Ben LeRoy: Life + 70 — The Prison Sentence For Published Authors?

Here’s a guest post by Ben LeRoy, who I offered the chance to correct some language that goes around in the often very silly self-pub versus trad-pub slap-fight (I say silly because, wait, why aren’t we all high-fiving each other again for being bad-ass authors with stories to tell?). Ben is the publisher behind Tyrus Books, and blogs about publishing and his many other adventures (I think last week he was in Alaska living inside the chest of a mother grizzly bear as she tended to her cubs). He, with others, blogs at: “Hey, There’s A Dead Guy In The Living Room.”

Can we at least get some things straight if we’re going to have a talk?

There seems to be a misunderstanding floating around (if Chuck’s Facebook wall is any indication). Let’s rap a little about this and see if we can’t establish some facts, clarity, and common language in an effort to kill misinformation and speculation. All of the shouting and flailing about in the public square is, to be frank, a waste of time, and does nothing more than pour gasoline on what would have been an otherwise fine bowl of Cap’n Crunch.

Some folks are jazzed about Amazon’s KDP Select. Awesome. I’m sure there are plenty of advantages you might find there — increased royalty rate, the ability to make your own cover, the freedom to leave your words the way you want them, etc. etc. etc. You’ve all heard the commercial, you’ve all got your stance. I am not here to dissuade you, even in the slightest from your inclinations. Why not? Because (1) that’s your business and you have to do what works best for you, and (2) I’ve got a whole lot of other shit I’m thinking about in my life and this issue isn’t really registering on my radar machine.

That said, there seems to be some confusion and misinformation regarding an issue that isn’t really a matter of opinion as much as it is fact, and I think it behooves us all to have a clear understanding.

One of the advantages somebody threw out for KDP Select as opposed to a Historically Entrenched Publishing Company (if people are going to start making up names for things, I want in on the action, so welcome to HEP C, motherfuckers) is that with KDP Select, the author had much more flexibility with his/her rights. Example in paraphrase.

KDP Select Fan: “If after three months I don’t want to be going steady with this gal, I can take my promise ring and go elsewhere,  but trad (oh, I loathe that shorthand) publishing owns my literary allures for my whole life + 70 years.”

When I see a phrase like, “life + 70 years” in the context of a publishing discussion, I assume were talking about copyright. Publishers (except in cases of work for hire and/or unscrupulous scam artists) don’t own copyright. That’s an honor and legal responsibility given to the creator of a work. Once that paperwork has been put into the filing cabinet at the Copyright Office, the author has copyright protection in his/her work for the rest of his/her days and then, even in the ghostly domain, his/her heirs retain that promise ring on this Earthly coil for another 70 years.

So what does that mean exactly? This business of owning the copyright? Does somebody participating in KDP Select have copyright? What about his HEP C neighbor? Does he too have copyright protection?

Having a work copyrighted in your name means that you, as the ring holder, have the legal standing to license and sell the rights to the work (be it print, film, music, key chains and frisbees, etc.) to people who are in a position to exploit those rights—publishers, movie studios, etc.. Most typically, rights are licensed for a contractually established amount of time in exchange for a contractually established amount of money and with some attention paid to what conditions would result in reversion of rights back to the copyright holder. These are deals that an author is willingly and legally entering into with the exploiter, either directly or with somebody acting as his/her legal representative (lawyer, agent, etc.). You shouldn’t be getting hoodwinked at this point. A contract is spelled out, questions can and should be asked.

Historically, those contracts might have given a set time period. Something like, “Five years from the time Harley Killemall Meets the Mafia hits the shelf, the rights revert back to the author.” Then the time got a little more vague by saying things like, “Harley Killemall Meets the Mafia can be exploited by the publisher until the book is declared out of print.”

Out of was generally understood to mean the book was not available to ship from the publisher to retailers. But then short run printing became a thing and ebooks became a thing and what “out of print” meant became a little murkier. Thankfully, there are now provisions like, “If the publisher doesn’t pay the author $XXX.XX amount of royalties in a six month period, a minimum sales threshold hasn’t been met, and the rights revert to the author.”

How long does that take? I can’t say for sure (nobody can), but I can pretty much promise you it will be considerably less than your life + 70 years. What can you do when your rights revert? License them again. New publisher. Or self-publish. Or sit on them and refuse the world your genius. Like I said before, not my gig, not all that worried about it, I’ve got a plane to catch to Points Elsewhere.

Before I go, are we clear on this one thing? Do we understand why one of the differences between an author opting to do the KDP Select thing is not that he/she can get his/her rights back (not even really the same thing as a traditionally licensing deal) after 90 days while a HEP C published author has to wait until he/she is Ghost Drinking with Hemingway and Shakespeare?

Information and facts are your friends, no matter how spirited your opinion gets.

