truth. The author receives only dribs and drabs as royalties without having a way to check if this is right while the publisher keeps the money. In any other business this would be called theft; in publishing it is sometimes unfortunately business as usual. Sites like Writer Beware and Preditors and Editors are full of warnings about such publishers. And, sadly, it seems that these ‘publishers’ are the worst about reverting rights. Doubtless they feel they shouldn’t have to let loose of a cash cow, no matter what the law says.

Some publishers act as if a writer requesting reversion is a personal attack and respond in kind with rants, threats and tirades over the phone and through email. Sometimes they even go to the extremes of harassment through bad reviews on all the author’s books no matter where they are published or by whom. Such vicious attacks are designed not only to increase the publisher’s sense of power and personal vindictiveness, but to browbeat and punish the author for daring to want to recover her books.

Of course even the legitimate publishers are scared. After decades of being the omnipotent Grand High Pooh-Ba who must be placated and courted by the writer in order to be published, of doing as little as possible for the author while keeping as much as possible of the money (6% royalty, which some houses still offer? Of net and not even of cover? Really?) the specter of the independence of self-publishing must be terrifying. Books go directly from the author to the reader and the publisher is totally cut out of the equation. One of the downsides is the potential for a really big number of really bad books to flood the market, but there are no more gatekeepers. On the other hand, one of the upsides is that there is so much more variety and servicing of niche markets (markets too small to really interest a big publisher) because there are no more gatekeepers.

Publishing is changing, but that does not give the publishers the right to violate contracts and refuse to return authors their legitimate property – their books. The authors write the books and the publisher is only licensed to handle them for a proscribed amount of time. It’s time that all publishers – good and bad, honest and dishonest – realize that without authors there would be no publishing industry and they should be treated with honesty and respect. The author-genie is out of the bottle of traditional publishing and it will never go back to the old ways again. 


Susan Oleksiw said...

This is a good discussion of what some writers face in trying to get their rights back. I'm thankful I never faced any of that, but I early on took a careful look at reversion clauses and my agents at the time edited them appropriately. I do wonder, though, if there will always be writers who are willing to put up with shoddy treatment by a publisher in order to get published. I don't know the answer but this transition is interesting.

Jacqueline Seewald said...

Since I don't have an agent, I have unfortunately had similar problems with publishers. Definitely, I've been cheated on royalties, but it isn't worth hiring a lawyer or demanding a professional accounting. However, it is aggravating. As to the return of rights, I've managed that successfully for my out of print work.

Alice Duncan said...

I know an author who wrote for Dell when I was writing for Dell, and she's not been able to get her rights back. I guess her books sold a whole lot better than mine (they may still be in print, for all I know), but they're not allowing her the rights back to her books. I think that REALLY sucks. Say your books sell maybe two or three copies a year. The publisher STILL refuses to give the author her rights back. This is one of the reasons I'm glad authors have more options these days. Grrrr.

Rochelle Weber said...

Even though authors are not allowed to see their sales figures from their publishers and third-party distributors, if you know you're being cheated and you can't get your rights back, report your publisher to the IRS. If you're one of many, they will look into it. You may never receive your royalties, but the IRS took down Al Capone. They can take down dishonest publishers who are cheating authors on a wholesale basis as well.

Dawn Carrington said...

It shouldn't be so difficult to get the rights back to books that you have written, especially after a specified time. Refusing to release a book only creates animosity that will, in the long run, affect the publisher's reputation.

I suggest that all authors get knowledgeable about book contracts. Know what rights you're signing away before you do, and negotiate with the publisher on terms.

Thanks for the insight, Susan.


Amy Metz said...

Great article, Susan. I'm in a similar situation, and you are spot on concerning what some publishers will stoop to. In my case, not only will the publisher not give my rights back, but he will not waive the first right of refusal clause in our contract, so I can't publish any other books. And did I mention he stole my copyright? And apparently, that's not a crime.

Publishers know how expensive it is to take them to court, so many unscrupulous ones do whatever they please. I think the real crime is that retailers are not required to give sales numbers to authors. There are no checks and balances for publishers. These companies are making money on authors' works, but they're not required to help us make sure we're getting properly compensated. I know--nobody said life is fair.

Victoria Adams said...

And people wonder why i am indie published.

Shawna Thomas said...

I haven't encountered this yet, and hope I don't have to. Thanks for the excellent information.

Kathleen Kaska said...

Glad you brought up this topic, Janis. I went through this process with 3 of my books published in the late 1990s. One publisher ignored all my attempts to communicate with her. I was persistent and finally went over her head. I got a rude response from her, but a week later, I got my rights back!

Lois Winston said...

And publishers wonder why more and more of us are refusing to sign new contracts with them. All they have to do is look at the way they've been treating us.

Contracts are becoming more and more draconian. Publishers are getting desperate. Savvy authors are beginning to open their eyes and realize they have other options. Unfortunately, there will always be naive, desperate writers out there who are willing to sign themselves into indentured servitude in order to be able to say they were published by a big name publisher.

Marilyn Levinson said...

Why don't you give the Authors Guild a call? They have a wonderful legal department that deals with this type of problem. While you don't need to be a member, they offer help to all writers.

Morgan Mandel said...

I had a problem also with getting my rights back. Even after supposedly it was done, I still found my books at various venues, and had to email the publishing company, and even resorted to calling the venues.

It took a while, but it finally got straightened out. I'd only wished I hadn't put it off for so long before trying.

Morgan Mandel

Dale Furse said...

That is so unfair and I am really sad for all authors who are trying to get their rights back. These underhanded publishers need to have a look at themselves in the mirror.

MollyLikesMovies said...

Maybe I'll just stay indie--sounds like getting published by someone else is just too much to deal with. At least so far Amazon reports sales and royalties right on schedule (let's hope they don't become a monopoly, though, because we all know what happens *then*).