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.