And as always—write on.

60 comments

  • You will probably see many comments from people citing that many of the standard HEP C contracts (I’ll admit to loving that acronym) are being written with a “life of copyright” term. Many attorneys (not working for publishers) have argued that “life of copyright” is an unconscionably long term and would likely be struck down if challenged. They have proposed the sort of minimum revenue standard that you suggest. Indeed that standard may be a common compromise if the writer objects.

    But many writers, an especially novice writers who are elated to be offered a contract in the first place, don’t know about the common compromises and the publishers don’t encourage discussion of contract terms in any form. Indeed, some contracts include specific clauses that bar disclosure of the terms and conditions. That keeps the other writers ignorant of what can be changed and greatly favors the the publishers.

    I definitely agree that we need to keep talking about this sort of thing in the ongoing discussion about the merits and deficits of working with traditional publishers vs independently publishing. Thanks for this post.

    • “But many writers, an especially novice writers who are elated to be offered a contract in the first place, don’t know about the common compromises and the publishers don’t encourage discussion of contract terms in any form. Indeed, some contracts include specific clauses that bar disclosure of the terms and conditions. That keeps the other writers ignorant of what can be changed and greatly favors the the publishers.”

      And here, agents should be doing their jobs. And writers should be procuring agents — or, at the least, lawyers — to look over contracts.

      — c.

      • That agents are in the rare position to see the results of many contract negotiations is one of their great benefits. The best of them will relay that additional information to the writers they represent.

        However, when negotiating the complex contracts of modern publishing companies, it is probably better to have an actual lawyer assist with that, albeit informed by some of the information from the agent. There are just too many ways that the typical contract has ways of granting a right in one clause and then taking it away in another. The agent’s experience may be broad, but the lawyer is dealing with this specific contract in detail.

        • I’ll stick with my agent. I haven’t seen too many contracts, but any decent agent can point out any potential issues and address them. That’s what they do, that’s how they make a living.

          • So you are asking for your agent to act as an attorney…

            An agent may have a lot of experience seeing other contracts, but most agents don’t look at every single word of the contract, including the boilerplate language where rights apparently granted in early paragraphs are often taken back.

            That is not necessarily the wisest thing to do.

            Agents make a living by getting deals signed, not necessarily good deals. This is a particular problem for novices who have no record of being able to generate ongoing income for the agent.

          • Some agents are horror shows, just like some publishers act as horror shows.

            But if your agent isn’t going through your contract line by line, something is very wrong.

      • Agreed…but when your agent tells you “this is the absolute best I can get regarding “out-of-print” determination and it is so small to be essentially meaningless…you still are left with “life of copyright” I think LOC terms should be illegal. Make the print publishers do what audio book publishers and foreign publishers do…set a number of years for the contract to be in effect.

  • Eh, I understand what you’re saying, but I also think it misses the point.

    I think if you try out that argument on someone who is complaining about traditional publishing your response will be “yeah, ok, but still” because over on our side of the fence a lot of people are posting horror stories about how traditional publishers are trying harder and harder to make reversion clauses useless, and that the reversion clauses new authors are seeing in their new contracts with publishers today are very different and more intractable than reversion clauses that authors saw ten, even five years ago.

    In other words: general consensus seems to be that reversion clauses are now being designed to be impossible to use.

    Which means that, despite the inaccuracy of the rhetoric, the argument still holds. In a situation where the copyright holder signs over rights to a company and can’t get them back, the fact that he or she is the copyright holder is irrelevant, much the same way that someone working for a company who invents a new widget may be the patent holder of that widget but the company owns all rights to the use of that widget. Until the author is released from the agreement with a publisher, the publisher is EFFECTIVELY the copyright holder (within the scope of the agreement, of course) until either a) the author successfully uses that reversion clause, or b) copyright expires.

    To the person using this argument, reversion clause will likely not be successfully used. Which brings you back to life + 70.

    I could just as easily make the argument that people who are using KDP Select are _in effect_ giving up their copyright for as long as they are in the program, because despite still retaining their rights they can’t actually do anything with them. It’s technically not true, but the effect is the same — you’re entering into an exclusivity agreement, and it’s not with a publisher, it’s with a STORE, so in some ways the exclusivity agreement is even more unbending. But it is admittedly a lot easier to get out of.

    • ‘Which means that, despite the inaccuracy of the rhetoric, the argument still holds. In a situation where the copyright holder signs over rights to a company and can’t get them back, the fact that he or she is the copyright holder is irrelevant, much the same way that someone working for a company who invents a new widget may be the patent holder of that widget but the company owns all rights to the use of that widget. Until the author is released from the agreement with a publisher, the publisher is EFFECTIVELY the copyright holder (within the scope of the agreement, of course) until either a) the author successfully uses that reversion clause, or b) copyright expires.’

