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.