      This is the problem with using the term ‘copyright,’ here. If they effectively owned the copyright, you couldn’t license the work elsewhere (film, comic, game, foreign, etc), but you can.

      Now, some publishers lock up those rights, and some publishers are utterly exploitative in all the little greedy side-bars they ask for (overly strict non-competes, needlessly low royalty thresholds for reversion, etc) — but so goes the need for a good agent.

      And so goes the need for an author to be willing to tell a publisher, “No, you can’t publish that work, then.” And then move on. Writers need to look at these things like business decisions, not dream fulfillment contracts.

      — c.

      • Well you’re omitting the part where I said “(within the scope of the agreement, of course)”.

        You’re right. It’s not REALLY owning copyright. But within the scope of the agreement, for the duration of that agreement, you-the-author have released custodianship of your work to another entity, and they get to make all the copyright-holder decisions for you. Within the scope of the agreement.

        So back to my main point, Mr. LeRoy arguing a point that pretty much everyone will agree to without it actually changing their argument in any substantive manner. You’re right, and he’s right, but in the context of the argument you’re whacking away at a branch while ignoring the roots.

        • Omission wasn’t to be aggressive, I just wasn’t sure what that meant.

          “…and they get to make all the copyright-holder decisions for you. Within the scope of the agreement.”

          That’s true, yes, but it’s also true when you license for film, or games, or whatever. Within the scope of that agreement, they are allowed custodianship of the work (a good word, “custodianship”) within the context of the product they’re creating.

          You could also choose to self-publish, or make your own movie (or comic, or game, or, or, or).

          The point is that they do not own copyright, and that the term of their custodianship is very rarely so restrictive as the oft-repeated meme suggests. If they DO pop up, it’s in the author’s best interests to shut down those kind of restrictions, or simply shutter the deal and move on. This language gets used a lot to demonize publishing deals, which paints with an overly broad brush. It’s vital authors know what to look for, but it’s also vital to realize that sometimes, weird or inaccurate ideas sometimes slip through and get into the water supply and it’s important to fish them out and see how frightening this boogeyman (mixed metaphor alert) really is.

          — c.

          • “The point is that they do not own copyright, and that the term of their custodianship is very rarely so restrictive as the oft-repeated meme suggests.”

            This is the crux of the actual argument that Mr. LeRoy is responding to in his original piece. It’s the thing that needs to be directly addressed. I agree with you and with him about the actual meaning of copyright, and it’s not wrong to want to clear that up, but in terms of the argument being made, it’s a bit off to the side of the main point. The main point is whether or not rights reversion clauses are really as dastardly as we make them out to be.

            (I’ll be honest, I tend to lean toward the notion that rights reversion clauses start out as “we are stealing all your shit” as a default setting, and that you have to start your business relationship by hiring a lawyer to change the language to “no you fucking won’t.” So I am, admittedly, not free of bias here.)

            Anyway, I feel like I’m starting to get needlessly argumentative, so I’ll try to resist the urge to jump in shouting “AND ANOTHER THING!” from here on out.

        • My understanding is that “all the copyright-holder decisions” include things like “who is allowed to write derivative works (such as sequels featuring these characters)”.

          If that’s accurate (and I might be mistaken), then I think that saying “the publisher is effectively the copyright holder (within the scope of the agreement)” is simply too broad, and there is no point to saying THAT when you could instead be saying “the publisher is the custodian/has (a possibly overwhelming number of) the distribution rights”.

          It’s like saying “your employer gets to decide your life (within the scope of the agreement, of course)” when saying “your employer imposes a dress code and a work schedule and drug testing” would be more accurate and would not carry even a hint of the implication that they could force you to reproduce or get stomach-stapling surgery.

          • I’ve seen contracts where “derivative works” were deemed as “competing works” and the author needed the publisher’s permission to sell them to anyone but them. I’d never sign such things in a million years…but I have seen signed contract where other authors have.

      • Chuck, you keep going back to “good agent” as if this is the salve that stops the bleeding to a gunshot to the gut. I’ve had two good agents, and looked at contracts from several dozen authors who had “good agents” and I’ve yet to see a reversion clause (from a big-five) that I thought was anywhere close to “good.”

        You are published (a) Amazon – and can’t disclose their terms…although I suspect they better than most and (b) by a small press which in general are better at this kind of thing than the big-five (my Tachyon Publications contract is AMAZING by the way)

        But the reversion clauses on big-five contracts are ridiculous and no agent that I’ve seen (even the biggest and most influential in the business) have “negotiated” a good reversion clause. Removal of basket accounting…sure…Escallators on print books…yep. But there are some things that the big-five just doesn’t budge on…and those are (a) 25% of net for ebook, (b) life-of-copyright contract term (c) really, really low thresholds for out of print determination.

        • I’m also published by a Big Five publisher, also, be advised. (Or will be.)

          I’m happy with what my agent negotiated in all of my contracts. The boilerplates for each were terrible, but the end result was fruitful.

          YMMV.

          A good agent isn’t a bandage for a gunshot wound. A good agent — combined with an author’s power to say the magical word “no” — is a bulletproof vest.

          Many agents aren’t that, though, and some aren’t even a bandage for the gunshots. *shrug*

          — c.

          • But, fewer and fewer writers have any agent, much less a high-end agent on their side. And the agent horror stories are mounting as well.

            After spending 7 years in federal court in trademark/copyright litigation, I realized how little most people know about copyright (I got my education hard and fast and on my feet.) Even the blog post glosses over certain stuff (such as the difference between registered and unregistered copyright.)

            Also, in the stockholder presentation from Hachette that has leaked, they discussed “coming to an agreement with Google,” which many are wondering if that is an end-run around reversion of the backlist through no cost ebook.

            It took Marvel a good 20+ years to recover all of its copyrights so the movies could be made. A company with that kind of firepower was told, nope, the rights to do anything with Spider-man is ours, ours, OURS.

            You touch on issues such as subrights and film. That goes back to Property law 101 and the “bundle of sticks” analogy you learn your first semester. You can license some of the bundle and retain others. However, print and name rights are the biggest stick and I can see cease-and-desist letters flying fast and furious if you tried to sign a film deal outside of HEP C.

            The non-compete clauses that are popping up more and more also act to throttle copyright. Even though HEP C has print rights for just that one book, they can nip derivative works in the bud as “competing” with the book.

            It’s not the GLOOMDOOMDEATHACNEPARKINGTICKET that is being decried in the bowels of the Internet, but it isn’t just “oh get a good agent who will get a good clause” either.

          • “The non-compete clauses that are popping up more and more also act to throttle copyright.”

            Yeah, these are pretty toxic, and need stomping. In my uninformed opinion, moreso than the copyright ones.

            Agent horror stories do abound (and I’ve heard some first-hand by authors who seemingly thought their agents were on their side, but learned the opposite soon enough). Though I don’t know if I’m willing to call that the norm, as yet, and I think — hope — that the very existence of self-publishing or small press gives everybody who seeks to exploit an author some pause.

            The rest of your comment is interesting — care to expound more on what you learned re: copyright that most people don’t know? (If you wanna do a blog post about it, I can do that.)

            “It’s not the GLOOMDOOMDEATHACNEPARKINGTICKET that is being decried in the bowels of the Internet, but it isn’t just “oh get a good agent who will get a good clause” either.”

            I don’t think the post or the comments aim to simplify it that completely — the point here is that I see that BUT I’LL NEVER GIVE UP MY RIGHTS TO MY WORK FOREVER thrown about again and again (the life + 70 prison sentence), and Ben and I thought it was worth a post to clarify exactly what that means, and why it’s not precisely that. An agent is the key to seeing those things and negotiating the poison out of boilerplate contracts (most of which are, sadly, rather poisonous at the outset).

            — c.

          • I’d love to hear what your out-of-print clause is…if you don’t object (or aren’t under NDA) then email me. I’ve been collecting them. So far the BEST I’ve seen is $750 for 1 year… the worst $100 for 1 year. Most seem to fall at $200 for 1 year or $500 for 1 year. Maybe it’s a matter of perspective but all of them are too low – imho.

  • I don’t think this is misunderstood by the Self Publishing Pundits, but it also needs to be pointed out that the $x.xx amount of money that a book needs to make to stay with the HEP C publisher is usually very low and very easy to reach and as long as it is reached during the set time period, then yes, they do own the rights to your book for your life + 70 years. In print days, that might not have mattered as much because every author lived or died by their next book’s sales, but with digital, having your entire back list stay “in print” is how so many more authors are able to make livable wages writing full time.

    I think the really scary thing for HEP-C authors is what if one day their publisher decides that cheaper priced books really do move more units and they start pricing your entire back list for .99. Then that small royalty rate becomes very painful and the publisher gets to keep hitting that low minimum sales threshold and retain control of your livelihood forever. Plus 70 years.

    It’s not the fact that Self Publishers don’t know that signing a HEP C contract doesn’t guarantee that they’ve signed their rights away forever. It’s the disbelief that anybody would sign a contract where it is a possibility at all. Why not just set a straight, easy to understand finite term for rights? I like to think of it as the government and the tax code. The easiest way for the government to make sure that everybody pays their fair share of taxes would be to put a flat rate system in place. No loopholes. No credits. You make this much, you pay this amount. But having an overly complicated tax code that few understand, among other things, ensures that the rich, the lobbyists and corporations that buy and pay for politicians, can find ways, legal ways, not to pay their fair share. Complicated terms and ambiguous language benefits the drafter of the contract not the signer who has limited time and resources to understand what they are signing up for. That is why it is viewed as predatory.

    Not to mention that the only reason that publishers have budged on their copyright terms at all is because the self publishing industry, by offering a real alternative, put pressure for the first time on HEP C publishers to do so.

      • Some small presses – yes…big-five…. I know of one (Hugh Howey’s 8-figure print-only deal with S&S) an outlier in the extreme. When someone selling at the level of Brandon Sanderson can’t get a fixed term contract – what chances does a midlist or debut author have? None…at all.

        • Stephen King gets hard finite terms as well. So I totally agree with everything Chuck is saying here. If you have a great agent, you can get the term of copyright clause stricken from your contract. At least two authors have done this, and all it took on my part was walking away from several 7-figure offers. I mean, every author should be able to walk away from multi-million-dollar deals, right? We vote with our feet, right?

          I think this blog post is a reaction to semantics. When self-published authors talk about “copyright,” they are generally referring to “term of copyright.” It just saves syllables. Most contracts these days are for the full term, and reversion and non-competes are getting worse, not better. My agent is one of the best in the business, and she is tearing her hair out with what’s going on at the big publishing houses. Don’t get her started on high discount. *shiver*

          It might be kosher to paint self-published authors as needing edumucation on publishing terms and conditions, but in my experience, these authors understand the business as well, if not better, than anyone.

          • “It might be kosher to paint self-published authors as needing edumucation on publishing terms and conditions, but in my experience, these authors understand the business as well, if not better, than anyone.”

            Please don’t be dismissive. Everyone needs education on publishing terms and conditions. Authors across all the publishing means and mechanisms are wildly unaware of what’s going on inside contracts. This post isn’t meant to make these contracts seem safe and sacred or blow smoke up the ass of publishing companies (Ben calls them HEP-C, which doesn’t sound like an affectionate nickname), but rather clarify a point of language which seems to get bandied about as if from a playbook rather than from a place of understanding.

            — c.

    • “I think the really scary thing for HEP-C authors is what if one day their publisher decides that cheaper priced books really do move more units and they start pricing your entire back list for .99. Then that small royalty rate becomes very painful…”

      See the reduced royalties on “deep discount” books for an example of that.

      • Agh…don’t get me started at deep discounted royalty rates!! If my publisher decides to sell my print book “for cheap” they earn more than $12 for every $1 I receive. So many bad things in traditional contracts ;-(

  • Writers all need to read The Copyright Handbook (Stephen Fishman) and Negotiating a Book Contract (Mark Levine) whether you have an agent or not, whether you plan to publish yourself, with small presses, or big presses.
    Ben is right, BUT and it’s a big butt— pressure will be applied to make you license your copyright for unconscionable terms. If your agent says “this is how it’s done” … why didn’t you talk about this before you asked the agent to represent you?
    Ben gave an example of a provision that protects you. Ask for it.
    But I wanna be published nooooooow! And what if they say no? I’ll have to ask another person to dance at the hoedown! And I might get rejected! Wahhh. Yeah, exactly. Don’t dance with the person wearing cleats unless you wanna get stomped.

    Talk about contracts and a proper rights reversion clause before you hire an agent. It is like buying a car. You do not let your excitement cloud your judgment. It is a transaction, and you must go in forewarned and forearmed. Insert foreskin joke here.

    • “Talk about contracts and a proper rights reversion clause before you hire an agent. It is like buying a car. You do not let your excitement cloud your judgment. It is a transaction, and you must go in forewarned and forearmed. Insert foreskin joke here.”

      Amen.

      Foreskin.

      Also, I’ll note that I haven’t felt that pressure — but I have felt other unconscionable pressures, and again, it’s vital that a writer be willing to say “OH HELL NO” despite the hungry desire to Get Published. Self-publishing does indeed provide a vital competitive counterweight.

      — c.

  • July 23, 2014 at 10:10 AM // Reply

    The comments here are interesting and it has me itching to see the contracts offered by other houses. I think at Midnight Ink we offer a pretty fair contract.

    At the Rocky Mountain Fiction Writers Gold Conference this September I will be doing a workshop with a lawyer where we will go through every clause of a contract and discuss what those clauses mean, why a publisher is asking for it, and what the agent/author can and should ask to change. Should be fun.

  • There’s also the reversion right granted to authors in the Copyright Revision Act of 1976. Basically, any rights granted to work after January 1, 1978 can be terminated in a five year window starting at 35 years from the grant of rights. All you have to do is send a termination letter to the publisher. It’s still longer – term than I believe rights grants should be, but it’s an out built into the system that can cut off a life of copyright or open-ended contract for any reason whatsoever. It doesn’t apply to work-for-hire, only rights you own and contracturally licensed out.

      • It’s a bit more complicated than just sending a letter. The letter has to conform to regulatory standards and be served 25 – 30 years and reversion can be up to 40 years depending on the lapse between the contract and actual publication.

        • I won’t be “sending a letter” I’ll be hiring a copyright attorney to do my filings. I actually learned about the Copyright Revision Act of 1976 from a copyright attorney who is a friend of mine. (Met him after I published).

  • Well, this is a minefield!
    Seems to me like an agent is crucial, but then as an unpublished author I think getting one would be extremely difficult (or at least, if you are self published with some success, it would help). Chicken and egg thing I guess.

    I’m wondering if I should just write for free and sell my pale, wobbly body to generate income. Pretty sure I can negotiate my own terms then 🙂

    • “Seems to me like an agent is crucial, but then as an unpublished author I think getting one would be extremely difficult.”

      Not really. I mean, it isn’t easy, but being a writer isn’t easy, either. Self-pub or trad-pub. Lots of new, debut, unpubbed writers get agents every year. Three years ago, I was one of them.

      — c.

      • Cool – that’s encouraging, cheers Chuck. For now my focus is just churning out work and getting it to a standard that I can shout about. Tackling an agent (not literally, I hope) can come later.

    • Like Chuck said, agents take on new clients pretty regularly. You have to stand out above the noise, mind you, and that isn’t easy. But you know one thing? If you are unagented and actually have a contract from a major publisher being offered, you can probably call most any agency and say, “Hey, {Big 5} is offering me a deal and I need representation.” They will probably be interested.

    • A good understanding of what each clause in a contract means if you sign an HEP C are critical In my opinion. Also knowing in advance what you are and aren’t willing to compromise/give in on before starting negotiations is important. A good agent might help. Having an attorney go over it line by line with you to make sure you understand what your signing is something I’d do because the things are so dang complicated and an intro to law class taught me to be careful when working with large complicated contracts. I haven’t signed mortgages without an attorney. I didn’t sign divorce papers without one. Heck I’ve had my employee contracts modified because I took the time to understand them (thanks mom). Why would I sign a complex book contract that I know many authors have had problems with? But that’s me.

      As a self-publishing author understanding the contracts/agreements you sign with cover artist/editors/formatters and each retailer where you upload you work is critical. I’m not as insistent on having an attorney with the retailers as your choice is use or don’t use, termination of contracts is easier but I’m also very aware that many of the retailers have a clause “we can change this agreement at any time without notifying you – it’s your responsibility to regularly check for changes” which is a bit freaky. So far the contract I’ve dis with a cover artist was short & clearly spelled out so there wasn’t much room for confusion although she did try to change it after delivering the work – so now I know to spell things out more.

      But just because life is complicated doesn’t mean we go home and curl up in bed. If you want to do something you love for a living you have to treat it as a business and learn how to not get screwed. Some parts will be fantastic and some parts won’t be so much fun but I’m not aware of a single job that pays that is fun all the time.

  • You should absolutely work with an agent to get decent reversion clauses, but I think it’s important to remember this: most books don’t make any money. Self-published, HEP C published; nobody knows what’s going to make a book sell, and the great majority of books don’t sell very well. Even when they’re new. The number of books that sell well when they are ten, twenty, or seventy years old is miniscule. Check out the bestsellers from the 1940’s: http://en.wikipedia.org/wiki/Publishers_Weekly_list_of_bestselling_novels_in_the_United_States_in_the_1940s

    How many have you even heard of? (for me it was 4 from 1944) And those are the top ten bestselling books.

    Your fifteen-year-old book that didn’t sell well enough to stay in print is now competing with 15 more years’ worth of books and is probably not going to bring you much income. Of course there are exceptions, but this is the rule. Your grandkids might get beer money from your books if you’re very lucky.

    What happens to your rights in ten or fifteen years is definitely something you should consider and get an agent to work on, but it probably shouldn’t be your number one concern, since you’re probably talking about imaginary money.

  • So I’m very vocal about my sever hate for “life-of-copyright terms.” I don’t think that most are confusing the transfer of a copyright and the assigning of a license to sell a work. So let’s get that out of the way first.

    Yes life-of-copyright term contracts have “out clauses” that trigger if a book fails to sell well, but they are ridiculously low and publisher’s aren’t interested in making them reasonable. My agent was negotiating a seven-figure advance (for another client not me) and they were trying to get the threshold raised. The publisher reluctantly moved it from $500 a year to $750 a year and insisted that any further movement would be a “deal breaker” and they would take their advance and walk. Would they have? I don’t know but when paying more than a million bucks why are they being so unreasonable on the clause that keeps the rights with them?

    Publishers are business people…so am I. When I license a piece of intellectual property to someone…I expect to be compensated. If you do a really bad job at that…I want to find someone else who will do better, or try my own hand at making it profitable. For my two big-five contracts a book reverts if a book earns less than $500 (across print/ebook/audio/bookclub/graphic novel…etc etc) for two consecutive royalty periods…which is a year. I don’t know about you but $9.16 a week doesn’t pay any of my bills.

    I also have a subscription to Bookscan…and at least on the print side I can see how well or poorly most books sell over time. There is a huge amount sold in the first few weeks and it falls off drastically…then it dribbles in over long periods of time. After 2 years few books are selling more than a handful of copies each week. If the publisher hasn’t gotten the book in the black by then, the chances of them getting it in the black are pretty damn slim.

    Foreign contracts and audio contracts have a “real” term limit. 5, 7, 10 years. I’d be fine with any of those and big US publishers should be as well. Also, I’m not even going to go on my tirade about how many authors try to get a reversion letter from their publisher indicating that the rights have reverted and have been waiting months and year to get such a letter. (When you submit a prior published book to KDP they will ask for a reversion letter before you publish…and giving them a contract and saying, the out-of-print threshold was reached isn’t going to cut it. They don’t want to “interpret” whether something is in print or not they want a definitive notice from the publisher that they no longer have the right).

    Why aren’t they? Because there is a chance that the author breaks out with some other title. It could be the book is made into a film. Or the author hits the New York Times bestseller list on book #10 or #20 and then this book will suddenly become a money maker again. It’s a cheap way to hold on for something in case they do really well in the future.

    Look, I want my publisher to be successful, and I also want them to earn back their money plus a healthy profit. But if a book is really successful such that it’s still selling a decade after publication than chances are pretty good the publisher has made a MINT on a VERY successful book. The original terms (when the author/book were unknowns) probably weren’t “that great.” and they can just milk that cash cow until 70 years after the author’s death. Does that seem fair? What would be “fair” to me is that at year 5, 7, or 10 the two parties would need to re-evaluate their marriage…Hey we had a good run – we both made a good deal of money but I’m sorry going forward you’re going to have to give me a better cut to keep riding my intellectual property gravy train.

    There is NO OTHER contract (not even marriage) that asks me to commit to an entity until I die and then 70 years. A LOT can change in that time. I think it is unconscionable to ask an author to sign up for the “potential” of that long. So no…life-of-copyright terms aren’t “okay” they are horrific and anyone who tries to defend them needs to do a better job than what was presented here.

    • This. It blows my mind “here is a million dollars but so long as your book is making $750/year we are keeping it”. Seriously? I guess if they have enough books at $750/year it keeps them going even if no one signs with them anymore. But it makes no sense to me. I’d walk. Today there are too many other options. A mid-size publisher who will give me better terms overall. Self-publishing. A hybrid project with someone like Tachyon “hey x just offered me a million but I didn’t like their contract terms are you interested in working something out”.?

      • Well I don’t think Tachyon will offer you seven figures…they don’t have the budget for it. I turned down a five-figure contract at one publisher (ebook/print/audio) and took a four-figure contract from Tachyon (print-only) and made more than that five-figure advance in one month of ebook sales….plus I sold the audio rights and 2 foreign language rights. Between all that and the Kickstarter that project has brought in twice as much money as the advance that was offered and it’s only been out for a few months.

  • I think it’d be quite useful if other authors spelled out what reversion clauses they had in their contracts. Below are mine. From my POV, reversion has gotten harder.

    My first ever book was with Random House, published in 2005. It had a reversion clause: If the book was out of print (physical print), all rights reverted to me. The book eventually went out of print. The rights reverted to me. Great.

    My newer contracts, from two different publishers, consider the book still ‘in print’ if the publisher is still able to sell it in _any_ format. So if the book is physically out of print, but the publisher is still selling an ebook, it’s still in print, and it doesn’t revert to me.

    One of my two newer contracts has a further stipulation that the publisher must have sold at least 100 copies in the last 6 months or the book reverts to me.

    The other newer contract doesn’t have that stipulation.

    Keeping an ebook up for sale is dramatically easier than keeping a book in print. So my view is that my newer contracts make reversion of rights to back to me tremendously less likely to happen than it was in the past.

    Perhaps others have better clauses in their contracts than I do. I’d love to hear about them.

    (I write this, btw, as someone who is, overall, quite happy with his publishers and who views self- vs traditional- publishing as a pretty non-emotional business decision to make on a book-by-book basis.)

    • Great idea. I have two big-five contracts which are life-of-copyright that have the exact same reversion. $500 over two consecutive royalty periods (which happen twice a year – so $500 for a year).

      I had a small press contract with a life-of-copy-right term that tried to assert ebooks constituted “in print” and I wouldn’t agree to that, so it was negotiated to be defined as “print copies for sale.” This book sold out and I got my rights back.

      I have another small press contract with a term of four years which is print-only. Rights will revert if no print books are available for sale (and a reprint for 1,500 or more is not made). Also, I can terminate the contract at any time by buying out warehouse stock at my author’s 50% discount.

      For the record…I wouldn’t sign a contract where “ebooks” constitute in-print without a sales limit (in dollars) threshold.

  • I was offered a two-year contract for a book. All the publisher had to do to extend the term of the license was to issue another edition, *in any language.* It’s not that hard to create a Zimbabwean computer translation, put it up for sale and they have the license for another two years, and that includes your English edition as well. I’m not saying all publishers would do that, but it is a concern. Especially if you’re making any money at all with the book.

  • Minor nitpick about terminology:

    I feel like this post is just talking about Kindle Direct Publishing (KDP), not specifically KDP Select. KDP Select is a specific exclusivity program within Kindle Direct Publishing. Correct me if I’m wrong, but it seems like Ben is just referencing self-publishing through Amazon, not the special program that is KDP Select?

  • Chuck, I would love to write about my trademark/copyright federal court trials and tribulations, the legal things to watch out for, and a few of the great FUBARs in intellectual property history (that bitch Barbie owns the world because of the worst copyright/patent settlement in history.)

  • I think it worth noting that in the same way you can’t paint all self-published authors with the Monolith Brush, it’s no less absurd to do it with publishers. Are some of them jerks and assholes? Sure. And so are some publishers. Some are brilliant and talented and compassionate and want what’s best for the literary world. To extract warning sirens from isolated or even multiple cases is still folly. There are way too many variables between houses AND contracts.

    From personal experience, whenever an author has requested a reversion, I’ve granted it. It’s usually been after a book has had its spike in sales and I don’t realistically think we’re going to be able to do much more for it (just being real, I’m not going to invest a bunch of money in marketing a backlist title when there are precious few $$ floating around for frontlist titles). I’ve even reverted books that hadn’t even hit the threshold for reversion just because it was the right thing to do.

    One of the other initial issues brought up on Chuck’s Facebook thread that spawned the larger debate was about (paraphrase here) how an author could walk away from KDP Select after three months, but couldn’t do the same with a HEP C publisher. Well, yeah, because at three months, the HEP C hasn’t had a chance to fully realize a return on the initial investment in a project and that’s an entirely different situation that Amazon’s involvement/risk with a KDP Select title.

    I’m going to keep checking in to the thread, but I’m also going out into Alaskan wilderness, and at the moment, that trumps all discussion of HEP C, KDP, and any of the other literary STDs (*) that make us uncomfortable to confess.

    Be well.

    * Standard Topic Discussions

  • Weighing in as a traditionally published author… who is also a copyright/publishing attorney with 20 years’ experience in publishing contracts (big-5, mid-size, indie, and self-pub deals): it all comes down to SHOW ME THE CONTRACT.

    Too many authors – on all publishing paths – don’t understand what they’re signing and therefore get screwed. Some publishers’ contracts are loathsome. Some self-publishing terms of use are nightmarish. Some publishers (of all sizes…) have really fair contracts, and/or are willing to negotiate for fair and reasonable terms.

    Comes down to this, people: The author is responsible for his or her publishing career. That includes reading ALL the contract terms, getting help from someone who knows how to read and negotiate those suckers (qualified agent or lawyer, you get to choose), and NOT letting rhetoric of any kind (and from anyone) blind the author to the fact that publishing is a business and the author needs to treat it like one. Always. Always. Always.

    Now, come closer, so I can take a blowtorch to your puppy, sneeze on your ice cream cone, and STOMP YOUR OTHER DELICIOUS DREAMS.

    /end lawyer

    • Totally agree with everything you say, and I fully understand and can live with everything I sign, but “living with” and “being happy with” or “feeling well treated” are very different things. When I got my big-five contract and saw the the “life of copyright” term my first thought was, “Oh this is boilerplate, my agent will get this to something reasonable like 5 or 7 years). She told me there was no getting around it…that all the big-five were this way and it wasn’t negotiable. I didn’t believe her. She then brought in an IP attorney, who echoed what she told me. I didn’t believe him. I went and sought out my own IP attorney that works in publishing. He delivered the same sad news. And yes, the contract had an “out of print” reversion clause ($500 income for 2 consecutive royalty periods) and they all said it’s “about standard” and better than “many.” So, yes, I’m responsible for my own career, and yes I seek out qualified professionals (agents and lawyers) but it doesn’t mean you can get a contract that YOU think is fair. Sometimes you either have to accept or walk.

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